Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN F1R8T OEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D, WILLIAMS Cornell University Library KF 902.L79 A treatise on the law of building and bu 3 1924 018 915 326 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018915326 A TREATISE ON THE LAW OP BUILDING AND BUILDINGS; ESPECIALLY REFERRING TO BUILDING CONTRACTS, LEASES, EASEMENTS, AND LIENS, CONTAINING ALSO VARIOUS FORMS USEFUL IN BUILDING OPERATIONS, A GLOSSARY OF WORDS AND TERMS COMMONLY USED BY BUILDERS AND ARTISANS, DIGEST OF THE LEADING DECISIONS ON BUILDING CONTRACTS AND LEASES IN THE UNITED STATES. A'. PARLETT LLOYD, OF THE BALTIMORE BAR, AUTHOR OF "A TREATISE ON THE LAW OF DIVORCE." BOSTON: HOUGHTON, MIFFLIN AND COMPANY. New York : 11 East Seventeenth Street, CT^e Etderettie ^ttee, CambriHse. 1888. tCopjriglit, 1888, A. PARLBTT LLOYD. All rights reserved. The Riversidt Press, Cambridge : Printed by H. 0. Houghton & Company. PREFACE. Possibly the most remarkable omission in the litera- ture of law in this country is the absence of any work upon Buildings, Building Contracts, and Leases. The subject is one of great importance, not only to the legal profession, but t!s) fully three fourths of the general population, who are ipter^sted in building operations, whether as purchasers, architects, artificers, or con- tractors. Numerous books have appeared from time to time containing theoretical, historical, and artistical views of architecture and the art of building, but no American writer has yet compiled the building laws of our country to any practical extent.^ The object of this treatise is " to fill this long-felt want;" and if the design of the author is but partially realized, he will have the consciousness of at least hav- ing pointed out the general principles of this branch of the law. To accomplish his purpose, he has dili- gently compiled and compared both the English and American authorities ; preparing his text directly from judicial determinations, strenuously avoiding all "spe- culations " as to the law. He has also endeavored to state all propositions a,s briefly and concisely as is con- sistent with clearness. ^ Mr. Alfred Emden, of the Inner Temple, London, has an excellent work upon this subject, a second edition of which has recently appeared. His citations, however, are restricted to English decisions, and embrace many Acts of Parliament which are not applicable to this country. IV PEEFACB. Building operations are essentially so complicated, involving the obligations and duties of several distinct professions, that it is a conceded folly for one of the laity to make a contract for building a house without seeking legal advice. Yet instances are frequent of persons becoming financially wrecked by entering into building contracts the technical stipulations of which they did not understand. So common has become the evil consequences of this lack of prudence, that many persons decline to entertain the idea of building, and have learned by experience the truth of the sage advice of Kett, who says : " Never build before you are five-and-fortyj have five years' income in hand before you lay a brick ; and always calculate the expense at double the estimate." While the plan of consulting a lawyer before enter- ing into such a transaction is always advisable, it is nevertheless an unquestionable fact that attorneys sometimes omit, or wrongly state, important provi- sions. Many instances could be cited where legal lights have unintentionally transformed proper contracts into faulty ones, leading to legal complications and the iisual consequences thereof By such mistakes a law- yer not only injures his client, but smirches his own reputation. Yet, had he earnestly desired to post him- self especially upon this peculiar branch of the law of contracts, he would have looked in vain for a satisfac- tory treatise. The subject of Building Leases also has not received that amount of attention by text-writers that its im- portance deserves, while Building Easements have never yet been specially treated. " Mechanic's Liens " have, however, received the lucid exposition of Mr. Phillips in the form of a most thorough treatise. But PREFACE. V it is believed that a brief review of the statutory provisions of all the States and Territories, and two provinces of Canada, together with a short general treatment of the fundamental principles of lien law, will be acceptable as a valuable reference. The works of Washburn on Easements and Real Property, Phillips on Mechanics' Liens, Emden on Building Contracts, etc.. Wood on Nuisances, Thompson on Nuisances, Smith on Negligence, and Cooley on Torts, have been freely consulted by the writer in the preparation of this treatise. TABLE OF CONTENTS. PART I. — BUILDING CONTRACTS. CHAPTER I. THE NATURE OF BUILDING CONTRACTS GENERALLY. Section. pjjg, 1. Building Contract Defined 1 2. Verbal and Informal Contracts i 3. Written Contracts . 3 4. Mutuality of tlie Contract ... ... 5 5. Contracts with Corporations $ 6. Sectional Work ....,.,.. 8 CHAPTER II. ARCHITECTS AND SUPERINTENDENTS. 7. The Architect 9 8. Agreement with Architects , 10 9. Schedules of Prices • , . , .... 12 10. Plans and Drawings 12 11. Architect the Agent of the Employer . . . . . .13 12. Power of Architects 15 CHAPTER III. CERTIFICATES OF APPROVAL BY ARCHITECTS AND OTHERS. J 3. General Statement concerning Certificates . . . . .18 14. Architects' and Superintendents' Certificates , ... 18 15. Part Performance Certificates .19 16. Arbitration and Award ........ 2\ 17. Distinction between Award by Arbitration and Certificates stipu- lated for in the Contract 21 18. Architect as Arbitrator ........ 22 1 9. Certificates of Completion 24 20. Certificate, when a Condition Precedent ..... 25 YIU TABLE OF CONTENTS. 21. Certificates Refused 27 22. Satisfaction of the Owner 29 23. The Superintendent, Foreman, or Boss of Construction . . 30 CHAPTER IV. PERFORMANCK OF BUILDIXG CONTRACTS. 24. General View . . .32 25. Instances of Entire Contracts . ..... 33 26. Substantial Performance, Effect of ...... 35 27. Partial Performance and Recovery upon a guantom meruzi . . 37 1. Performance Prevented by the Other Party ... 38 2. Performance Prevented by Destruction of the Premises . 43 3. Performance becoming Impossible ..... 45 28. Illegal Contracts 48 29. Consequences of Defective Work ...... 48 30. Effect of Acceptance ........ 51 81. Deviations from the Original Contract . . . . .53 32. Merger 55 S3. Rescission 56 CHAPTER V. TIME OF PERFORMANCE OF BUILDING CONTRACTS. 34. General Statement 54 35. Reasonable Time ..... .... 60 36. Particular Words, Meaning of . . . ... 60 37. Time Penalties ... 61 S8. Extension of Time ....... 62 39. Effect of Extras and Alterations as to Time . . 63 40. Other Excuses for Delays ....... 65 41. Measure of Damages ... ..... 66 CHAPTER VI. SPECIFIC PERFORMANCE OF BUILDING CONTRACTS. 42. General Considerations 68 43. Building Contracts seldom Specifically Enforced . . . .68 44. Instances of Enforcement in specie 70 45. Instances of Refusal of Enforcement in specie . . . .72 46. Views of Eminent Authorities 73 TABLE OF CONTENTS. IX CHAPTER VII. EXTRAS. 47. General Statement 77 48. Special Stipulations 78 49. Price of the Building named in the Contract and Effect of Ten- ders 80 50. Extras Independent of Contract 82 51. Extras Impliedly Authorized 83 52. "Valuing Extra Work 83 53. Extras ordered, not a Waiver of Original Contract . . .85 CHAPTER VIII. SPECIFICATIONS, BILLS OF QUANTITIES, AND TENDERS. 54. SpeciBcations . . 87 55. Bills of Quantities 90 56. Tenders 93 57. Auction Sales 94 CHAPTER IX. PENALTIES, FORFEITURES, AND LIQUIDATED DAMAGES. 58. Penalties generally 96 59. Liquidated Damages 96 60. Distinction 97 61. Forfeitures generally 98 62. Foregoing Rules applied to Building Contracts ... 98 63. Instances and Effect of Penalties 99 64. Instances and Effect of Liquidated Damages .... 99 65. Instances and Effect of Forfeitures . ' . . . . . 101 66. Summary 102 67. Enforcement of Penalties, etc 103 68. Notice 104 CHAPTER X. SURETIES, REPRESENTATIVES, AND ASSIGNEES. 69. Sureties 105 70. Effect of Death of One of the Parties to a Building Contract . 107 71. Effect of Bankruptcy or Insolvency of Builder .... 109 X TABLE OP CONTENTS. CHAPTER XL RIGHT OF PROPERTY IN BUILDING MATERIALS. 72. General Statement Ill 73. Builders' Interest Ill 74. Buildings erected upon Land of another 113 75. Old Materials belong to the Contractor 114 CHAPTER Xn. BUILDING NUISANCES, AND DAMAGES FROM NEGLIGENCE, WITH AND WITHOUT PRIVITY OF CONTRACT. 76. Building Nuisances 115 77. Instances of Building Nuisances . . . . . . .116 78. Abatement of such Nuisances 117 79. Negligence 119 80. Removing Old Buildings 119 81. Liability of Owner of Building 121 82. Liability of Builder for Negligence of his Workmen . . 125 83. Instance of Liability of Builder 127 84. Builder's Liability to his Workmen 128 85. Injuries from Builder's own Negligence . . . . .129 CHAPTER XIIL THE CONSTRUCTION OF BUILDINGS. 85 a. Local Building Laws 132 PART IT. — DIGEST OF LEADING DECISIONS AND CASES ON BUILDING CONTRACTS IN THE UNITED STATES. Alabama . . 133 Arkansas 135 California . . . . . . . . . . .136 Connecticut 138 Georgia .140 Illinois ........... 141 Indiana ........... 152 Iowa 155 Louisiana ........... 160 Maine 161 TABLE 01' CONTENTS. xi Maryland 164 Massachusetts 168 Michigan 176 Minnesota 176 Mississippi 177 Missouri 178 Nebraska 18i New Hampshire 182 New Jersey 183 New York 186 Ohio 194 Pennsylvania 198 Tennessee 202 Texas 202 Vermont 203 Wisconsin 207 PART III.— BUILDING LEASES. CHAPTER XIV. PRELIMINARY AGREEMENTS TO LEASE. 86. Agreements for Building Leases 210 87. Leases Defined 211 88. Distinction between Lease and an Agreement to lease . .212 89. Suggestions concerning Agreements for Leases . . . 213 90. Building Leases dependent upon Contingencies .... 216 CHAPTER XV. SPECIFIC PERFORMANCE OP LEASES AND AGREEMENTS FOR LEASES. 91. Parol Agreements and Leases 218 92. Effect of Possession 218 93. Possession after Expiration of a Former Lease . . . 219 94. Laches 220 95. Forfeiture . . • 222 96. Bankruptcy of Builder 222 97. Agreements to repair in Case of Fire 222 98. Acting upon a Verbal Agreement by making Improvements • 223 99. Indefinite Agreements 225 100. Incidental Stipulations 227 101. Other Instances of Specific Performance .... 228 102. Agreements to insure 229 xii TABLE OF CONTENTS. CHAPTER XVI. CAPACITY OF PARTIES TO LEASES. ■ 230 103. Generally 2^^ 104. Infants „„. 105. Lunatics 235 106. Drunkarda ^^^ 107. Married Women .... 236 108. Guardians and Committees 109. Foregoing as Lessees 110. Administrators and Executors 111. Corporations 112. Trustees 113. Mortgagors and Mortgagees ^^^ 114. Tenants for Years 115. Tenants for Life ■w-«T-»i . . 240 116. Tenants at Will 117. Joint Tenants 118. Tenants in Common 119. Partnerships 120. Agents ■ ■ ' , 049 121. Usual Terms for Building Leases ^* 122. Tenant in Fee Simple ^ CHAPTER XVII. BUILDING LEASES UNDER POWERS. 123. Nature of Powers generally 251 124. American Law 125. Creation and Destruction of Powers 126. Powers as applied to Building Leases 253 T . .... 254 127. Instances 15 li 128. Form and Effect of Powers in Building Leases . . . .256 CHAPTER XVIII. WASTE BY LESSEES IN BUILDINGS. ^^„. General Statement 259 130. Pulling down Old Buildings 259 131. Permissive Waste 261 132. Effect of Covenants and Powers in Building Leases . . .262 129, TABLE OF CONTENTS. XIU CHAPTER XIX. CONDITIONS AND COVENANTS IN BUILDING LEASES. 133. Conditions generally 265 134. Covenants generally 268 135. Covenants to repair 268 136. Citations from Decisions on Covenants to repair . . . 270 137. Covenants to insure 273 138. Covenants to rebuild 274 139. Covenants running with tlie Land 275 140. Covenants for Renewal of Leases 276 141. Penalties 278 142. Discharging Express Covenants 278 143. Covenants Peculiar to Building Leases ..... 279 144. Covenants to build in a Particular Manner .... 281 145. Uniformity in Building 282 146. Outlook 284 147. Unlawfcfe Leases 285 148. Time Covenants 286 149. Covenants restricting Purposes of Buildings .... 287 150. Penal Covenants 290 151. Lessor's Title . . . 291 152. Description of Demised Premises ... . . 292 153. Citations on Sufficiency of Description . . . . .295 154. Privilege of Purchasing ........ 296 155. Covenants to pay for Improvements ..... 297 156. Taxes, Assessments, etc ... . ... 299 CHAPTER XX. FIXTURES. 157. Fixtures generally . 302 158. When Buildings may be Personal Property .... 303 159. Instances of Articles judicially declared Fixtures . . . 304 160. Removal of Buildings 307 PART IV. — EASEMENTS RELATING TO BUILD- INGS. CHAPTER XXL PRINCIPLES OF THE LAW OF EASEMENTS. 161. General Statement . 313 XIV TABLE OF CONTENTS. 1G2. Nature of Easements 31^ 163. Prescription 314 164. Destruction or Loss of Easements ^^^ 165. License distinguished from Easement 3^° 166. Enforcing Easements . . . . . . . ■ .317 167. Estoppel 318 168. Conveyance of an Easement 319 CHAPTER XXIL LIGHT AND AIR. 169. General Considerations ........ 320 170. Adjoining Houses 321 171. How the Easement may be acquired 322 172. Where the Original Ownership of Adjoining Houses was in the same Person 324 173. Deprivation of Light affecting Tenancies .... 327 174. Obstructions by Lessees 328 175. Incidental and Absolute Rights ...... 328 176. Extent of the Right 329 177. Loss of the Right 330 178. Swinging Shutters 333 179. Privacy 334 180. Prospect 334 181. Remedies for Injury to the Right 335 CHAPTER XXIII. PARTY WALLS AND EXCAVATIONS. 182. Meaning of "Party Wall" 338 183. Building a Party Wall 340 184. Building upon a Party Wall 342 185. Use of a Party Wall 344 186. Agreements and Covenants concerning Party Walls . . . 345 187. Ownership of Party Walls 348 188. Repairing and Rebuilding Party Walls 350 189. Window Lights in Party Walls 354 190. Right of Support generally 355 191. Extent of the Right to Lateral Support 356 192. Support for Buildings 357 193. Right of Subjacent Support 359 194. Remedies for Damages to support 361 TABLE OF COKTENTS. XV CHAPTER XXIV. 195. Reservoir or Water Companies 363 196. Property in Water 363 197. Subterranean Watercourses . ..... 365 198. Falling Water 366 159. Injuries caused by Water-Pipes and Reservoirs . . . 368 CHAPTER XXV. GAS. 200. General Statement 370 201. Gas Companies .370 202. Liabilities of Gas Companies . . . . . . .371 203. Damages occasioned in laying Gas-Pipes . . . .372 204. Authority for laying Gas-Pipes ....... 373 205. Larceny of Gas 375 206. Fixtures 376 207. Mandamus 377 208. Gas not a Necessity . . . . . . . . .377 209. Liability of Gas Companies for Refusing to furnish Gas . . 377 210. Regulations imposed upon Gas Companies . . . .378 CHAPTER XXVL ROADS, ALLEYS, AND OTHEK HIGHWAYS. 211. Definition 380 212. Reservations .......... 381 213. Private Ways . . 382 214. New Streets, Alleys, and Private Ways 383 215. Prescription 384 216. Dedication 385 217. Dedication Implied, when 389 218. Rebutting Pre.sumption of Dedication . . . • . 391 219. Public Authorities 394 220. Extent of Easement of Way 395 221. Repairing Ways 395 222. Obstructing Highways 396 223. Remedies 398 b XVI TABLE OF CONTENTS. CHAPTER XXVII. DEAINS, SEWERS, CESSPOOLS, AND PERCOLATIONS. 224. Why this Chapter .... .... 401 225. Sewerage and Drainage . ..... 401 226. Cesspools and Privies . ....... 403 227. Joint Privies . . 405 228. Drains as Easements 406 229. The Construction and Repairing of Drains . . 407 230. Sewers . ... 408 231. Liability of Municipal Corporations . ... 409 PART v. — MECHANICS' LIENS. CHAPTER XXVni. mechanics' liens generally considered. 232. Not a Common Law Lien ... .... 413 233. Historical View ... 413 234. Similarity of the Lien Statutes . .... 414 235. Lien does not bar the Debt ....... 414 236. Non-Residents entitled 415 237. Extent of the Lien ... .... 415 CHAPTER XXTX. priorities of the lien or mechanics. 238. Time it Attaches 417 239. As to Mortgagees, Purchasers, and Other Lienors . . 419 240. As to Lien of Vendor 420 241. As to Judgments 420 242. As to Attachments . . 420 243. As to Homestead Exemptions ...... 420 244. As to Co-Lienors . . . . . 420 CHAPTER XXX. mechanics' liens against lessees, tenants, married women, and others. 245. Lessees and Tenants 422 246. Tenants cannot Lien on Landlord's Estate .... 423 247. Building Leases 424 TABLE OF CONTENTS. XVll 248. Married Women 424 249. Mortgagees . . 426 250. Proposed Purcliaser in Possession 426 251. Trespassers 426 252. Minors and Lunatics 427 CHAPTER XXXI. BUILDING CONTRACTS AND MECHANICS' LIENS. 253. Necessity of Contract 428 254. Contract by Parol will suffice 428 255. Liability for Contracts of Builders ...... 429 256. Sub-Contracts 429 257. Performance of the Contract 429 258. Liability for Materials not used 430 CHAPTER XXXH. THE CHARACTER OP THE WORK AND MATERIALS PROTECTED BY mechanics' lien LAWS. 259. Labor 432 260. Materials 433 261. No Lien for Money advanced to purchase Materials . . 433 CHAPTER XXXm. PROPERTY SUBJECT TO THE LIEN. 262. What Property liable 434 263. Public Buildings, when exempt 435 264. Property of Public and Private Corporations .... 435 265. Homesteads 435 266. General Rule 435 267. Dower 435 268. Land upon which the Building Stands 435 269. Amount claimed not material 436 CHAPTER XXXIV. EQUITABLE DOCTRINES APPLICABLE TO THE DISTRIBUTION OF FUNDS IN SETTLEMENT OF LIEN CLAIMS. 270. Marshalling Securities 438 271. Subrogation 439 xviii TABLE OF CONTENTS. 272. Apportionment ^^^ 273. Extension of Kules 439 CHAPTER XXXV. LIMITATIONS OF TIME FOR FILING AND ENFORCING TIIF, LIEN. 274. Continuance of the Lien ........ 441 275. Prompt Enforcement encouraged ...... 441 276. Commencement of Period of Limitation ..... 442 CHAPTER XXXVI. DISSOLVING THE LIEN. 277. General Statement 444 278. Lien discliarged by the Voluntary Act of the Lien-Holder . 444 279. Lien discharged by the Failure of the Lienor to comply with Statutory Provisions ......... 445 280. Lien discharged by uniting with the Claim Debts not Lien- able 445 281. Lien discharged by giving Security . . . . " . . 445 282. Lien discharged by Payment 445 283. What does not dissolve the Lien 446 284. The Death of the Lienee 446 285. A Discharge iu Bankruptcy ....... 446 286. The Dissolution of Partnership 447 CHAPTER XXXVH. WAIVER. 287. General Statement 448 288. Waiver by Express Agreement ...... 448 289. Waiver by Implication ........ 449 290. Waiver by acceptance of Security ...... 449 CHAPTER XXX VHI. PRELIMINARIES TO ENFORCING THE LIEN. 291. Notice of Intention to claim the Lien 452 292. Form of Notice 453 293. Claims against more than One House 453 294. Description 454 TABLE OF CONTENTS. XIX CHAPTER XXXIX. ENFORCING THE LIEN. 295. Jurisdiction 456 296. Notice ot Suit 456 297. Bill of Complaint or Petition 457 298. Form of Petition 457 299. Procedure 458 300. Demurrers 459, 301. Pleading and Practice 460 302. Amendments 461 303. Costs 461 304. Appeals 461 CHAPTER XL. mechanics' liens : STATUTORY PROVISIONS OP ALL THE STATES AND TERRITORIES. 305. Alabama 462 306. Arizona 462 307. Arkansas 462 308. California 463 309. Colorado 463 310. Connecticut 463 311. Dakota 463 312. Delaware 463 313. District of Columbia 464 314. Florida 464 315. Georgia ........... 464 316. Idaho 464 317. Illinois 465 318. Indiana 465 319. Iowa 466. 320. Kansas 466 321. Kentucky 466 322. Louisiana 467 323. Maine 467 324. Maryland 467 325. Massachusetts 46^ 326. Michigan 468 327. Minnesota 469 328. Mississippi 469 329. Missouri 470 330. Montana 470 XX TABLE OF CONTENTS. 331. Nebraska . 332. Nevada . 833. New Hampshire 334. New Jersey 335. New Mexico New York North Carolina Ohio Oregon 340. Pennsylvania . 341. Rhode Island South Carolina Tennessee . Texas Utah . Vermont . Virginia . 336. 337. 338. 339. 342. 843. 344. 345. 346. 346 a. 347. Washington Territory 848. West Virginia . 349. Wisconsin 350. Wyoming . 470 471 471 471 471 472 472 472 473 473 473 474 474 474 475 475 475 475 476 476 477 351. Province of Quebec 852. Province of Ontario 477 477 APPENDIX. Glossary of Words and Terms frequently used by Builders, Archi- tects, and Others in Building Operations .... 478 FORMS. BUILDING CONTRACTS. No. 1. Agreement between a Builder and Sub-Contractor for Work . 486 2. Agreement with a Builder for Erecting a House . . . 487 3. Contract between Builder and Committee for Erecting a Church 489 4. Contract under Seal between a Corporation, or Other Public Body, and a Builder, for Erecting a Building .... 492 5. Agreement for Specified Repairs and Improvements . . . 497 6. Letting out Contracts by Bids 498 7. Special Provisions and Conditions frequently used in Building Contracts 498 TABLE OF CONTENTS. XXI 8. Special Sub-Contract Stipulations 500 9. Specifications .......... 501 10. Notice to Contractor to proceed with Worlc 503 11. Declaration to recover against a Builder for Defective Work . 505 12. Declaration to recover against a Builder for not completing his Work, with Special Damage for loss of Kent .... 505 13. Contract for building a Public Building 506 14. Another Form of Specification .... . . 508 15. Stipulations for Agreement with an Architect .... 512 16. Joint and several Bond from a Builder and Surety . . . 513 24. BUILDING LEASES. 17. Agreement to execute a Lease after the Erection of Buildings 18. Another for Agreement for a Lease ...... 19. Conditions for Leasing Lots ...... 20. Renewable Lease for Ninety-nine Years . 21. A Lease for a Term of Years : Maryland Statute Form 22. Building Lease : a General Form .... 23. Deed of Assignment of a Leasehold Estate Covenants which may be used in Leases . To pay Rent .... To pay Taxes ..... To repair ..... To paint Outside every Year To paint Inside every Year . To insure ..... To rebuild in Case of Fire . Lessor to enter to repair Premises not to be used as a Shop Not to assign ..... To leave Premises in Good Repair Proviso for Reentry .... Covenant for Quiet Enjoyment . To insure New Buildings To expend a Fixed Sum in Repairs To share Expense in repairing Sewers, Light ...... To rebuild or repair in Case of Fire Other Covenants and Stipulations : — Power of Entry to Intended Lessee Time for Building .... Work to be approved by Land- Owner , Lessee restricted in Use of the Land As to Excavations .... As to Insurance .... To give Separate Leases if desired etc. 514 515 515 517 519 519 520 521 521 521 521 521 , 522 522 , 522 522 . 522 522 . 523 523 . 523 523 . 523 524 . 524 524 . 525 525 . 525 525 . 525 525 . 526 XXU TABLE OF CONTENTS. Where an Agreement to lease only is intended . . • 526 To build a Row of Houses 526 To make the Walls of Certain Thickness . . . .526 25. License to enjoy Light .......•• 527 26. Reservation of Passage for Water ...... 527 27. Conditions for Architectural Competition . . . • 528 MECHANICS' LIENS. 28. Maryland Lien Claim 529 29. Notice to Owner 530 30. New York Lien Claim . . 530 31. Another Form of Same . 531 32. Pennsylvania Lien Claim ....... 532 33. Application for Designation of Boundaries ..... 533 34. Bond against Liens ......... 533 35. Bond to finish Buildings, to indemnify against Liens, and to pay Ground-rents .......... 534 36. Waiver of Mechanics' Lien Rights 535 37. General Bond of Indemnity 536 Schedule of Charges and Professional Practice of Architects, as indorsed by the American Institute of Architects . . 537 TABLE OF CASES. References are to Pages. A. Abbott V. Gatch, 13 Md. 314'. .11, 66, 77, 79, 164, 167, 487 V. Mills, 3 Vt. 521 389, 390 V. Stewardstown, 47 N. H. 228 313 Abbyj). Billups. 35 Mass. 618 274 Abitigeru. Ashton, L. R. 17 Eq. 358.. .227 Acton V. Brundell, 12 M. & W. 324 117, 365 Ada Street Chuvch v. Garnsey, 66 111. 132 141 Adams v. Adams, 26 Ala. 281 134 ». Goddard, 48 Me. 212 311 V. Hagger, L. R. 4 Q. B. D. 480 213, 215 V. Hill, 16 Me. 215 66, 162 V. New York, 4 Duer, 295. .20, 24, 26, 187 V. Nichols, 19 Pick. 279 170 Adlard v. Muldoon, 45 111. 193 10, 23, 87, 90, 143 Agate V. Lowenstein, 57 N. Y. 604. . 260 Ahern v. Boyce, 2 West. Kep. 405 67, 178, 180 Aiken v. Benedict, 89 Barb. 400 367 Ainsworths. Ritt, 38 Cal. 89 271 Alber.sii. Eilers, 18 Mo. 279 461 Albio ». Agawam Co. 6 Cush. 75 129 Aldred's case, 9 Co. Rep. 58 b. . .284, 334 Aldricli V. Husband, 131 Mass. 480. . .307 Allan V. Gounne, 11 Adolph. & E. 759 395 Allen 1). Culver, 3 Denio, 284 268 V. Curies, 6 Ohio St. 505... .40, 195 V. Green, 19 Ala. 34 134 V. Harding, 2 Eq. Cas. Ab. 17, pi. 6 69, 71 V. Hay ward, 7 Q. B. 960 123 ». Kennedy, 40 Ind. 142 310 V. Leonard', 16 Gray, 202 168 V. London & S. W. Ry. L. R. 6 Q. B. 65 126 V. McKiliben, 5 Mich. 449.. .42, 176 V. New Gas Co. L. R. 1 Ex. Div.251 127 V. Willard, 57 Penn. St. 374... .122 V. Wills, 4 La. An. (18491 97.... 43 Allender's Adm. v. Sussan, 33 Md. 11 211 Alley V. Lanier, 1 Caldw. 540. . . .422, 428 Alston V. Grant, 3 El. & Bl. 128 . . 396, 408 Ambrose v. Woodmansee, 27 Ohio, 147 441 Amondson v. Severson, 37 Iowa, 602. .319 Anderson v. Critcher, 11 G. & J. (M.I.) 450 212 K. Tompkins, 1 Bro. C. C. 456,463 247 Andree v. Bodman, 13 Md. 241. 42,54, 165, 166 Andrew v. Aitkin, L. R. 22 Ch. D. 218; 52 L.J. Ch. 296 281 Andrews v. Belfield, 2 C. B. N. S. 779 29, 30 17. Portland, 35 Me. 472. .41, 162 Angus V. Dalton, L. R. 4 Q. B. D. 162 124, 364 Anonymous, 11 Mod. 7 361 Anshutz V. McClelland, 5 Watts, 487. .421 Antoni v. Belknap, 102 Mass. 193 306 Appleby ii. Myers, L. R. 2 C. P. 653 47, 48 Arkwright v. Cell, 5 Mees. & W. 203, 233 367 Arnold v. Hickman, 6 Munf. 15 235 V. Revoult, 1 Brod. & B. 443. .236 Arnsby v. Woodward, 6 B. & C. 519. .244 Arrowsmith v. Catlin, Anth. N. P. 327 189 Arterial Drainage Co. v. Rathangan, &c. 6L. R. (Ir.)515 102 Arundel v. McCulloch, 10 Mass. 70. . .399 Ash et al. v. Uaggy, fi Ind. 259 68 Ashby !>. White, 2 Lord Raym. 939. ..317 Ashley v. Ashley, 6 Cush. 70 367 Ashworth v. Stanwix, 3 El. & El. 701 129 Astley ». Weldon, 2 Bos. & P. 335, 350 103 Atkins V. Bordman, 20 Pick. 291 330 Atkinson !>. Brown, 20 Me. 67 163 V. Ritchie, 10 East, 530 46 Atkyns v. Hord, 1 Burr. 120, 121 252 Atty. Gen. v. Backhouse, 17 Ves. 291. .250 V Brooke, 18 Ves. 326 . . .241 V. Camb. Consumers' Gas Co. L. R. 4 Chan. 71.. 373 V. Cross, 3 Mer 539 241 V. Green, 6 Ves. 452. .250, 257 V. Guardians, &c. L. R. 20 Ch. D. 595 409 XXIV TABLE OF CASES. Atty. Gen. v. Doughty, 2 Ves. Sen. 4.53 284, 28.5, 334 V. Heibhon, 3C. E. Gr. 410 328 397 V. Mose.s 2 Madd. 294. . .'.257 t'. Nichc.l, 16 Ves. 338.... 336 V. Owt[i, 10 Ves. 560 241 V. Parmenter, 10 Price, 378 397 ». Sheffield Gas Co. 3 DeG., McN. & G. 304 373 V. Wrav, 6 Ves. 452 257 Atwood r. Oobb, 16 I'ick. 227 60 Augusta, Bank of, v. Earle, 13 Pet. 519. .6 Austin V. Austin, 47 Vt. 311 34, 206 V. Keating, 3 West. Ken. 288 54, 181 V. Stevens, 24 Me. 520 200, 261 t>. Wlieeler, 16 Vt. 92 203 Averv v. Hacklev, 20 Wall. 407 109 A vns'lcv V. Glover, 23 VV. K. 459 . .336, 337 Ayi-esi). Hubted, 15 Conn. 504 438 B. Back V. Stacev, 2 Can-. & P. 465 325 Bacon f. Bowdoin, 22 Pick. 401 213 V. Brown, 9 (Jonn. 3,38 272 V. Cobb, 45 III. 47 44, 46 Badger v. Kerber, 61 111. 328. .19, 27, 141 Baer v. Martin, 8 Blackf. 317 317 Bagley v. Peddie, 5 Sandf. (N. Y.) 192 97,98 Bailev's App. 1 W. N. C. 350 345 Bailey v. Copeland, Wright, 150 390 r. Johnson, 1 Dalv, 61 461 V. Stetson et al. l"La. An. 332 66, 160 1. Woods, 17N. H. 365 182 Baily v. De Crespignv, L. E. 4 Q. B. 180; 38 L. J. Q. B.' 98 282 Baines v. Ewing, L. 11. 1 Ex. .320 13 Baird r. Williamson, 33 L. J. C. P. 101 407 Bakeman v. Talbot, 31 N. Y. 366 319 Baker's case, 9 Co. 53 6 367 Baker v. Frick, 45 JId. 337 383 V. Kichardson, 4 Barn. &; Aid. 578 323 r. Winter, 15 Md. 1 460 Baldwin v. Reed, 16 Conn. 67... .53, 113, 138, 139. 223, 224 V. Smith, 82 111. 162 119 V. Society, &c. 9 Sm. 393 48 Ball V. Nve, 99 JInss. 682 116, 403 Ballard o. Butli-r, 30 Me. 94 318 r. DvM,!., 1 Taunt. 279.. .385, 395 Baltimore (..'cnK-lery Co. v. Coburn. 7 Md. 202 11, 77, 78, 164 Baltimore, Mayor of, v. Eschbach, 18 Md. 2TB 16 Baltimore & Oliio R. li. v. Keaney, 42 Md. 117 120 Baltimore & Ohio R. R. e. Reslev, 7 Md. 297 40, 166, 167 Baltimore & Ohio R. R. r- Woodward, 41Md.268 1'W Balum V. Shore, 9 Ves. 600 248 Bandy v. Cartwright, 8 Ex. 913 291 Bank v. Dandridge, 12 Wheat. 105 239, 240 V. Dudley, 2 Pet. 492 238 Bank of Augusta v. Earle, 13 Pet. 619. .6 Bank of Charleston r. Curtis, 18 Conn. 342 453 Bank of Columljia v. Patterson, 7 Cranch, 299 7, 239 Bank of St. Albans v. Dillon, 30 Vt. 122 105 Bankard i'. Tennant, L. R. 10 Eq. 141 223 Banker v. Braker, 9 Abb. N. C. 411 268, 277 Banks v. Ammons, 27 Penn. St. 172 294 V. Haskie, 45 Md. 207. . . .276. 278 Bannister v. Reed, 1 Oilman, 92 . . 35, 38 Bannon v. Angler, 2 Allen, 128 .330, 383 Baptist Pub. Soc. e. Wistar, 33 Leg. Int. 212 342 Barclay v. Commonwealth, 25 Penn. St. 500 118, 119 V. Howell's Lessee, 6 Peters, 498 391 V. Messenger, 43 L. J. Ch. 449 . .63 Barnard*. Poor, 21 Pick. 378 262 Biirnes ». Hathorn, 54 M-. 124 404 Barnett v. .Johnson, 2 McCarter Ch. (N. J.) 481 326, 328 Barney's Ex'r ». Bush., 3 Cow. (N. Y.) 15i: 107 Barr r. Lapsley. 1 Wheat. 151 70 Barrett ». Blagrave, 5 Ves. 555 291 r. Thorndike, 1 iMe. 73 161 Barrow v. Baltimore, 2 Am. Jur. 103 412 V. Richard et al. 8 Paige (N. Y.), 351 71 Barrows i\ Baughman, 9 Mich. 213. ..450 Barry i'. Lowell, 8 Allen, 127 410 V. Jlerchants' Exch. 1 Sandf. Ch. 280 Barter, ex parte, v. Walker, L. R. 26 Ch. D. 610 110 Bartholomew r. Jackson, 20 Johns. (N.Y.)28 81,84 Bartlett r. Bangor, 67 Me. 460. . .387, 390 0. Harlow, 12 !\Ias^. 348 313 D. Kingan, 19 Penn. 341 442 V. Kendle, 3 M. & S. 99 255 Barton v. Briscoe, 1 Jacob, 603 253 II. Syracuse, 3B N. Y. 54 411 Barwick v. Eng. Joint Stock Co. L. R. 2 Ex. 259 126 Bashor r. Nordyke, 2.'j Kan. 222 450 P.a^kin V. Sechrist, G Penn. St. 163. . .292 Bnssctt V. Sanburn, 9 Cush. 58. ...41, 173 Basten r. Butler, 7 Ea^t, 481 49 Batcheltler )'. Dean, 20 N H. 467 183 Batterburv v. Vyse, 2 11. & C. 42 ; 32 L. J. Ex. 177 27 BaugU r. Wilkens, 16 Md. 35 267 TABLE OF CASES. XXT Baxter v. Arnold, 114 Mass. 577 2% V. Burfield, 2 Htr. 1266 107 Baynham v. Guy's Hosp. 3 Ves. 295 268, 277 Beach v. Farris, 4 Cal. 339 273 V. Eavmond, 2 E. D. Smith, 496 188 Beahani;. Muir, 38 Conn. 250 139 Beale v. Hayes, 5 Sandf. (N. Y.) 640 98 Beard v. Durald, 22 La. An. 284 295 V. Murphy, 37 Vt. 98 355 Beavan v. McDonnell, 9 Exch. 909. ..234 Beaver v. Nutter, 10 Phila. 345 339 Beclitel V. Carslake, 3 Stock. 500 326 Beck V. Allison, 56 N. Y. 366 223 II. Carter, 68 N. Y. 283 130 Beckel v. Petticrew, 6 Ohio St. 247.. .431 Becker v. Hecker, 9 Ind. 497 52, 153 Beckwith v. Bovce, 9 Mo. 560 307 Bedard v. Bouville, 57 Wis. 570 209 Bedford, Dake of, v. Marquis, &c. 1 Myl. &Cr. 312 254 Beers v. St. John, 16 Conn. 329. .138, 261. 308 Bell 17. Love, L. E. 10 Q. B. D. 547 . .356 V. Twentvman, 1 Q. B. 766 396 Bellows V. Sackett, 15 Barb. 96. .116, 366 Benecke v. Frost, L. E. 1 Q. B. D. 422 17 Benedict!). Benedict, 6 Day (Conn.), 467 138 V. Cincinnati, 2 Bull. (Ohio) 33 197 Bennett v. Bittle, 4 Eawle, 399 ! ! . . . .' .295 V. Herring, 3 C. B. N. S. 370 270 «. Waller, 23 111. 97 276 V. Womack, 3 C. & P. 96, 98 215 Bensel v. Gray, 38 N. Y. 447 267 Bensell i). Chancellor, 5 Whart. 371. .234 Bergen v. Bennett, 1 Caines Cas. N. Y. 15 . .251 Berger !).' Duff, 4 Johns. Ch. 368 253 Berrington v. Casey, 78 III. 317 267 Berry v. Thompson, 6 H. & J. 89 164 Bertram v. Cook, 32 Mich. 518 291 «. Curtis, 31 Iowa, 46 350 Bickel V. James, 7 Watts, 9 424 Biddle v. Ash, 2 Ashm. 211 336 V. Eeed, 33 Ind. 529 270 Bigler v. Furman. 58 Barb. 545 292 Billingbam i). Al.sop, Cro. Jac. 52. . . .231 Bird «.' Randall, 3 Burr. 1352. . . .103, 127 Birmingham v, Allen, L. K. 6 Ch. D. 284 356 Bish V. Keeling, 1 M. & S. 95 . . .288, 289 Bishop, &c. V. Battersby, L. E. 3 Q. B. D. 359 289 Bissell V. Grant, 34 Conn. 215 364 V. Llovd, 100 111.214 271 V. N. Y. Cent. E. E. Co. 23 N". Y. 61 390 Blach V. Isham, 28 Ind. 37 345 Blackmore v. Boardman, 28 Mo. 420 276, 277 Blake v. City of Dubuque, 2 Iowa, 402 157 V. Foster, 8 T. R. 487, 492 240 V. Pitcher, 46 Md. 464 413 V. Zard, 16 W. R. 108 113 Blanchard v. Blackstone, 102 Mass. 243 64, 175 V. Bridges, 4 Ad. & E. 176 333 V. Detroit E. R. 31 Mich. 43 72,73 Blant V. L. L R. R. Co. 10 Barb. 26. . .394 Blenkiron v. Great Cent. Gas Co. 2 F. &F.440 371 'Blethen v. Blake, 44 Cal. 117 19, 137 V. Towles, 40 Me. 310. . .304, 306 Bliss i;. Whiting, 9 Allen, 114 306 Blood V. Goodrich, 9 Wend. 68 249 Bloomfield & Rochester Natural Gas Co. V. Richardson, 63 Barb. 437 370 Blunt V. Tomlin, 27 III. 93 220 Blvth V. Proprietors, &c. 11 Ex. 781. .116 Blythe v. Poultney, 31 Cal. 2:i3. . .53, 136 Bolton, Duke of, i). Grantham, 3 Burr. 1259 . 254 Bond ».' Newark,' 4 C. E.'gV. (n! J.) 376 20, 2-3, 184 Bonney v. Foss, 62 Me. 240 311 Bonomi v. Backhouse, 1 El , Bl. & El. 622, 625.. 121, 357, 360,361 Boody, &c. V. E. & B. E. R. 24 Vt. 660 54, 79, 205 Bool V. Mix, 17 Wend. 131 231, 232 Rooni). Orr, 4G. Gr. 304 305 Borden v. Borden, 5 Mass. 67 279 Boscawen v. Bliss, 4 Taunt. 739 290 Boston Gas-Light Co. v. Eichardson, 13 Allen, 160 373, 394 Bourgette v. Hubinger, 30 Ind. 296.. .469 Bouton V. McDonough Co. 84 111. 396 435 Bowen v. Aubrev, 22 Cal. 566 448 V. Wood," 35 Ind. 268 .. . .305, 306 Bower u. Hill, 2 Bing. N. C. 339.. 385, 395 V. Peat, L.E. 1 Q. B. D. 321 : 45 L.J. Q. B. 446 12,3,125 Bowers V. Suffolk Mg. Co. 4 Cush. 332 392 Bowes V. Law, L. R. 9 Eq. 636 283 Bowles V. Croll, 6 E. & B. 264 297 Bovnton v. Lynn Gas-Light Co. 124 i Mass. 197 169 Brabazon v. Seymour, 42 Conn. 555. .139 Brace D.Wehnert, 25 Beav. 348. .75, 226. 227 Brackett v. Mountfort, 11 Me. 115. . . .161 Brackney v. Turrentine, 14 Ark. 416 418 Bradbee v. Christ's Hosp. &c. 4 M. & G. 714 120, 345 Bradley v. Proctor, 7 La. 516 160 Brady «. Anderson, 24 III. 112. .60, 149 450, 461 V. Mayor, &c. 1 Barb. 584; 20 N. Y.312 Braggs V. Geddes, &c. 93 111. 39 . .4, 87, 148 XXVI TABLE OP CASES. Brainard v. Conn. Riv. R. R. Co. 7 Cash. 506 318, 399 Brainerd v. Colcliestei-, 31 Conn. 410. .277 Brakely v. Sliaip, 1 Stockt. 9.. . .312, 364 Brandt ». Albany, 5 Hun (N. Y.), 591 411 Bratt V. Bratt's Adm'r, 21 Md. 578... 165 Bratton v. Clawson, 2 Strobh. 478 305 Brav V. Foparty, I R. 4 Eq. 544 289 Brayton v. Fall River, 113 Mass 218. .412 Brecknock Co. v. Pritchard, 7 T. R. 750 47 Brett V. Clowser, L. R. 5 C. P. D. 376 383 1). Cumberland, Cro. Jac. 399.. .236 Brewster v. Edgerly, 13 N. H. 275, 278 98 T. Kitchell, 1 Salk. 198 282 Bridges v. Hyatt, 2 Abb. Pr. 449 97 Brien v. Clay, 1 E. D. Smith, 649. . . .456 Brierlv v. Tudor, 2 Am. L. J. 191 349 Brigh'tman, case of, 65 Me. 426 118 Brinckerboff v. Board, &c. 37 How. Pr. 520 434 Bristow r. Evans, 124 Mass. 548 455 Britton v. Turner, 6 N. H. 481 35, 37 Brondage v Warner, 2 Hill (N. Y.), 145 341, 351 Brooklyn, City of, r. Fulton Municipal Gas Co. 7 Abb. N. C. 19 373 Brooks V. Curtis, 4 Lans. 283 339, 343 I). Lester, 36 Md. 70 417 V Reynolds, 106 Mass. 31 330 Broom v. Davis, 7 East, 481 49 Broughton v Midland Grand Rv. 7 Ir. R.C. L 169 ." 410 Brouwer v. .Tones, 23 Barb. 153 287 Brown v. Acrington Cotton Co. 3 H. & C. 511 15 V. Bateman, L. R. 2 C. P. 272 113 V. Blunden, Skin. 121 269 ■» Hnwen, .30 N. Y. 519 116 I'. Bragg, 22 Ind. 122 265 1-. Brown, 3 Conn. 299 235 V. Cotton Co. 3 H. & C. 511. .121 V. Illinois, 25 Conn. 583 404 V. Kimball, 12 Vt. 617 46 V. La Crosse Citj', 21 Wis. 51 456 V. McKee, 57 N. Y. 684. .345, 346 V. Morison, 24 III. 40 461 V. Pentz, 1 Abb. Dec. 227 346 V. Robbins, 4 H & N. 186 ... .356 V. Smith, 2 Brown, 229 417 r. Tres.s, 59 How. Pr 345 446 V. Wallis, 115 Mass. 201 306 V. Windsor, 1 Cronipt. & J. 20 354 Brown & Otto r. Werner, 40 Md. 15 338, .355, 361 Browne v. Trustees, 37 Md. 108 315 Browning v. Dalesme, 3 Sandf. 13 361 Brownlow r. Met. Board, &c. 16 C. B. N. S. 546 124 Bruce v. Bauch, 16 Hun, 615; 79 N. Y.164 267 Bruce v. Fulton, 79 N. Y. 154 277 Bruiker v Fremont, 6 T. R 659 126 Brundy v. Smilh, 3 Ala. 123 134 Biunsden v. Beresford, 1 Cababe & Ellis, 62 27 Bryan V. Fisher, 3 Blackf. 316 286 Bryant v. Warren, 51 N. H. 213 442 Buckland V. Hall, 8 Ves. 92 222 Buckley v. Bouteller, 61 III. 2113 451 Bulkley v. Brainerd, 2 Root (Conn.), 5 66, 140 Bull V. Follett, 5 Cow. 170 281 Bullock V. Dommett, 6 T. R. 65 47 Bump V. Sauner, 37 Md. 337 383 Burgess v. Gray, 1 Man., Gr. & S. 578 ^ ^' ' 394 Burk V. Baxter, 3 Mo. 207 307 Bulling t>. Read, 11 Q. B. 904 119 Burlock?). Peck, 2 Duer, 90 346 Hum V. Miller, 4 Taunt. 745 53 Burns v. Boston, &c. R. R. Co. 101 Mass. 50 131 Burnside v. Fritchell, 43 N. H. 390. ..306 Burrows v. March Gas Co. L. R. 5 Exch. 67 371 Bury W.Pope, Cro. Eliz. 118 321 Busbv V. Holthaus, 46 Mo. 161 356 Busfield «. Wheeler, 14 Allen, 139. . .442, 447 Bush w. Callis, 1 Show. 389 276 V. Chapman, 2 G. Gr. (Iowa) 49 156 V. Steinman,lB.&P. 404.. 394,397 Butcher w. Providence Gas Co. 12 R. I. 149 372 Bute, Marquis of, v. Guest, 15 M. & W. 160 215 Butler ». Cornish, 1 D. & L. 581; 12 M. &W. 425 83 V. Stocking, 8 N. Y. 408 248 Butt 11. Imperial (3as Co. L. R. 2 Ch. 168 285 Byrd v. Bertrand, 7 Ark. 321 135 C. Cahill V. Eastman, 18 Minn. 324. .120, 405 Caldwell v. Asbury, 29 Ind. 451. .454, 455 V. Harrison, 11 Ala. 756 134 Callaghan v. Hawkes, 121 Mass. 298. .297 Calvert v. Aldrich, 99 Mass. 75 272 Camley v. Stanfield, 10 Tex. 546 293 Camp V. Camp, 5 Conn. 300 291 V. Mayer, 47 Ga. 427 419 V. Scott, 47 Conn. 369 292 Campbell v. Leach, 2 Ambl. 748 252, 256, 257 v. Meister, 4 Johns. Ch. 334 341 , 350, 351 t). Portland Sugar Co. 62 Me. 552 121 Canal Co. v. Gordon, 6 VVali. 531! . '. ..412 Canal Trustees v. Havens, 11 111 554. .391 Cannon v. Wildman, 28 Conn. 490 . .61, 82, 139, 140 V. Villars, L. R. 8 Ch. D. 415 . . 395 TABLE OP CASES. XXVll Capital City Gas-Light Co. v. Charter Oak Ins. Co. 51 Iowa, 31 376 Carbrey v. Willis, 7 Allen, 364 .. .313 Card V. Quinebaug Bank, 23 Conn. 355 420 Carpenter v. Gwvnn, 35 Barb. 395. . .392 V. Parker, 3 C. B. N. S. 206 242 Carr f. Carr, 34 Mo. 513 179 V. Ellison, 20 Wend. 178 220 Carrell i). Read, Cro. El. 371 279 Carrig «. Dee, 14 Gray, 683 325 Carroll ». Shipley, 41 Md. 81 276 Carson v Criglef, 9 Brad. (III.) 83. . .292 V. Wright, 6 Gill, 17 468 Carstairs v. Tavlor, L. R. 6 Ex. 217. .116 Carterl). Boehn, 3 Burr. 1919 219, 223 V. Gault, 13 Pick. 531 170 V. James, 13 M. & W. 713 50 V. Marshall, 72 111. 609 291 Cartwright v. Gardner, 5 Cash. 211 265 Cattanach v. IngersoU, 1 Phila. 285 436, 4.37 Cave V. Craft, 53 Cal. 136 406 Cemetery Association v. Merringer, 14 Kan. 312 394 Chalmers, ex parte, L. R. 8 Ch. 2S9 ; 42 L. J. Q. B, 37 110 Chamberlain v. Bagley, H N. H. 234, .97 V. Williamson, 3 M. & S. 408 107 Chambers v. Fort Bend Co. 14 Tex. 35 203 V. King, 8 Mo. 517. .33, 41, 79, 179, 180 Chandler v. Thompson, 3 Campb. 80 333, 334 Chapin v. Perssee, 30 Conn. 461 419 Chapman v. Albany & S. R. R Co. 10 Barb. 360 394 V. Daj-, 47L. T. 705 356 V. Lowell, 4 Cush. 378 174 ^7, Union M. L. Co. 4 Brad. (Ill.)29 302 V. Walton, 10 Bing. 63; 3 M. & Scott, 389 9 Chappell V. Brockway, 21 Wend. 157 288 Charles r.Finchley Local Board, L. R. 23 Ch. D. 767 409 V. Rankin, 22 Mo. 566 120 ' Charnock v. Colfax, 51 Iowa, 70 434 Chasemore ti. Richards, 26 L. J. N. S. Ex. 393 365 Chatfield v. Wilson, 28 Vt. 49 365 Chaltevton v. Saul, 16 III. 161. ...303. 304 Cheesborough v. Green, 10 Conn. 318 360 Cheevers. Pearson, 16 Pick. 272. .245, 246 Cherington v. Abneymill, 2 Vern. 646 3-33 Cherry v. Stein, 11 Md. 1. . 116, 156, 323, 326, 366 Cheshire v. Barrett, 4 McCord, 241. . .232 Chicago V. Johnson, 98 111. 618 391 V. Thompson, 9 111. 524 3Ul Chicago & Great Eastern R. R. v. Vos- burgh, 45 111. 311 145 Chicago & N. W. E. B. i'. Hoag, 90 111. 339 408 Chi. ago, Citv of, v. Sexton, 3 West. Rep. 455.." 146 Child J). Boston, 4 Allen, 41 410 V. Chappell, 6 Held. 246, 251. . . .317, 386, 389 Cholmeley v. Paxton, 2 Bing. 207 263 Chotean v. Thompson, 2 Ohio, 114. .422, 428 Christian, County of, v. Overholt, 8 111. 223 19, 39, J2, 149 Cincinnati v. White, 6 Peters, 431 314, 387, 388 City of Brooklyn v. Fulton Municipal Gas Co. 7 Abb. N. C. 19 373 City of London v. Nash, 3 Atk. 512 69, 71, 223, 227, 270 City of London Brewing Co. ^.Teniiant, L. R. 9Ch. 219 337 City of Quincy v. Jones, 76 111. 231. .147 Clark ». Bulmer, 11 M. & W. 243 33 D. Busse, &c. 82 111. 515 44, 150, 151. V. Clark, 49 Cal. 586 267 V. Cuckfield Union, 1 Bail. C. C. 81; 16 Jur. 686 7 D. Foot, 8 Johns 421 262 D.Fry, 8 0hio(N. S.), 368 124, 399 V. Glasgow Assurance Co. 1 M'Queen, 668 69 V. Holmes, 7 H. & N. 937 130 V. Jones, 1 Denio, 5 16 265 V. Moore, 1 Jo. & La Tou. 723 257 V. M. S. & L. Ky. Co. 1 J. & H. 631 294 V. New York Life Ins. Co. 64 N. Y. 33, reversing 7 Lans. 322 191 V. Pope,' io Ili. 128 . '. i, 10,' 56," 61, 89, 143, 144, 148 1). Price, 2 Wilson (Jh. 167 48 V. Russell, 110 Mass. 133 172 V. Smith, 14 Johns. (N. Y.) 324 84 V. Spence, 4 Ad. & V.. 448 112 !). Watson, 18 C. B. N. S. 278 ; 34 L.J. C. P. 148 27, 28 ». Wheelock, 99 Mass. 14 246 Clark et aL v. Mayor, &c. 4 Comst. (N. Y'.)338 83 Clarkson v. Edge, 33 Beav. 227 289 (.'lav V. Y'ates, 1 H. & N. 73 2 Clfary v. Sohier, 120 Mass. 210. .168, 170 Cleuience v. Steere, IK. I. 272. .259, 261, 262 Cleiidennen v. Paulset, 3 Mo. 230 179 Cleveland v. Cleveland, 12 Wend. 172 392 rievesD. Willoughby, 7 Hill, 83 214 Clifford V. Richardson, 18 Vt 020. . . .204 V. Turrell, 1 Younge & Collver Ch. 138, 150 '...228 xxvm TABLE OP CASES. Clifford V. Watts, L. R. 5 C. P. 686. . ..48 Climeri). Wallace, 28 Mo. 556 349 Clinan v. Cook, 1 Sch. & L. 33 226 Coakley ». Chamberlain, 1 Sweeny, 678 : :,'246 Coates V. Glenn et al. 5 Md. 121. .38, 167 Cocheco Bank v. Berry, 52 Me. 293 56, 162 Cochran v. Van Surley, 20 Wend. 368 303 Coddington v. Beebe, 5 Dutch. 550. ...460 V. Dry Dock Co. 31 N. J. L. 477 1, 415 Coey V. Lehman, 79 111. 173 4,56, 87, 142, 148 Cole et al. v. Clarke, 3 Wis. 322 208 Cole V. Hughes, 54 N. Y. 444 346 V. Bobbins, Bill. N. P. 172 235 V Wade, 16 Ves. 27 253 Coleman v. New York R. R. 106 Mass. 160 126 Coles V. Coles, 15 Johns. 159 248 ■0. Sims, 6 De G,, M. & G. 9 104, 284, 291 Collett V. Hooper, 13 Ves. 255 256 Collier «. Pierce, 7 Gray, 18 156, 325 Collins V. Money, 4 Howard, 11 178 V. Prentice, 15 Conn. 423 313 V. Torry, 7 .Johns. 278 242 Collyer v. Collins, 17 Abb. Pr. 467. ...186 V. Isaacs, L. R. 19 Ch. D. 342 ; 45L.T. 567 112 Columbia, Bank of, v. Patterson, 7 Cranch, 299 7 Combe r. (jreene, 2 D. N. S. 1023 ; 11 M. & W. 480 11 Combe's case, 9 Co. R. 75. . .16, 248, 249, 256 Commercial Bank, &c. v. Norton, 1 Hill, 505 16 Commissioners, &c. v. North Liberties Gas Co. 12 Penn. 318 373 Commissioners, &c. v, Ross, 3 Binney (Penn.), 520 105 Commonwealth, v. Blaisdell, 107 Mass. 234 399 I. Cole, 26 Penn. 187 293 f. Low, 3 Pick. 408.. 385 V. Lowell Gas Co. 12 Allen, 77,... 370, 377 V. Newbur}^, 2 Pick, 51 385, 386, 392 V. Passmore, 1 S. & R. 219 397 V. Shane, 4 Allen, 308 375 V. Rush, 14 Penn, St, 186 394 Comstock V. Comstock, 56 Barb, 453. .14 Conant v. Brackett, 112 Mass. 18 423 Cong. S. V. Fleming, 11 Iowa, 533 3115 Cong. S. of E. V. Hubble, 62 III. 161. .150 Conkright v. Thompson, 4 Abb, Pr, 205 458 Connehan v. Ford, 9 Wis. 240 393 Conoi;y V. Poillon, 41 Barb. 366 127 Conright «. Thomson, 1 E. D, Smith, 661 457 Cook V. Allen et al. 67 N. Y. 578. .87, 191 V. Charlestown, 98 Mass, 80 , , , ,117 V. Grav, 133 Mass. 106 171 V. Mc&ibe, 53 Wis, 250 ,, , ,45, 209 V. Stearns, 11 Mass, 633 . . .211, 316 V. Wolfendale, 105 Jlass. 401. . .169 Cooke »). Murphy, 70 III. 96 57, 148 Coolidge s. Uexter, 129 Mass. 167 296 Cooper V. Jarinan, L. R. 3 Eq. 98. .63, 109 Copley w. G'Neil, 39 How. Pr. 41 427 Coppinger v. Armstrong, 5 Brad. 637 271 294 Corbett v. Plowden, L. R. Ch. D. 678 242 Corbin v. American Mills Co. 27 Conn, 274 15, 123 Cordes v. Miller, 39 Mich. 681. . .275, 282 Cordwent v. Hunt, 8 Taunt. 596 282 Corlis 1}. McLogin, 29 Me. 115 306 Corn Ex. Co. t>. Babcock, 8 Abb. Pr. N. S. 256 459 Cornell v. Matthews, 3 Dutch. 622 468 Corporation v. Northern Liberties, 35 Penn. 324 411 Corporation &c. f. Riggs, L. R. 13 Ch. D. 798 381 Corporation &c. i>. Roonev, 7 T, R, (Ir,) 191 102 Corry v. Corry, Wallis & Lyne, 278. .257 Cort V. Ambei-gate Ky. Co. 17 Q. B. 127 38 Cotchiiig V. Basselt, 32 Beay. 101 323 Ci.tes V. Shorey, 8 Iowa, 410 429 Cotterell i'. Apsey, 5 Taunt. 322 33 Cotton 1). Pocasset Mg. Co. 13 Met. 429 407 Coughlry v. Globe Woollen Co. 56 N. Y. 124 127, 131 County of Christian v. Oyeiholt, 18 111. 223 19, 34, 42, 149 Coupland v. Hardingham, 3 Camp. 398 399 Cowell !'. Lumley, 39 Cal. 151. . .268, 269 Cowen I). St. John, 16 Iowa, 590 306 Cowper ». Verney, Willes, 169 263 Cox 1'. Broderick", 4 E. D, Smith, 721 426 Coxe V. Daily, 16 East, 118 266 Crampton v, Varna Ry, Co, L, R, 7 Ch, 562; 41 L, J, Ch, 817 7, 224 Crary t.-. Goodman, 22 N, Y. 170 230 Craven ti. Tickell, 1 Ves. Sr. 60 69 Crawfard v. Wolf et al. 29 Iowa, 567 157 Cremer v. Higginson, &c, 1 Mason's Circuit Ct, R. 323 106 Cresinger v. Welch, 15 Ohio, 192 232 Crockett r. Crockett, 2 Ohio St. 180. .259 Croft V. Alison, 4 B. & Aid. 690 126 Cronne et al. v. Hoover, 40 Ind. 49 . .310 Crookshank et al. v. Mallory, 2 G. Gr. (Iowa) 257 32, 60, 169 Cross v. Lewis, 2 Barn. & Cress. 686. .326 Crossley v. Maycock, L. K, 18 Eq, 180 93 TABLE OP CASES. XXIX Crowell V. Gilmore, 18 Cal. 3T0 421 Crowl V. Nagle, 86 111. 43T 457 Crump V. Rebstock, 2 West. Rep. 411 181 Crusoe v. Bugby, 3 Wils. 234 265 Crystal v. Flannelly, 2 E. D. Smith, 583 446 Cubitt V. Porter, 2 M. & R. 267. .349, 354 Cullen i;. Sears, 112 Mass. 299.-37,90, 172 Cunningham v. Pallet, 99 Mass. 248 247, 277 Curlini;. Paul, 11 Mo. 32 382 Curriers' Co. r. Corbett, 11 Jur. N. S. 719 336 Curry v. Larer, 7 Penn. St. 470 98 Curtis D.Hoyt, 19 Conn. 165. .53, 113, 138, 224, 308, 311 V. Keesler, 14 Barb. 511 314 V. Leavilt, 15 N. Y. 219, 262. .239 V. Wheeler, 1 JMood. & M. 493 244 B.White, Clarke Ch. 389. .280, 345, 346 Cutter V. Powell, 2 Smith Lead. Cas. 41 ; 6 T. E. 320 . . 32, 35, 38, 40, 41 V. Williams, 3 Allen, 196 341 Cyr «. Madore, 73 Me. 53 391 D. Dakin, &c. r. Williams, &c. 17 Wend. 447, 455 98,266 Dallam v. KiriR, 4 Bing. N. C. 105. . . 30 Dallas L. & JI. Co. v. Wasco Woollen M. Co. 3 Oregon, 527 436 Dalton V, Angus, L. R. 6 App. Cas. 740 356,357, 358,361 Daly D. Grunby, 22 Pitts. L. J. 8.. 339, ' 343 Dame's Appeal, 62 Penn. 417 415 Damon v. Granbv, 2 Pick. 345 . . .64, 175 Dane v. Annas, &c. 2 Dver, 219 a 257 V. Kirkwall, 8 Car. & P. 679. . . .234 V. Spurrier, 7 Ves. 231 246 Danforth v. Walker. 37 Vt. 239 68 Daniel v. North, 11 East, 372 323 !). Wood, 1 Pick. 102 306 Daniels v. The People, 21 111. 439. . . .146 Darling v. Bangor, 68 Me. 108 402 Darlington v. Pulteney, Cowp. 260. . .253 Darrell v. Pritchard, L. R. 1 Ch. 244. .336 Dart V. May hew, 60 Ga. 1C4 433 Dartmouth College v. Clough, 8 N. H. 22 244 Davenpeck v. Lambert, 44 Barb. 599 . . .387 Davids V. Hart, 9 Penn. St. 501. .346, 347 Davies v. Marshall, 1 Dr. & Sm. 657. .322 V. Sear, L. R. 7 Eq. 427. . .323, 382 V. Stephens, 7 Garr. & Payne, 670 392 V. Townsend, 10 Barb. 333 268 V. Williams, 16 Q. B. 546 119 Davis V. Blackwall Ey. Co. 1 M. & Gr. 709 354 V. Elsara, Mood. & M. 189 289 Davis V. Fish, 1 G. Gr. (Iowa), 406 62, 62, 158 V. Hedges, L. R. 6 Q. B. 687. . . 50 V. Jones, 2 B. & Aid 106 270 V. Lyman, 6 Conn. 249.. . .278, 281 V. Mo.^s, 38 Penn. St. 346 303 II. Stephens, 7 Carr. & Payne, 570 386 et al. V. Farr et al. 13 Pa. 167. .413 Davis, &c. V. Tallcott, &c. 2 Kern. (N. Y.) 184 60 Day V. Day, 4 Md. 262 398 Davrell v. Tvrer, El., Bl. & El. 899 . .127 Dearie v. Martin, 78 Penn. 65 426 De Boom u. Priestly, 1 Cal. 206. .64, 83, 86, 136 Delahay v. Clement, 4 III. 201 468 Delaney v. Fox, 2 C. B. N. S. 768. . . .292 V. Hutcheson, 2 Rand. 183., .248 Delaware v. Davenport, 46 Iowa, 413 417 De Luze v. Bradbury, 25 N. J. Eq. 70 406 Demarest v. Willard, 8 Conn. 206 275 Demoss v. Noble, 6 Iowa, 530 156- Dent;. Post, 1 Dutch. 285 265 Denmead v. Bank o£ Baltimore, 9 Md. 185 417 Denning v. Roome, 6 Wend. 661 392 Denny v, Hancock, L. E. 10 Ch. Ap. 1 294 Denver v. Cappelli, 4 Cal. 25 402 Derby D. Johnson, 2 Vt. 17.. 32, 35, 38, 39 Derby, Earl of, v. Taylor, 1 East, 502 244 Dermott v. Jones, 2 Wall. 1. . . .32, 38, 45 Denickson v. Edwards, 5 Dutch. 468 20, 34 De Rutte et al. v. Muldrow et al. 16 Cal. 606 292, 296 De Silver, Estate of, 5 Eawle, 111 234 Des Moines Gas Co. v City of Des Moines, 44 Iowa, 605 373 Devlin v. New York, 4 Duer, 337 189 Dewey v. Fifield, 2 Wis. 73 457 Dewitt V. Village of Ithaca, 15 Hun, 668 390 Dexter i'. Manlev, 4 Cu«h. 24 267 Dickerson v. Crisman, 28 Mo. 134 218 Dickey v. Linscott, 20 Me. 463 35 Dickson v. Grand Junction Canal Co. 7Exch. 282, 300 365 Dillon V. Brown, 11 Gray. 179 248 V. Washington Gas-Light Co. 1 Mac Arthur (D. C.) 626. .372 Dingham v. Kelly, 7 Ind. 717.. . .293, 294 Dingley v. Buffington, 67 Me. 381 310 District Township y. Moorehead, 43 Iowa, 466 311 Dixon V. Harrison, Vaugh. 46 236 1). Meti-opolitan Board, 7 Q. B. D.418 368 Doane v. Badger, 12 Mass. 65, 70 396 Dobbs w. Evart, 4 Wis. 451 421 Dobson V. Hudson, 1 C. B. 659 ; 26 L. J.C.P.153 27 XXX TABLE OP CASES. Dodd ». Wilson, Const. 443 234 Doei). Adams, 2 C. & J. 23 243 «. Archer, 1 B. & 1'. 531 245 V. Barcoti, 11 A,l. & E. 307 242 V. Bateman, 2 I'.. & AM. 168 244 V. Beck, 1 Barn. & Aid, 428 275 V. Bircli, 1 M. & \V. 402 286 V. Bll^.s, 4 Taunt. 735 266 V. Branch, 4 Barn & Aid. 401. . .265 V. Brown, 2 Ellis & B. 331 231 V. EdwaiMs, 1 Mees. & W. 553. .285 V. Eiiins, Rv. & M 29 286, 291 D. Gile, 5 Bin-, 421 243 t). Uuv, 3 East, 120 238 1!. Halts, 7 Bing 322 242 V Lock, 2 Aclolph. &E. 705 ....381 V. iMa.-.-v, 8 B. &C. 767 243 V. Phillips, 2 Binff. 13 266 V. Kie.s, 8 I'.ing. 178 212 V. Sandham, 1 T. R. 705 215 V. Smith, 1 Bred. & B. 321 253 i\ Siniih, 5 Taunt. 795 265 V. Sprv, 1 B. & A. 617 288 V. Sturjies, 7 Taunt. 217 238 V. Walker, 6 B. & C 111 231 V. Watts, 9 East, 19 231 V. Wclltr, 7 r. R. 478 236 Doerbaum v. Fischer, 1 Mo. App. 149 367 Dolph V. White, 12 N. Y. 296 280 Doolev V- Crisl. 2.5 111 551 303, 309 Dorlaud v. Uorland, 2 Barb. 80 252 Doty V. Gorham, 5 Bick. 487 311 Doujjhertj' v. Whitehead, 31 iMo. 255 180 Bought)' 1). Devlin, 1 E. D. Smith, 625 437, 457 Douglass V. Wiggins, 1 Johns. Ch. 435 260 Doulin «. Daeglinq-. 80 111. 608 . . .83, 145 Doupei). Geuiu, 45 N. Y. 119 268 Douse II. Cole, 2 Vent. 126 269 V. Earle, 3 Lev. 2i;4 269 Dover Ca^- Liu lit Co. v. Mavor of Dover, 7 De U., .M. & G. 545. . : 37-n Downev v. O'Donnell, 86 III. 559.. 23, 25, 142 Downing ». Hennings, 20 Md. 179., 358, 359 Doyle 11. Ilalpin, 1 ,J. & 3p. 352.. .64, 192 V Lord, 114 N. Y. 432 328, 334 5). Riiter, B Pliila. 577 346 Drake i>. (i.nee, 22 Ala. 409. .60, 133, 134 V. llill, 53 Iowa, 37 159 V. Ramsav, 5 Ohio, 251... 231, 233 Drowr. Bavlev,"2 Lev. 100 2-18 V. ,M,i-..ii, 81 III. 498 433 Driver v. Ecnl, 90 III. 595 60, 152 Drohan v Drohan, 1 Ball & B. 185. .238 Du Bois V. Delaware Oii Hudson Canal Co. 12 U'.-iid 234 82, 189 Bubois I). Kelly, 10 Barb. 496 211 Duckworth v. Albson, 1 M. & W. 412 64, 103 Duffy 1). Bradv, 4 Abb. 432 457 V. llcManus, 3 E. D. Smith, 657 460 Dugdale v. Levering, L. R. 10 C. P. 196 ; 44 L. J. C. F. 197 IT Duggins !'. Watson, 15 Ark. 118 126 Dui;gs ,'. Dwight. 17 Wend. 71 225 Duke, &c. V. Clarke, 8 Taunt. 627. . . .346 Dullaghan v. Fitch, 42 Wis. 079 101 Duuabery, &c. liv. Co. v. Hopkins etal. 36 L. T. 733 26 Duncan c. Hanbest, 2 Brewst. 362.. . ,344 Duncan et al. v. The Board, &c. 19 Ind. 154 78, 154 Dunforth v. Walker, 37 Vt. 239; 4 Vt. 257 205 Dunkle c. Crane, 103 Ma.ss. 470 417 Dunlop r. Wallingford, 1 Pitts. 127.. 341 Dunnf. Barton, 10 Ha. 765 280 Dunsledter v. Dunsledter, 77 111. 680 309 Durelj). Boisblanc, 1 La. An. 407. .. .326 Durgin v. Munson, 9 Allen, 396 125 Durham & Sund. K. K. Co. v. Walker, 2Q. B. 940 381 Dutch Church o. Brown, 29 Barb. 335; 17 How. Pr. 287 188 DutroD. Walter, 31 Mo. 516 180 V. Wilson, 4 Ohio St. 101 424 Dyer v. Sanford, 9 Met. 395 329, 331 Dvett V. Pendleton, 8 Conn. 727 285 Dykes v. Blake, 4 Bing. N. C. 463.. . .294 E. Eadie v. Addison, 52 L. J. C. P. 80; 47 L. T. 543 94 Eagle Ins. Co. r. Lent, Paige, 635. .233 E;istv,-ood r. Lever, 4 De G., J. & S. 114 294, 383 Eaton I'. European R. E. 59 Me. 52U. 122 r. Perrv, 211 Mo. 96 235 r. AVhi'laker, 18 Conn. 233 271 Ecclesiastical Com. v. Kino, L. R. 14 Ch. D 213 330 Eddy r ^K(_io\van, cited by Becket, but not repitrted 11 Edelinuth v. IMcGarreu, 45 How. Pr. 192 285 Edwards v. Derrickson, 4 Dutch. 39 20, 34 Egremont, Lord, •'. Stephens, 6 Q. B. 21)8 263 Ehkrs r. Elder, 51 Miss. 499 451 Ehrlich r. jEtna Ins. Co. 4 West. Rep. 40 67, 180 Eichelberger r. Miller, 20 Md. 332. .44, 45, 168, 487 Eichert v. Wallace, Am. L. .T. 191 349 Elkridgc i\ Kowe, 4Gilm. (111.) 91. .43, 51, 150 Ellicott!). Peterson, 4 Md. 476 167 Elliott V. Bishop, 10 Exch. 512 376 Ellis V. Duncan, 21 Barb. 230 365 r. Hamlen, 3 Taunt. 52. . .32, 33, 36, 53, 54, 85, 90, 92 V. Lane, 85 Penn. St. 265 36, 201 V. Paige, 1 Pick. 43 60 TABLE OF CASES. XXXI Ellis V. Sheffiplcl Gas Co. 2 El. & Bl. 707; 25 L.J. Q. 15 42 124 V. Thompson, 3 M. & W. 445 60 Ellison V. Jackson Water Co. 12 Cal. 542 413 Elwes V. jraw, 3 Kast, 38 302 Ely V. Ely, 80 HI. 532 271, 273 V. Supervisors, &c. 36 N. Y. 297 118 Embrev v. Owen, 6 Ex. 353 365 Emeric v. Kohler, 29 Barh. 165 294 Emerson v. Coggswell, 16 Me. 77 .52, 161 V. Lowell Gas Co. 3 Allen, 410 371 V. Providence Hat Co. 12 Mass. 241 16 V. Slater, 22 How, 28 2 V. W. V. K. R. Co. 75 III. 170 309 Euo 1). Del Vecdiio, 4 Duer, 53. .339, 344 Epler V. Niiinan, 5 [iid. 459 393 Erhman v. Kendrick, 1 Met. (Ky.) 146 441 Eschbach v. Pitts, 6 Md. 71 441 Estepi). Estcp, 23 1iid. 114 272 V. Kenton, 66 III. 467 49, 144 Eten?;. Luvstur, 60 N. Y. 253 243 Evans i'. Juckson, 8 Sim. 217 238 V. Vaiigli, 4 Barn. & Cr. 261. .257 EYerett v. Hvdiaulic Co. 26 Cal. 225 368 Eyser v. Weisgerber, 2 Iowa, 463 . . 157, 168 F. Fahy ». North, 19 Barb. 341 108 Falconer r. Frazier, 15 Miss; 235 456, 457 Fallev V. Giles, 29 Ind. 114 276 Fallon V. I,awler, .i Cent. Kep. 45 190 Farmers' Bank v. Winslow, 3 Minn. 86 419 Farnsworth v. Garrard, 1 Camp. 38.. . 49 V. Tavlor, 9 Gray, 162.. . .295 Farqubar v. Brown, 132 iMa.-is. 3-tO 170 Farrar v. Stackpole, 6 Greenl. 154 305 Farwell v. Boston, &c. R. R. Co. 4 Mete. 49 128 Faulkner v. Llewellin, 11 W. R. 1055 ; 12 W. R. 193 227 Faxton v. Mansfield, 2 Mass. 147 40, 172 Fay V. Prentice, 1 C. B. 828 367, 400 Fell V. McManus, 1 Cent. Kep. 678 . . .185 Feltham r. England, L. R. 2 Q. B. 32; 36 L.J. Q. B. 14 129 Femes v. Hepbm-n, 2 Y. & C. 168. . . .226 Fentonj). Clark, 11 Vt. 557 35 V. Clegg, y Excli. 680 238 V. Holloway, 1 Stark, 126: ... .235 Feoffees of Heriot's Hosp. v. Gibson, 2 Dow, 301 383 Ferguson v. Etfev, 21 Ark. 160 299 V. Metropoli'an Ga.e-Li;;fht Co. 37 How. Pr. 189. .378 I/. Witsell, 5 Rich. 28 406 62 Ferrin ii. Kenney, 10 Met. 294 246 Fewster v. Turner, 6 Jur. 144 294 Field V. Manchester, 32 Mich. 279.. 387, 390 Fifield V. M. C. R. R. 62 Me. 77 306 Fifty Associates v. Tudor, 6 Gray, 255 324 Flldes V. Hooker, 2 Mer. 424 221 Finlay v. Aiken, 1 Grant (Penn.), 83 68 Finley v. Hershev, 41 Iowa, 389 118 V. Stu'burii, 38 Leg. Int. 386.. .339 Finney v. Condon, 86 III. 76 23, 142 V. AVatkins, 13 Mo. 291 307 Firth V. Midland Ry. Co. L. K. 20 Eq. 100 72 Fisher v. Beard, 32 Iowa, 346 121 V. Fisher, 1 Bradf. 335 297 V. Prowse, 31 L. J. Q. B. 213. .388 «. Rush, 71 Penn. 40 424 Fitzgerald v. Hayward, 50 Mo. 516 67, 178 V. Reed, 9 S. & M. 94 234 Flanagan v. Bank of U. S. 8 Wheat. 338 7 Fleckner v. Dyche, 2 T. R. 32 64, 65 Fleming v. Mayor, &c. 44 L. T. Rep. (N.S.)517 411 Fletcher v. Gillespie, 3 Bing. 637 83 V. Rylands, L. R. 3 H. L. 330 368, 405 Fletcher et al. v, Jackson et al. 23 Vt. 581 107 Flight V. Booth, 1 Bing. N. C. 370. ...287 Flint B. Bacon, 13 Hiin, 454 364 1). Brandon, 8 Ves. 159 70, 227 r. Gloucester Gas-Light Co. 3 Allen, 343 372 Flood V. Finlay, 2 Ball & B. l(i 221 Flvnn V. Hatton, 4 Ualv, 552 269 Foley V. Keegan, 4 Iowa, 1 62, 158 ji. Wveth, 2 .Allen, 131 356 Folger V. W'orth, 19 Piik, 108 385 Folsom V. McDonough, 6 Cush. 208. . .63, 100, 174 V. Moore, 19 Me. 2.52 304 Foltz V. Peters, 16 Ind. 244 444 Forbes v. Balenseifer, 74 III. 183 314 Ford V. Beech, 11 Q. B. 866 4 V. Burchard, 130 Mass. 424. .40, 171 V. Cobb, 20 N. Y. 344 .305 B.Smith, 25 Ga. 675. .29, 49, 54, 140 Foster v. B. W. &, D. Rv. 2 W. R. 378 283 V. Charles, 7 Bing. 105 29 V. Fowler, 60 Penn. St. 27 434, 435 V. Pevser, 9 Cush. 242 268 «. Poillon, 1 Abb. Pr. 321 458 V. Worlhington, 2 N. E. Rep. 473 207 Fowler v. Deakman, 84 111. 130. . .27, 152 V. Glover, 4 Dane Abr. 383 . . .274 V. R. &P. E. R. 31 Me. 197. .161 V. Shearer, 7 Mass. 14 ...235, 236 Fox V. Union Sugar Refinery, 109 Mass. 242 296 XXXll TABLE OF CASES. Fox V. Union Sugar Refinery, 109 Ma«s.292 387, 390 Fox U. M. Co. V. Reeves, 68 111. 403 145 Frances v. Dawson, 14 Ves. 386 219, 223 224 Francis v. Coclierell, L. R. 5 Q. B. 501 412 Frank v. Brand, 16 Conn. 272 113, 138, 224 Franklin i. Darke, 3 Foster & Fin- lason, 65 77 1'. Merida, 35 Cal. 538 292 V. Miller, 4 A. &E. 599 40 Franklinski c. Ball, 34 L. J. Ch. 153 243 Franklia Wharf Co. v. Portland, 67 Me. 46 402, 412 Franklyn v. Tuton, 5 Madd. 469 72, 76, 282 Freckner v. Greeseka, 5 Iowa, 472. . . .155 Frederick i. Callahan, 40 Iowa, 311 299 Freeman v. Carson, 27 Minn. 516 415 V. Gilpin, 4 Penn. L. J. 411 432 f. Greenville Masonic Lodge, 22Ga. 184 140 Frend v. Dennett, 4 Jiir. N. S. 897 7 Freshfield v. Keed, 9 Mees. & Wei. 404 257 Fritz 1. Hol>son,L. R. 14 Ch. Div. 542; 42 L. T. 22.) 115, 399 Fuller V. Chicopee, &c. 16 Gray, 46. .368 V. Taylor, 39 Me. 519.. .". 311 Fnllon r. Mehrenfeld, 8 Ohio, 358.... 391 Funk V. Egglesoii, 92 111. 511 252 Furnival v. Crew, 3 Atk. 83 220 G. Gaffield i: Hapgood, 17 Pick. 193 303, 306 Gale V. Abbott, 10 W. R. 748 335 V. Ward, 14 Mass. 352 307 Gallagher r. Nichols, 60 N. Y. 638-648 194 I'. Piper, 33 L..L C. P. 329; 16 C. B. N. S. 669.... 129 Gamble v. St. Louis, 12 Mo. 617 391 Gammon r. Howe, 14 Me. 250 97 Gardner v. Newbuig, 2 Johns. Ch. 162 318 Garland v. Towne, 55 N. H. 55. .117, 399 Garnett v. Albree, 103 Mass. 372 288 Garrett v. Banstead, &c. Ry. 4 De G., J. & S. 462 102 V. Beshorough, 2 Dru. &Wal3h, 441 221 Garretty d. Brazell, 34 Iowa, 100 45, 155 Garritt v. Sharp, 3 Ad. & E. 325 333 Gas Company v. Charter Oak Ins. Co. 19 Albanv"Law Journal, 501 376 Gaskins v. Balls, L. R. 13 Ch. Div. 324 284 Gas-Light Co. of Baltimore City v. Col- lidav, 25 Md. 1 .' 3T7 Gav v. Baker, 17 Mass. 438 300 Gayettv v. Belhiine, 14 Mass. 53, 55. .316 Gayford v. Nichols, 9 Exch. 708 354 Gebhart v. Reeves, 75 111. 301 319 Geddis v. Bann Reservoir, L. R. 4 App. Cas.430 410 General Steam Nav. Co. v. Rolt, 6 C. B. N. S. 550 105 Gerher v. Grabel, 16 III. 217 146, 325 Gere v. Gushing, 5 Bush (Ky.), 304 . .420 German v. Edwards, 2 Drury & W. 80 48 Gibbons v. Pearsall, 1 E. D. Smith, 90 285 Gibson V. Caruthers, 8 M. & W. 321 109 V. D'Este, 2 Y. & C. C. C. 542 294 ». Filer, 13Ind. 125 274 V. Goldsmid, 5 Ue G., M. & G. 757 221 Gifford V. Hoffman,' i Phi'la.' 127..' '. '. '. ^200 Gilbert v. Beach, 5 Bosw. 445 124 V. Drew, 10 Penn. St. 219 . . . .346 V. Woodruff, 40 Iowa, 320 .. . .341 Giles «. Ebsworlh, 10 Md. 333 292 Gilman v. Easton R. R. 10 Allen, 233 . 129 V. Gard, 29 Ind. 291 3 Gilmore v. Driscol, 122 Mass. 199 356 Glacius V. Black, 50 N. Y. 145. .20, 23, 36, 53, 90, 187, 191 Glasby D. Morris, 3 C. E. Gr. 72 563 Glave V. Harding, 27 L J. Ex. 292. . . 383 Glenn v. Davis. &c. 35 Md. 208 315 V. Leith, 1 Com. L. R. 569 26 V. Rise, 6 Watts, 44 292 Gleeson v. Smith, 9 Cush. 484 172 Godfrey, Adm., v. Dwinell, 40 Me. 94 218 Godley v. Frith, Yely. 15 382, 384 Goff V. O'Connor, 16 III. 421 303, 304 Goldsmid v. Tunbridge, ixc. L. R. 1 Ch. 349 395 Goldsmiths. Hand, 26 Ohio St. 101, 107 21, 24, 36, 54, 194,197 Gonzales v. McHugh, 21 Xex. 259 42, 202 Goodman v. Gore, 2 Rolle Abr. 704. . .329 V. Jones, 26 Conn. 268 211 ». Pocock, 15 1^. B. 576 35 V. White, 26 Conn. 317 415 Goodsell !). Myer, 3 Wend. 479 232 Goodtitle d. Clai'ges v. Finucan, 2 Dougl. 575 256 Goodtitle V. Way, 1 T. R. 735.... 213, 216 Goodwin v. Richardson, 11 Mass. 469 248 Gordon v. Milne, 10 Phila. 15 342 V. Rae, 3 E. & B. 1065; 27 L. J. Q. B. 185 106 o.Torrev,2McCart.Ch. (N.J.) 112 458 ». Trevely, 1 Price, 64 224 TABLE OF CASES. XXXlll Gore V. Gibson, 13 M. & W. 623 235 Gorman v. Sagner, 22 Mo. 137 4i9 Goss V. Lord Sugent, 5 B. & Ad. 64, 65 4 Gould V. Glass, 19 Barb. 171, 195 .. . .388 Gowen V. Philadelphia Exc. Co. 5 Watts &S. 141 388 Graham v. BicUman, 4 Dall. 149. . .97, 99 Gram v. Seton, 1 Hall, 262 248 Grandin v. Eeading, 2 Stock. 37 13, 186 Grant v. Chase, 17 Mass. 443, 445. .316, 324 V. Thompson, 4 Conn. 203 234 V. Vandercook, 57 Barb. 165. . .458 Grate «. La Croft, Cro. EI. 287 247 Gravenor u. Woodhouse & Thomas, 1 Bing.38 292 Graves v. Burdan, 26 N. Y. 601 360 V. Carrulhers, Meigs (Tenn.), 58, 65 51,89, 202 Graveson v. Tobev, 75 111. 640 144 Gray ». Harris, 107 Mass. 492 366 V. Holdship, 17 Serg. & K. 413 434 V. James, 126 Mass. 110 168 V Pope, 85 Miss. 116 426 V. Porter, 11 Barb. 592 275 V. Stevenson, 50 Iowa, 173 455 Grazebrook v. McCreedie, 9 Wend. 439 248 Great Northern Ey. Co. v. Witham, L. R. 9C. P. 16 94 Great Western Eailway of Canada v. Fawcett, 1 Moo. P. C. N. S. 101 . . . .412 Green v. Chelsea, 24 Pick. 71. .385, 386, 389 V. Fox, 7 Allen, 85 450 V. Green, 16 Iiid. 253 418 V. Haines, 1 Hilt. 254 64, 192 V. Nunnemacher, 36 Wis. 60. . .403 V. State, 8 Ohio, 310 . . .11, 26, 194 Greenaway v. Adams, 12 Ves. 400 265 Greene v. W. C. Kv. Co. L. R. 13 Eq. 44; 41 L.J.Ch."l7 72 Greenleaf v. Francis, 18 Pick. 117 357, 365 ji. Shuniiig, 2 Bull. 282. .197 Greenongh «. Wiggington, 2 Greene (Iowa), 435 425 Greenslade v. Hallidav, 6 King. 379. .398 Greenwald v. Kappes, 31 Ind. 216 154 Greenway v. Turner, 4 Md. 296 431 Greenwood v. Tennessee Man. Co. 2 Swan (Tenn.), 130 415 Gregory v. Wilson, 9 Hare, 683 221 Griffith V. Harrison, 4 T. R. 737 255 Griswald v. Miller, 15 Barb. 520 237 Grizzle v. Frost, 3 Fost. &F. 622 131 Grocers' Co. v. Doane, 3 Scott, 364 97 Grote V. (jhester & Holyhead Ry. Co. 2 Ex.251 412 Grout V. Townsend, 2 Hill, 554 231 Grove v. Fort Wayne, 45 Ind. 429 116, 117 ». Miles, 68 111. 338 148 Guerdon v. Corbett, 87 111. 272. . . .38, 141 Guerin v. Eodwel], 8 Vr. (N. J.) 71 25, 183 Guillon V. Tondy, 5 W. N. C. (Pa.) 526 , 201 Guthrie «. Jones, 18 Mass. 191 376 Guttridge v. Munyard, 7 Car. & P. 129 269, 289 Guv D. Barnes, 29 Ind. 103 293 ». West, 2 Selwyn N. P. 1297 . . .349 H. Hading v. Town of Hale, 61 HI. 192 . .394 Hadley v. Baxendale, 9 Ex.441; L. E. IC. P. D. 326 100 Haeussler v. Mo. Glass Co. 52 Mo. 462 434 Haines v. Drips, 2 Pars. Eq. Cas. (Penn.)236 347 Hair v. Bell, 6 Vt. 35 35, 46 Hale V. McLeod, 2 Mete. (Ky.) 98 386, 387 Halford v. Hatch, 1 Dougl. 183 244 Hall V. Bennett, N. Y. Superior Ct. J. &Sp. 302 28,187,190 V. Bulkley, 1 Dougl. 279 256 V. Crowlev, 5 Allen, 304 100 V. Hinckley, 32 Wis. 362 421 V. Holt, 2 Vern. 322, 3 P. Wms. 223 14 V. Euplev, id Penn! StVssi '.'.". .201 V. Wright, E., B. & E. 766 ; 29 L. J. Q. B. 43 12 Hallagan ». Herbert, 2 Daly, 253 453 Hallenbeck ». Dewitt, 2 Johns. 404. . .234 Hallett V. Martin, L. R. 24 Ch. D. 624 258 V. Wylie, 2 Johns. (N. Y.) 47 212 Halm's Appeal, 39 Penn. 409 419 Halm V. Horstman, 12 Bush (Kv-), 249 .99 Hame'li V. Griffiths,' 49 How.' Pr! 305. '.'364, 369 Hamer «. Knowles, 6 H. & N. 454 . . .358 Hamilton v. Schwehr, 34 Md. 107. . . .438 Hammond v. Vestry of St. Pancras, L.E.9C.P.316 410 Hampton v. Lewis, 49 Md 178 Hancock ». Wentworth, 5 Met. 446. . .316 Hannibal v. Draper, 15 Mass. 639 390 Hannibal Bridge Co. v. Schaubacher, 67 Mo. 682 381 Hanrahan v. O'Eeilly, 102 Mass. 201 306 Hanratby v. N. C. E. E. Co. 46 Md. 280 128 Hansen v. Meyers, 81 111. 321 280 Hanson v. McCue, 42 Cal. 303 366 Harding v. Wilson, 2 Barn. & Cr. 96 383 Hargrave ». Conroy, 4 C. E. Green (N. J.), 281 108,185 Harlan v. Rand, 27 Penn. 511 426 Harland v. Harland, 15 Penn. St. 513 306 XXXI V TABLE OP CASES. Harmer v, Cornelius, 5 C. B. N. S. 236; 28 L. J. C. P. 85 9 Harper v. Hampton, 1 H. & J. 622, . ,278 Harris v. James, 45 L. J. Q. B. 545.. ,290 V. Mnbljs, L. R. 3 Ex. D. 268. .116 V. Nickerson, L. R. 8 Q. B. 286 95 «. S. & K. R. R. Co. 47 Me. 298 161 Harrison v. Craigliead, 5 Bull. 270. . , .397 V. Good, L. K. 11 Eq. 338.., 289 V. Jacl^son, 7 T. R. 207. .248, 249 V. Pike, 4 Bull. 156 397 V. Wrinht, 13 East, 343 103 narrower v. Ritson, 37 Barb. 301 398 Harts. Cornwall, 14 Conn. 22 277 V. Kircher, 5 S. & R. 1 346 Hartshorn v. South Reading, 3 Allen, 501 318, 399 Hartupee v. Pittsburg, 97 Penn. St. 107 30, 52,198,200 Hartwell v. Armstrong, 19 Barb. 166 407 V. Kellv, 117 Mass. 235 311 Harvey v. Harvey, 41 Tt. 373 261 V. Lawrence, 15 L. T. N. S. 571 90 V. McCraw, 44 Tex. 412 280 Haskell v. New Bedford, 108 Mass. 208 412 Hastings v. Livermore, 7 Gray, 194.. ,407 Havens v. Klein, 51 How. Pr. 82, ,325, 334. 406 Haverstick v. Sipe, 33 Penn. St. 358 166, 327 Haviland v. Pratt, 1 Phila. 364 461 Hawkins v. Carbines, 27 L, J. Ex. 44 395 V. Kemp, 3 East, 430 253 Hawley v. The Mayor, &c., 33 Md. 270 382 Haworth v. Wallace, 14 Pa. St. 118 423 Hay ». Cumberland, 25 Barb. 594 205 V. Sterrett, 2 Watts, 331 327 Hayden v. Bradley, 6 Gray, 425. .268, 273 V. Madison, 7 Me' 76 42, 102 Hayes v. Second 13aptist Ch. 3 We-t. Rep. 830 62, 181 Hayward v. Cape, 25 Beay. 140 229 V. Leonard, 7 Pick. 187 32, 35, 37, 52, 172 Hazard Powder Co. v. Loomis, 2 Dis- ney (Cinn.), 545 3, 428 Hazlett V. Powell, 30 Penn. St. 293 327, 328 Healey)>. Mayor of Batley, L. H. 19 Eq. 375 389 Heard v. Bowers, 23 Pick. 455 98 Heckman v. Pinkney, 81 N. Y. 211, ,26, 36, 192 Helling v. Lumley, 3 De G. & J. 493 222 Helm V. Wilson, 4 Mo. 41 36 Hemphill «. City of Boston, 8 Cush. 195 388 Hendricks v. Stark, 37 N. Y. 106 346 Hepburn ». Leather, 50 L. T. 660 75 Herrick ». Marshall, 66 Me. 435 325 ?). xVoble, 27 Vt. 1 205 Hertz ». Union Bank, 2 Giff. 686 335 Hewlins v. Shippam, 5 Barn. & C. 221 316, 382, 384 Hickox V. Greenwood, 94 III. 266 420 Hiett V. Morris, 10 Ohio St. 523. .. .321, 327, 346, 352 Higgins V. Lee, 16 III. 495 30, 141 Hilborne v. Brown, 12 Me. 162 311 Hildvethi). Conant, 10 Met. 298 246 Hill V. Barclay, 16 Ves. 40, n 70 V. Bishop, 2 Ala. 326 267 V. Featherstonhaugh, 5 M. & P. 541, 548; 7 Bing. 569 49 D. Hovey, 26 Vt. 109 204 V. MiibuVn, 17 Me, 316 35, 163 V. Miller, 3 Paige, 254 314, 406 V. Newman, 38 Penn. 151 432 V. Smith, 34 Vf. 535 63, 206 V. Wentworth, 28 Vt. 428 307 v: Wiiraer, 2 Phila. 72 451 Hilliard v. Kichaidson, 3 Gray, 349 122 Hilton V. Lord Granville, 5 Q. B. 701 120 Hilyard v. Crabtree, 11 Tex. 268. .51, 88, 202 Hinchcliffe v. Kinnoul, 5 Bing. N. C. 1 313 Hinckley ii. Baxter, 13 Allen, 139 311 Hiiideti. AVhitehouse, 7 East, 568 95 Hine v. New Haven, 40 Conn. 484 304 Hislop V. Leckie, L. R. 6 App. Cas. 560 287 Hobbs i: Lowell, 19 Pick. 405. , ,389, 390 Hoby 1'. Roebuck, 7 Taunt. 157 295 Hoddeson Gas & Coke Co. r. Hasel- wood, 6 Com. B. (N. S.) 238 377 Hodges V. Horsfall, 1 Russ. & M. 116 226, 295 Hodgkinson v. Ennor, 4 Best & S. 229 403 Hogan V. Gushing, 49 Wis. 169 432 Hoitv. Underbill, 9 N. H. 436 233 Holdane v. Coldspring, 21 N. Y. 475 389 Hnlden v. Winslow, 18 Penn. 160 443 Holder v. Taylor, 1 Rolle Abr. 518... ,281 Hollis V. Whiting, 1 Vern, 151., ,218, 223 Hollv V. Boston Gas-Light Co. 8 Gray, 123 ■:!372 Holme r. Guppy, 3 M. & W. 387; 1 Jur. 829 -. 41 Holmes i'. Blogg, 8 Taunt, 35 237 V. Holmes, 44 111. 168 220 V. Onion, 2 C. B. N. S. 790.. .127 V. Richet, 56 Cal, 307 431 V Shands, 26 Miss. 639 2, 3 Holts. Holt, 91 Penn. St. 88 274 Holtham v. Rvland, lEq. Cas. Abr. 18.. 47 Homan v. Stanley, 66 Penn. 464 121 V. Steele, 26 N. W. Rep. 472 59, 182 Honduras Ry. Co. v. Lefevre, &c. L. R. 2 Ex. D. 301; 46 L. J. Ex. 391. . 17 TABLE OF CASES. XXXV Hood V. N. E. Ky. Co. L. E. 5 Ch. 525 72 Hoole V. Atty. Gen. 22 Ala. 190. .386, 391, 393 Hopkins v. Crombie, 4 N. H. 520 398 Hopkinson i;. Ferrand, 20 L. J. C. P. 202 263 Hopper V. Childes, 43 Penn. 310 424 Horner ». Graves, 7 Bing. 735 288 V. Watson, 79 Penn. St. 242 120, 360 Hort V. Norton. 1 McCord, 22 80 Horton v. Carlisle, 2 DIsnev, 184 435 Houghton V. Blake, 5 Cal. 240 430 Houldswoi-th V. Evans, 37 L. J. Ch. 752, 793, 800 8 Houlgaie v. Surrey Consumers' Gas Co. 8 Gas J. 261 377 Houps V. Allen, 22 Iowa, 160 319 House o-.Metcalf, 21 Conn. 631 399 Houser v. Reynolds, 1 Hayw. 143 232 Hover ». Samaritan Society, 4 Whart. 445 ". 253 Hovey v. Luce, 31 Me. 346 162 Howard v. Carpenter, 11 Md. 259 . .165, 213 V. Doolittle, 3 f)uer, 464 268 V. Ellis, 4 Sandf. 369 288 V. Lovemore, 1 L. K. 6 Exch. 43 268 V. Rogers, 4 H. & J. 278 296 V. Sexton, 4 Const. 157 21 V. W. & S. R. R. 1 Gill (Md.), 311 55,164 Howe «. Huntington, 15 Me. 350 60 V. Newmarch, 12 Allen, 49, 57 126 Howland i>. Coffin, 12 Pick. 125 275, 280 II. Vincent, 10 Met. 371 357 Hoyle V. Stowe, 2 Dey. & B. 323 233 Hoyt V. Glenn, 54 Ga. 671 4.52 Hubbard v. Town, 33 Vt. 295 321 Hubbell V. Warren, 8 Allen, 173 284 Huckley v. Greany, 1 18 Mass. 595 449 Hudson V. Bartram, 3 Madd. 440 221 V. Temple, 29 Beay. 536; 30 L.J. C. 251 59 Hughes V. Metropolitan Ry. 46 L. J. C. 583 222 V. Percival, 8 App. Cas. 444 123, 125 Huitze V. Thomas, 7 Md. 348 276 Halle V. Heightman, 2 East, 145 38 Hummer D. Lockwood, 3 G. Gr. (Iowa) 90 165 Hnmphries v. Brogden, 12 Q. B. 739, 747 360 Hungerford v. Clay, 9 Mod. 1. . .242, 243 Hunt V. Uanforth. 2 Curt. C. C. 592. .276 V. Lowell Gas Co. 3 Allen, 418 371 V. Mullanphv, 1 Mo. 508 307 Hunter «. Blanchard, 18 III. 318. .430, 431 V. Galliers. 2 Term Rep. 132 266 V. Hunter, 17 Barb. 26 98 ti. Lawning, 76 Penn. 25 414 Hunter v. Truckee Lodge, 14 Ney 24, 457 V. Trustees of Sandy Hill, 6 Hill, 411 386,387 Huntley ». Russell, 13 Q. B. 688 260 Hussey ti. Roquemore, 27 Ala. 281 134 Hutchinson v. Copestake, 9 C. B. N. S. 863 333 ■i>. Mains, Ale. & Nap. 155 343 V. York & Newcastle Ry. Co. 5 Ex. 350 128 Hyde ». Graham, 1 H. & C. 698 335 V. Grisby,- 11 La. 240 39, 160 V. Hill, 3 T. R. 377 301 Hyland v. Giddings, 11 Gray, 232 90, 172 I. Illinois Cent. R. R. o. Cox, 21 111. 20, 26 128,129 Imperial Gas-Light & Coke Co. v. Lon- don Gas-Light Co. 10 Exch. 39. . . .375 Indianapolis v. Huffer, 30 Ind. 235 412 Indianapolis, B. & W. R. R. v. 0' Keily, 38 Ind. 140 153 Ingles V. Bringhurst, 1 Dall. 341. . . .341 Ingraham v. Hutchinson, 2 Conn. 584 327 Ipswich V. County Commissioners, 108 Mass. 33 369 Irvin V. Fowler, 5 Rob. (N. Y.) 482.. .388 Irvine v. Wood, 31 N. Y. 224 399 Irwin V. Dixon, 9 How. 10 399 Iseham v. Morrice, Cro. Car. 109 230 Isenberg v. East India Co. 33 L. J. Ch. 392 336 Ishewood v. Oldknow, 3 M. & S. 382 256 J. Jackson v. Bowker, 4 Met. 235 171' V. Campbell, j5 Wend. 522. . .240 V. Carpenter, 11 Johns. 539 231, 232 V. Cator, 5 Ves. 688 246 V. Corlis, 7 Johns. 221 266 V. Cuerden, 2 Johns. Cas. 353 292 V. Davis, 5 Cow. 129 244 V. Delacroix, 2 Wend. 433. . .213 V. Delaney, 11 Johns. 365.. . .294 V. Harrison, 17 Johns. 66. . . .243 V. Havner, 12 Johns. 469 234 V. Hoiloway, 7 Johns. 81 236 V. Pesked, 1 M. & S. 234, 117, 367 V.Pierce, 2 Johns. 221 216, 223 V. Tibbitts, 3 Wend. 341 261 V. Van Hoesen, 4 Cow. .325. .245 V. Veeder, 11 Johns. 169 262 Jacksonville v. Lambert, 62 III. 519.. .411 Jacomb v. Knight, 3 De G., J. &. S. 533 335 XXXV 1 TABLE OP CASES. Jaffe V. Hartean, 56 N. Y. 398 268 Jager ». Adams, 123 Mass. 26 117, 125 James o. Havward, Cro. Car. 184. .388, 399 .;. Van Horn, 39 N. J. L. 356 461 Jameson v. Smith, 4 Bibb, 307 252 Jaques v. Morris, 2 E. D. Smith, 639 460 Jarden v. Pumphey, 36 Md. 361 167 Jareclii v. Philharmonic Society, 79 Penn. St. 403 376 Jarvis v. Deane, 3 Bing. 447 389 Jav, ex parte, L. R. Ch. D. 19; 28 W. R.449 113 Jay V. Richardson, 30 Beav. 563 289 Jean v. Wilson, 38 Md. 288 419 Jeffries v Williams, 5 Ex. 792 120 Jegon V. Vivian, L. R. 2 C. P. 422 255 Jennings v. Alexander, 1 Hilton, 154. .244 V. Camp, 13 Johns. 94... .32, 36 Jersev Citv Gas Co. v. Dwight, 29 N. J. lEq 242 373, 374 Jessup V. Stone, 13 Wis. 466 420 Johns V. Fritchey et al. 39 Md. 258.. .235 Johnson v. De Peyster, 50 N. Y. 666 20, 24, 36, 53, 187, 191 ■V. Ewing Female University, 35 111. 518.... 144, 145,419 t7. Harris, 5 Havw. (N. C.) 113 '. 247 V. Kershaw, L. R. 2 Ex. 82. . 15 V. Moore, 1 Litt. 371 234 C.Parker, 3 Dutch. (N. J.) 242 427 V. Pike, 35 Me. 291 445 V. The Board of Commission- ers, &c. 6 Stewart, 152. . 73 Johnson's Executors v. Wiseman's Executors, 4Metcalf (Kv.), 357 376 Johnstone v. Hall, 2 K. &"G. 414 288 Jones ». Carter, 15 M. & W. 718 265 ». Chamberlain, 30 Vt. 196 205 V. Crow, 32 Penn. St. 398 315 V. Guthrie, 108 Mass. 191 306 V. Heavens, L. R. 4 Ch. D. 636 104, 291 V. Jones, IH. &C. 1 119 V. Jones, 17 L. J. Q. B. 170 25 V. Jones, 12 Ves. 188 222 V. Judd, 4 N. Y. 412 189 B.Miller, 12 Mo. 408 513 V. Powell, Hutt. 135 403, 404 V. Ramsay, 3 Brad. 303 302 V. St. Johns. Col. L. R. 6 Q. B. 115; 40 L. J. Q. B. 80.... 60, 64, 65, 104 II. Shawhan, 4 Watts & S. (Penn.)257 432 V. Thome, 1 B. & C. 715 289 V. Wagner, 66 Pa. St. 429 360 e. Woodbury, 11 B. Men. (Ky.) 167....". 83 Judah V. Zimmerman, 22 Ind. 388 105, 154 Judson V. Stephens, 75 111. 255 423 Justices, The, v. Corft, 18 Ga. 473. .68, 73 Kabley v. Worcester Gas Co. 102 Mass. 392 212 Kalman v. Bavlis, 17 Cal. 291 4, 136 Kane v. Stone" Co. 2 Clev. Rep.. 291.. 196 Kaiiffman v. Grieseraer, 26 Penn. St. 4(17 365 Kay V. Johnson, 3 H. & M. 118. ..68, 228 Kave V. Bank of Louisville, 9 Dana, 261 461 Kearney v. Po«f, 1 Sandf. 105 280 Keating v. Korfhage, 4 West Rep. 569 179 Keats f. Hugo, 115 JIass. 204 324 Keav V. G(ii>dwin, 16 Mass. 1 247 KeechB. Hail, 1 Doug. 21 243 Keeler v. Keeler, 31 N. J. 191 376 Kees V Kerney, 5 Md. 419 461 Keifferi). ImhofT, 26 Penn. St. 438. ..316 Kelk V. Pearson, L. R. 6 Ch. 809 329 Kellenberper v. Boyer, 37 Ind. 188 418 Kellengberger v. Foreman, 13 Ind. 475 270 Kellogg !). Carkin, 3 Chand. 133 285 V. Robinson, 6 Vt. 276 276 Kelly «. Austin, 46 111. 156 309 V. Kellogg, 79 III. 477 151 V. Mayor," &c. 4 Hill, 263 239 V. Patterson, L. R. 9 C. P. 681. .245 V. Waite, 12 Met. 294 246 Kelsevw. King, 33 How. 39 386 Kemble v. Farren, 6 Bing. 141, 148 96, 97, 98 Kemp V. Rose, 1 Giff. 268 14, 29, 91, 92 V. Sober, 1 Sim. N. S. 517 288 Kendall v. Garland, 5 Cush. 74 255 Kennedy D. Jones, 67 Me. 538... 444, 445 Kensington v. Brindlev, 12 Moo. C. P. 37 ■ 102 Kent t). Humphreys, 13 111.573.. 59, 62, 101, 152 Keppell V. Bailey, 2 Mylne & K. 517 280 Keteltas i. Penfold, 4 E. D. Smith, 122 345 Kettening Gas Company v. Leach, 24 Gas J. 5113 377 Kettle V. Harvey, 21 Vt. 301 33, 206 Keystone r. Gallagher, 5 Col. 23.. 417, 433 Kidd V. JMcfonnick, 83 N. Y. 391; 11 Week. Dig. 460 191 Killian V. Eigenmann, 57 Ind. 480. . .442 Killion V. Powers, 51 Penn. St. 429 116, 368 Kilmorev v. Thackery, 2 Bro. Ch. 65. .72 Kimball r. Bath, 38 Mo. 219 116 V. Sumner, G2 Me. 305 415 Kimberlv t). Dick, L. U. 13 Eq. 1. .14, 29 King V. "Aldbornngh, 1 East, 297 243 V. Large, 27 Leg. Int. 148 327 V. Oiikley, 10 East, 494 236 V. Rdsewell, 2 Salk. 459 118 Kingdon v. Cox, 2 C. B. 661; 15 L. J. C. P. 95 ... .59 Kintrea v. Perston, 1 ii, & li. '357.'. . .291 TABLK OF CASES. XXXVll Kirbv V. Eccles, ILson. 188 321 " V. Tead, 13 Met. 149 425 Kirk V. Bronilev Union, 2 Phill. 640; 17 L. J. (N. S.)Ch. 127 24,25,79 Kirkland ». Gates, 25 Ala. 465 134 Kirkpatrick v. Peshine, &c. 9 C. E. Gr. 206 181 Kirtland v. Moore, 1 Cent. Rep. 466 19, 26, 183 Kirwin v. Latour, 1 H. & J. (Md.) 289 307 Kitchen v. Campbell, 3 Wils. 304 127 Kittredge v. Neumann, 26 N. J. Eq. 195 420' Klein v. Gehrung, 24 Tex. Supp. 240 321, 326 Kline v. Bebee, 6 Conn. 494 23.3 Klingle »i. Ritter, 64 III. 140 291 Knabb's Appeal, 10 Penn. St. 186 455 Knabe v. Tornot, 16 La. An'. 13 14 Knapp V. Brown, 11 Abb. Pr. N. S. 118 424 V. St. Louis, &o. R. E. 74 Mo. 374 436 Knight V. Beenken, 30 Penn. 372 346 1!. Fox, 1 Ex.721 124 V. Norris, 13 Jliiin. 473 432 v. Pursell, L. R. 11 Ch. D. 432 343, 350 Knowles i;. Richardson, 1 Mod. 55 3-35 Knox V. New York, 55 Barb. 404 115, 117 Kohlhammeru. Weisbach, 90 111. 311 408 Koon V. Greenman, 7 Wend. 121 189 Korbe v. Barbour, 130 Mass. 255 306 Korf V. Lull, 70 ill. 420 49, 141 Kramer v. Cook, 7 Gray, 553 268 Krev ». Hussman, 4 West. Rep. 261 180 Kruppe V. Palmer, 2 Wils. 130 237 Kuhlman v. Ht-tch, 77 III. 570 147 Kutterv. Smith, 2 Wall. 491 298 Kntts V. Pelbv, 20 Pick. 65. . . .12, 90, 169 L. Labeanne v. Hill, 1 Mo. 42 179 Ladd «. New Bedford, &c. R. R. 119 Mass. 412 130, 131 Lade v. Shepherd, 2 Strange, 1004 314, 389, 393 Laffan v. Naglee, 9 Cal. 677 279 Lakei). Camphell, 18 III. 109 249 Lamette i). Anderson, 6 Cow. 302 297 Lamprell v. liillericav Union, 3 Ex. 283; 18 L. J. Ex 282 24, 80 Lamson ». Clark-'on, 113 Mass. 348.. 292 Lancaster v. Ue Trafford, 31 L. J. Ch. 554 226 Lane ». King, 8 Wend. 584 242 D. Miller, 27 Ind. 531 316 V. Newdigate, 10 Ves. 192 225 Lanfranchi v. lilackenzie, L. R. 4 Eq. 421 329 Lang 1). Whidden, 2 N. H. 435 234 Laning v. N. Y. Cent. R. R. 49 N. Y. 521 131 Lannan v. Albany Gas Co. 46 Barb. 264 .-371, 372 Lant !). Norris, 1 Burr. 287 270 Lassell v. Reed, 6 Me. 222 306 Latham v. Roach, 72 III. 179 130, 131 Lattimer v. Livermore, 72 N. Y. 174. .330 Lavillebeuve v. Cosgrove, 13 La. An. 323 331 Laviolette v. Redding, 4 B. Mon. (Ky.)81 450 Lawrence v. Kemp, 1 Dner, 363 376 V. Knight, 11 Cal. 208 298 V. Knowles, 5 Bing. N. C. 399 110 ». Shipman, 39 Conn. 587. .139 V. Tavlor, 5 Hill, 107 249 Lawson v. Hogan, 93 N. Y. 39. . . .64, 190, 193 V. Wallasev, &c. 52 L. J. Q. B. 302 ; 48 L. T. 5117.. 5, 39, 43 Lawton v. Lawton, 3 Atk. 13 305 V. Tison, 12 Ptich. 88 386 Layer v. Nelson, 1 Vern. 465 107 Leas. Whitaker, L. R. 8 (J. P. 70 98 Leach v. Goode, 19 Mo. 501 299 Leavenworth v. Casev, McCahan (Kan.), 124 ' 412 Lecroy v. Wiggins, 1 B. & S. 272 2 Lee V. Burke, 66 Penn. .St. 336 459 V. Norris, Cro. El. 331 230 V. Risdon, 7 Taunt. 188 303 V. Stdvenson, EI., Bl. & El. 512. ..381 Leech v. Schweder, L. K. 9 Ch. 463. . .328 Legge V. Harlook, 12 Q. B. 1015; 18 L. J. Q. B. 45 64, 65, 100 Leib V. Stribling, 51 Md. 286 438 Leighton v. Meserve, 117 Mass. 50... 173 Le Roy v. Piatt, 4 Paige, 77 305 Lester v. Foxcraft, Colles Pari. Cas. 108 219, 223 V. Hardestv, 29 Jld. 59 301 Lethbridge«. Winter, 1 Campb. 263 »., 392 Lewis I). Bead, 1 Ves. 19 235 V. Brass, L. K. 3 Q. B. D. 667. . .94 V. Nicholson, 18 Q. B. 503 16 Lewiston «. Proctor, 27 III. 414 293 Libbev V. Talford, 48 Me 316. . . .268, 271 Liddell v. Sims, 2 Smedes & M. 596. . .59 Liffv V. Staples, 39 Me. 166 278 LifoVd's case, 11 Co. 51 305 Liggins v. Inge, 7 BiiiL'. 682 321 Liffhthall v. Colwell, 66 111. 108 150 Lille V. Leigh, 3 De G. & -lones, 204. .222 Lillywhite v. Trummer, 16 L. T. N. S. 318 409 Linahan v. Burr, 41 Conn. 473 .309, 310 Lindsay v. Lynch, 2 Sih. & Let. 1. . .224 Lindsey v. Gordon, 13 Me. 60 51, 58 Linnetts. Wilson, 3 Bins. 115 314 Little V. Mercer, 9 Mo. 216 179 Littler v. Holland, 3 T. R. 590, . . .59, 282 Livermore v. Wright, 33 Mn. 31 442 Livingston Co. v. Graves, 32 Mo. 479 46, 179 Lloyd V. Crispe, 5 Taunt. 249 265 XXXVlll TABLE OF CASES. Lloyd V. London, C. & D. Ry. Co. 2 DeG., J. &S. 568 283 V. Wheiitly, 2 Jones Eq. (North Carolina) 287 75 Loclts & Canals v. Lowell, 7 Gray, 223 411 Lockwood V. Lockwood, 22 Conn. 433 272 Logan V. Taylor, 20 Iowa, 297 420 Logansport i' Wright, 25 Ind. 512. . ..411 Lombard r. Johnson, 7B III. 599 36 I'. Tike, 33 Ale. 141 445 London & Blackwall Ry. Co. v. Limehnuse, 2(J L. J. Ch. 164 372 London Brewery Co. v. Tenant, L. R. 9Ch. 219 337 London, City of, v. Nash, 3 Atk. 512 69, 71, 223, 227, 270 1/. Southgate, 38 L. J.C. 141 228 London, Corporation of, v. Eiggs, 13 Ch. D. 798 381 Long V. Caffrey, 93 Penn. St. 526.. 200, 448 1). Fitzsimmons, 1 Watts & S. 530 260 Longford i-. Eyre, 1 P. W. 740 253 Lord V. Gaddiss, 9 Iowa, 205. ...62, 64, 158 V. Wheeler, 1 Grar, 283. . . .168, 170 Loring v. Bacon, 4 Mass. 575 272, 360 V. Flora, 24 Ark. 151 460 Losee k. Buchanan, 51 N. Y. 476 368 Louisville & Na.sh. R. R. Co. v. Holler- bach, 3 We^t. Rep. 364 5, 39, 42, 155 Loundsberr}' r. Eastwick, 3 Phila. 371 51, 89, 198 Lovelock r. King, 1 Moody & R. 60 81, 84, 85 Lowe V. Be.ers, 4 Burr. 2228 103 f. GrifHth, 1 Scott, 400 237 V. Innes, 4 De G., J. & S. 286. .275, 283, 322 V. Swift, 2 Ball & B. 537 257 Lowell V. Allen, 14 Allen, 130 174 Lowvy V. McLaiie, 3 Gr. 333 199 Lucas V. Commerford, 1 A~es. Jr. 235 70 V. Commerford, 3 Brown, 166 223 ■0. Godwin, 3 Bing. N. C. 737 51, 52, 58, 59 I. Snyder, 2 G. Gr. (Iowa), 590 62, 64, 158 Lnckhart v. Ogden, &c. 30 Cal 547 4, 62, 138 Ludbrook v. Barrett, 46 L. J. C. P. D. 798; 36 L. T. 016 27, 28 Ludlow r. H. li. K. Co. 57 N. Y. 128 350 Lugenbuhler v. Gilliam et al. 3 Iowa, 391 342 Lull*. Korf, 84 III. 220 25, 142 Lmnber «. Tullcr. 88 III. 260 152 Lunn etal. r. (Jage, 37 111. 19 270 Lunsford v. Turner, 5 J. J. Marsh. 104 292 Lusk 11. Druse, 4 Wend. 313 293 Lutz V. Ev, 3 E. 1). Smith, 621 437 Lyle V. Ja"ckson, 23 Ark 63 135 Lyman v. Babcock, 40 Wis. 503 101 V. King, 9 Ind. 3 423 Lynch v. New York, 76 N. Y. 60 492 V. Onondaga, 64 Barb. 558 268 L.vnde v. Rough, 27 Barb. 415. . .243, 265 Lynn ». Burgoyne, 13 li. Mon. 4U0. . . .16 Lytton V. G. N. Ry. Co. 2 K. & Jo. 394 72 M. M. & M. Sav. Bank v. Dashiell, 25 Gratt. 616 2 McAlpin V. Duncan. 16 Cal. 127 437 V Powell, 70 N. Y. 126 268 McAuIey v. Mildrum, 1 Daly, 396, . . .439 McCamus v. Citizens' Ga-.-Light Co. 40 Barb. 380 400 McCartee v. Orphan Asvlum, 9 Conn. 437 ■ 2.39 McCarthy v. Syracuse, 40 N. Y. 194. .412 McCarty'i). Ca'rler, 49 III. 53 424 V. Ely, 4E. D Smith, 375 ..234 McCauslandu. Cresap, 3 G. Gr. (Iowa) 161 42, 159 McClain v. Doe, 6Ind. 237 255 McClay v. Hedge, 18 Iowa, 66... 40, 42, 159 McConey ii. Wallace (Mo. Appeal), 4 West. Rep. 843, 846 6, 66, 179 McConnell v. Kilgalhn, L. R. Ir. 2 C. L. 119 92 McCormick v. Conollv, 2 Bay (S. C), 401.." "...82, 84,85 V. Lawtnn, 3 Neb. 449 426 V. The Mayor, &c. 45 Md. 512 * 382 McCoy D. Quick, 30 U'is. 521. . . .413, 450 McCracken i\ Hall, 7 Ind. 268.. .305, 306 McCray v McCray, 30 Barb. (N. Y.) 633 '. 218 McCready u. Thompson, Dudley (S. C), 131 " 326 McCree t'. Campion, 5 Pliila. 9 418 McCullough V. Baker, 47 Mo. 401. .6, 178 V. Talledega Ins. Co. 46 Ala. . 376 7 McCune v. Norwich City Gas Co. 30 Conn. 521 370, 377 McDermolt v. McGregor, 21 Minn. 17 221 McDonald v. I.indall, 3 Rawle, 492. . .454 McDonnell v. Culver, 8 lluii, 155 346 McEIderry v. Flannai,'an, 1 H. & G. 308...." ' 165 McFadden v. O'Donald, 18 Cal. 160 23, 136 McFarlan v. Watson, 3 N. Y. 286 , . 244 McFarlane v. Williams, 107 III. 33.. . .299 McGinnis v. Purringtun, 43 Conn. 143 426 McGittigan v. Evans, 8 Phila. 264. .346, 350 McGlynn v. Moore, 25 Cal. 384 286 TABLE OP CASES. XXXIX McGraw r. P. & L. E. R. E. 2 Cent. Rep. 565 200 McGuire v. Grant, 1 Dutch. 3,56. .35B, 359 Mcllvain v. Hestonville & Mantna R. R. 5PhiIa. 13 1, 4.34 Mcintosh V. Glannon, 18 La. 469 160 Mclntyre r. Morriii, 14 Wend. 90 189 McIveVs V. Estahi-ook, 134 Mass. 550. .310 McKav, ex parte, L. R. 8 Ch. 643 113 McKey v. Brooks, 20 Mo. 526 227 «. Harman et al. 24 N. W. Rep. 702 177 McKinney v. Springer, 3 Ind. 69. .62, 54, 85, 86, 153 McLagan v. Brown, 11 Iir. 519 419 McLaughlin v. Green, 48 Mi^s. 175. . .415 V. Reinhart, 54 Md. 76. ..428 McLean v. McKav, L. R. 5 P. C 327. .284 McManus v. Butler, 61 Barb. 4.S6 388 V. Crickett, 1 Kast, 106 126 McMillan «. Solomon, 42 Ala. 356 271, 275 V. "Watt, 27 Ohio (N. S.), 306 120 McMurrav v. Spicer, L. R. 5 Eq. 527. .03 McNiel V. Borland, 23 Gal. 144 459 Mack V. Patchin, 42 N. Y. 107 267 Mackev v. Greenhill, 30 Jur. 746 404 Macon"'!). Franklin, 19 Ga. 239 389 Madigan v. McCarthy, 108 Slass. 376 310 Magee v. Lavell, L. R. 9 C. P. 115 98 Magill D. Hinsdale, 6 Conn. 469 291 Mahan v. Brown, 13 Wend. 216 , .156, 321 Mainprice v. Wesley, 6 B. & S. 420 94 Malbon et al. v. Birnev, 11 Wis. 107. .208 Mallan v. Mav, 13 M. '& W. 517 4 Malone v. Ha'wlev, 46 Cal 409 130 Malpas V. Ackland, 3 Russ. 273 240 Manchester v. Dodridge, 3 Ind. 360.. .246 Manchester Mills v. Rundlett, 23 N. H. 271 112, 182 Manly et al. v. Gibson, 13 111. 308 391 Manner.s (Lord) v. Johnson, L. R. 1 Ch. Div. 673; 46 L. J. Ch. 404 . .72. 76, 284, 334 Manser's case, 2 Co. 3 n 235 Mansfield v. Beard, 82 N. Y. 60. . .60, 188 i). Doolin, 4Ir. R. C. L. 17. .26 V. Mansfield, 6 Conn. 659. .250 V. N. Y. Cent. R. R. 16 Week. Dig. 272; 3 Cent. Rep. 199 63,192 Marcy v. Darling, 8 Pick. 283 311 Marker v. Marker, 4 Eng. L. & Eq. 95 264 Markland v. Crump, 1 Dev. & Bat. 94 280 Marquat v. Marquat, 12 N. Y. 3.36... .236 Marrable, ex parte, 1 Glyn o. Jameson, 402 112 Marsden v. Sambell, 28 W. R. 952. . .102 Marshall v. Berridge, 19 Ch. D. 233 . .211 V. Broadhursf , 1 C. & J. 403 . . 108 V. Cohen, 44 Ga. 489 404 «. Hann, 2 Harr. (N. J.) 425 62, 102, 186 Martin v. Headon, L. K. 2 Eq. 425 322, 329 ». Jett, 12 La. 601 365 Martine v. Nelson, 61 111. 422. .81, 95, 152, 432 Marj'on v. Carter, 4 C. & P. 295 69 Mason v. Bauman, 62 111. 76 14 V. Bridge, 14 Me. 468 163 V. Cole, 4 Ex. Ch. 375 384 V. Fenn, 13 111. 629 303 V. Heyward, 6 Minn. 74 457 V. Jones, 2 Barb. 229 417 V. Smilh, 131 Mass. 516 301 Massey v. Goyder, 4 C. & P. 161 120 Masury v. Southworth, 9 Ohio St. 340 280 Mather v. Butler Co. 28 Iowa, 253 156, 158 Mafhew v. Davis, 6 Humphrey (Tenn.), 324 202 Mathiott et al. «. Howard etal. 34 Md. 121 298 Matson v. Griffin, 78 iil.'477 '.'.'.'.30.3V304 Matts V. Hawkins, 5 Taunt. 20. .339, 340, 349, 364 Maundrell v. Maundrell, 10 Ves. 246 254, 266 Maxwell v. East River Bank, 3 Bosw. 124 391 May V. Hamilton, &c. 10 Bosw. 537 298 Mayhew v. Cricket, 2 Swanst. Ch. 185, 189 105 Mavnard v. Esher, 17 Penn. 222 327 Mavo V. Fletcher, 14 Pick. 625 241 Mayor v. Bronklvn, 41 Barb. 231 298 ». Mavbie, 13 N. Y. 160 266 V. Pafleson, 10 Easf, 130. .276, 288 Mead v. Davidson, 3 Ad. & El. 303.. .229 Mechan v. Scott, 2 Hilt. 550 267 Mechanics' Bmk v. Seton, TPet. 299. .70 Meek v. Landon, 37 L. T. 181 374 Meeker v. Van Rensselaer, 15 Wend. 397 118 Mehurim v. Stone, 37 Ohio, 49 . . .36, 196 Mellors v. Shaw, 1 Best & S. 4-37 129 Memphis Gas-Licht Co. v. State, 6 Cold. (Tenn.) 310 376 Menetone v. Athawes, 3 Burr. 1592. . . .48 Meni v. Rath bone, 21 In«i. 464 300 Mercer v. Pittsburg, &c. R. R. Co. 36 Penn. St. 99 390 Merchants' Ins. Co. v. Mazange, 22 Ala. 168 274 Merrick v. Burlington & Warren Plank Road Co. 11 Iowa, 75 7 Merrifleld v. Worcester, 110 Mass. 216 411 Merrill v. Merrill, 15 Mass. 488 97, 99 Mervin v, Sherman, 9 Iowa, 331 451 Meyer v. Metzler, 51 Oil. 142 116 Mevers v. Scliemp, 67 III. 469 305 Middlekauff v. Smiih, 1 Md. 340 272 Middleton v. Greenwood, 2 De G., J. & Sm. 142 228 Miles V. Rose, 5 Taunt. 705 393 Millers. BarroU, 14 Md. 173 458 xl TABLE OF CASES. Miller v. Brown, 33 Ohio St. 547 352 V. Hev-liey, 5!) Penn. St. 64 436 V. Holliiigswoi-tli, 33 Iowa, 224 426 V. Lonpr, 99 Mas^. 13 292 V. McBrier, 14 Serg. & R. 382 291 V. Stewart, 4 Wash. C. C. 26 105, 106 Milliken v. Armstrong, 17 Ind. 456. . .395 Mills V. Barber, 4 Dav, 428 248 V. Bavlev, 2 H^ & C. 36; 32 L. J. Ex. 179 5, 22 V. Weeks, 21 111. 568., 25, 26, 79, 143 Milnes' Appeal, 81 Penn. St. 54 355 Minlev v. McDermntt, 3 N. & P. 356. .295 Minot)!. Curtis, 7 Mass. 444 239 V. Jciy, 118 Mass. 308 300 Missouri Institute, &c. v. Huw, 27 Mo. 211 393 Mitchell V. Leavitt, 30 Conn. 590 318 V. Warner, 5 Conn. 518 364 V. Wiscotta Land Co. 3 Iowa, 209 30, 52, 155, 156 Mobile K. R. v. Thomas, 42 Ala. 672. .131 Moffatt ». Dickson, 22 L. J. C. P. 265; 13 C. B. 543 13, 30 Moffett V. Brewer, 1 Iowa, 348 399 Moirj). Horkins, 16 111. 313 126 Mold V. Whoatcroft, 8 Ellis & B. 31 . .331 Mollow V. Irwin, 1 Sch. & L. 310 285 Mondell v. Steel, 8 M. & W. 858, 870. .50 Monevpenny v. Hartland, 1 C. & P. 352" 13 Monk V. Dillon, 10 L. R. (Ir.) 349. . , .128 Monocacv Bridge Co. v. American Bridge' Co. 83 Penn. St. 517. . . .36, 201 Monroe v. Conroy, 1 Phila. 441 342 Monson et at. v. Fuller, 15 Pick. 554 366 Montague v. Dent, 10 Richardson (S. C), 135 376 Montgomery v. Dillingham, 3 Smedes & Marshall (Miss.), 647 211 V. Gilmer, 33 Ala. 116. ..411 Moon V. Guardians, &c. 3 Bing. N. C. 817 16,91 Moorei;. Cunningham, 23 111. 328 .305 r. Goedel, 7 Bosw. 591 368, 369 V. Jackson, 49 Cal. 109 424 V. Plalte Co. 8 Mo. 4C7 98 V. Ranson, 3 B. & C. 332. .315, 330, 331 332 V. Weber, 71 Penn. St. 429. . .'.268 Morgan v. Birnev, 3 M. & Scott, 76; 9 Bing. 672 25, 26 V. Railway Co. L. R. 1 Q. B. 149 129 V. Stevens, 6 Ahb. N. C. 356 114, 188 V. Ward, Wright (Ohio), 474 40, 195 Morrill v. Colehour, 82 111. 618 4, 148 Morris & Essex It. E. Co. v. Newark, 2 Stock. 352 381 Morris v. Rhydefed Collierv Co. 3 H. &N. 473, 485.." 263 5). Tillson etal. 81 111 607 270 Morrison v. Cummings, 26 Vt. 486. . . .204 V. King, 62111.30 146, 329 V. Marquardt, 24 Iowa, 35.. .156 V. Minot, 6 Allen, 403 445 V. Rossignol, 5 Cal. 64 277 Morse v. Aldrich, 19 Pick. 449 276 V. Bellows, 7 N. H. 549 182 V. Copeland, 2 Grav, 302. .316, 331 V. Goddard, 13 Met. 177 242 V. Maddox, 17 Mo 569 268 Morton v. Reed, 2 S. & M. 585 33, .34, 177 Mose V. Hastings Gas Co. 4 F. & F. 324 371 Moselvv. Virgin, 3 Ves. 184. .73, 74, 227, 282 Mosier v. Caldwell, 7 Nev. 363 366 Moss, ex parte, Re Toward, L. li. 14 Q. B. D. 310 110 Moss V. Gallimore, 1 Dougl. 278 242, 246 Mould V. Williams, 5 Ad. & El. 469. .394 Moultnn V. Tra=k, 9 Jlet. 577 35, 38 Mowry v. Starhuck, 4 Cal. 274 82, 136 Moxhay v. Inderwick, 1 De G- & S. 708 221, 228 Moxley v. Shepard, 3 Cal. G4 420 Muir V. Cross, 10 B. Mon. (Kv.) 277. .451 Mullen V. St. John, 57 N. Y. 567 117 V. Strieker, 21 Ohio St. 139 321 327 Mundy v. Joliffe, 5 Mvl. & C. 107. . .'.219 Munro V. Burt, 8 E. iSc B. 738; 4 Jur. N. S. 1231 53 Murchie v. Black, 19 C. B. N. S. 190 358 Murley v. McDorniott, 8 Ad. & E. 138 347, 349, 354 Murphy v. Murphv, 4 West. Rep. 278 178 Murray v. Earle, 13 S. C. 87 448 V. Emmons, 19 N. H. 483 235 V. Shanklin, 4 Dev. & Bat. 289 233 Murrell i. Whitney, &c. 32 Ala 65 60, 134 Musgrave v. Sherwood, 54 How. Pr. 338 343 Mutual Ben. L. Ins. Co. c. Rowland, 26 N. J. Ef|. 389 432 Myers v. Eorbes, 24 Md. 298 226 c.Gemmell, 10 Barb. 537. .156, 320, 321, 322, 328 V. Sari, .30 L. J. Q. B. 9 ; K. & E. 306 4, 77 V. Silljacks, 52 Ind, 319 222 V. Watson, 1 Sim. N. S. 523.. .221 N. Napier «. Bulwinkle, 5 Rich. (S. C.) 312 326 Nash V. Birch, 1 M. & W. 402 291 TABLE OF CASES. xli Nash V. Chicago, M. & St. P. R. E. 62 Iowa, 49 160 f. Kemp, 46 How. Pr. 522.. 342, 343, 344 V. Peden, 1 Speers, 17 385 Nashville, &c. E. R. v. Carroll, 6 Heisk. 347 129 Nave V. Berry, 22 Ala. 382.. 244, 268, 271, 274, 275 Naylor v. Collings, 1 Taunt. 19 270 Nazareth Lit. & Ben. Inst. v. Lowe, 1 B. Mon. 258 417 Neal V. Mackensie, 1 Keene, 474 222 Nelson ». Iowa Eastern E. R. Co. 44 Iowa, 71 417 V. Spooner, 2 F. & F. 613. .12, 13 Newberry, &c. v. Wakley, 26 Beav. 17; 28L. J.Ch.77 269 Newell V. Wright, 3 Mass. 138, 151. . .243 New England Iron Co. v. Gilbert Ele- vated R. R. 91 N. Y. 153 87 Newitt, ex parte, L. R. 16 Ch. D. 522, 531 102 Newman, ex parte, Capper L. R. 4 Ch. D. 724; 46 L. J. B. 69 99,100 Newman v. Fowler, 8 Vr. (N. J.) 17.. .184 New Orleans Gas-Light & B. Co. v. Paulding, 12 Robinson (La.), 378... 377 New Orleans v. U. S. 10 Pet 662 387 V. Winter, 1 Wheat. 91 303 Newson v. Pender, L. E. 27 Ch. D. 43 330 332 Newton v. Wales, 3 Eob. 453 '.190 New York v. Bailey, 2 Denio. 433 369 New York Institute for the Blind v. Howe, 10 N. Y. 84 239 Niagara Suspension Bridge v. Bu- chanan, 66 N. Y. 261 387, 390 Nible 0. Busse, 1 Keyes, 476 ; 3 Abb. Dec. 375 194 Nichols, ex parte. Re Jones, L. R. 22 Ch. D. 782 ; 31 W. R. 661 110 Nichols V. Marsland, L. R. 2 Ex. D. 1 368 Nicholson v. Eose, 4 De G. & J. 10 294, 383 Nicol V. Beaumont, 53 L. J. Ch. 853 381 Niver v. Eossman, 18 Barb. 50 98 Noble V. Bosworth. 19 Pick. 314 305 Nokes V. Gibbon, 3 Drew. 651 282 Nolan M. Whitnev, 88 N. Y. 648; 12 Week. Dig. 421. . . .32, 36, 50, 188, 191, 192 Norman v. Wells, 17 Wend. 136 . .276, 280 Northampton Gas Co. v. Parnell, 15 C. B. 630; 24 L.J. C. P. 60 22 Northeastern Ev. Co. v. Elliott, 29 L. J.Ch.808...." 361 Northern*Cent. R. R. Co. v. Canton Co. 30 Md. 347 307 Norton v. Schofield, 9 M. & W. 665 404 II. Snvder, 2 Hun, 82 277 V. Valentine, 14 Vt. 239 367 Norwich Gas-Light Co. v. Norwich City Gas Co. 25 Conn. 19 374 Nouaille v. Flight, 7 Beav. 521 269 Nowell V. Boston Academ)', 130 Mass. 209 290 Nowlin V. Pvne, 40 Iowa, 166 96 Noves et al.'u. Phillips, 60 N. Y. 408. .96 Noves V. Ward, 19 Conn. 2-50 393 Nugent V. Smith, L. E. 1 C. P. D. 429 ; 45 L.J C. P.702 47 Nunn D. Fabian, L. E. 1 Ch. 35 220 Nurse v. Lord Seymour, 13 Beav. 269 294, 383 0. Oakden v. Pike, 34 L. J. Ch. 620 ... . 60 Oakland Eetreat v. Rathbone, 26 N. W. Rep. 742 23,208 Oats V. Middleton (Penn.), L. Eep. 247 342, 350 O'Connor ». Adams, 120 Mass. 427. . .131 V. Dingley, 26 Cal. 11 137 V. Van Hormme, Dallam (Tex.), 430 203 Odd Fellows' Hall v. Masser, 24 Penn. 507 431 Odell V. Buck, 21 Wend. 142 234 O'Donnell v. Hitchcock, 118 Mass. 401 311 Ogden V. Jennings, 62 N. Y. 53 295 V. Jones, 2 Bos. 685 347 V. Riimraens, 3 F. & F. 751. . .127 O'Halloran v. Leacliey, 39 Ind. 150. . .454 O'Kanet). Treat, 25 til. 557 310 0' Lindas. Lothrop. 21 Pick. 292 394 Olmslead v. Beale, 19 Pick. 528.. . .35, 36 Olvnipic Theatre case, 2 Browne (Penn.), 285 305 Ornees u. Beadel, 2 De G.,F.& J.333; 30 L.J. Ch. 1 57 Osborn v. Bank, 9 Wheat. 738 2-39 V. Humphrev, 7 Conn. .339. . .277 Osgood V. Howard, 6 Me. 452 311 Ostranger». Livingston, 3 Barb. Ch. 414 297, 298 Oswald u. Buckholz, 13 Iowa, 506. ...310 Otis V. Doild, 31 N. Y. Supreme Ct. 538 424 Ottawa Gas Co. v. Thompson, 39 HI. 601 404 Oltumwa W. M. Co. v. Hawley, 44 Iowa, 57 306, 307 Overton v. Freeman, 11 C. B. 867 128 O.-iley V. James, 13 M. & W. 209 245 Oxnard v. Locke, 13 La. 449 39, 160 Packard v. Van Schoick, 58 III. 79 19, 26, 142 Pain V. Coombs, 1 De G. & J. 34 220 Palethorp v. Bergner, 52 Penn. St. 149 286 Palmer v. Breen, 24 N. W. Eep. 322 6, 60, 177 xlii TABLE OF CASES. Palmer v. Earitli, 14 M. & W. 428... .300 V. Edwards, 1 Dougl. 387 n. 243, 244 V. Sawyer, 114 Mass. 19 248 V. Stebbius, 3 Pick. ) 88 288 V. Stockwell, 9 Grav, 237. 55, 64, 175 ti. Wetmore, 2 Sandt. 316 .320 Pantonj). Holland, 17 Johns. 92 365 V. Robert, 2 East, 88 305 Pappa V. Rose, L. R. 7 C. P. 525 21 Paradine u. Jane, Aleyn, 26 46 Park V Baker, 7 Allen, 78 306 Parker v. First Avenue Hotel Co. L. R. 24Ch. D. 282 335 V. Foote, 19 Wend. 316. .321, .322, 324, 334 V. Taswell, 2 De G. & J. 659 219, 227 V. Thorold, 16 Beav. 59 58 Parmalee v. Hambleton, 24 111. 605 24, 143 Parnahv v. Lancaster Canal Co. 10 Ad. & El. 223 410 Parson w. Sexton, 4 C. B, 899 30 Partoii V. Stewart, 2 Ark. (Vt.) 417.. . 51 Partridge v. Forsyth, 29 Ala. 200 134 V. Gilbert, 15 N. Y. 601. .339, 350, 351, 352, 363 V. Scott, 3 M. & \V. 220... .120 Pashbv V. Mayor, &c. 18 C. B. 2 25 Patching v. Dubbins, Kay, 1; 2 Eq. R. 71 283 Patterson Gas-Light Co. v. Brady, 27 N.J. 246 377 Patterson v. Wallace, 1 Macq. H. L. 748 130, 131 Pattison V. Hull, 9 Cow. 747 214 Paul V. Nurse, 8 Barn. & C. 486 270 Pauling V. Dover, &c. 10 Ex. 753; 24 L.J. Ex. 128 104 Paulmier v. Erie R. R. Co. 34 N. J. 151 126 Paxton V. Newton, 2 Sm. & Giff. 437 69 228 Payne i). Cave, 3 T. E. 148 '. 96 V. Haines, 16 M. & W. 454... .276 «. Hodge, 7 Hun, 612 190 V. Stone, 15 Miss. 367 427 Peabody v. Minot, 24 Pick. 329, 333 247 Peacock i;. Penson, 11 Beav. 355.. 221, 222 Pearce v. Bacon, Jacob, 158 265 V. Golden, 8 Barb. 322 298 Pearsai: v. Post, 20 Wend. 119 389 Pearson i). Cox, L. R. 2 C. P. D. 369. .124 V. Phoenix Gas Co. 12 Gas J. 69 377 Peck V. Dav, 1 N. Y. Leg. Obs. 312. .351 V. Ing'ersoU, 3 Seld. 528 244 V. Williams, 10 N. Y. 509 294 Pegrani v. Newman, 54 Mass. 612 294 Pemliroke v. Thorpe, 3 Swanst. 437 443 n 70, 71, 75, 228 Pendleburg v. Meade, 1 E. D. Smith, 728 437 Pendleton v. Fosdick, Ohio Superior Ct. 1879; 8Rec. 148 347 Penn v Preston, 2 Rawle, 14 281 Penn Co. v. Delaware Co. 31 N. Y. 91 68 Penn Mutual Ins. Co. v. Thackera, 13 Reporter, 733 376 Pennant's ca=e, 3 Rep. 64 266 Pennock v. Hoover, 5 Rawle, 308.. 417, 418, 439 Penry v. Brown, 2 Stark. 403 270 Pentz V. Kncster, 41 Mo. 447. 291 People ex ret. Citizens' Gas-Light Co. of Brooklyn v. Assessors, 6 N. Y. Trans. App. 116 376 ex rel. Kennedj' v. Manhattan Gas Co. 45 Barb. 136 377 ex rel. Mayburv v. Mutual Gas- Light Co. of Detroit, 38 Mich. 154 374 People V. Beanbrew, 2 Dougl. 258 391 V. Cunningham, 1 Denio, 624 394, 497 V. Gillis, 24 Wend. 201 213 V. Kelsey, U Abb. Pr. 372. . . 212 V. Utica Ins. Co. 15 Johns. 383 239 V. Wilber, 4 Parker's Crim. C. 19 375 Pepper ». Burland, Peake, 139 54, 85 Peralta v. Ginochio, 47 Cal. 469 292 Perkins v. Dunham, 3 Strobh. 224... .332 V. Lvman, 11 Mass. 76 97 V. "Washington Ins Co. 4 Cow. 646 229 Perlay v. Langley, 7 N. H. 233 314 Perry v. Aldrich, 13 N. H. 343 245 V. Coiirov, 22 Kan. 716 443 V. Fitzho'we, 8 Q. B. 757 398 Petrie v. Grover, 39 Ind. 343 153 Pevton V. The Mayor, &c. 9 B. & C. 725 120, 358 Pflugeri). Hocken, 1 F. & F. 142 120 Phelps t). Sheldon, 13 Pick. 50 37, 90, 172 Philadelphia Hvd. W. v. Schenck, 80 Penn. St. 334". 50, 199 Philadelphia Railway Co. v. Anderson, 39 Am. Rep. 787. ." 412 Philbrook v. Belknap, 6 Vt. 583 . . .35, 46 Phillips V. Bowers, 7 Grav, 21 396 «. Foxall, L. R. d. B. 679; 41 L. J. Q. B. 293 29 V. Soule, 9Gra3', 233 173 V. Thompson, 1 Johns. Ch. 131 211 Phillipson v. Mullanphy, 1 Mo. 620.. .305 Phinzv V. Augusta, 47 Ga. 260 411 Pick V. Williams, 10 N. Y. 509 293 Pickard v. Bailey et al. 26 N. H. 165 315 V. Collins, 23 Barb. 444 321 Pickering v. Pickering. 38 N. H. 400. .68 Pierce v. Dart, 7 Cow. 609 118 V. Dyer, 109 Mass. 374 272* V. Minturn, 1 Cal. 470 292, 293 Pierre v. Fernald, 26 Me. 217 325 TABLE OF CASES. xliii Piggott V. Mason, 1 Paige Ch. 412 , . .276 V. Stratton, 1 De G., F. & J. 33 221, 285, 334 Pike V. Butler, 4 N. Y. 360 298 V. Eyre. 9 B. & C. 909 245 Pingrey v Walltins, 15 Vt. 479, 488. .245 Pixler V. Nicols, 8 Iowa, 106 40, 159 Pixlev V. Clarlc, 35 N. Y. 520, 531 366, 369 Planche v. Colburn, 8 Bing. 14 38, 39 Piatt V. Eggleston,20 Ohio St. 414.. . .347 Plumb V. Morris Canal Co. 2 Stoclc. 256 328 Plumber v. Keppler, 26 N. J. Eq. 489 221 Pollard V. Shaffer, 1 Dall. 210. . .262, 276 Pollock V. Kiltrell, 2 Tavlor (N. C), 152 " 245 Pololack V. Pioche, 35 Cal. 416. .271, 273 Pomeroj' v. Partington, 3 Term Rep. 665 '. 252, 255 Pomfret v. Ricroft, 1 Wms. Sauiid. 323, «. 6 316,396 Poole V. Bentley, 12 East, 168. . .212, 213 V. Huskinson, 11 M. & W. 827 386, 387, 388 Pope V. Briggs, 9 B. & C. 245 242 Porter v. Stewart, 2 Ark. 417 58 Portland v. Ricliardson, 54 Me. 46 116, 399 Portmore v. Bunn, 3 Dowl. & R. 145 313 Post V. Pearsall, 20 Wend. 442. ..386, 394 V. Vetter, 2 E. D. Smith, 248 274, 423 Postlethwaite v. Pavne, 8 Ind. 104.. . .315 Potshinskv v. Krempkau, 26 Tex. 309 435 Potter V. Cromwell, 40 N. Y. 287 307 V. Faulkner, 1 B. & S. 800 ; 1 H. &N. 773 129 r. White, 6 Bos. 644 351 Pottstown Gas Co. v. Murphv, 39 Penn. St. 257 .".... 403 Poultney v. Holmes, 1 Strange, 405 . .243 Powell & another v. Howard, 109 Mass. 192 .37 Powtll 17. Sims, 5 W. Va. 1 321 Pratt V. Campbell, 24 Penn. 184 442 V. Meigs, 2Pars. Eq. Cas. (Penn.) 302 342 V. Seavey, 41 Me. 370 1 Pray v. Clark, 113 Mass. 283 277 Prentice v. Achorn, 2 Paige, 30 235 Presbyterian Church v. Allison, 10 Penn. St. 413 1,434 Preston v. Luck, L. R. 27 Ch. D. 497. . .3 Prettyman v. Walston, 34 111. 191 300 Pretz's Appeal, 28 Penn. St. 156 436 Price «. Ashton, 1 Younge & C. Ex. 444 222 V. Brayton, 19 Iowa, 309 306 V. Corporation of Penzance, 4 Hare, 506, 509 76,218 V. Jennings, 62 Ind. Ill 427 V. Kirk, 90 Penn. 47 432 V. Pierce, 36 Me. 148 232 Priestly v. Fowler, 3 M. & W. 1, 6. . .128 Prince v. Case, 10 Conn. 379 138 Proctor V. Harris, 4 C. & P. 337 400 V. Lewiston, 25 111. 153 392 Providence Gas Co. v, Thurber, 2 R. I. 15 374, 376 Pudsev Coal Gas Co. v. Corporation, &c."L. E. 15 Eq. 167 377 Pulbrook V. Lawes, L. E. 1 Q. B. D. 284 225 Putnev V. Dresser, 2 Met. 583 247 Pyer i. Carter, 1 Hurl. & Nor. 916. . .406 Pynehon v. Stearns, 11 Met. 304 259 Q. Quick V. Ludburrow, 3 Bulstr. 30 108 Quimbvt). Sloan, 2 E. D. Smith, 594; 2 Abb. Pr. 93 418, 433, 458 Quincy, City of, v. Jones, 76 111. 231 120, 147 E. Eafter i). Sullivan, 13 Abb. Pr. 262. . .416 Ragan v. McCoy, 29 Mo. 356 387 Railroad v. Fori, 17 Wall. 462 129 Eamsburg v. McCahan, 3 Gill (Md.), 341 166, 287 Eamsden v. Dyson, L. E. 1 H. L. 129 223, 225 Rand v. Mann, 3 Phila. 376 436 Randall v. Trimen, 18 C. B. 786 ; 25 L. J. C. P. 307 16 Ranger v. Great W. Ey. 5 H. L. Cas. 72". 86 Eankin v. Huskisson, 4 Sim. 13.. .71, 294 V. Simpson, 19 Penn. St. 471 219 Eanson B.Clark, 70 111. 657... 44, 142, 150 Eapson v. Cupitt, 9 M. &W. 710 124 Ray V. Lvnes, Ala. 63 320, 321, 326 Raymond v. White, 7 Cowen, 319 303 Ravner ». Stone, 2 Eden, 124 70, 233 Read head v. Midland Ey. Co. 2 Q. B. 412 131 Redman v. Williamson, 2 Iowa, 488. .458 Reed v. Mory, 2 Myl. & Cr. 361 14 V. The Board, &e. 3 Keyes, 105 ; 4Abb. Pr. 24 186 Eeedie v. L. & N. W. Ey. Co. 4 Ex. 244 124 Reeas. Lines, 8 C. & P. 124 84 Beeves ». Barlow, L. E. 12 Q. B. D. 436; 35 L. J. Q. B. 192 112, 114 V. Cooper, 1 Beasl. Ch. (N.J.) 224 69 Regina v. Burt, 11 Cox C. C 399. . . .399 V. Chorley, 12 Q. B. 516 333 V. Hutchins, L. E. 6 Q. B. D. 353 389 V. Jenkins, 5 Gas J. 214 376 V. London Gas Co. 2 El. & El. 650 373 xliv TABLE OF CASES. Begina v. Lordsmere, 19 L. J. M. C. 210 389 D. Mitchell, 22 Gas J. 137 375 V. Nutter, 34 L. J. M. C. 22. .399 V. Patiie, 30 Eng. Law & Eq. 2(17 393 V. Rand, 1 Car.'& ii.' 496.! '. '. J97 V. ShetKeld Gas Co. 22 Eng. ^ L. &Eq. 518 394 V. United Kingdom Tel. Co. 31 L. J. M. C. 166 381 V. Ward, 4 Ad. & El. 405 400 V. Watts, 6 Salli. 357 400 V. White, 20 Eng. L. & Eq. 585 375 Keid V. Hosldns, 4 E. & B. 979 38 V. Parsons, 2 Elliot, 247 265 Kemicker v. Smith, 2 Har. & J. 421. .2-35 Rennie «. Young, 2 Ue G. & J. 136. . . .224 Rennyson's Appeal, 94Penn. St. 147. .327 Renoud v. Daskam, 34 Conn. 512 277 Eenshaw v. Bean, 12 Q. B. 112 333 Repenny v. S. E. Ky. Co. 7 El. & BI. 660 334 Reuter v. Electric Telegraph Co. 6 E. &B. 341 8 Rew V. BulUle}-, 1 Dougl. 293 . . .252, 256 Rex V. Barr, 4 Campb. 16 386 V. Cumberworth, 3 B. & Ad. 108 3S0 V. Leake, 2 Nev. & Man. 595.. . .388 II. Lloyd, 1 Campb. 260 389, 390 II. Pcd'lev, 1 Ad. & E. 822 404 ti Roswell,2Salk. 459 335 V. Webb, 1 Ld. Ravm. 737 397 Reynolds v. Clark, 2 Ld. Raym. 1399 366, 399 II. Fargo, 1 Sheld. 531 361 Rhinelander, in re, 68 N. Y. 105.. 390 Ricer. Peel, 15 Johns. 503 234 Rich V. Bastcrfield, 4 C. B. 783 290 Richards v. May, L. E. 10 (J. B. D. 400; 31 W. R. 708.. 78, 79 V. Rose, 9 Exch. 218.. .353, 360 V. Scott, 7 Watts, 460. .341, 355, 356 Richardson v. Anderson, 1 Camp. 43, n. . 15 V. Boright, 9 Vt. 368. .232, 233 ti. Frank, 2 S. C. R... 60 352 V. Pond. 15 Gray, 387 . . . .321 V. Silvester, L. U. 6 Q. B. 34 95 Richmondville Sem. v. Brownell, 37 Barb. 635 187 Kicker v. Cutler, 8 Grav, 248 171 r. Fairbanks, 40 Me. 43 161 Rider II. Smith, 3 T. R. 766 396 Ridgely v. Slillwell, 27 Mo. 128 268 Eielly v. Jones, 1 Bing. 302 97 Rindge v. Baker, 57 N^ Y. 209 348 Rising ti. Slannard, 17 Mass. 286 246 Kitger v. Parker, 8 Gush. 145 312 Rilter ». Stevenson, 7 Cal. 388 415 Eilztem. Kaether, 10 Dalv, 286 244 Riviere v. Bower, Ry. & M. 24 328 EobbiDS u. Blodgett, 124 Mass. 278. . .171 V. Chicago, 4 Wall. 657 116 Robbins e. Mount, 4 Robertson (N. Y. Sup. Ct.), 553 404 Roberts v. Berrv, 2 l)e G., M. & G. 284; 22 L. J. C. 398. . . . 58 V. Brett, 6C. B.N. S. 635... 106 11. Bury, &c. L.R.5C. P.310; 39 L. J. C. P. 129 41 t). Gates, 64 111. 374 428 V. Havelock, 3 B. & Ad. 401, 404 32, 33, 53 t>. Karr, 1 Taunt. 495; 1 Campb. 202, n 383, 393 V. Roberts, 7 Lans. 55 367 V. White, 2 Rob. (N. Y.) 425 344 V. Wiggins, 1 N. H. 74 232 Robertson v. King, 55 Iowa, 725 159 Robeson v. Pettenger, 1 Gr. Ch. 57 326, 336 Robinsonw. Davidson, L. E. 6 Exch. 269 107 V. Grave, 29 L. T. 7 358 V. Lehman, 72 Ala. 401 244 V. Mallett, 1 L. E. 7 H. L. 802 15 ti. Perry, 21 Ga. 183 243 V. Snyder, 25 Penn. St. 203 40, 200 Eobson V. Drummond, 2 B. & Ad. 303, 308 5, 38 V. Flight, 4 De G., J. & S. 608 232 V. Godfrey, Holt N. P. C. 236; 1 Stark. 275 54, 85 Rochester White Lead Co. v. Rochester, 3 N. Y. 463 411 Eockwoodti. Wilson, 11 Cush. 221... 408 Rodemer ». Hazlehurst, 9 Gill (Md.), 291 166 Rodgers v. Parker, 9 Gray, 445 296 Eoei;. Hodgson, 2 Wils. 129 238 V. Summerset, 2 W. Bl. 692 238 Roedearnell v. Hutchinson, 2 Pears. (Penn.) 324 342 Rogers ii. Crow, 40 Mo. 91 307, 376 V. Hogan, 68 Me. 305 161 V. Humphreys, 4 Ad. & E. 299 -242, 243, 244 V. Phillips, 8 Ark. 366 425 V. Sinsheimer, 50 N. Y. 646 . . . 339 V. Spence, 13 M. & W. 680. . .109 Rohrburg v. Reed, 57 Mo. 392 248 Rohrman ti. Steese, 9 Phila. 185 199 Roll V. Indianapolis, 62 Ind. 547 412 Rollins p. Bartlett, 20 Me. 319 161 Rolls V. Miller, L. R. 25 Ch. D. 206. ..289 Rondett v. Hedell, 1 Phila. 366 355 Eoof V. Stafford, 7 Cow. 179 232 Roper V. Williams, Turn. & R. 18 283 Rose ti. O'Rilev, HI Mass. 57 175 «. Sadgbeer, 21 Wend. 166 287 V. Spies, 44 Mo. 20 180 Eosher* Williams, 44 L. J. Ch. 419; L. E. 20 Eq. 210 281 Eoss II. Dysart, 33 Penn. St. 452 266 V. Gill, 4 Cal. 250 237 D. Mitchell, 28 Tex. 162 202 TABLE OF CASES. xlv RossweH V. Pryor, 12 Mass. 9 324 Rounds V. Delaware, &c. R. R. 64 N. Y. 129 126 Roundtree's Adm. v. McLain, 1 Hemst. (Ark.) 245 68 Rourke v. White Moss Colliery Co. 1 C. P. D. 556 123 Rover v. Ake, 3 Penn. St. 481 267 Rugby Charity v. Merryweather, 11 East, 376, n 392 Rush V. Lewis, 21 Pcnn. St. 72 253 Russell V. Allen, 2 Allen, 44 242 V. l!aber, 18 W. R. 1021 283 V. Bandeira, 13 C. B. N. S. 149; 32 L. J. C. P. 68 77, 79, 103 V. Barry, 115 Mass. 300 171 V. Brown, 63 Me. 203 117 D. Doty, 4 Cow. 576 231 V. James, &c. 1 Mason's C. C. U. 368 106 Rust ?:. Chifholm, 57 Md. 383 439 Rutgers r. Hunter, 6 Johns. Ch. N. Y. 215 298 Ryan'i!.' Fowler] 24 N.' Y.iio.' '.'.'.'.'.'.'.121 Rychman v. Gillis, 57 N. Y. 68 350 Rylands v. Fletcher, L. R. lExch.265 369, 372 St. Albans Bank v. Dillon, 30 Vt. 122 105 St. Helen's Chem. Co. v. St. Helen's, L. E. lEx. Div. 196 116, 403 St. John V. Mayor of N". Y. 6 Duer, 314 397 Sagar v. Eckert, 3 Brad. 412 303, 304 Salaman v. Glover, L. E. 10 Eq. 444 330 Salisbury v. Eenick, 44 Mo. 554 181 Salter u." Sample, 71 III. 430 304 Salters v. Ralph, 15 Abb. Pr. 273 98 Saltmarsli ?;. Kowe, 10 Mo. 38 181 Samuda v. Lawford, 4 Giff. 42; 8 Jur. N. S. 739 226 Samuell i). Howarth, 3 Mer. Ch. 272. .105 Sanders v. Pope, 12 Ves. 282 70 Sanderson i. Cnckersmouth, &c. Ey. Co. 11 Beav. 497 72 Saratoga Co. Bank v. King, 44 N. Y. 84 287 Sargeant v. Ballard, 9 Pick. 251 314 Sarles v. Sarles, 3 Sand. Ch. 601 261 Sauer v. Monroe, 20 Penn. St. 219 353 Savannah, &c. E. E. v. Callahan, 55 Ga. 33 101 Savoy V. Jones, 2 Eawle, 350. . . ; 424 Saxton V. Hawksworth, 26 L. T. 851 125 Sayers v. Collver, L. E. 28 Ch. D. 103 337 Scammon v. Chicago, 25 III. 424, 438 122 125 Schell V. Leland, 45 Mo. 289 '.457 Schenley v. Commonwealth, 36 Penn. 29 387 Schmidt, ex parte, 52 Ala. 256 418 SchoU V. Gerhab, 93 Penn. 346 459 School Trustees v. Bennett, 3 Dutch. 513, 613 20,45, 185,186 Schrieveri). Stokes, 8 B. Mon. 453... 355 Schukraft v. Euck, 6 Daly, 1 416 SchuIenbergB. Prairie Home Ins. Co. 85 Mo. 295 431 Schwartz v. Saunders, 46 111. 18... 45, 141 Scofield V. Tompkins, 95 111. 190 98 Scott r. Billgerry, 40 Miss. 119 68 D.Fritz, 51 Penn. St. 418 ,243 V. Liverpool, &c. 3 De G. & J. 338;28L. J. Ch. 230 28 K. Manchester, 2 H. & N. 204 411 V. McMillan, 19 Alb.L. J. 279. .346 V. Orbison,21 Ark. 202 449 V. Scott, 18 Gratt. 166 274 Scrivener v. Pask, 18 C. B. N. S. 785; L. E. IC. P. 715 88, 92 Scudder ». Balkam, 40 Me. 291 461 Seaman v. Ascherman, 51 Wis. 672. .228 Searle v. Laverick, L. E. 9 Q. B. 122 122 Seaver v. Phelps, 11 Pick. 304 234 Selph D. Howland, 23 Miss. 264 425 Semmes v. Boykin, 27 G a. 47 439 Sewell V. Angerstein, 18 Law Times (N.S.),300 378 V. Taylor, 7 C. B. N. S. 160 288, 289 Seymour v. Hartford, 21 Conn. 486. ..277 V. Long Dock Co. 5 C. E. Gr. N.J. 397... 50, 84,88, 184, 185 Shaefferv. Weed, 8111.511 435 Shafer «. Wilson, 44 Md. 268. . . .355, 357 Shaffer v. Hull, 2 Penn. L. J. 93 455 Shannon v. Burr, 1 Hilton, 39 244 Sharpe v. San Paulo Ey. Co. L. R. 8 Ch. Ap. 597 88 Shattel V. Woodward, 17 Ind. 225. .1, 435 Shaw V. Ethridge, 3 Jones (Law), 300 406 V. Farnsworth, 108 Mass. 357. .212, 243 V. First Presbyterian Church, 39 ' Penn. 226 451 1!. Lenke, 1 Daly (N. Y.), 487. .376 Sheets v. Selden, 7 Wall. 423 268 Sheffield Industrial Society v. Jarvis, W.N. (1871)208 : .354 Sheffield United Gas Co. v. Sheffield Consumers' Gas Co. 2 Gas J. 360.. .373 Shell V. Kemmerer, 2 Pears. 293 355 Shelton v. Codman, 3 Cush. 318 280 Sheppard v. Allen, 3 Taunt. 78 290 V. Milwaukee Gas-Light Co. 6 Wis. 539 377, 378 Sherman v. Bates, 15 Neb. 18 88, 182 V. New York, 1 N. Y. 316 189 V. Wilkins, 113 Mass. 481.. .295 Sherred v. Cisco, 4 Sandf. 486 341, 346, 349, 352, 353 xlvi TABLE OF CASES. Sherwood v. Harral, 39 Conn. 335 .. . .273 V. Heaman, 2 Bosw. 127. ...268 Shipley v. Fifty Associates, 106 Mass. 194 : 1)7, 366, 367 Shipman r. Beers, 2 Abb. N. C. 435. .324 Shoopi'. Bowles, 13.Md. 304 452 Short V. Ta\Ior, t&c. 2 Eq. Cas. Abr. 522 " 399 Shrevcs ». Vonrliies, 2 Gr. Ch. 25. . . 328 Shrewsbury, Karl of, v. Keightley, L. R. 2 C. P. (Ex. (Jh.) 130 250 Shuter's ca-e, 12 Co. 90 235 Sibley v. Casey, 6 Mo. 164 425 Siboiii V. Kirlunan, 1 M. & W. 418... 108 Sickle >. Pattison, 14 Wend. 257 34 Simmons r. Cloonan, 81 N. Y. 557. . .406 v. CoHiell, IR. I. 519 387 V. Lawrence, &c. 133 Mass. 298 40, 171 Simpson v. Hornsled, Free. Ch. 452. .257 r. Smith, L. R. 6 C. P. 87. . .284 Sinclair v. Bowle.«, 9 B. & C. 92 34 f. Fitch, 3 E. D. Smith, 077 .458 V. Jackson, 8 Cow. 543 240 Singerly v. Doerr, 62 Penn. 9 430 Skinner v. Bedell's Adin'r, 32 Ala. 44, &c 5, 60, 134 Skull V. Gienister, 16 C. B. N. S. 81. .395 Slator V. Brady, 14 Ir. C. L. 61 233 Slator, &c. V. Trumble, ^c. 14 Ir. C. L. 343 232 Sleei). Corporation, &c. 4 Giff. 262 294 Slowman v. Walter, 1 Bro. Ch. 418 98, 99, 278 Smith, ex parte (South. D. N. Y.), 1 Bank Res- 169 109 Smith V. Aker, 2 Cent. Rep. 904. 24, 187 V. Boston, C. & M. li. R. 36 N. H. 456 66, 183 V. Boston Gas-Light Co. 129 Mas.'i. 318 371, 372 ti. Brady, 17 N. Y. 173. .36, 37, 1II2 V. Brow"n, 5 Rich. Eq. 291 2li8 V. Coe, 2 Hilt. 365 37 V. Derby, L. R. 7 Q. B. 716.. . .120 V. Faiia'll, 4 G. Gr. 146 305 11. Flora, 04 III. 92 390 V. First Cong. Ch. 8 Pick. 178. . ..36 V. Flanders, 129 Mass. 322. .87, 169 V. Fletcher, L. R. 7 Ex. 305 368, 369 V. Gugerty, 4 Barb. 614 51, 52, 68 V. Higbee, 12 Vt. 113 381 O.Hull Glass Co. 11 C. B. 897; 21 L. J. C. P. 106 8 e. Humble, 15 C. B. 221 301 V. Kenrick, 7 C. B. 515 117 V. Kinard, 2 Hill (S. C), 042 .385 V. Kinkaid, 1 Brad. 620 270 V. Low, 1 Atk. 489 232 V. Lowell Meeting House, 8 Pick. 181 172 V. Manice, 1 Code, N. S. (N. Y,) 283 459 V. Martin, 5 Ellis & B. 30, 47. .360 1). Milne, 2 Dowl. 290 124 I Smith «. Moynihan, 44 Cal. 63 137 V. New York, 66 N. Y. 295. . . .411 t). Given, 35 L.J. Ch. 317 285 V. Putnam, 3 Pick. 221 266 s. Shaffer, 50 Md. 132 437 V. hhcphard, 15 Pick. 147 242 V. Suvl.N, 3Q. B. D. 562 14 V. Slate, 23 N.J. L. 712 397 V. hiate, 3 Zabr. 130 391 V. Thackerah, L. R. 1 C. P. 664 356, 359 V. White, L. R. lEq. 626 285 Smith & Nelson i\ Bristol, 33 Iowa, 24 5, 49, 85, 157 Smock V. Tandy, 28 Tex. 132 203 Snioot V. l!ea, 19 Md. 398 71 Snivth, ex parte, 1 Swanst. 353. .245, 257 Sue'll I'. l'.i„« 1], 71 111. 134. . . .23, 39, 142, 151 V. Church Trustees, 58 111. 292. .162 Snow r. \Vare, 13 Met. 42 36 .SuMki V. Warford, 11 Jlo. 513 382 So'iuies c. Edge, 1 Johns. (Eng.) 669, 673 75,228 Sociele, &e. c. Milders, 49 L. T. 55. . . .57 Sueietv, &e. V. Butler, 1 Beasl. Ch. (N."J.)4!J8 75 S.hIini ,■ Winter, 32 Md. 130. . . .413, 425 Solcimon I. Vintners' Co. 4 H. & N. 585 359 Sonuihy c. Tappan, Wright (Ohio), 229..! 61, 195 Sontac. &e. I. Brennan, 76 111. 279.. . .45 Siiule r. Dawes, 14 Cal. 247 420 Souler r. Drake, 5 B. & Ad. 992 267 South Wales l;y. r. Wythes, 1 Kay & J. 186, 200; 31 Eng.' L. & Eq. 226 73, 76, 218 Spackman r. Steidel, 88 Penn. St. 463 382 Spaik-. r. Slate Bank, 7 Blackf. 469. .305 S|iear r. Fuller, 8 N. H. 174 265 V. Dhudorf, 26 Md. 37. . . .219, 220 r. Sinder, 29 Minn. 463 176 SpencerV ea-e, 5 <-'o. Rep. 16. . . 279, 280 Spencer r Burton, 5 Blackf. 57 286 Spenser !■- Ilaidin-, L. R. 5 C. P. 561; .ill L .1. c. l'.:i.J2 94 Spei rv r. I'aiiuiiig, 80 111. 371 144 S|iie- r. Damm, 64 How. Pr. (N. Y.) 21J3 . 295 328 Siuairne r "l luil, ll' Paiger^s'o'.'.'. . .'.234 Spnr-eon r. l-.hvain, 6 Ohio, 442, .48, 198 Si|uiie» r. Campbell, 1 Myl. & C. 459 71, 294 Stacey r. Aliller, 14 Mo. 478 387 Stailhaiil i: Lee, 3 B. & S. 364; 32 L. J. Q. r. T.-> 29,30 Stafford r. Covney, 7 Barn. & Cr. 257 392 ■0. Lowe, 16 Johns. (N. Y.) 67 106 J.Lyon, 7 C. E. Gr. 33 382 Sfanforth r. Fox, 7 Bing. 59 212 StanIrN r. T\\ogood et al. 3 Bing. N. C. 4; 269 State V. Green, 41 Iowa, 693 385, 393 TABLE OF CASES. xlvii State V. Moffet, 1 Greene (Iowa), 47 . .118 V. Strong, 25 Me. 292 392 V. Trask, 6 Vt. 358. . . .380, 387, 390 State of Ohio «. Cincinnati Gas-Light & Coke Co. 18 Ohio St. 262 373, 374 Stedman v. Smith. 8 Kl. & Bl. 1 354 Steele v. S. E. Ky. Co. 16 C. B. 556. .122, 123 Steen v. Burder, 2-1 Ala. 130 407 Steigleman v. McBride, 17 111. 300.. .415, Stephani v. Brown, 40 111. 428 399 Stern v. Saeger, 34 Leg. Int. (Penn.) 21 344 Stetson V. Faxon, 19 Pick. 147 117 Stevens v. Gourlev, 7 C. B. N. S. 99; IL.T. N. S. 33 48 V. Stevens, 11 Mete. 251.. 398, 400 Stevenson v. Watson, 4 C. P. D. 148; 48 L. J. C. P. D. 318. M, 22, 23, 27, 28 92 Stewart v. Cass, 16 Vt. 663 '.21 V. Clark, 3 Met. 79 245 V. Craig et al. 3 G. Gr. (Iowa) 502 33, 41, 158 V. Dougherty, 1 Pitts. 324 56, 199 V. Hall, 3 B. Mon. 220 249 V. Weaver, 12 Ala. 538.. .34, 134 Stewart & Howell v. Keteltas, 36 N. Y. 388 66, 193 Stlckney v. Cassell, 1 Gilm. (111.) 418 147 Stile V. Cowper, 3 Atk. 692 246 Stine V. Austin, 9 Mo. 554 443 Stockwell V. Carpenter, 27 Iowa, 119 426 V. Hunter, 11 Met. 448 274 Stoke V. McCuUough, 1 Cent. Rep. 55 24, 200 Stokoe V. Singers, 8 Ellis & B. 31 .. . .331, 332 Stone V. Cartwright, 6 T. R. 411 128 Storer v. G. W. Kv. 2 Younge & C. C. C 53 " 70 72 StorV v. Odin,' 12 Mass'. 157. . . .'..'. '. . .324 Stott V. Rutherford, 92 U. S. 107 291 Stowe V. Buttrick, 125 Mass. 449 42, 173 Strafford v. Wentworth , 1 P. Wms. 180 245 Strange v. Wilson, 17 Mich. 342 176 Stranks v. St. John, L. R. 2 C. P. 376 .291 Strawbridge v. City of Phila. 13 Re- porter, 216 372, 373 Strickland v. Parker, 54 Me. 263 306 V. Turner, 7 Ex. 217 46 Stuart V. Cambridge, 125 Mass 175 Stubbs V. Holywell Ry. Co. L. R. 2 Ex 311; 36 L. J. Ex. 166 12 StuU «. Hance, 62 III. 52 151 Stu3'vesantD. Browning, 33 N. Y. (Sup. Ct.)203 423 17. The Mayor, &c. 11 Paige (N. Y.), 414.... 68, 70,72, 226, 227 c Sullivan i'. Carberry 67 Me. 531 310 Sumner v. St. PaulJ 23 Minn. 408 410 Surrey Canal Co. i). Hall, 1 M. & Gr. 392 386 Sury t'. Pigott. Palmer, 446 400 Sutherfield v. KveiMiii, 24 111. 517 .. . .460 Sutton V. Cole, 3 Pick. 332 239 Sweets. James, 12 K. I. 270 443 Swift V. Dean, 11 Vt. 324 292 V. E. W. Hotel Co. 40 Iowa, 322 286 V. State, 89 N. Y. 52, reversing 26 Hun, 508 188 Swinston v. Finn, 52 L. J. Ch. 235. . .334 Switzer v. Gardner, 41 Mich. 164. . . .219, 229 Symons v. Svmons, 6 Madd. 207 245, 256, 257 T. Taffee v. Warwicke, 3 Blackf. 111. . . .305 V. Montague, 14 Mass. 282. .36, 50, 172 Taggard w. Buckmore, 42 Me. 77 430 Talbott V. Whipple, 14 Allen, 177. . . .306 Tanner v. Bell, 61 Ga. 584 420 ». Clark, 13 Met. 226 263 ti. Valentine, 75 111.624 146 Tappling v. Jones, 1 H. L. C. 290. . . .324, 332, 333, 334 Tatem v. Chaplin, 2 H. Bl. 133 275 Tayloe o. Sandford, 7 Wheat. 113 .. . .278 Taylor v. Caldwell, 3 B. & S. 835; 32 L. J. Q. B. 164 12, 46, 63 w. Chase, 18 La. 88 160 V. Hall, 41r. R. C. L. 467 91 V. Merchants' Ins. Co. 9 How. U. S. 405 229 (-. Montgomery, 20 Penn. St. 443 453 V. Owen, 2 Blackf 301 276 V. Portington, 7 De G., M. & G. 328.'. 226 V. Renn, 79 111. 181 66, 149 V. Stendall, 7 Q. B. 634 349, 350 V. Williams, 6 Wis. 363 207 V. Zamira, 6 Taunt. 524 299 Teaff ». Hewett, 1 Ohio, 511 307 Tebbetts v. Haskins, IB Me. 288 83 Telfer v. Kierstead, 2 Hilt. 577 446 Teller v. Eckert, 4 How. 295 292 Tenant v. Goldwin, 6 Mod. 311; 1 Salk. 360 361, 403, 404,405 Tetz V. Butterfield, 54 Wis. 242. . .28, 30, 208 Thames Iron Works i). Roval Mail, &c. Co. 8 Jur. N. S. 100: 3i L. J. C. P. 169 78 Tharsis S. & C. Co. v. McElroy, &c. L. R. 3 App. Cas. 1040, 1045 . . .19, 21, 80 Thatcher v. England, 3 C. B. 254 94 V. Plinnev, 7 Allen, 148 260 The Highlander, 4Blatchf. 55 450 Thiebaud v. First National Bank, 42 Ind. 212 277, 278 xlviii TABLE OF CASES. Thomas i\ Bracknev, 17 Barb. fi54. . .365 V. Huesmaii, 10 Ohio, 162.. . .453 ». Smith, 42Penn. St 4.34 ■V. Thomas, 2 Crompt., M. & R. 34, 40 3.33, 367, 400 Thomas et al. v. Kllis, 4 Ala. 104. .63, 134 Thomas, Adin., v, Vonliapff Executors, 6G. & J. {M.i.).372 274, 275 Thompldns v. Dudley, 25 N. Y. 272 44, 45, 46, 194 Thompson, case of John, 2 Brown (Penn.), 297 449 Thompson r. Curtis, 28 Iowa, 229 345 1'. Lambert, 44 Iowa, 239. . . .6 V. Lav, 4Picl;. 48 233 V. Somerville, 16 Barb. 469 346 c. Sunderland Gas Co. L. R. 2Ex. D. 429 373 V. AVickershani, 9 -Jere Bax- ter (Tenn.), 216 435 Thorn v. Mayor of London, L. R- 9 Ex. 163; lOE.x. 112 88, 89 Thornett v. Haines, 15 ISI. & W. 367.. .99 Thornhill k. Meats, 8 . Fox, 11 Exch. 832; 36 E. L. & Eq. 486 129 Winglesw.irth «. Dallison, Dougl. 201; 1 Sni. L. (_'as. (7ili ed.) 606 91 Wigniore r. Jav, 5 K.-; 354 128 Wilcus ('. Kliii^', 87 111. 107 99 Wilde c. CliirkMiii, 6 Term, 303 107 Wilder /■. Houghton, 1 Pick. 87 241 Wiles r. Fox, IKand. 165 220 Wilgin et al. v. Getting ct al. 21 Iowa, 178 307 Wilkins V. Bromhead, L. J. C. P. 74; 8 Jur. 83; 11, & G. 963. .112 V. Day, 12 (J B. D. 110 116 V. Fry, 2 .Swaiist. 249 267 Wilkinson i\ Clements, L. K. 8 ("h. 96 217, 229 r. Po-ers, 2 De G., J. & S. 62,^ 289 V. Torkinton, 2 Youni^e & G. Kx. 726 " 220 Willanw. Willan, 16 V^-s. 84 277 Willard v. Harvey, 5 N. H. 252 242 Williamette r. Rilev, 1 Oreg. 183 437 AVilliams, ex parte,"L. E. 7 Gh. D. 138 113 Williams i: Brisco, L. P.. 22 Ch. 1). 441 210, 217 !•. Ghapman, 17 111.423. ...419 V. Glough, 3 li. & N. 258. . .127 r. Earle, 9 B. & S. 740, 763. .276 T. Evans, L. E. 19 Eq. 547. .219 r. Fitzmaurice, 3 H. & N. 844 88, 92, 93 r. Hart, 116 Mass. 513 73 r. Jersey, 1 Graig, & P. 91. .318 399 r. Jones, 33 L. J. Ex. 297; 3 H. &G. 0(12 127 r. Lynch, 2 Sch. & Lef. 1 . .223 I'. Saflord, 7 Barb. 3119 396 r. Young, 21 Gid. 227 268 Williamson ti. Chicago, K. 1. & P. P. R. 63 Iowa, 120 160 Willmottr. Barber, L. P. 15 Ch. Div. 96 222, 223, 225 Wills r. Stradling, 3 Ves, 378 . .218, 220 AVilmot r. Smith, C. & P. 4:i3 80, 81 Wilson c. Bauman, 80 III. l", 3 144 r. Edmonds, 24 N. H. 517. . . .261 r. Furness Ey. ( „. L. E. 9 Eq. 28; .39 L.J Ch. 19 72 r. Hopkins, 61 Ind. 233 418 r. Merry, L. R. 1 H. L. So. 32ii; L. R. 1 S. & I). 326 113, 127, 129 r. New Bedford, 108 Mass. 201 116, 366 '('. Northampton Ry. Co. L. K. 9 Ch. App. 279 73 i\ Peto, 6 Moore, 4!i 121. 128 r. Troup, 2 Cow. (N. Y.) 237 252 253 Wiltshire r. Sidford, 1 M. & R. 404. !340, 349, 363 Winn I'. Garland, 19 Ark. 2 ! 317 Winship e. Pitts, 3 Paige Ch. 2i;2..260, 261 Winter r. Brockwell, 8 East, 308 331 Wislar's App. 6 W. N. C. 140 342 Wiiu-r r. .McNeil, 3 Scam. 433 147 Wolti-. Frost, 4 Sanilf. fU. 72 317 p. Johnson, 30 .Mi^s. 513 292 Womack r. i\lc. Freeman, 5 H. & J. 477... .326 «. Hawks, N. Y. Daily Reg. Dec. 23, 1883 194 f. Talmadge, 15 N. Y. 307. . .253 «. Trevezant, 3 Carr. & P. 441 212 Wyatt V. Harrison, 3 B. & Ad. 871.. .120 V. Marq. Hertford, 3 East, 147 14 Wyley Canal Co. v. Bradley, 7 East, 368 355 Wyman v. Mayor of N. Y. 11 Wend. 486 390 Wynkoop v. Burger, 12 Johns. 222 . . .383 Vale V. Dederer, 18 N. Y. 265 425 Yard v. Ford, 2 Saund. 175 a 321 Yates D Jack, L. R. 1 Ch. 295.. .322, 329 Yeamans v. Yeamans, 99 Mass. 585. . . 21 Young V. Burtman, 1 Phila. 203 200 1). Daniels, 2 Iowa, 126 68 V. Spencer, 10 B. & C. 145. .. .261 1). White, 5 Watts (Penn.), 460 201 Younge v. Shaper, 21 W. R. 135 329 Z. Zouch «. Parsons, 3 Burr. 1806. .232 PART I. BUILDING CONTRACTS. CHAPTER I. THE NATURE OF BUILDING CONTRACTS GENERALLY. § 1. Building Contract Defined. A contract is an agreement between two or more persons, for a valuable consideration, to do or not to do some particular thing ; and when the undertaking refers to constructing, erect- ing, or repairing an edifice or other work of architecture, it may be called a building contract. The word " build- ing" has a broad meaning, including as it does not only ai'chitectural structures, but all places erected for the habitation of man or beast, or for sheltering prop- erty, and applies to edifices, monuments, etc., whether designed for ornamental or useful purposes. It in- cludes churches,^ schoolhouses, and shops of all descrip- tion,^ stables,^ sheds,* mills and manufactories,*^ boats and wharves, in fact any edifice or structure erected upon land or water by man.* § 2. Verbal and Informal Contracts. By the Stat- ute of Frauds' cert. Ogden, &c. 30 Cal 547. See Dec. No. 21, post, Part II. 6 Clark V. Pope, 70 111. 128. See Dec. No. 73; post. Part II. ' Coey V. Lehman, &c. 79 111. 173; Braggs v. Geddes, &c. 93 111. 39; Dec. No. 74. NATURE OF BtJILDING CONTRACTS GENERALLY. 6 Upon an agreement to do work at a certain price to be named by another person, the court held that the settlement of price was a condition precedent, and not a mere reference to an arbitrator which could be re- voked.^ § 4. The Mutuality op the Contract. The law pre- sumes that he who undertakes a building contract is competent to fulfil its stipulations. It further imposes upon him the duty of executing his work with dili- gence and care. Where time of performance is not stated, a reasonable time will be inferred.^ The build- er's duty is to faithfully carry out the plans put into his hands strictly in accordance with the stipulations of the contract. He may assign different parts of the work to sub-contractors and others, unless prohibited by the agreement,^ but he is responsible for those he employs. On the other hand, if part of the work is to be performed by the employer or his agents, the law presumes that he also will see that his part of the contract is diligently performed, and that he will not impede the other in any manner.* If the employer fails to perform, he is liable to the builder or contractor to the extent of the damage his failure has caused ; and the contract price, less any damages incurred by the contractor, is the measure of damages in such cases.^ While the law implies that work shall be done in a workmanlike manner,^ it also 1 Mills 11. Bayley, 2 H. & C. 36. 2 Skinner v. Bedell's Adm'r, 32 Ala. 44 ; Dec. No. 3. « Robson V. Drummond, 2 B. & Ad. 308; Wentworth v. Cock, 10 A. & E. 45. * Lawson v. Wallasey, &c. 52 L. J. Q. B. 302 ; 48 L. T. 507. 5 Louisville & N. R. R. Co. v. HoUerbach, 3 West. Rep. 364 ; Dec. 103, poxt. « Smith & Nelson v. Bristol, 33 Iowa, 24; Dec. 116. 6 BUILDING CONTBACTS. requires the employer to keep his part of the work advanced by furnishing materials as promptl}'' as de- sired.^ It has even been held that, if a contractor is prevented from completing his job by the unwarranted acts and defaults of the other party, he may sue upon the contract and claim damages, or he may waive the contract and sue for what his work is reasonably worth : he is not restricted to a pro rata share of the contract price." On the other hand, the owner is entitled to re- cover as damao-es the value of the use of the buildino- for the time its completion is unreasonably delayed.^ It is always advisable, where there are several con- tracts for various portions of the work, to provide that the various parties give reasonable assistance to each other, as to scaffolding, bricklaying, etc. § 5. Contracts with Corporations. While corpora- tions ordinarily have power to contract as private indi- viduals,* this privilege does not authorize the making of contracts of all descriptions, and permits only such as are necessary and usual, or fit and proper to carry on the business for which the particular corporation was organized. Chief Justice Taney declared that " it may be safely assumed that a corporation can make no contracts and do no acts, either within or without the state which creates it, except such as are authorized by its char- ter." ^ Yet the right to contract need not be specially 1 Palmer v. Breen, 24 N. W. Rep. 322; Dec. 211. 2 McCuUough c. Brtker, 47 Mo. 401 ; Fitzgerald v. Ilayward, 50 Mo. 616; Dec. No. 217, ;)os(. 8 McConey v. Wallace (Mo. App.), 4 West. Rep. 843, 846 ; Dec. No. 220. * Thompson v. Lambert, 44 Iowa, 239; Barry u. Merchants' Exch. 1 Sandf. Ch. 280; Brady o. Mayor, &c. 1 Barb. 584; 20 N. Y. 312; Dillon on Munic. Corp. § 371. ' Bank of Augusta d. Earle, 13 Pet. 519. NATURE OP BUILDING CONTRACTS GENERALLY. 7 stated, for it may be inferred ; for instance, it has been held that a railroad company has an implied authority to erect refreshment rooms, although nothing concern- ing the same is contained in the charter/ The control and management of corporations is usually vested in a president and a board of directors ; and where there is a majority of the latter present, a quorum is formed, and these officials can dictate the policy of the corporate body. Their action in forming contracts is usually evidenced by the seal of the corpo- ration, and signatures of the president and secretary of the board. It is well settled, however, in the United States, that a corporation may make a contract with- out the use of its seal.^ In making building or other contracts with corpora- tions, care should be taken (1) that the company is represented by the proper authorities; (2) that its seal is affixed; (3) that the character of the work to be performed is within the province of the corporation, or can reasonably be implied from its charter. For instance, it has been held that where a railroad com- pany contracted to build cottages, and the contract was informal, the corporation was not bound thereby.* But when the work was necessary and has been fully performed, the corporation can be held responsible.* A contract with a corporation, entered into without proper authority, may be expressly ratified by the » Flanagan v. Great West. Ry. Co. L. R. 7 Eq. 116. * Bank of Columbia v. Patterson, 7 Cranch, 299 ; Fleckner v. Bank of U. S. 8 Wheat. 338.; McCuUough v. Talladega Ins. Co. 46 Ala. 376; Merrick v. Burlington & Warren Plank Road Co. 1 1 Iowa, 75. » Crampton v. Varna Ry. Co. L. R. 7 Ch. 562 ; 41 L. J. Ch. 817; Frend v. Dennett, 4 Jur. N. S. 897. * Clark V. Cuckfield Union, 1 Bail C. C. 81 ; 16 Jur. 686. 8 BUILDING CONTEACTS. company,^ or sometimes by simple acceptance of the work? § 6. Sectional Work. It is sometimes found expe- ditious to divide the structure to be erected into sec- tions, to be completed as money is furnished. This plan is frequently adopted in building churches, where it is found advantageous in collecting funds as the work progresses. 1 Smith V. Hull Glass Co. 11 C. B. 897; 21 L. J. C. P. 106 ; Reuter v. Electric Telegraph Co. 6 E. & B. 341 ; 26 L. J. Q. B. 46. 2 liouldsworth v. Evans, 37 L. J. Ch. 752, 793, 800. CHAPTER II. ARCHITECTS AND SUPERINTENDENTS. § 7. The Architect is the recognized head of the building trade. He is supposed to be especially skilled in the art of planning and designing architectural structures of every description. His duty is to draw plans and make out specifications, and generally super- intend the execution of the work. Not only is he re- quired to possess great artistic skill in designing, but a practical knowledge of all the details of building. He is generally required to furnish, in addition to the gen- eral design, working drawings to guide the artificers in constructing the building. To prepare proper speci- fications requires thought and learning, for he must be familiar with the qualities and strength of materials, the weight of structures, and the relationship of the various operations to be performed by the many trades represented in the building. A person following the occupation of forming plans, drawings, and specifica- tions for building purposes, representing himself as an architect, is presumed in law not only as being such, but to be learned in the profession.^ The best way of showing his competency in evidence is to prove that he acted as other competent architects would have done.^ Architects are usually considered the chief of all persons engaged in the building, for their professional 1 Harmer v. Cornelius, 5 C. B. N. S. 236 ; 28 L. J. C. P. 85. 2 Chapman v. Walton, 10 Bing. 63 ; 3 M. & Scott, 389. 10 BUILDING CONTRACTS. standing depends upon the success of their undertak- ing, and even their employer cannot with propriety in- terfere during the progress of the work. If there is obscurity in the drawings and specifications, the con- tractor shonld apply to the architect for directions, or he is liable for the consequences.^ It has been held in England that the contractor shall build according to the plans for the price agreed upon, bat the architect may order any additions or alterations that he pleases, either before or after any of the work is done, without consulting the em- ployer ; and even though the latter may object to the alterations, he shall also pay the architect a further percentage for designing the sfiine.^ Such a rule, es- tablishing as it does an arbitrary despotism for archi- tects, has not been upheld in this country.^ By virtue of usurped authority by architects, many an English gentleman has laid the foundation of his ruin with the foundation of his house, and for the same reason the houses of Parliament were made to cost six times their orio;inal estimate.* § 8. Agreement with Architects.^ Formerly, in Eng- land, when no agreement was made with an architect, he received five per cent, on the cost of the structure, and two and one half per cent, for his plans and super- intendence. In 1862 a professional institution of ar- chitects issued a scale of charges, all on the percent- age system ; but in 1870 the Court of the Excheq\ier declared that this code of the profession was not binding, as its charges were unreasonable : and it was 1 Clark u. Pope, 70 TU. 128; Deo. 52. ^ Beoket's Building, p. 17. 8 See Adlaril v. Muldoon, 45 111. 193; Dec. 51. * Becket's Building, p. 20. ' A form thereof will be found in Appendix, post. ARCHITECTS AND SUPERINTENDENTS. 11 held "contrary to good sense and justice," and not a legal standard.^ The architect is usually paid, in Great Britain, one half on signing the contract, and the bal- ance in instalments as the work progresses.^ There is no fixed rule as to compensation of archi- tects in the United States, and in cases where the amount is not stipulated there will be allowed reason- able pay for their services, taking into consideration their professional nature and all attending circum- stances. The contract with the architect should contain a stipulation that he is not entitled to any extra compen- sation unless agreed upon in writing, or previously approved by the employer. Such a provision will be rigidly enforced.* Where the work is to be performed under the direction of an architect to be appointed by the employer, the appointment of the architect is a condition precedent, and, if not made within a reason- able time, the builder is released.* The contract should fully set out the authority of the architect, to avoid many vexatious disputes and legal complications. It should definitely state that, should alterations be de- sirable, they must be subject to new agreements. His compensation should be stipulated ; for the experience of all persons who have been observant teaches that things valued after having been furnished, or left dis- cretional and dependent upon the honesty of the other 1 Eddy V. McGowan, cited by Becket as decided November 1 7, 1870, but not reported in the Law Reports. See Rules of British Royal Society of Arcliitects, and American Instii;ute of Architects, Appendix, post. 2 Emden Build. Con. &c. 105. 3 Baltimore Cemetery Co. v. Coburn, 7 Md. 202 ; Abbott v. Gatch, 13 Md. 314 ; Dec. 155 and 156. < Coombe v. Greene, 2 Dowl. N. S. 1023; 11 M. & W. 480; 12 L. J. Ex. 291; but see Green v. State, 8 Ohio, 310; Dec. 303. 12 BUILDING CONTRACTS. party, always come much higher than where no nnder- standino; is had in the bes-innino-. An agreement with an architect need not be in writing, unless the services are not intended to be performed within one year. The architect's contract does not survive to his representative.^ So, if there is a contract to complete certain work for a certain sum, the representative of a deceased architect cannot recover for the part per- formance.^ § 9. Schedules op Prices. Contracts are sometimes taken by architects upon what is called a schedule of prices, which is an agreement to do various specified portions of the work at certain prices according to an itemized list. § 10. Plans and Drawings. Architects are either en- gaged by the owner and projector of the building or his contractor, or selected after competition. The latter method is usual in constructing churches, pub- lic buildings, etc., where it is desirable to procure several designs from which to select. An advertise- ment in a newspaper, or special requests to various architects, is the general method of securing competi- tors. It should always be made clearly understood that the drawings, etc., were subject to approval, for otherwise the party receiving them will be liable for their value whether used or not;'' as where' A drew plans for a building at B's request, and C called for them and estimated upon them for B, but B concluded not to build by them, it was nevertheless held that he was liable to A for drawing the plans.* If, on the 1 Hall V. Wright, E., B. & E. 765; 29 L. J. Q. B. 43; Taylor u. Cald- well, .S B. & S. 835. 2 Stubhs V. Holywell By. Co. L. R. 2 Ex. 311; 36 L. J. Ex. 166. 8 Nelson V. Spooner, 2 F. & F. 613. * Kutts V. Pelby, 20 Pick. 65. ARCHITECTS AND STJPBEINTENDENTS. 13 other hand, he is given to understand that his plans are to be considered "probationary," he will have no cause of action unless they are accepted.^ So also where he renders service conditionally, or undertakes a contract which he knows will be of no value what- ever to his employer, he is not entitled to compensa- tion.^ So where an architect recommended building a structure upon soil which he has examined, and which his knowledge of such things should' have told him was unsuitable for the purpose,^ — even an acceptance of his plans would not render the employer liable. A party is not, as a general rule, bound to pay for work voluntarily performed, but a request of such per- formance may be implied.* In an action by an architect whose plans, after having been accepted, are rejected on the ground that the work cannot be done for the amovmt of his estimate, it seems that it is a question for the jury whether it is an express or implied contract that the estimates shall be paid for as actual costs.® The obligation of paying for the drawings of an architect usually rests on the employer, not on the mechanics who make use of them.^ § 11. Architect the Agent op the Employee. The relation of principal and agent is formed where the architect acts for the proprietor in superintending the 1 Moffatt V. Dickson, 22 L. J. C. P. 265; 13 C. B. 543. ^ Addison on Contracts, 678; Moneypenny v. Hartland, 1 C. & P. 352; Whitty V. Lord Dillon, 2 F. & F. 67. ^ Whitty V. Lord Dillon, supra. * Trustees v. Bledsoe, 5 Ind. 133; Dec. 98; Grandin v. Beading, 2 Stock. 37; Dee. 259. 5 Nelson v. Spooner, 2 F. & F. 613. « Webb V. School, 3 Phila. 125 ; Dec. No. 316. 14 BUILDING CONTRACTS. construction of a building.^ His appointment implies authorit}' to adopt all proper or necessary means to accomplish the primary object for which he is engaged. It has been held in England that an architect can make a valid contract binding upon his employer for completing a house, although no such contract is com- prehended in the terms of the agreement.^ Such a rule has not been laid down in the United States, for the reason that it would give an architect the power of making money out of the trust reposed in him, and it is well settled that an agent has no right to use his fiduciary authority for his own special benefit.^ So an agent appointed to settle a debt cannot purchase it;* or an engineer enter into a sub-contract with the con- tractor unknown to the principal.^ Any attempt to appropriate special profits from his employment is nefarious and fraud ulent.'^ So if an architect and his employer enter into a secret agreement to the detri- ment of the builder,' as where the architect agrees to allow the proprietor the benefit of matters he was to arbitrate.^ Such agreements will not be upheld by the courts. He is entitled to no other profit from his transactions in his employer's behalf than the agreed compensation or reasonable fees. In fact an implied authority is inferred from his acting for the employer, 1 Kimberly v. Dick, L. R. 13 Eq. 1. 2 llnll V. Holt, 2 Vern. 322 ; 3 P. Wms. 223; Wyatt v. Marq. Hertford, 3 East, 147. ' Wharton on Agency, § 231. * Keed V. Mory, 2 Rlyl. & Cr. 361; Comstock u. Comstock, 57 Barb. 453; Knabe r. Tornot, IG La. An. 13. ^ Smith V. Sorby, 3 Q. B. D. 552. ' Mason v. B.iunian, (i2 ]11. 76. 7 Kemp V. Rote, 1 Giff. 258; Kimberly v. Dick, L. R. 13 Eq. 1; 41 L. J. Ch. 38. 8 Scott V. Corporation, &c. 3 De G. & J. 334; 28 L. J. Ch. 230. AEOHITECTS AND SUPERINTENDENTS. 15 and the usual rules applicable to a special agency govern according to the circumstances.^ As a principal is responsible for the acts of his agent done within the scope of his authority, upon the gen- eral principle Qui facit per aliinnfacit per se, so also the employer is liable for the acts of his architect in pur- suance of authority given him. The relationship cor- responds with that of master and servant, or rather employer and employee.^ The owner of the building may therefore be made liable for the negligence of his architect in superintending the construction.^ Although he may possibly not be responsible for negligently employing an incompetent person, he is certainly bound for their acts if he retains them after notice.* § 12. Power of Architects. In properly drawn con- tracts, the authority of the architect is specially pre- scribed.^ And in such cases, where his powers are fully set out, he will not be allowed to transcend the same. In the absence of stipulations to the contrary as a general agent, his authority would only be meas- ured by the object of his employment; he could adopt all proper or reasonable means to carry out the inten- tion of his employer." Me cannot delegate his authority. The legal maxim, Delegata potestas non potest delegari, applies, as it prohibits 1 Baines v. Ewing, L. R. 1 Ex. 320. 2 Brown v. Acrington Cotton Co. 3 H. & C. 5U (building originally badly huili). 8 VVeger w. Penn. Ry. Co. 55 Penn. St. 460. * This, however, is disputed. For instance, in a Connecticut case, the defendant was employed to build a dam and to superintend the work : it was httld that he was not a servant. Corbin v. American Mills Co. 27 Conn. 274. ^ See form in Appendix, post. ^ Richardson v. Anderson, 1 Camp. 43, n. ; Johnston v. Kershaw, L. R. 2 Ex. «2 ; Robinson o. MoUett, L. R. 7 H. L. 802. 16 BTJILDESTG CONTRACTS. delegated power from again being delegated. An ar- chitect has not the right to substitute another person in his stead.-' But a special permission can confer this right, as by express terms of substitution contained in the contract.^ His position is one in which there is im- posed special trust and confidence in his skill, and if he were permitted to assign his duties to a third per- son, whose ability and integrity may not be known to the employer, a great injustice might be done to those who had exercised diligence in the original selection.^ Can bind his principal — When he. Where he exercises authority reasonably implied from his appointment, he may bind his employer; as where an architect engaged a surveyor to measure quantities, the latter is entitled to recover from the former.* If a loss arise for the want of skill or diligence, and the employer exercise due care in his selection, the architect alone is liable ; so if in dealing with third persons he neglects to dis- close his principal.^ So also if he acts without author- ity, or makes false representations as to his position;* as where an architect represented to a builder that he had authority to order certain work and materials, and had no such authority, he was held personally liable for their value.^ Joint Liahility. It is frequently found advisable, 1 Combe's case, 9 Co. R. 75; Powell v. Tuttle, 3 Comst. 396; Bocock V. Pavey, 8 Ohio St. 270. 2 Com. Bank, &u. v. Norton, 1 Hill, 505. ' Combes' case, 9 Co. E. 75; Emerson t. Providence Hat Co. 12 ]\Iass. 241; Tibbetts v. Walker, 4 Mass. 597; Lynn v. Burgoyne, 13 B. Men. 400. * Moon V. Guardians, &c. 3 Bing. N. C. 817; Mayor of Baltimore u. Eschbach, 18 Md. 276. 6 2 Kent Com. (7th ed.) 830, notes. 6 Lewis u. Nicholson, 18 Q. B. 503; 21 L. J. Q. B. 311. ' Randall v. Trimen, 18 C. B. 786; 25 L. J. C. P. 307. ABCHITECTS AND STJPEKINTENDENTS. 17 where there is a doubt as to the architect's power to bind his principal, to join both the principal and the architect in the suit as parties defendant, so that, in the event that the architect acted within the scope of his authority, the principal will be held ; while, on the other hand, if his action was unauthorized, the archi- tect is personally liable.^ An architect charged upon a contract or for any other act, upon his own personal liability, may serve upon his employer a notice to in- demnify for that act, and thereby make him a party to the proceeding? But where a house is defectively built in consequence of the joint neglect of the archi- tect and the contractor, a suit for such neglect may be brought against the architect alone.® 1 Honduras Ry. Co. v. Lefevre, &c. L. R. 2 Ex. D. 301 ; 46 L. J. Ex. 391. 2 Emden on Building, &c. 113; Dugdale v. Levering, L. R. 10 C. P. 196; 44 L. J. C. P. 197; Beneeke v. Frost, L. R. 1 Q. B. D. 422. " Newman v. Fowler, 8 Vr. (N. J.) 89; Dec. 250. 2 CHAPTER III. CERTIFICATES OF APPROVAL BY ARCHITECTS AND OTHERS. § 13. General Statement. It is usually found advis- able to stipulate in the building contract that the work shall be approved upon completion by the architect or some other competent person, or that it shall be per- formed to the satisfaction of the proprietor of the premises. Building operations are essentially compli- cated, and there are consequently innumerable oppor- tunities for imposition by the contractor, such as the use of defective materials, the employment of unskilled labor, and negligence of superintendence. When a party contracts for erecting a house, he agrees to pay for that which is not in existence at the time of the agreement, and it is but reasonable and just that the work to be performed should be subject to approval. Yet it would virtually check a great proportion of builders if they were obliged to wait until the com- pletion of their entire undertaking before being paid. This objection is met by adopting the plan of paying a certain percentage as the work progresses, always taking care that enough will remain due to the builder upon completion of the structure to pay for any defects which may be discovered before the final payment. § 14. Architects' and Superintendents' Certificates. As I have said before, the architect is the natural and proper arbitrator of all disputes which may arise be- tween the builder and the owner. He is supposed to be learned in his profession, and therefore thoroughly CERTIFICATES OE APPROVAL. 19 conversant with all the details of the building art; besides, his reputation is dependent upon the perfect execution of his designs. It is recommended that the provision making his certificate necessary as a condi- tion precedent to the payment of money, should be included in the contract whenever practicable. § 15. Part Performance Certificates. It is also ad- visable to stipulate, where the work is executed under his general superintendence, that he should give " pro- gress certificates " from time to time, indicating the progress of the building, that the owner may safely make advances to the builder.' Such certificates are for the benefit of the owner of the building, and he may waive them at his option and pay upon other proofs.^ But if the contract specifies that payment shall only be made upon the procurement of the certificate, the contractor cannot sue the owner without complying with this condition,^ unless the same be fraudulently or capriciously refused,* for the decision of a party passing upon work may always be impeached for fraud or mis- take.^ If such payments are not made a condition precedent to the fulfilling of the contract, the builder cannot recover upon failure of payment of one instal- ment.'^ But where the contract especially provides for the approval by a third person, no right to money earned or cause of action accrues until that party's certificate is procured.' So, where the building con- 1 Tharsis S. & C. Co. v. McElroy, L. R. 3 App. Cases, 1045. See defi- nition by Lord Cairns. ■* 2 Blethen, &c. v. Blake, &c. 44 Cal. 117; Dec. 19. 8 Packard v. Van Sciioick, 58 111. 79; Dec. 46. * Badger v. Kerber, 61 111. 328; Dec. 47. 6 1 West. Rep. 380; Dec. 62. 8 County of Christian v. Overholt, 18 111. 223; Dec. 79. ' Kirtland v. Moore, 1 Cent. Rep. 466 ; Dec. 245. 20 BUILDING CONTRACTS. tract is entire, no recovery can be had until the con- tract is executed.^ If payments are made during the progress of the work, and the building is destroyed be- fore completion, the owner may recover the instalments paid.^ " The certificate of a superintendent, surveyor, or architect who, by the contract for any work, is to superintend its performance, and whose approval is required before any payment is due, cannot dispense with the performance of any substantial part of the contract, but may be binding as to the fact whether the work certified to was done in a workmanlike man- ner, or of proper materials of the kind required. For such a certificate would not make building a bi'ick house a compliance with a contract to build one of marble. Nor would the fact that a house built of brick is substantially and for service as good or better than one of marble, make such a building a performance of the contract, upon being certified to be so."^ So the certificate of a street commissioner as to certain work cannot dispense with the performance of any substan- tial part thereof.* So, also, the acceptance of a differ- ent class of work than that contracted for will not bind the owner.^ The giving of part performance certifi- cates is generally held to be a condition precedent to a right of action on the contract, and in the absence of fraud or mistake is conckisive upon the parties.'' Part * Edwards v. Derrickson, 4 Dutch. 39 ; Derrickson v. Edwards, 5 Dutch. 468. ^ Seh. Trustees v. Bennett, 3 Dutch. 513 ; Dec. 252. 8 Bond V. Newark, 4 C. E. Gr. 376; Dec. 246. * Bond V. Newark, supra; Dec. 247. ' See 11 N. Y. Sup, Ct. 91; 67 N. Y. 563; Glaeius v. Black, 50 N. Y. 145; Johnson v. De Peyster, 50 N. Y. 666; 4 Barb. 614; 35 Barb. 602. 8 Adams v. New York, 4 Duer, 295; 44 N. Y. 145; 11 Abb. Pr. (N. S.) 378; 1 Hilt. 388; Dec. 264. ARBITRATION AND AWARD. 21 payments are primd facie implied waivers of the right to object to the portions of the work upon which the payments were made.^ These certificates are always provisional, and subject to adjustment upon the final completion of the contract.^ The entire work must be completed to the satisfaction of the architect.^ § 16. Arbitration and Award. When parties agree to submit the question to a third party as to what shall be done by the one to satisfy the claim of the other, a supplemental contract is formed, namely, the contract of arbitration and award,* and a submission thereto is valid and binding, although there is no agreement that judgment shall be entered on the award.^ Courts of equity will not compel a specific performance of an agreement for submission ; but when the award has once been made, it is held conclusive, unless impeached for fraud, accident, or mistake ; and if either party re- fuses to abide by it, the other may resort to chancery for a specific performance, or seek damages therefor in the common law courts. An architect occupying the position of an arbitrator, in ascertaining an amount due under a building contract, is not liable to an ac- tion for refusing to reconsider his certificate, or give the grounds of his opinion, no fraud or collusion being alleged ; ^ nor is any person called upon to act as ar- bitrator liable to an action for want of care or skill, or for negligence.'' § 17. Distinction between Award by Arbitration and > Goldsmith v. Hand, 26 Ohio St. 101, 107; Dec. 302. 2 Tharsis S. & C. Co. v. McElroy, L. R. 3 App. Cases, 1045. » Ibid. * Steward v. Cass, 16 Vt. 66 3 ; Valentine v. Valentine, 2 Barb. Ch. 430. o Howard v. Sexton, 4 Const. 157; Yeamans v. Yearaans, 99 Mass. 585. « Stevenson v. Watson, 4 C. P. D. 148. ' Pappa V. Rose, L. R. 7 C. P. 525. 22 BUILDING CONTRACTS. Certificates Stipulated for in the Contract. The authorities agree that the certificate of an architect, furnished according to a stipulation in a building con- tract, is not an award ;^ nor can the parties be regarded as having submitted to arbitration,^ unless there is a provision that the architect is to settle all matters in dispute, and other subsequent matters, in which case the architect is an arbitrator. " When by an agree- ment the right of one of the parties to have or do a particular thing is made to depend upon a third person, this is not a submission to arbitration, nor is the de- termination thereof an award ; but where there is an agreement that any dispute about a particular thing shall be inquired of and determined by a person named, that may amount to a submission to arbitration, and the determination, though in the form of a certificate, be an award."* So where questions of additions and alterations were to be determined by the architect,* and where work was to be performed according to a sche- dule of prices to be decided by the architect, the rules of arbitration were held to apply .^ § 18. -Architect as Arbitrator. Upon the submission of the parties of the matter in controversy for the de- cision of the architect, the ordinary rules governing arbitration and award become applicable. The general principles of common law, together with the modifica- tions by statutory enactments, regulate the matter as in other cases. His decision, in the absence of fraud, is 1 Wadsworth v. Smith, L. R. 6 Q. B. 333; 40 L. J. Q. B. 118. 2 Ibid., and Northampton Gas Co. u. Parnell, 15 C. B. 630; 24 L. J. C. P. 60. 8 Wadsworth v. Smith, L. R. 6 Q. B. 332; 40 L. J. Q. B. 118. •> Stevenson v. Watson, L. R. 4 C. P. D. 148; 48 L. J. C. P. D. 318. 6 Mills i;. Bayley, 2 H. & C. 36; 82 L. J. Ex. 179. ARBITRATION BY AECHITECTS. 23 conclusive.^ In a California case,^ however, where the contract stipulated that all disputes should be settled by the architect, but the parties refused to submit to his decision as to the amount due, and he did not act in the matter, it was held that his testimony was not conclusive, and " that it was competent for the plaintiff to show by other persons the extent of the deficiencies." If the architect is made arbitrator by a provision of the contract, and the builder, although under bond for faithful performance, fails to complete his contract, the owner of the building may bring an action against the contractor and his sureties.^ When it is stipulated in the contract that the deci- sion of an architect " shall be final on all questions of difference arising under the contract," there can be no doubt that his power of arbitration is conclusive in the absence of fraud or mistake.* The practical advantage of conferring such abso- lute discretion upon the architect is objectionable, and many of the courts of this country have limited its ap- plication to correspond with the real intention of the parties. Where a party agrees to erect a building accord- ing to plans and specifications, under the supervision of an architect, the latter cannot change the terms with- out special authority.^ Nor will his power as arbi- trator permit him to give a certificate when there has been a substantial deviation from the owner's plans." 1 Stevenson v. Watson, 4 C. P. D. 148; 48 L. J. C. P. D. 318. 2 McFadden v. O'Donald, 18 Cal. 160; Dec. 15. a Oakland Retreat v. Ratlibone, 26 N. W. Rep. 742 ; Dec. 365. ^ Downey v. O'Donnell, 86 111. 49 ; 92 111. 559; Finney v. Condon, 86 111. 76; Snell v. Brown, 71 111. 134; Dec. 42. « Adlard u. Muldoon, 45 111. 193; Dec. 51. « Bond V. Newark, &c. 4 C. E. Gr. 376; Dec. 246; Glacius v. Black, 24 BUILDING CONTEACTS. Sometimes contracts specify that the architect shall merely give a construction of its stipulations, but, in cases of dispute as to his decision, the whole matter shall be submitted to arbitration, in which cases the architect's decision is not final, for neither party can prevent the arbitration to the detriment of the other.^ Under an agreement that the work shall be valued by " competent persons," the owner may name the archi- tect as arbitrator? § 19. Certificates op Completion. No ■ particular form of certificate is required. The following short statement will usually suffice : — I hereby certify that the work of J. B. has been completed to ray entire satisfaction, and in conformity to the specifica- tions and drawings, and in a substantial and efKcient manner. I further certify that there is a balance of $ due' to him under the contract. A. L., Architect. So will any words conveying the same meaning. In fact, if there is no stipulation in the contract to the contrary, the certificate need not be in writing at all, — a parol approval will satisfy the condition.^ It should always be deemed advisable to provide in the ao-reement that the architect's certificates shall be in writing, and in such cases the want of such a certifi- cate will bar the contractor's claim.* The equity courts will not give any special relief in 60 N. Y. 145 ; Johnston v. De Peyster, 50 N. Y. 666; Adams v. New York, 4 Duer, 295; Dec. 264; Goldsmith u. Hand, 26 Ohio St. 101, 107; Dec. 302. 1 Parmalee r. Hambleton, 24 111. 605; Deo. 50 ; Smith v. Alker, 2 Cent. Rep. 904. 2 Stoke V. McCullouah, 1 Cent. Rep. 55 ; Dec. 328. 8 Kirk V. Bromley Union, 2 Phill. 640; S. C. 17 L. J. (N. S.) Ch. 127. * Lamprell v. Billericay Union, 3 Ex. 283; 18 L. J. Ex. 282. CEBTIFICATES OF COMPLETION. 25 cases where there is no stipulation in the contract that the certificate should be in writing, and the same rule will apply in these courts as at common law/ The certificate of an architect is conclusive, unless impeached for fraud.^ When once given, it cannot be altered to the injury of either the contractor or owner.^ Where the certificate of two architects who are partners is provided for, and the certificate is signed by one of them in the firm name, this will be suffi- cient.* The provision in a contract for a certificate of com- pletion, to be given by the architect, will not be satis- fied by simply checking off the builder's charges ; and where the certificate is made a condition precedent, the builder will not thereby be entitled to action against the owner.^ But it will not be necessary for the cer- tificate to mention the amount remaining due.^ So where an architect certifies that the work is accepta^ ble with the exception of some slight additions, and it appears that these have afterwards been madeJ If the architect is authorized to change the original plans, the owner is boimd to pay the builder upon the archi- tect's certificate for such alterations.^ § 20. Certificate — when a Condition Precedent. The usual provision of building contracts that the certifi- cate of an architect shall be obtained before money 1 Kirk V. Bromley Union, 2 Phill. 640. 2 Downey v. O'Donnell, supra, and other cases cited; Deo. 42, 209. 8 Pashby v. Mayor, &c. 18 C. B. 2 ; Jones v. Jones, 17 L. J. Q. B. 170. * Lull V. Korf, 84 111. 220; Dec. 45. 6 Morgan v. Birney, 3 M. & Scott, 76; 9 Bing. 672. « Pashby v. Mayor, &c. 18 C. B. 2. ' Mills V. Weeks, 21 111. 568. 8 Guerin v. Rod well, 8 Vr. (N. J.) 71. 2G BUILDING CONTRACTS. is paid, either during the progress of the work, or upon its completion, renders the procurement of such certificate a condition precedent to an action on the contract.^ The builder cannot claim the balance of the money due him unless he first obtains such certificate, or shows that it has fraudulently been refused.^ So where the builder is to furnish the certificate of an architect for extra work, he must do so, or show a good cause for not doing it.^ There is no right to the money earned until the certificate is furnished ; * for if the owner only agreed to pay what is certified to by the architect, the court will not presume that such certificate is wrongfully withheld, unless this be alleged in the pleadings and proved in evidence.® Yet, in a Pennsylvania case, where the certificate was a condition precedent to pay- ment, the court held that the refusal of the agent to give the certificate was no defence in an action for payment if it is proved that the work was done in accordance with the contract.'^ This decision, however, does not concur with the weight of authorities/ and in 1 Packard v. Van Schoick, 58 111. 79; Morgan v. Birnie, 3 M. & Scott, 76 ; Glenn v. Leith, 1 Com. L. K. 569. ^ Case cited, supra. » Mills V. Weeks, 21 111. 568. * Kirtland v. Moore, 1 Cent. Rep. 466 ; Dec. 205. ^ Dunaberg, &c. Ry. Co. v. Hopkins et al. 36 L. T. 733; contra, Mans- field V. Doolin, 4 Ir. R. C. L. 17; Adams v. New York, 4 Duer, 295 ; 44 N. y. 143; 50 N. Y. 144; 1 Hilt. 388; Dec. 264. A literal perform- ance of a building contract in every detail is not, however, a condition precedent to payment. Hcckman v. Pinkney, 81 N. Y. 211. So where a building contract recited that the county commissiimers should super- intend the work, such superintendence was not a condition precedent. Greene v. State, 8 Ohio, 310 ; Dec. 303. « Whelan v. Boyd, 5 Cent. Rep. 651 ; Dec. 325. ' See cases cited, supra. REFUSAL OF CERTIFICATE. 27 the absence of fraud the procuring of the certificate will be held a prerequisite to payment. So strict has the rule herein laid down been upheld by the English courts, that the absence of allegations of fraud or collu- sion in the declaration has been held fatal to the action. For instance, where the averment was " that the sur- veyor had wrongfully and improperly neglected and refused to give his certificate," the court decided, upon demurrer, that no action could be sustained, as neither fraud nor collusion was distinctly set forth.^ Again, compensation cannot be claimed for work which has been performed, but not to the satisfaction of the archi- tect.2 § 21. Certificates Refused. If the architect fraudu- lently or capriciously ^ refuse to give proper certificates when required, the builder may maintain an action for specific performance,* or against the architect for dam- ages.^ It would be a manifest injustice if a contractor should be deprived of his pay because the architect ar- bitrarily, from motives of fraud or caprice, should refuse to certify to the completion of the work. So that in all such cases the builder can sue upon the contract,^ and " the decision of a party passing upon work may always be impeached for fraud or mistake." ^ So, if the archi- tect arbitrarily refuses to sign certificates, suit may be brought upon the contract.* The architect is generally 1 Stevenson v. Watson, L. K. 4 C. P. D. US; 48 L. J. C. P. D. 318; Clarke v. Watson, 18 C. B. N. S. 278. 2 Dobson V. Hudson, 1 C. B. N. S. 659; 26 L. J. C. P. 153. 8 Fowler v. Deakman, 84 111. 130; Badger v. Kerber, 61 111. 328. * Brunsden v. Beresford, 1 Cababe & Ellis, 62; Batterbury v. Vyse, 2 H. &C. 42; 32 L. J. Ex. 177. 6 Ludbrook v. Barrett, 46 L. J. C. P. D. 798; 36 L.T. (N. S.) 616. 6 Badger v. Kerber, 61 111. 328 ; Dec. 47. ' 1 West. Rep. 380; Dec. 62. 8 Fowler v. Deakman, 84 111. 130 ; Dec. 43. 28 BUILDING CONTEACTS. held to be jointly or severally liable/ but not if his omis- sion to certify was simply from negligence or careless- ness, and without notice,'^ nor is his employer responsi- ble for such misconduct on the part of his architect.^ As in law so in equity ; and while the chancery courts will not enforce specific performance of a contract where the action is brought simply upon the ground of the architect's refusal to give a certificate, excepting in those cases where there is gross fraud,* or misrepre- sentation or collusion.^ And such fraud, etc., must be distinctly alleged in law,® and necessarily in equity, to give the court jurisdiction.' So, as in a Wisconsin case, where the plea set forth that improper and in- ferior materials had been used by the plaintiff, and that the architect had wrongfully certified satisfaction, and in other respects failed to discharge his duty as an architect, thus perpetrating a fraud upon the rights of defendant, the court held that the defendant was en- titled to show in evidence all facts tending to prove bad faith on the part of the architect in accepting the building.^ If, however, the owner fails to comply with his part of the contract, and the building cannot be completed by reason of his non-compliance, the archi- tect's certificate need not be obtained prior to com- mencinsi!; an action.' 1 Ludbrook v. Barrett, 46 L. J. C. P. I). 79S; 36 L. T. (N. S.) 616. 2 Stevenson u. Watson, L. R. 4 C. P. D. 148; 48 L. J. C. P. D. 318. » Clarke v. Watson, 18 C. B. (N. S.) 278; 34 L. J. C. P. 148. * Scott V. Liverpool, &c. 3 De G. & J. 334; 28 L. J. Ch. 230; Bliss v. Smith, 34 Beav. 508. 6 Mcintosh V. Great Western Ry. Co. 2 De G. & Sm. 758; 24 L. J. (N. S.) Ch. 469. « Stevenson v. Watson, 48 L. J. C. P. D. 318; L. R. 4 C. P. D. 148. ' Scott ". Liverpool, &c. 3 De G. & J. 338; 28 L. J. Ch. 230. 8 Tetz V. ButterfieW, 54 Wis. 242 et seq. « Hall V. Bennett, N. Y. Superior Court, J. & S. 302; Deo. 265. APPEOVAL OP OWNER. 29 Where there has been gross misrepresentation by the architect of matters forming an integral part of the contract, it virtually amounts to fraud, whether per- petrated upon the builder in refusing a certificate, or upon the owner in withholding material facts to his detriment. So an architect concealing a defect from the builder, knowing him to be ignorant thereof, was deemed to have perpetrated fraud.^ So, on the other hand, where there were circumstances unrevealed by the owner of the building which tended to prejudice the architect in his decision ; ^ and in all cases where a party makes representations which he knows to be false, and injury ensues,^ fraud will be inferred. The assignee or guarantor of a biiilder is entitled to the same rights, benefits, etc., that the assignor or principal was before his assignment or failure. § 22. Satisfaction of the Owner. It frequently hap- pens that tiie contract contains a stipulation that the work shall be subject to the approval of the owner of the building. The provision can be so framed as to make such an approval quite arbitrary, yet the law will not permit it to be exercised to the injury of the other party : it must be used in good faith, and not for the especial purpose of defeating the contract.* So when work has been done not strictly in accordance with the contract, yet is received and of benefit to the party receiving it, he shall pay its fair value.^ But if the contract specifies that the materials shall be ap- 1 Phillips V. Foxall, L. R. Q. B. 679; 41 L. J. Q. B. 293. 2 Kemp V. Kose, 1 Giff. 258; Kimberly v. Dick, L. R. 13 Eq. 1; 41 L. J. Ch. 38. " Foster v. Charles, 7 Bing. 105. 4 Stadhard «. Lee, 3 B. & S. 364; 32 L. J. Q. B. 75; Andrews v. Bel- field, 2 C. B. (N. S.) 779. 6 Ford V. Smith, 25 Ga. 675. 30 BUILDING CONTRACTS. proved before being used, the party furnishing them should apply to have them approved, or he uses them at his peril.^ Where an agreement stipulated that the building was to be erected according to plans and specifications, to the full satisfaction of the architect and of the owner, it was held that in the absence of proof of fraud, mistake, or unfair dealing on the part of the architect, his acceptance or satisfaction bound the owner." The right of approval is not to be construed as an arbitrary one,^ and the court will direct the jury to give the language a liberal and reasonable construction.* The mere acceptance of a house erected upon his own land will not preclude the proprietor thereof from showing that the work was performed in an unwork- manlike manner.® If the approval of the work by the owner is a condition precedent to payment, there must be ample opportunity afforded him to inspect the same before he is required to pay.'' This subject will be further considered when we come to speak of the per- formance of building contracts,' and acceptance of de- fective work.* § 23. The Superintendent, Foreman, or Boss of Con- struction', in this country, corresponds with the official known in England as the clerk of the works. He is 1 Higgins V. Lee, 16 111. 495 ; Dec. 41. 2 'I'etz V. Butterfield, 54 Wis. 242 el seq. « Dallam v. King, 4 Bing. N. C. 105. * Parson v. Sexton, 4 C. B. 899; Moffatt v. Dickson, 13 C. B. 543; 22 L. J. C. P. 265. 5 Mitchell V. Wiscotta Land Co. 3 Iowa, 209; Hartupee v. Pittsburg, 97 Penn. St. 107. 6 Stadhard v. Lee, 3 B. & S. 364; 32 L. J. Q. B. 75; Andrews y. Belfield, 2 C. B. (N. S.) 779. ' Post, § 23. 8 Post, § 27. supeeintbndent's duties. 31 de facto acting architect, and a most important function- ary. His duties are generally to oversee the work and report defects, etc., on large buildings. The superin- tendence of government buildings, both national and municipal, is often awarded in this country to practical builders, whose part of the work is to follow the work- ing plans of the architect in chief, the latter having no 'further connection with the construction. CHAPTER IV. PERFORMANCE OF BUILDING CONTRACTS. § 24. General View. The rule has been authori- tatively stated that parties to an entire contract are bound to execute all its stipulations, and that no part of the consideration can be recovered in an action on the contract until the whole is performed.^ That is to say, if there is no act of default or interference on the part of owner of the building, an action for indebitatus assumpsit cannot be sustained.^ Yet sometimes the cir- cumstances of the case may be such that a new con- tract will be implied from the conduct of the parties, as where the terms of the special contract have been altered by mutual consent, or by acceptance of the work which is really beneficial,^ or extra services have been performed, and suit may be brought on a quan- tum meruit for the work actually performed.* The general rule governing the performance of contracts, which requires that written agreements be followed according to the intention of the parties, and the true spirit and meaning of the stipulations, applies to build- ing contracts.® It sometimes happens that a strictly 1 Parsons on Contracts, § 522; Roberts v. Havelock, ."? B. & Ad. 404. 2 Dermott v. Jones, 2 Wall. 1 ; Cutter v. Powell, 2 Smith's Lead. Cas. 41; 6 T. R. 320. 8 Crookshank et al. v. Mallory, 2 G. Gr. (Iowa) 257. * Derby v. Johnson, 21 Vt. 17; Bank, &c. v. Patterson, &c. 7 Cranch, 299. 5 Hay ward v. Leonard, 7 Pick. 181; Jennings v. Camp, 13 Johns. 94; White V. Oliver, 36 Me. 93; Ellis v. Plamlen, 3 Taunt. 52; Nolan v. Whit- ney, 88 N. Y. 648. INSTANCES OP ENTIRE CONTEACTS. 33 literal performance of a contract would not fulfil its true purpose ; so the law looks to the intention of the parties rather than an exact compliance with the lan- guage of their agreement. Building contracts frequently provide that the builder shall not receive any compensation until the comple- tion of his undertaking.^ And in such cases he is not entitled to recover the value of the materials used in the construction as far as finished.^ The owner is not liable for goods sold and delivered/ unless the contract is apportionable, or there is an understanding that the material and labor are to be paid for as the work pro- gresses. § 25. Instances of Entire Contracts. Where a ship was to be put in thorough repair, and the builder de- manded part payment for partial performance, the court held that he was not entitled until he had com- pleted the job.* So where a party agreed to do certain work, and to furnish materials for a stipulated price, to be paid upon completion, he cannot abandon the con- tract and recover for what he has done.^ So where a builder agreed to repair a house, and complete the work by a certain day, to be paid therefor a certain sum " when the job is completed," but abandoned the work before completion, it was held that, as the con- tract was entire, full performance being a condition precedent to the payment, the builder could not recover pro rata compensation for the work donej'' but if the 1 Ellis V. Hamlen, 3 Taunt. 52; Stewart v. Craig et al. 3 G. Gr. (Iowa) 502 ; Roes v. Lines, 8 Car. & P. 126. 2 Clark V. Bulmer, 11 M. & W. 243. 8 Cotterell v. Apsey, 6 Taunt. 322. * Roberts i'. Havelock, 3 B. & Ad. 404. 6 Morton v. Read, 2 S. & M. 685; Dec. 212; Chambers v. King, 8 Mo. 517. « Kettle !'. Harvey, 21 Vt. 301 ; 24 Vt. 515; 33 Vt. 39 ; Dec. 358. 34 BITILDING CONTKACTS. job had been completed by the defendant, the plaintiff could have recovered the contract price less the de- fendant's damages.^ So, also, where the contract is to do specific work for a specific sum, the courts hold that the contract must be fully executed before payment can be demanded? These decisions seem based upon the theory that one who has failed to fully perform his part of an agreement cannot recover on the special contract, because he has not complied with it, or on the common count, because there is a special contract.^ The general rule seems to be that, where a building contract is entire, the work cannot be considered done, nor the materials furnished, nor the raonej' payable, until the contract is wholly executed.* Thus a contract to bore a well-hole, at a certain rate per hundred feet, requires the contractor to bore as long as practical, and if he abandons the work before completion, or the time specified, he is entitled to no compensation whatsoever.^ So where a person entered into an agreement to expend a certain amount of money upon the land of another, and after spending a portion of it fails to complete his contract, he has no lien on the land for the sum expended.^ The usual cases where the en- tirety of a contract is upheld are those in which time of performance is made essential, such as agreements to complete buildings by a certain date specified in the 1 Austin V. Austin, 47 Vt. 311; Dec. 359. " Sinclair v. Bowles, 9 B. & C. 92. See, however, Lord Tenterden's opinion in case just cited; also Wade v. Haycock, 25 Penn. St. 382; Sickle V. Pattison, 14 Wend. 257. » Morton v. Read, 2 S. & M. 585. * Edwards v. Derrickson, 4 Dutch. 39; Derrickson u. Edwards, 5 Dutch. 468. 6 Stewart r. Weaver, 12 Ala. 538; Dec. 6. « Wallis V. Smith, L. R. 21 Ch. D. 243; 52 L. J. Ch. 145; 47 L. T. 389; 31 W. R. 214. SUBSTANTIAL PBEFOEMANCE. 36 contract.^ Of these we will speak later on.* The ques- tion of recovery after part performance depends upon whether the consent of the defendant to an abandon- ment has been expressed or can be implied from an acceptance of the work,* and whether completion has been prevented by the defendant* or by the act of God.^ § 26. Substantial Peeformance. In a leading case,* the contract was to erect a house on the defendant's land by a certain day, for a fixed price ; the work to be performed in a workmanlike manner, etc. The plaintiff substantially complied, but the work and ma- terials varied from the contract. The defendant had been present, and had an opportunity of superintend- ing the building. He expressed himself as satisfied with part of the work, but objected. at divers times, and ordered variations. After the house was ready to be turned over to him he refused to accept it, but the court held that a quantum meruit could be brought for the builder's work, and a quantum valebat for the ma- terials. Chief Justice Parker stated that he thought that one of two things must be proved in order to uphold the plaintiff's right of recovery : either that there was an honest intention to go by the contract, and a substantial execution of it with only some com- 1 Cutter t'. Powell, 6 T. R. 320; S. C. 2 Smith's Lead. Cases, Hare & Wallace's Notes, 41; Dickey v. Linscott, 20 Me. 453; Fenton v. Clark, 11 Vt. 557. ^ See Time Stipulations, post. ' Cutter V. Powell, supra. * Derby v. Johnson, 21 Vt. 17; Moulton v. Trask, 9 Met. 577; Bannister V. Reed, 1 Oilman, 92. 5 Hair <■. Bell, 6 Vt. 35; Philbrook v. Belknap, 6 Vt. 583; Olmstead v. Beale, 19 Pick. 528. ^ Hayward o. Leonard, 7 Pick, 181 ; see Britton v. Turner, 6 N. H. 481. But in Hill v. Milbuni, 17 Me. 316, it was held that a substantial compli- ance is not sufficient where a party contracts to build a house in a sub- stantial manner, and that the contract must be strictly complied with. 36 BUILDING CONTRACTS. paratively slight deviations; or that there was an assent or acceptance, expressed or implied, by the party with whom the plaintiff contracted.^ So, although a sub- stantial performance of a building contract must be shown when payment is demanded,'^ unimportant omis- sions, or defects which are technical and inadvertent, will not bar recovery.' The law does not ordinarily require an exact and literal performance, and the builder may recover notwithstanding trivial defects.* To make a literal performance of a building contract in every detail a condition precedent to payment, would uphold injustice to builders substantially complying with their agreements.^ So under a contract to rebuild a mill, which had been burned down, " to be as good as the first one," a substantial performance was held sufficient.^ But although a substantial performance may entitle a plaintiff to recover, he is not necessarily entitled to the whole contract price ; the defendant may recoup for defects in the execution of the work.'' To sustain an action to enforce the lien of a mechanic, substantial performance has been declared to be a con- dition precedent.^ The only general rule which can be laid down is that ^ See Smith u. First Cong. Ch. 8 Picli:. 178 ; Jennings v. Camp, 13 Johns. 94; Snow v. AVare, 13 Met. 42; Olmstead v. Bealo, 19 Pick. 528; Taft v. Montague, 14 Mass. 282 ; Thornton v. Place, 1 Moody & R. 218. But see Helm !). Wilson, 4 Mo. 41; White v. Oliver, 36 Me. 93; Ellis v. Hamlen, 3 Taunt. 52. ' Mehurim v. Stone, 37 Ohio, 49; Dec. 310. 8 Glacius ,}. Black, 50 N. Y. 145; Johnson u. De Peyster, 50 N. Y. 666; 4 Barb. 614; 35 Barb. 602; Dec. 287. * Smith V. Brady, 17 N. Y. 173; Dec. 290; Nolan v. Whitney, 88 N. Y. 648, and cases above cited. ' N. Y. Court of Appeals, 1880; Heckman i-. Pinkney, 81 N. Y. 211; Goldsmith v. Hand, 26 Ohio, 101 ; Dec. 311. « Ellis V. Lane, 85 Penn. St. 265 ; Dec. 333. ' Monocacy Bridge Co. v. American Iron Bridge Co. 83 Penn. St. 517. * Lombard v. Johnson, 76 111. 599. QTJANTTJM MERUIT. 37 if a building is erected, but not exactly according to the contract and specification, but the work executed in good faith, or if an exact compliance is waived, the plaintiff may recover what the work is really worth to the defendant, not exceeding the contract price.^ Such has also been upheld in New Hampshire.^ A more rigid rule has been applied in New York, the object of which is to secure the strict performance of contracts which expressly specify what is to be done.' § 27. Partial Performance and Eecovery upon a Quantum Meruit. " When a person employs another to do work for him, without any agreement as to his compensation, the law implies a promise from the em- ployer to the workman that he will pay him for his services as much as he may deserve. In such case the plaintiff may suggest in his declaration that the defendant promised to pay him as much as he reason- ably deserved, and then aver that his trouble was worth such a sum of money, which the defendant has omitted to pay."* So, "when there is an express contract for a stipulated amount, and mode of compensation for services, the plaintiff" cannot abandon the contract and resort to an action for a quantmn meruit on an implied assumpsit ; " ^ " he must show a new contract, arising from, it may be, but entirely independent of, the origi- ' Hayward v. Leonard, 7 Pick, 187; Smith v. Lowell Meeting House, 8 Pick. 181; Plielps v. Sheldon, 13 Pick. 50; CuUen v. Sears, 112 Mass. 299; Powell & another v. Howard, 109 Mass. 192. 2 Britton v. Turner, 6 N. H. 481. ' Smith V. Briidy, 17 N. Y. 173 ; Smith v. Coe, 2 Hilt. 365. But see New York cases cited supra. * 2 Blackstone Com. 162, 163; 1 Viner Abr. 346; 2 Phillips Ev. 82; Bouvier's Law Dictionary, " Quantum Meruit." 5 Addison on Contracts, 214; Holt Nisi Prius, 236; 10 Johns. 36; 14 Johns. N. Y. 326; 10 Serg. & K. (Penn.) 236; 7 Cranch, 299; 4 Carr. & P. 93. 38 BUILDING CONTRACTS. nal." A quantum valehat applies in the same way to the implied promise to pay for goods, merchandise, or ma- terials what they are reasonably worth.^ It would ap- pear from its very nature that the right to sue upon a quantum meruit after a special contract depends entirely upon the fact of the discharge of the original contract by an action of indebitatus assumpsit? Yet it has been authoritatively laid down that " wherever one of the parties to a special contract not under seal has in an unqualified manner refused to perform his side of the contract, or has disabled himself from performing it by his own act, the other party has thereupon a right to elect to rescind it, and may, on doing so, immediately sue on a quantum meruit for anything which he had done under it previously to the rescission."^ First. Performance prevented l>y the other contracting party. If a builder is prevented from completing his contract by the fault of the other party to the contract, he is unquestionably entitled to recover for the work he has performed, and for all damages incurred by him in consequence of the discontinuance of the contract by the defendant.* Therefore a suit of indel)itatus assump- sit can be brought where a contractor has been de- prived of the benefits of his contract by the action or delay of the building owner;® and this, too, whether 1 See distinction between a q. m. and q. v. in Coates v. Glenn et al. 5 Md. 121; Dec. 168. ^ Anson on Contracts, 269. 8 Dermott v. Jones, 2 Wall. 1 ; Hulle v. Heiijhtman, 2 East, 145; Cutter V. Powell, 2 Smith Lead. Cas. 44; 2 Sm. L. C. 21; Reid v. Hos-kins, 4 E. & B. 979. The refusal must be an unqualified one. Cort v. Ambergate Ry. Co. 17 Q. B. 127. Yet it will be sufficient if he simply places himself in a position where it will be impossible for him to perform. Robson v. Drummond, 2 B. & Ad. 303; Planche v. Collmrn, 8 Bing. 14. * Derby r. Johnson, 21 Vt. 17; Moulton v. Trask, 9 Met. 577; Bannister *. Reed, 1 Oilman, 92; Guerdon v. Corbett, 87 HI. 272; Dec. 36. 5 Goodman v. Pocock, 15 Q. B. 576; Derby v. Johnson, 21 Vt. 17. PARTIAL PERFOKMANCE. 39 intentional or resulting from other causes, as where an action on the case is had for erecting a nuisance.^ In such cases the builder may demand his rights imder the contract, or claim damages,'* for he is excused from completing the work.^ So, in a contract to pay for building by instalments, it was held that upon failure to pay one of the stipulated instalments the contractor could abandon the contract, and recover the profits he might have made by completing the building.* Yet a builder erecting an improvement upon the land of an- other for mutual occupation may sue for breaches of the contract, but cannot seek a rescission of it, and recover on a qiianhtm meruit.^ So where a contract to perform certain work provides that a suspension of the work by the employer shall give the contractor no claim for damages, etc., a suspension of the same in good faith will not relieve the contractor from his undertaking.^ The rule as to default is succinctly stated in a Louisi- ana decision, that he who fails to perform his part of a contract, when the other renders performance, is liable to dc'i tmaa-es 7 When the performance on the part of a contractor is dependent upon something which is to be done by the employer, who did not give the contractor explicit notice to proceed with the work, the former is never- theless liable to the contractor for damages.* Although a ptirty cannot recover upon a contract he has failed to perform, he may obtain the amount of the value of 1 Derby v. Johnson, 21 Vt. 17. 2 Planche v. Colburn, 8 Bing, 14 ; Lawson v. Wallasey, &c. 52 L. J. Q, B. 302; 48 L. T. 507. ^ Com. Dig. " Condition, " L. 6. * Co. of Cliristian v. Overholt, 18 111. 223; Dec. 79. 6 Toledo, Wabash & W. R. R. v. Depot Building, 63 111. 308 ; Dec. 80. « Snell V. Brown, 71 111. 134. ' Hyde v. Grisby, 11 La. 240; Oxnard u. Locke, 13 La. 449. « Louisville & N. R. R. Co. v. HoUerbach, 3 West Rep. 364; Dec. 103. 40 BUILDING CONTRACTS. such work upon a quantum meruit, less the damages sus- tained by the defendant/ If a contractor is released by consent, he can sue in assumpsit for work per- formed." It may be laid down as a general rule that in all cases where the contractor has the right to avoid or rescind a written contract, whether by virtue of default of the owner or otherwise, he may recover for work actually performed upon a quantum meruit^ but that a person who contracts to do a certain piece of work, and voluntarily leaves it unfinished without good cause, cannot recover anything for his work.* The liability for the non-performance of a building contract will fall on the party who was the cause of the contract not being carried into effect.^ In cases where the duty consists of parts which are severable in their nature, a partial performance will sustain an action pro tanto, or constitute a good defence pro tanto. For in- stance : if by the contract a portion of the pay is to be made upon the completion of a portion of the work, the performance of that part of the work is pro tanto a condition precedent, not the performance of the whole contract.^ But there can be no recovery pro tanto on a special contract without a legal cause for abandoning the work.^ Yet if the defendant has accepted a part performance, the plaintiff may recover pro tanto} 1 McClay V. Hedge, 18 Iowa, 66 ; Pixler y. Niools, 8 Iowa, 106. This doctrine is disputed. Seejoos^ 2 B. & O. R. R.u. Eesley, 7 Md. 297; Dec. 167. * Simmons v. Lawrence, &c. 133 Mass. 298; Ford v. Burchard, 130 Mass. 424; Dec. 186. * Faxon V. Mansfield, 2 Mass. 147 ; 7 Pick. 185 ; 19 Pick. 529. ^ Cutter V. Powell, 2 Smith's Lead. Cases, Hare & Wallace's Notes, 44; 2 Sm. L. C. 11; Franklin v. Miller, 4 A. & E. 699. « Morgan v. Ward, Wright, 474; Dec. 305. ' Allen V. Curies, 6 Ohio St. 505; Dec. 306. * Eohinson v. Snyder, 25 Penn. St. 203. QUANTUM MERUIT. 41 A builder may recover upon a quantum meruit where completion has been prevented by the owner, although, by the terms of the contract, payment was to be in the land.^ In Missouri it has been declared that the action of assumpsit is not the proper one for re- covery upon a covenant to erect a house, where the progress of the building is interfered with by the plaintiff.^ Where the contractor is prevented by some act of the employer, he will not be liable for penalties for non-performance,^ although he has an action for dam- ages against the owner.* A part payment on the contract price of a job is not a waiver of exact performance, or to any claim arising from insufficiency of the work.^ If suit is brought upon a written contract, the plain- tiff cannot show that he has sustained damages in con- sequence of the delays of the defendant in furnishing materials. For in setting up the special contract he makes it the gravam^en of his action, and thereby pre- cludes himself from recovery for delays, etc.^ The measure of damages in consequence of the act' of the land-owner, or other party owning the building, preventing a completion of the contract, is not the original contract price,^ but the reasonable loss to the defendant, consisting of the value of the work per- 1 Bassett v. Sanburn, 9 Cush. 58 ; Dec. 192. « Chambers v. King, 8 Mo. 517; Dec. 223. 3 Holme V. Guppy, 3 M. & W. 387; 1 Jur. 825. 1 Roberts;;. Bury, &c. L. E. 5 C. P. 310; 39 L. J. C. P. 129. 6 Andrews v. Portland, 35 Me. 472 ; Dec. 146. " In Stewart v. Craig et al. 3 G. Gr. (Iowa) 502, it was held that the plaintiff could recover on indebitatus assumpsit for work and labor under a special contract. Bush v. Chapman, 2 G. Gr. (Iowa) 549 ; Dec. 109. ' Cutter V. Powell, 2 Smith's Lead. Cases, Hare & Wallace's Notes, 44; Lawson v. Wallasey, «ec. 52 L. J. Q. B. 302; 48 L. T. 507. 42 BUILDING CONTRACTS. formed and the damage sustained by him.^ In an Illinois^ case it was held that he miglit recover the profits he might have made by completing the con- tract. But such a rule has not always been adhered to ; thus we find in Indiana : ^ " the contract price, less any damnges incurred by the defendant, is the meas- ure of damages where performance has been unreason- ably delayed;" Iowa:* the plaintiff can recover for the work done in proportion to the stipulated price for the whole job ; Maine : ^ the contract price is made the basis of the amount which can be recovered ; Massachusetts: the value of the services, and not the amount of the benefit which the person requesting them receives;'' Michigan: "a party cannot recover more than the contract price on quantum meruit, and cannot recover that if his work is not reasonably worth it ; " ^ Texas: the correct mode of determining the value of satisfactory work on an unfinished contract is the contract price less what it will take to complete it.* On the other hand, if the fault is with the builder, the law seems definitely settled that the owner is ■ entitled to damages to the extent of the loss sus- tained.^ It has even been held that when a con- tractor neglects or refuses to complete an entire building contract upon the land of another, and it 1 Hale V. Johnson, 6 Kan. 137. 2 Co. of Christian v. Overholt, 18 111. 223. 8 Louisville & N. R. R. Co. v. HoUerbach, 3 West. Eep. 364. * McCaushmd u. Cresap, 3 G. Gr. (Iowa) 161 ; Dee. 128. " Hayiien v. Madison, 7 Me. 76. « Stowe V. Buttrick, 125 Mass. 449; Dec. 193. ' Allen I'. McKiOben, 5 Mich. 449; Dec. 204; Tilden v. Besley, 42 Mich. 100; Dec. 207. ' Gonzales v. McHugh, 21 Tex. 259; Dallam (Tex.), 430. ' In re Cook v. Gleason, 3 Chic. Leg. N. 410 ; Bauk of Penn. v. Gries, 35 Penn. 423. QTJANTXJM MEEtriT. 43 would be impracticable for the land-owner to abnndon it, he may properly retain possession of the work, so far as it has progressed, without being subject to an action upon a quantum meruit, unless he should render himself liable by other acts implying an acceptance.^ It has been held to the contrary in Iowa, that where a contractor abandons his contract without the fault of the employer, he can recover what the work is reason- ably worth.^ Where workmen are employed by a con- tractor, and the latter abandons his contract, they may continue the work for the owner, and if they do so at his request he is liable.^ In Louisiana it was held that, where a builder failed to complete his contract, the owner of the building may proceed to complete the work ; and if the sum of money used for this purpose, and damages incurred by the owner, do not equal the contract price, the original contractor is entitled to the residue for his work.* Upon the bankruptcy of the contractor it was held that the damages were the amount required to finish the contract, subtracted from the contract price.^ The general rule seems to be that where the builder refuses or fails to complete the con- tract, there being no fault on part of the owner, the latter is entitled to ignore the contract, and maintain a suit to the actual or reasonable extent of his damages.^ Second. Performance prevented hy destruction of the premises. It is well settled that where a builder fails to complete his contract by reason of a destruction of ' Elkridge v. Kowe, 4 Gilm. (111.) 91. See Effect of Acceptance, /)(?s«. 2 McClay V. Hedge, 18 Iowa, 66; Plxler v. Nichols, 8 Iowa, 106. 8 Andree v. Bodman, 13 Md. 241 ; Dec. 165. * Allen V. Wills, 4 La. An. (1849) 97. 6 Cook V. Gleason, 3 Chic. Leg. N. 410 . 6 Lawson v. Wallasey, &c. 52 L. J. Q. B. 302; 48 L. T. 507; Elkridge V. Kowe, 4 Gilm. 91. 44 BUILDING CONTEACTS. the premises, whether from his own fault or from an unavoidable accident, the loss falls upon him, and not upon the owner.-' So where, under a contract for building a house, the work was destroyed by fire, the builder cannot recover.^ So, if the fire had been caused by lightning, he would not thereby have been relieved from his obligation to finish it by the time specified in the contract.^ But where a contractor agreed to manufacture the iron -work for a house being built, and put up the same, the work to be at his own risk until the building was completed, it was held that the manufacturer did not assume the risk of the building, which was destroyed, but only his materials furnished, and therefore that the destruction of the building by fire did not deprive him of his right to recover the price of the iron -work manufactured and ready to be delivered.* On the other hand, where the lumber of a new building was destroyed by fire after being worked upon by a carpenter who had a contract, it was held that he could not recover, although it had been agreed that the work was to be paid for as it pro- gres.^ed, and although the owner received the insur- ance on the lumber ; the carpenter had an insurable interest only.^ So, again, " one cannot recover for work done and materials furnished under a non-apportion- able contract to put up an addition to an existing building for a fixed sum, where the main house and the partially constructed addition is burned." ^ So, also, where an uncompleted building falls, by reason 1 Bacon v. Cobb, 45 111. 47 ; Thompkins v. Dudley, 25 N. Y. 272. 2 Partridge v. Forsyth, 29 Ala. 200; Dec. 8. " School District v. Dauchy, 25 Conn. 535; Dec. 29. * lianson v. Clark, 70 111. 657; Clark v. Busse, &c. 82 111. 515. <> Eichelberger I). Miller, 20 Md. 332; Dec. 172. " Tilden v. Besley, 42 Mich. 100; Dec. 207. IMPOSSIBILITY OF PERFORMANCE. 45 of a latent defect in the soil, the loss is upon the con- tractor.^ To the contrary, however, it was held that where the contract was to do the masonry work and furnish part of the materials for a certain sum, not to be paid until completion, and the unfinished build- ing was destroyed by fire, that the contractor might recover, " especially where he treated the house as his own by procuring an insurance, and receiving mOney thereon after the loss." ^ This decision does not agree with the weight of authorities, for fixing the liabil- ity of buildings destroyed before completion upon the contractor has been carried even further, in holding that an action may also be maintained against him for the money advanced to him by the owner dur- ing the progress of the building.^ The rule does not apply to cases where the contractor is entitled by the agreement to pay as the work progresses ; * as, where the risk was taken by the owner, and the contractor, a carpenter, had performed part of his work, when the building was consumed, the court held that he was entitled to a mechanic's lien claim upon the ground for the amount due him at the time of the fire.^ Third. Performance becoming impossible. Build- ing contracts, from their very nature, can rarely be- come absolutely impossible, and the instances just cited, concerning property destroyed by inevitable accident, show that the contractor will rarely indeed 1 Trustees, &c. v. Bennett, 3 Dutch. 513; Dec. 257. 2 C(»ok V. MoCabe, 53 Wis. 250 ; Dec. 368. Compare with Eichelber- ger u. Miller, 20 Md. 332 ; Dec. 172 ; and Garretty v. Bfazell, 34 Iowa, 100; Dec. 108. 8 Thompkins v. Dudley, 25 N. Y. 272 ; School Trustees of Trenton v. Bennett, 3 Dutch. 613 (defective soil) ; Dermott ''. Jones, 2 Wall. 1. * Schwartz v. Saunders, 46 III. 18; Garretty w. Brazell, 34 Iowa, 100; Dec. 108. 5 Sontag, &c. V. Brennan, 75 111. 279. 46 BUILDING CONTRACTS. be excused from completing his undertaking.^ The general rule applicable to contracts, that impossibility of perfonriance of the contract will operate as a dis- charge, does not frequently excuse a substantial ex- ecution of a building contract.^ The policy of the law is to enforce the agreement strictly if possible, and it considers that, at the time of making a con- tract, the parties should have provided for all contin- gencies tending to excuse performance.^ Yet, if the impossibility arises from the non-exist- ence of the subject-matter, the contract may be avoided.* So where a tenant who had agreed to dig not less than one thousand tons of potter clay annu- ally, paying a certain royalty per ton, pleaded that there had never been one thousand tons on the land, the court held that the covenant is only applicable if the clay is really there.^ RebuUdhig. So, where the contracting parties knew from the beginning that the contract could not be executed unless the existence of certain conditions remained in force, the fulfilment of the contract will be discharged by the perishing of the condition or thing.'' For example : where a party contracted to erect a bridge, and bound himself to keep it in repair for a term of years, he is not liable to rebuild if the bridge is destroyed by fire.' In Brecknock Co. v. 1 Bacon v. Cobb, 45 111. 47. See, also. Hair v. Bell, 6 Vt. 35 ; Pliilbrook V. Belknap, 6 Vt. 383; Brown ti. Kimball, 12 Vt. 617 ; Stark v. Parker, 2 Pick. 2B7; Oliiistead v. Beale, 19 Pick. 528. 2 Paradine r. Jane, Aleyn, 26; Atkinson u. Richie, 10 East, 530 ; Thom kins «. Dudley, 25 N. Y. 272. 8 Bacon v. Cobb, 45 111. 47. ■* Strickland u. Turner, 7 Exch. 217. 6 Clifford V. Watts, L. R. 5 C. P. 586. « Taylor i: Caldwell, 3 B. & S. 833 ; 32 L. J. Q. B. 166. ' Livingston Co. v. Graves, 32 Mo. 479 ; Dec. 219. PERFORMANCE OF PREVENTED. 47 Pritchard,^ a stronger proposition was held, — that, al- though the bridge were washed away by an unusual and extraordinary flood, through no fault of the builder, the latter is bound to rebuild under a cove- nant to keep it in order. In another case^ it was held that the lessee is bound to rebuild if his lease stipu- lates that he shall keep the property in repair. On the other hand, where the plaintiff contracted with the defendant to erect certain machinery upon the prem- ises of the latter, for his own occupation and use, for a fixed sum, and to keep the property in order, it was held that both parties were excused from further performance when the property was accidentally de- stroyed by fire, and that the plaintiff was not entitled to recover anything for his machinery.^ The Act of God is not a defence unless it amounts to making performance absolutely impossible. The fact that the duties involved undert he contract have thereby become more onerous than was anticipated when the contract was made, or that to carry out the contract after the act will impose great hardship upon the contractor, will not excuse him from performance of his stipulations. So, if the contract can be substan- tially carried into eflFect, although the act of God ren- dered an exact performance impossible, the contract must nevertheless be complied with, if desired by the other party, as far as possible.* The same rules apply to discharges from duties involved under contracts with reference to performance of contracts affected by 1 Brecknotk Co. o. Pritchard, 6 T. R. 750. = Bullock V. Donimett, 6 T. R. 65. » A[)pleby v. Meyers, L. R. 2. C. P. 653 ; 36 L. J. C. P. 331. * White V. Mann, 26 Me. 361; Chapman v. Balton, Plowden, 284 ; Hol- tham V. Ryland, 1 E Danforth v. Walker, 37 Vt. 239; S. C. 4 Vt. 257; Dec. 355. 5 Lowry v. McLane, 3 Grant (Pa.), 333 ; Stewart v. Dougherty, 1 Pitts. 233; Dec. 324. « 1 Brown's Pari. Cas. 289. HOW KESCINDBD. 57 A voidable agreement may sometimes rescind a valid contract, if acted upon by the parties.^ Where one of the parties to an executory contract expressly signifies his intention not to perform his part of the agreement, the other can treat the contract as rescinded, and has an immediate right of action. But there should be no doubt that the decision was in- tended as final by the party abandoning the contract.^ A special contract is not rescinded by a verbal agree- ment to pay an additional sum for the work : the sub- sequent understanding affects only the stipulation as to price ; the other stipulations remain in full force.^ 1 Ormes v. Beadel, 2 De G., F. & J. 333; SO L. J. Ch. 1 ; 9 W. R. 25. 2 Soei^t^, &c. u. Milders, 49 L. T. 55. 3 Cooke V. Murphy, 70 111. 96; Morrill v. Colehour, 82 111. 618; Dec. 76. CHAPTER V. TIME OF PERFORMANCE OF BUILDING CONTRACTS. § 34. General Statement. The stipulation usually inserted in this class of contracts, that the building to be undertaken shall be completed, or ready for occu- pancy, on or before a certain day, is a most important one. In drawing a building contract it is generally advisable not only to bind the builder to complete his work within a certain time, but also to provide against all contingencies which may arise, making due allow- ances for extras which may be ordered, strikes of mechanics, bad weather, and other causes not under the builder's control. By the strict letter of common law, the failure of a party to complete the performance by the time agreed upon would virtually allow the other to rescind the contract ; yet in equity time is not, in general, con- sidered so far of the substance of the contract that if a building be completed, say a few days later, no compensation whatever can be recovered.^ The proper rule seems to be that the builder should be allowed to sustain his suit on the contract, subject to the defendant's equitable right to show any damages he may have sustained by the delay, by way of set-oflF, or as cause of action in a cross suit.^ 1 Porter v. Stewart, 2 Ark. 417; Warren i'. Marus, 7 Johns. 476; Rob- erts V. Berry, 2 De G., M. & G. 284; 22 L. J. C. 398. 2 Lucas V. Godwin, 3 Bing. N. C. 737; Smith v. Gugerty, 4 "Barb. 614 ; Lindsey v. Gordon, 13 Me. 60; Parker v. Thorold, 16 Beav. 59. TIME OP PERFORMANCE. 59 So, where a number of cottages were not completed until several days after the time stipulated in the con- tract, the owner was held bound to pay for them on a quantum valebat} If a land-owner were allowed to profit by the in- ability of a builder to complete his undertaking by the time specified in the contract, there would be numerous instances where the unfinished structure would be completed by the owner, who would thereby secure the improvement desired, and have the value of his liind enhanced partly at the expense of an un- fortunate contractor. In simple justice, therefore, the acceptor of uncompleted buildings should be liable to the extent of the fair value of the same, notwithstand- ing the time stipulation had not been complied with.^ Equity does not consider that the parties intended that no payment whatever should be made if the building was not completed by the time specified. In other words, " time is not a condition going to the essence of the contract." ^ Yet, if the parties desire, stipulations may be so worded in unequivocal terms, that nothing whatever shall be paid for the building unless completed within the time specified. In such case time becomes an essential condition * which will be enforced.^ ^ Lucas V. Godwin, 3 Bing. 737. In this case there was an acceptance of the work by the employer. See particularly Verzan v. McGregor, 23 Cal. 339. 2 See Addison on Contracts, 582. 8 Homan v. Steele, 26 N. W. Rep. 472; Dec. 238; Lucas v. Godwin, 3 Bing. N. 0. 737; Littler v. Holland, 3 T. R. 590; Maryon v. Carter, 4 C. & P. 295; Kingdon v. Cox, 2 C. B. 661; 15 L. J. C. P. 95; Tilley v. Thomas, L. R 3 Ch. 67 ; Parker o. Thorold, 16 Beav. 59. * Hudson V. Temple, 29 Beav. 536 ; 30 L. J. C. 251. 5 Liddell 0. Sims, 2 Smedes & M. 596; Westerman v. Means, 12 Penn. St. 97; Kent v. Humphreys, 13 111. 573. 60 BUILDING CONTEACTS. § 35. Reasonable Time. Where the contract is silent as to the time of performance, the law infers that a reasonable time was meant.^ What is a reasonable time is usually regarded as a question of law," and therefore for the court; yet sometimes, when depen- dent upon particular facts, it should be determined by the jury,^ as where it is to be decided from facts ex- trinsic to the contract.* If, on the other hand, a builder chooses to bind him- self arbitrarily to complete work by a certain time, he may do so, no matter how unreasonable the time ; and the court will not infer, even from impossibility of per- formance, that the time condition had a meaning at variance with its express terms.^ When no time is specified for the payment of ma- terials sold, the law infers that they are to be paid for upon delivery,^ and delivery must be made within a reasonable time.' § 36. Particular Words. Mr. Emden, in his excel- lent work,^ cites numerous authorities to show the meaning of particular terms used in building contracts. He explains that " a contract to be performed ' di- rectly ' means that it is to be performed, not within a reasonable time, but speedily, or at least as soon as practicable ; " that " ' forthwith ' does not necessarily ^ Skinner w. Bedell's Adm'r, 32 Ala. 44; 3 Ala. 123; Ellis v. Thompson, 3 M. & W. 44.5; Davis, &c. v. Tallcott, &c. 2 Kern. (N. Y.) 184; Atwood V. Cobb, 16 Pick. 227; 2 Penn. 63; Driver v. Ford, 90 JU. 695. 2 Ellis V. Paige, 1 Pick. 43. " See cases cited by Shipley in Howe v. Huntington, 15 i\Ie. 350. < Watts V. Sheppard, 2 Ala. 425; Drake v. Goree, 22 Ala. 409; Murrell V. Whitney, &c. 32 Ala. 55. 6 Jones V. St. John's Col. L. R. 6 Q. B. 115; 40 L. J. Q. B. 80 ; Oak- den V. Pike, 34 L. J. Ch. 620. « Brady v. Anderson, 24 111. 112; Dec. 79. ' Palmer v. Breen, 24 N. W. Kep. 322 ; Dec. 211. 8 Emden on Building, &c. 166. TIME PENALTIES. 61 mean immediately;" that, "in computing a given period of time ' from ' and ' after ' a specified act or event, the day of the act or event is to be excluded, and the last day of the given time included;" that " the words ' at ' or ' on ' or ' upon ' a certain time or event, or like expressions, mean before, or simultane- ously with or after, the act or event referred to, in accordance with a reasonable construction of the con- text. The term ' months ' denotes lunar months." But in the United States, calendar months are generally intended. § 37. Time Penalties. It is not the policy of the law to give inequitable construction to stipulations, when, by admitting parol testimony, an intention of the parties may be evinced which will not operate as a hardship upon either of them. So, where a contract contained a provision that, if the work was not com- pleted by a fixed time, the defendant should lose the contract, and also all money due on the same, it was held that, if this clause was inserted under a mistake as to the amount and difficulty of the labor to be per- formed, it was void, and that it did not deprive the defendant of the benefit of the other clauses.'^ So, again, where the condition was that the contractors should be discharged by an engineer, and all pay for- feited, if they failed to comply with all their obliga- tions (one of which was to finish by a certain time), the court held that this provision had no reference to the completion by the time agreed upon, but only to defaults occurring during the progress of the work.^ 1 Verzan v. McGregor, 23 Cal. 339; Dec. 20. Yet the law implies that the provisions of a written contract were understood when signed. Clark t;. Pope, 70 111. 1 28. 2 Cannon v. Wildman, 28 Conn, 490; Dec. 32. 62 BUILDING CONTEACTS. On the other hand, when the time of performance is material, or expressly stipulated to be so, a failure to comply in the time agreed upon will avoid the agreement.^ "Whether a sum specified in a con- tract, as a penalty for the non-performance thereof, shall be considered as a penalty or as liquidated dam- ages, is a question of construction," dependent upon the circumstances of the case.^ Thus, in an action where the contract provided a penalty of f 500 for the breach of certain stipulations, the court held that actual damages only could be recovered against the party failing to perform his part.^ Work accepted by and valuable to the employer may generally be re- covered for, though not performed within the time agreed upon.* The penalties incurred by a contractor for non-per- formance may be set up against his claim on quantum meruit.^ § 38. Extensions of Time may be proved to have been allowed by verbal agi'eement.® But such an ex- tension of time will not authorize the contractor to abandon the contract and sue for the value of the work.'^ Where a building contract stipulated that the builder should complete the work in two months' time, and be paid if he should finish the building before the expiration of that time a stipulated rate, or forfeit the same rate if delayed beyond that period, it was held 1 Kent V. Humphreys, 13 111. 573; Dec. 91. '^ Foley V. McKeegan, 4 Iowa, 1; Dec. 120. ' Loi'd u. Gaddiss, 9 Iowa, 265. See Lucas v. Snyder, 2 G. Gr. (Iowa) 590 ; Dec. 121. * Davis V. Fisli, 1 G. Gr. (Iowa) 406; Dec. 125. 6 Marshall v. Hann, 2 Harr. (N. J.) 425. 8 Luckhart v. Ogden, 30 Cal. 547; Dec. 21. ' Hayes et al. v. Second Bapt. Ch. 3 West. Rep. 830. EXTENSIONS OF TIME. 63 that one clause controlled the other, and that by necessary implication he should be allowed a reason- able time beyond the two months by paying or allow- ing hquidated damages.^ In a New York case, where the contractor began work before the foundations were fully ready, and the contract specified that the builders should receive f 500 for each day the work was completed, before the expiration of five months^ it was held that they were not entitled to recover the stipulated sum.^ " A mutual agreement to extend the time of per- formance of a special contract requires no new ex- traneous consideration to support it. It is promise for promise, and such new and further agreement may be declared vapon, and a recovery had for such damages as the breach of it has occasioned, though in excess of what would have arisen under the original con- tract." 2 An extension of time will not rescind the stipula- tion which makes time an essential of the contract ; it merely substitutes the new time for the old.* Time, though of the essence of the contract, is extended while negotiations are being made between the par- ties.^ § 39. Effect of Extras and Alterations as to Time. It was stipulated, in a contract for altering and repairing a warehouse for a certain amount, that, if the work was not completed within three months the 1 Fulsom V. McDonough, 6 Cush. 208. 2 Super. Ct. 1882, Mansfield v. N. Y. Cent. R. K. Co. 16 Weekly Dig. 275. 3 Hill V. Smith, 34 Vt. 535; Dec. 356. * Barclay v. Messenger, 43 L. J. Ch. 449. 6 Webb V. Hughes, L. E. 10 Eq. 281 ; 39 L. J. Ch. 606 ; Wood v. Bernal, 19 Ves. 220 ; M'Murray v. Spicer, L. K. 5 Eq. 527. 64 BUILDING CONTEACTS. builder should pay £5 for every week he delayed completion beyond that period. An action was brought for extra work, but the employer was allowed to set off the penalty against the price of the extra work and deduct it from the contract price.-* The rule inferred from this decision, however, is not a proper one, for the authorities almost seem agreed that if performance is delayed by the ordering of extra work or alterations, or by interference of the owner or his agent, no claim to penalties can be re- covered,^ unless expressly stipulated in the new con- tract.^ So, in a Massachusetts case, where the parties verbally altered the original plan of a house, thereby postponing the work, it was held that this postpone- ment by mutual consent relieved the builder from liability in not completing the structure by the time agreed upon.* An obligation to complete specified work by a certain fixed time, once waived by change of plan or extras, no longer applies, and the builder is only bound to finish his undertaking within a reason- able time.^ After the failure of the stipulation as to time, neither party can abandon the contract without giving the other party a reasonable opportunity to perform his part.® 1 Duckworth v. Allison, 1 M. & W. 412; Fletcher v. Dyche, 2 T. R. 32; Legse V. liarlock, 12 Q. B. 1015. 2 Westwood V. Secretary of State for India, 11 W. R. 261 ; 7 L. T. N. S. 736. 2 Jones V. St. John's Col. L. R. 6 Q. B. 115. See particularly Lord v. Gaddiss, 9 Iowa, 265, and Lucas v. Snyder, 2 G. Gr. (Iowa) 590; Dec. 121, where a heavy i>enalty was construed as void, and actual damages only allowed. 4 Palmer v. Stockwell, 9 Gray, 237; Dec. 201. So where a town un- reasonably delays to fix the site of the building. Blanchard c. Black- stone, 102 Mass. 343. But they can change the location by payintf dam- ages. Damon u. Granby, 2 Pick. 345. 5 Van Buskirk v. Stow, 42 Barb. 9; Green v. Haines, 1 Hilt. 254; Doyle n. Halpin, 1 J. & Sp. 352. « 6 Lawson o. Hogan 93 N. Y. 39. TIME OF PBKFOEMANCE. 65 An order for extra work does not necessarily waive the time condition further than to allow the builder a reasonable time for the execution of the new work, unless otherwise stipulated, or the agreement for ex- tras is entirely inconsistent with the original contract, and rendering its strict performance impracticable.^ So, if a builder agrees to do certain work, subject to alterations, he is excused from the performance of the original contract within the prescribed time if altera- tions or extras are ordered which will, to the employ- er's knowledge, prevent him from completing according to contract.^ A builder can so bind himself by a contract to perform work by a specified time, and to make any alterations which may be ordered by the owner of the building, no matter how arbitrary the same may be, and by special covenant stipulate that the entire work, including extras and alterations, shall be included in the time condition, — that not even the fact of the work becoming impossible will excuse him. " It may be an unusual and unwise contract to enter into," said Mr. Justice Hannen,^ " but there is no reason why a man should enter into such a contract. Certainly, if he does in direct terms enter into a contract to per- form an impossibility subject to a penalty, he will not be excused because it is an impossibility." § 40. Other Excuses for Delays. Where one of the parties is to supply suitable materials, but fails to do so promptly, he cannot complain of delay of the other 1 Westwood V. Secretary of State for India, 11 W. R. 261 ; 7 L. T. N. S. 736. 2 Ibid. ; Legge v. Harlock, 12 Q. B. 1015; 18 L. J. Q. B. 45; Fletcher 0. Dyche, 2 T. R. 32; and otlier illustrations of the rule cited in Emden on Building, &c. 168. s In Jones v. St. John's College, L. R. 6 Q. B. 115 ; 40 L, J. Q. B. 80. 5 66 BUILDING CONTRACTS. party caused thereby.-' Mutual assistance is always understood in building contracts where the work is to be partly performed by the owner or other con- tractors; and whether the contract so stipulates or not, the stipulation as to completion by a specified time will be waived by the owner or his agents not keep- ing the other portions of the work sufficiently ad- vanced to enable the other party to perform his part.^ So, too, of delays caused by unavoidable accidents.^ Or, if work is done " under the eye " of one of the par- ties contracting to pay and accepted by him, this will be an excuse for delay, and payment must be at the contract price.* " The fact that some work was delayed by the builder, which was not affected by the employer's de- lay," does not avoid the builder's excuse, for the court will not apportion the fault.^ § 41. Measure of Damages. The standard to esti- mate damages, in case the owner sustains losses by the failure of the builder to complete work at the time specified, is a fair rental of the property for the time delayed. Speculative profits are too remote to be con- sidered unless clearly incidental.® On the other hand, if the contractor is prevented from completing his contract by interference and de- 1 Bulldey v. Brainerd, 2 Root (Conn.), 5 ; Dec. 33. s Weeks .,■. Little, 11 Abb. N. C. 415; Taylor v. Renn, 79 III. 181 ; Dec. 78; Smith v. Boston, C. &M. R. R. 3ti N. H. 458; Dec. 243. ^ Bailey v. Stetson et al. 1 La. An. 332 ; Dec. 136 (delivery of a boat prevented by an accident). * Adams V. Hill, 16 Me. 215; Dec. 107. s Stewart & Howell v. iCeteltas, 36 N. Y. 388, Ct. of Appeals, 1882; Weeks V. Little, 11 Abb. N. C. 415; Dec. 295, 296, 297. « Abbott V. Gatch, 13 Md. 314; Dec. 171. See McConey v. Wallace (Mo. App.), 4 West. Rep. 843, 846 ; Dec. 220. TIME OP PEEFOEMANCB. 67 faults of his employer, he is not restricted to a pro rata share of the contract price, but may recover what his work and materials are reasonably worth/ 1 Fitzgerald v. Hayward, 50 Mo. 516 ; Ehrlich v. Mbaa. Ins. Co. 4 West. Kep. 40. But see Ahem v. Boyce, 2 West. Rep. 405. CHAPTER VI. SPECIFIC PERFORMANCE OF BUILDING CONTRACTS. § 42. General Considerations. The only remedy at law for the breach of a contract is an award of dam- ages.-' In many cases the recovery of damages is an inadequate remedy, and nothing short of an actual accoiiiph'shment of the stipulations of the contract will satisfy the purposes of the agreement. From this in- adequac}' of the law to remedy a violation of these particular contracts arose the doctrine of enforcement of specific performance by courts of equity. When, therefore, from the nature of the relief sought, substan- tial performance of a covenant will alone answer the purposes of justice, a court of equity will compel spe- cific performance, instead of mei'ely leaving the injured party to partial redress by damages.^ But this rule applies only to those cases where the law can give no adequate remedy,^ and the decree is discretional with the court.^ § 43. Building Contracts Seldom Specifically En- forced. It may be stated as a general rule, which has several noteworthy exceptions, that courts of equity will rarely order specific performance of building contracts.^ 1 Parsons on Contracts, 350. 2 SlujveHint 0. The Mayor, &c. 11 Paige (N. Y.), 414; 1 Maddook Ch. Pr. 205; 2 Siury Eq. § 717; Penn. Co. u. Delaware Co. 31 N. Y. 81 ; Scott v. Billj^erry, 40 Miss. 119. 8 Finlay v. Aiken, 1 Grant (Penn.), 83 ; The .Justices v. Corf t, 1 8 Ga. 473. * Ash et al. V. Daggy, 6 Ind. 259; Roundtree's Adni. !. M( Lain, 1 Henip^t. (Aik.) 245; Pickering v. Pickering, 38 N. H. 400; Young v. Daniels, 2 Iowa, 126. 5 Kay V. Johnson, 2 H. & M. 118; Cooper v. Jarman, L. R. 3 Eq. 98. SPECIFIC PERFORMANCE. 69 The reason of this is that adequate relief in such cases can generally be given by an award of damages at law, and an agreement to build a hoxise can be per- formed as well by one builder as by another. Equity only interferes where performance in specie is neces- sary, and justice cannot be had in any other way.-' The court considers whether an enforcement of a con- tract is practicable, and can be judicially carried out,^ realizing that to exact specific performance of many building contracts would be undertaking to enforce exact fulfilment of agreements hampered by almost insurmountable difficulties in the complicated opera- tions of builders, architects, contractors, sub-contrac- tors, and otliers.^ The contract for building a house has sometimes, but rarely, the requisites which should recommend it for a decree of specific performance. Thus, where the contract is simply to make repairs which could be done by any competent mechanic, there is no substantial reason why the court should entertain such an applica- tion ; for an award of damages which could be secured at law is certainly adequate to remedy the breach. But where the contract sought to be specifically en- forced relates to building upon leased land, where the security to the landlord has been destroyed by fire,* or where the defendant sought to avoid a lease by building upon his own land,® or other avoidance of a material interest of the plaintiff, wherein proper com- 1 Paxton V. Newton, 2 Sm. & Giff. 437; Reeves v. Cooper, 1 Beasl. Ch. (N. J.) 224. 2 2 Story Eq. Jur. §§ 731-735; Craven v. Tickell, 1 Ves. Sr. 60; Pol- lard <■. Clayton, 1 K. & J. 462. 8 Clarke v. Glasgow Assurance Co. 1 M' Queen, 668. 4 City o£ London v. Nash, 3 Atk. 512. 6 Allen V. Harding, 2 Eq. Cas. Ab. 17, pi. 6. 70 BUILDING CONTEACTS. pensation cannot be given in damages, the court should exercise its discretional power, and decree specific per- formance.^ The distinction between a contract to build a house and to repair one may not always be worth drawing ; for, although it has been argued that whereas one builder can repair a house as well as another, a per- son has the right to insist that the very man, and no other, shall build his house.^ In point of fact, the dif- ficulties attaching under a contract to build, or one to repair, vary with the circumstances of the case. For instance, it requires more skill to make $20,000 worth of artistic repairs, according to certain specifications, etc., than it does to build a |400 house. The distinc- tion, therefore, is unreal, and has nothing to support it. It is almost uniformly held, however, that contracts for repairs cannot, or rather should not, be specifically enforced.^ The Supreme Court of the United States has failed to uphold the distinction between contracts which relate to realty and those which relate to personalty,* and our state courts have generally followed the same policy. I do not, therefore, deem it advisable to dwell upon the difference of specific enforcement of contracts to these classes of property ; for while in England the subject is an important one, in this country the same rules apply to both. 1 Storer v. G. W. Ry. 2 Younge & C. C. C. 53 ; Stuyvesant v. The Mayor, &c. 11 Paige (N. Y.), 414. 2 Parsons on Contracts, 350 el seq. n. 9 ; 1 Fonbl. Eq. (5th ed.) 353, u. Fliiy; V. Brandon, 8 Ves. 159 ; Lucas v. Comerford, 1 Ves. Jr. 235 (covenant to rebuild) ; 3 Bro. C. C. 166 ; Pembroke v. Thorpe, 3 Swanst. 437, 443, u, 8 Instances: Raynor v. Stone, 2 Eden, 128; Hill u. Barclay, 16 Ves. 40, n But see Sanders i'. Pope, 12 Ves. 282. * See Barr v. Lapsley, 1 Wheat. 151; Mech. Bank v. Seton, 1 Pet. 299 2 Story Eq. Juris. § 724. SPECIFIC PBEFOEMANCE. 71 § 44. Instances of Enforcement in Specie. "The earliest trace of the jurisdiction," says Mr. Emden/ "is a dictum of Justice Genney, in the Year Book of 8 Edward IV., that a promise to build a house would be specifically enforced.^ Lord Hardwicke's opinion was that, upon a covenant to build, a landlord might come into equity for specific performance, as the not build- ing took away his security.^ And a prior case is to be met with in which such a decree was pronounced.* So, in another case, an agreement to build was specifi- cally enforced against a tenant who, having under- taken to rebuild the farm-house, had done so on his own soil instead of his landlord's."^ Equity courts have at various times issued injunc- tions to enforce specifically covenants not to build. Thus where a party, in purchasing certain land in fee, agreed under seal to keep it in an open state, uncovered by any buildings, and in proper repair as a pleasure resort, the court held that the vendor of the property was entitled to an injunction to restrain a subsequent purchaser, having notice of the covenant, from build- ing.^ So, in a New York case, a contract not to erect or use dangerous buildings and machinery was specifi- cally enforced.'^ So, again, we find a decree for specific performance of a contract not to build upon land con- tiguous to the plaintiff to his detriment;' and again, 1 Em(5en on Building, &c. 233. 2 1 Ma.ld. Ch. Pract. (3d ed.) 467. 8 City of London v. Nash, 3 Atk. 512 ; S. C. 1 Ves. Sr. 12. * Allen €. Harding, 2 Eq. Cas. Ab. 17, pi. 6; 1 Fonbl. Eq. b. 1, ch. 3, §7, n. ^ Pembroke v. Thorpe, 3 Swanst. 437, 443, n. « Tulk 1. Moxhay, 1 Hall & T. 105; 2 Phill. 774; 11 Beav. 57; Smoot v. Rea, 19 Md. 398. ' Barrow v. Richard et al. 8 Paige (N. Y.), 351. * Rankin v. Huskisson, 4 Sim. 13; Squire v. Campbell, 1 Myle & C. 459. 72 BTJILDING CONTRACTS. that buildings on certain land shall conform in reason- able particulars with those on the land of the plaintiff.^ It is well settled that a court of chancery has juris- diction to compel the specific performance of a contract, made for a valuable consideration, to build or improve land belonging to the defendant for the benefit of the plaintiff, who is the owner of adjoining property, and whose interest in having such erection or improvement made is of such a nature that a violation of the cove- nant cannot be adequately remedied by an award of damages.^ Upon the same principle, the court has decreed specific performance of a contract to construct a certain roadway across lands ;^ to keep the banks of a river in repair;* to construct and maintain a depot upon certain land ; ^ to build a side track ; ^ to build a roadway and wharf' upon adjoining land, and to con- struct an archway.^ § 45. Instances of Refusal of Decree for Enforce- ment IN Specie. On the other hand, where a deed to a railroad company provides that it shall erect a con- venient bridge over the premises, to be selected by the grantor, but does not fix the time of performance, the ' Frankl^'n v. Tuton, 5 Madd. 469; Lord Manners v. Johnson, L. R. 1 Ch. Div. 673 ; 45 L. J. Ch. 404. 2 Stuyvesant n. Tlie Mayor, &c. 11 Paige (N. Y.), 414. 8 San(ler^on v. Cockersmouth, &c. liy. Co. 11 Beav. 497; Lytton v. G. N. Ry. Co. 2 K. & .T. 394. * Kilmorey v Tliackery, 2 Bro. Ch. 65. s Hood V. N. E. Ry. Co. L. R. 5 Ch. 525; see Todd v. Midland, &c. Ry. Co. 9 L. R. (Irish) 85. Contra, see Blanehard v. Detroit R. R. Co. 31 Mich. 43. « Greene v. W. C. Ry. Co. L. R. 13 Eq. 44; 41 L. J. Ch. 17; Woodruff V. Brecon, &c. Ry. Co. W. N. (1884) 208, 231 ; 54 L. J. Ch 29; 51 L. T. 536. ' Wilson V. Furness Ry. Co. L. R. 9 Eq. 28; 39 L. J. Ch. 19; Firth v. Midland Ry. Co. L. R. 20 Eq. 100. 9 Storer r. G. W. Ry. 2 Younge & C. C. C. 53. SPECIFIC PERFORM ANCB. 73 latter's failure to designate the site within a reason- able time, and neglect to call on the company for twenty years, are such laches as will preclude the grantor from a decree for specific performance.^ In a Michigan case the court refused decree of specific per- formance on an agreement by a railroad to erect and maintain a station on certain ground granted by the plaintiff, and to run trains from said station every day.^ So again, where the defendants contracted to give a condition bond, but the original agreement was of such a character that acts of equity would not compel spe- cific performance, the court refused to enforce the con- dition in specie? So, where it was covenanted that the owner should transfer certain lands to the builders, re- serving a fixed rent, and the contract stipulated that ^61,000 should be expended in building, or certain penalties forfeited, the court dismissed the petition praying specific enforcement, on the ground of uncer- tainty.* It almost seems unnecessary to add that courts of equity will decree specific performance in no case where satisfactory relief can be had by compensation in damages ; * as, where a railroad company failed to conform with their contract to build a station in a cer- tain place, it was held that any injury inflicted thereby upon the plaintiff could be compensated for in dam- ages.^ § 46. Views of Eminent Authorities. Mr. Justice 1 Williams v. Hart, 116 Mass. 513; Johnson v. Tlie Board of Commis- sioners of Somerville, 6 Stewart, 152. 2 Blancliard v. Detroit R. K. Co. 31 Mich. 43. s South Wales Ey. Co. v. Wythes, 1 Kay & J. 186, 200; 31 Eng. L. & Eq. 226. * Mosely v. Virgin, 3 Ves. 184. 5 The Justices v. Cortt, 18 Ga. 473 ; 2 Story Eq. Juris. § 718. « Wilson V. Northampton Ry. Co. L. R. 9 Ch. App. 278; 43 L.J. Ch. 503. 74 BUILDING CONTRACTS. Story, in his work on Equity Jurisprudence,^ forcibly sets forth many strong reasons in favor of specific performance of those building contracts in which the stipulations are sufficiently definite and exact to be substantially followed. "It is by no means clear," he says, " that complete and adequate compensation can in such cases be obtained at law : for, if the suit is brouLiht before building or rebuilding by the party claiuiing the benefit of the covenant, the damages must be quite conjectural, and incapable of being re- duced to any absolute certainty ; and if the suit is brought afterwards, still the question must be left open, whether more or less than the exact sum re- quired has been expended upon the building, which inquiry must be at the peril of the plaintiff. In the next place, such a covenant does not admit of an exact compensation in damages from another circumstance, — the changing value of the stock and materials at dif- ferent times, according- to the various demands of the market. In the last place, it seems against conscience to compel a party, at his own peril, to advance his own money to perform what properly belongs to another, when it may often happen, either from his want of skill or means, that, at every step, he may be obliged to encounter personal obstacles, or to make personal sacrifices, for which no real compensation can ever be made." He concludes by a strong indorsement of the doctrine of the Earl of Rosslyn, in the case of Mosely v. Virgin.^ In this cmise ceTehre his lordship laid down the reasonable distinction, that, if the contract 1 Story's Eq. Jnr. § 728. 2 Mofoly r. Virgin, 3 Ves. 184. See, also, Cubittr. Smith, 10 Jur. N. S. 123. The Earl of Rossljn was, at the time of his decision in Mosely v. Virgin, Lord Loughborough. SPECIFIC PBRPOEMANCE. 75 expressed distinctly what sort of a house was agreed to be builtj so that the court could describe it as a subject for the report of the master, specific performance might be decreed ; but if the description in the contract was loose and undefined, the court would not assume to reduce it to certainty, and the party must be left to his remedy for damages.-* Romilly, Master of the Rolls, held that a contract for building a house could not generally be specifically enforced, owing to the difficulties in determining whe- ther the decree was or was not performed,^ In the general run of cases, the real motive of those persons who seek for a specific performance of building con- tracts, though setting forth particular and personal rea- sons for their desire that the builder whom they had selected for the work should perform the same and that no one else would do, is to secure the enforcement of a good bargain, and not because any other builder could not do as well, but because the defendant h«d con- tracted to do the work for less money than they could get any one else to do it for, and less than it is really worth.^ Although mere inadequacy of consideration is not necessarily a bar to specific performance, yet, if such a decree will be greatly oppressive to the defend- ant,* or the case is one in which the plaintiflf may 1 In this case (Mosely v. Virgin, supra), the contract was to expend £1,000 in building. The court held this as indefinite, adding : "I suppose a house was meant, but it is not said whether a manufactory would have answered or not. . . . But I concur in the cases %vhioh lay down that, if the thing contracted to be done can be made reasonably clear, the court is hound to enforce it." See, for example, Hepburn v. Leather, 50 L. T. 660. 2 Brace v. Wehnert, 25 Beav. 348; Soames v. Edge, 1 Johns. (Eng.) 673. s 1 Fonbl. Eq. (5th ed.) 353, n. ; Pembroke v. Thorpe, 3 Swanst. 437, n.; Society, &c. v. Butler & Taylor, 1 Beasl. Ch. (N. J.) 498. * Lloyd V. Wheatly, 2 Jones Eq. .(North Carolina) 267. 76 BUILDING CONTIIAOTS. recover (the purchaser) would also lay out ,£,1,()00 in buildings and improve- ments, the court declared that the I'ondition pertaining to the building of the road could be specilically en- forced.^ So, also, witii agieements to alter a house to correspond with adjoining houses.'* Specific performance of a, contract may be ordered where the building has been partly comiileted, and if the court does not thus interfere the work will remain luifinished;^ but these cases must lUH^essai'ily be rare, as full compensation can be had in damages. • Aduina Va\. 8.'! et sc(j. 2 South Wales lly. Co r. Wvllu's 1 K. & ,1. -JOl), anil oases eileil supra. 8 Wells e. Maxwell, 32 Beav. lOS, H9 ; H ,Inr. N. .S. 1021. * Fraiiklyn i'. Tulon, 5 i\laild. Kill; Lord Manners c. Johnson, L. 11. 1 Ch. Div. G73; ir, L. J. Cli. 10 1. ^ Priee r. CorporaUon of I'enzaneo, 4 Ilaro, SOU, .')09. CHAPTER VII. EXTRAS. § 47. General Statement. It is usually found ad- visable to specially stipulate in building agreements that no alterations or additions shall be made without the consent of the owner.^ Sometimes, however, the con- tract provides that the builder shall execute any addi- tions or alterations ordered by the architect or owner, and that they shall be valued, when the job is com- pleted, at their fair value, or by arbitration and award. Perhaps any one having only a cursory knowledge of building operations would fall into the error of agreeing to such a stipulfttion, considering at the same time that nothing is more reasonable than that anything ordered by the owner of the building should be valued at the end of the work. Experience, however, keeps a dear but a good school, and those who have a broader knowledge of such transactions agree that, by some mysterious process of calculation, things valued afterwards in that way always cost a great deal more than if contracted for beforehand. Much that has been said in Chapter III. upon architects' certificates will be applicable to the subject of extras, as defining their authority to order additions, alterations, etc.^ 1 Baltimore Cemetery Co. v. Coburn, 7 Md. 202 ; Abbott v. Gatch, 13 Md. 314 ; Franklin w. Darke, 3 Foster & Finlason, 65; Russell v. Bandeira, 32 L. J. (iST. S.) C. P. 68; 13 C. B. N. S. 149; 7 L. T. N. S. 804; Myers V. Sari, 3 Ellis & Ellis, 306; 30 L. J. Q. B. 9. 2 It sliould be remembered that where the agreement stipulates that extras are to be paid for at the architect's valuation gives him implied 78 BUILDING CONTEACTS. § 48. Special Stipulations to avoid Extras. Where the contract provides that extras shall not be charged for without a written order, nothing but a written order will support the claim.^ So, where the contract pro- vided that, if any changes or extras were made or called for not in the contract, their cost should be de- termined by supplemental contract, it was held that no claim for extras could be sustained except the same were specified in writing, or an express waiver of that provision of the contract clearly shown.^ In such suit the pleadings should show that the extras charged for were expressly authorized by the owner, or that they were so distinct from the contract that a new promise would be implied from the acceptance thereof.^ So, where the contract specified that " it was mutually agreed that, should any alterations be made from the present design, it may be done, provided the parties beforehand agree upon the price, and indorse it upon the contract, and unless such agreement be so entered it is to be taken to be an agreement to make the alter- ations without any change of price of the original con- tract," it was held that the builder could not recover for erecting two windows not in the contract.* So where the contract stipulated "no extra charges to be made unless a written agreement be attached to the contract," it was held that this clause protected the owner from extras unless the order was not only given but attached as specified, and that it did not alter the case although authority to order and determine what are extras. Richards v. May, L. K. 10 Q. B. D. 400; 52 L. J. Q. B. 272; 31 W. R. 708. 1 Cases cited supra, and Thames Iron Works Co. v. Royal Mai], &o. Co. 8 Jur. N. S. 100; 31 L. J. C. P. 169; 13 C. B. N. S. 358. 2 Trustees v. Piatt, 5 Brad. (111.) 567; Dec 59. " Duncan et al. v. The Board, &c. 19 Ind. 154; Dec. 100. * BaUimore Cemetery Co. v. Coburn, 7 Md. 202; Dec. 165. STIPULATIONS AVOIDING EXTRAS. 79 the work was ordered by the owner of the house.* But a builder may recover for extra work if ordered and accepted, and wholly independcni of the contract.^ Not, however, if the extra work was incidental to the con- tract. Thus it was held in Vermont that a contract pro- viding no charge should be made for extra work " unless same shall have been done in pursuance of a written contract, or orders signed by engineer," and that orders should be presented within a given time, that a feikire to comply with any of these conditions will bar recovery.^ So, where the contract provided that a written order should be given by the owner before any additions or alterations were made, it was held that the builder could not recover without the previously written order.* Equity will give no relief for the mere want of writ- ing, for the condition will be as strictly upheld in courts of chancery as those of common law.^ Both equity and law presume that the parties understood ' the provisions of the contract when they signed it.^ Sometimes it is made an essential that the architect's certificate should be procured before payment can be made for any work.^ In such case the certificate must be secured, or the party seeking payment must show a good reason for failing to do so.* Where, however, the contract expressly provides 1 Abbott V. Gatch, 13 Md. 314. 'i Chambers v. King & Tunstall, 8 Mo. 517. See particularly Dec. 352; Boody, &c. V. E. & B. R. R. 24 Vt. 660. Vanderwerker o. Vermont Cent. R. R. 27 Vt. 130; Dec. 351. See, also, Russell v. Bandeira, 13 C. B. N. S. 149; 32 L. J. C. P. 68; 7 L. T. N. S 804. ■> Russell V. Bandeira, 13 C. B. N. S. 149; 32 L. J. C. P. 68; 7 L. T. N. S. 804. 5 Kirk V. Bromley Union, 2 Phill. 640; 17 L. J. (N. S.) Ch. 127 ; Rich- ards V. May, L. R. 10 Q. B. D. 400; 52 L. J. Q. B. 272. « Abbott V. Gatch, 13 Md. 314. ' See Chapter iv. 8 Mills V. Weeks et al. 21 111. 568. 80 BUILDING CONTRACTS. that no extras should be incurred without a written order of the owner's engineer, it was held that extra work done during the progress of the contract, of which particulars were stated upon the certificates is- sued liom time to time by the architect, was not there- by authorized, and could not be recovered for, as these certificates were not counted as written orders.^ Such a rule woidd not be held upon a final certificate of an architect, where he is authorized to give it; for, should his certificate as to the balance due include extras, it will be binding upon both the owner and the builder.^ It has been declared the law in France that a claim for extras can be recovered independent of contract;^ but in this country and in England the courts gen- erally hold that a contractor cannot recover for extra work, or better materials than agreed upon, unless he has the authority of the other party.* § 49. Price of the Building named in the Contract. Effect of Tenders. It frequently happens, especially in those cases where the proposed work is submitted by advertisement for competitive bidding, that the builder undertakes to do the entire job for a fixed price. In other words, he makes or accepts an offer to build according to certain plans and specifications for an amount of money named in the contract. This is usually called, among persons engaged in the building trade, as making or accepting a tender. It is but fair that the party, who is to pay for the house or other edifice, should know precisely beforehand what it is going to cost him ; and yet so complicated are the obli- 1 Tliarsis S. & C. Co. u. McElroy, &e. L. R. 3 App. Cas. 1040; and 1o same efleet see Lamprell v. Billcricay Union, S Excb. '283; 18 L. J. E.t. 282. 2 Biunsdon v. Stanies Local Board, 1 Cab. & El. 272. See ante, § 47; post, §§ 51-54. 8 Ereiicli Code Civile, b. 3, tit. 8, art. 1793. * llort V. Norton, 1 McCord, 22; Wilmot v. Smith, C. & P. 453. EXTRAS. 81 gatioiis arising out of an extensive building contract that many contractors, in their eagerness to obtain large contracts, allow errors to creep into their estimates. These they discover too late to withdraw, and conse- quently find themselves bankrupt before the comple- tion of their undertakings.-' It seems well settled that, if a builder agrees to erect a building for a certain price and of certain quality of materials, but in constructing the same furnishes extra work and better materials, he can- not recover more than the original contract price. It is work voluntarily done, and materials voluntarily supplied, for which no recovery can be had.^ No matter how meritorious the extra work may have been, or how beneficial to the estate, if it was done without the authority, privity, or consent of the owner, no action for its value can be sustained.^ For where a mechanic undertakes to do a job of work at a stipu- lated price upon certain representations, if, upon see- ing what is actually to be done, he discovers that the work cannot be done without involving expense be- yond his estimate, it is obligatory upon him to notify the other party before he proceeds, or he will do the work at peril of being paid.* "A person," said Lord Tenterden, in Lovelock v. King,^ " intending to make alterations, generally con- sults the person whom he intends to employ, and ascertains from him the expense of the undertaking, and it will very frequently depend on this estimate 1 See note 2, post, p. 86. 2 Trustees, &c. v. Bledsoe, 5 Ind. 133 ; 38 Ind. 140; Dec. 98. See, also, opinion of Lord Tenterden in Wilmot v. Smith, C. & P. 453, and in Lovelock t!. King, 1 Moody & K. 60; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28. * Trustees, &c. v. Bledsoe, and case cited supra. * Martine v. Nelson, 51 111. 422. ^ Lovelock V. King, 1 Moody & R. 60. 6 82 BUILDING CONTBACTS. whether he proceeds or not. It is, therefore, a great hardship upon him if he is to lose the protection of this estimate, unless he fully understands that such consequences will follow, and assents to them. In many cases he will be completely ignorant whether the particular alterations suggested will produce an increase of labor and expenditure, and I do not think that the mere fact of assenting to them ought to de- prive him of the protection of his contract." This rule has generally been deemed but equitable, but there are cases in which it has been rigidly upheld, to the great hardship of builders. For instance, in a Connecticut case, where a man contracted to build a railroad conformably to the directions of an engineer, and appended his estimates of costs to the contract, the costs proved more than the estimates, yet the engineer required depot buildings costing more than one thousand dollars over his estimates ; and the court held that " the contractor could claim nothing for extra costs, as the contract appeared to be fairly made and the contractor ran the risk when he executed it." -^ § 50. Extras Independent of the Contract. It sometimes occurs that the extra work may be made to appear as entirely independent of the original con- tract, in which case recovery may be had upon a quantum meruit upon the implied contract to pay for that which is ordered or accepted.^ Thus it was held, where an agreement is made for a building, it becomes a law to both the parties ; but whatever additions and alterations are made in such building, they form a new contract, either express or implied.^ 1 Cannon v. Wildman, 28 Conn. 491. See note 2, post, p. 86. 2 McCormick v. Connolly, 2 Bay (S. C), 401; Dubois v. Delaware & Hudson Canal Co. 12 Wend. 334; Mowry v. Starbuck, 4 Cal. 274. 8 McCormick v. Connolly, 2 Bay (S. C), 401. EXTEAS. 83 So, in an Illinois case, where a mason was ordered to take down more wall than his contract called for, although necessary to make his work durable, the con- tractor was held liable for extra work.^ The cases in which a new contract can be set up, and recovery had in indehitatus assumpsit, are those in which the work done is entirely outside of the scope of the general contract, yet to a certain extent dependent upon it. The plaintiff will have to conclu- sively show that the work was entirely distinct from the contract, if the latter provided against extras.^ His claim must be such as will stand upon its own merits, as if the special contract had not been made.* So, where the written contract is afterwards greatly deviated from, it was held that the party could not sue thereupon, but must bring an action on an implied contract, and that at the trial damages may neverthe- less be awarded according to the terms of the original contract* In another case,^ where the original con- tract was abandoned by the contractors jointly, but afterwards the house was built by one of the parties and two other builders, it was held that the price for building the house was not to be ascertained by the original contract, although the same party owned the building. § 51. Extras Impliedly Authorized. Where altera- tions are made under the eye of the owner, with his apparent acquiescence, and extras added to such an 1 Donlin v. Daegling, 80 111. 608; Dec. 58. 2 Buxton V. Cornish, 1 D. & L. 581; 12 M. & W. 426; Vincent v. Cole, Moody & M. 257; 3 C. & P. 481. 3 Thornton u. Place, 1 Moody &R. 218; Fletcher w. Gillespie, 3 Bing. 637. * In De Boom v. Priestly, 1 Cal. 206 ; Jones v. Woodbury, 11 B. Mon. (Ky.) 167; Clark et al. v. The Mayor, &c. 4 Comst. (N. Y) 338; White u. Oliver, 36 Me. 93. ^ Tebbets v. Haskins, 16 Me. 288. 84 BUILDING CONTRACTS. extent that he must be aware that additional expense has been thereby incurred, and that the same cannot possibly be done at the contract price, recovery may be had upon a quantum meruit} So, also, an authority will be implied where he superintended the work, or saw the materials used under such circumstances that he had no reason to believe that they were to be added or substituted without additional cost, and did not object, but did receive the same.^ The general rule, that where there is a special con- tract no action can be maintained for the performance of work while the contract remains executory,^ does not apply to such cases. If the party for whom a building is in course of erection should receive estimates for certain extras, alterations, etc., and subsequently order the same, he would be held liable for the price thereof, according to the estimates.* Again, it has been held that compensa- tion will be allowed in all cases for extra work, where the said work is absolutely necessary to the prosecution of the undertaking.^ Yet such is not an invariable rule, for the English authorities seem to agree that, when details indispensable for the completion of the work are omitted, the builder cannot recover for them as extras, as where a contractor claimed for flooring which was not included in the specifications.^ The question of the authority of the architect to order extras depends chiefly upon the general prin- ciples of law governing the relationship of principal 1 Lovelock V. King, 1 Moody & R. 60. " Ibid., and Bartholomew v. Jackson, 20 Johns. (N. Y.) 28. 8 Clark V. Smith, 14 Johns. (N. Y.) 324 ; Rees v. Lines, 8 Car. & P. 126. ^ McCormick v. Connolly, 2 Bay (S. C), 401. 6 Seymour v. Long Dock Co- 5 C. E. Green (N. J.), 397; Dec. 255. 8 Williams v. Fitzmaurice, 3 H. & N. 844. EXTRAS. 85 and agent,-* and the construction of the contract itself. Where extra work was ordered by an architect to the knowledge of the employer, it was held that there was sufficient evidence of an implied authority and new contract to pay for the extras.^ § 52. Valuing Extra Work. Whether compensa- tion for extra work shall be at the same rate as for work done under the contract generally, depends upon the fact as to whether it is of the same character.' Some courts have taken this position, that the extras should be valued according to the usual charges for such work, without reference to the contract, from the fact that the obligation to pay for the same arises from a new and independent agreement.* But the usual mode, and generally the preferable one, is to estimate the value of the extras according to the prices stated in the original contract, so far as the same can be made to apply.^ If, however, the original contract has been so deviated from that it cannot be traced or connected wiih the extra work, the contractor is entitled to its reasonable value.® § 53. Extras Ordered not a Waiver of Original Contract. Independent of the stipulation usually found in building contracts, that alterations and additions shall not vitiate the contract, the courts hold that extras done by the builder at the request of the other party do not amount to an abandonment of the contract j^ nor 1 Ante, § 11. 2 Wallia V. Eobinson, 3 F. & F. 307. 8 Chicago & Great Eastern R. R. v. Vosburgli, 46 III. 311. < McCormiok v. Connolly, 2 Bay (S. C), 401. 6 De Boom v. Priestly, 1 Cal. 206 ; Jones v. Woodbury, 11 B. Mon. (Ky.) 167; Clark et al. v. The Mayor, &c. 4 Comst. (jST. Y.) 338; Lovelock v. Kincj, 1 Moody & R. 60; Robson v. Godfrey, Holt, 236; 1 Stark. 275. ^ McKinney v. Springer, 3 Ind. 59; Pepper v. Burland, Peake, 139 ; Ellis V. Hamlen, 3 Taunt. 52. ' Smith & Nelson v. Bristol, 33 Iowa, 24; Dec. 114. 86 BUILDING CONTRACTS. will additions or dterations of any description. The original contract will still exist, and be binding as far as it can be followed.^ It will, however, be generally advisable to see that there is a condition in the contract regulating this sub- ject, and particularly that no extras whatever shall be incurred unless consented to by the owner in writing.^ 1 McKinney v. Springer, 3 Ind. 69; Dec. 99; Ranger v. Great W. Ry. 6 H. L. Cas. 72. ^ It may be well to remark that it is an easy matter to draw a contract so that the party ordering the building escapes liability for extras occa- sioned during the progress of the work. Such " iron-clad " agreements, however, frequently operate as a source of ruin to conscientious builders, who, although suffering from losses consequent upon rise in price of ma- terials and labor, honestly carry out all the stipulations of the contract, even if its faithful execution involves "extras " for which they have no chance of payment. It too frequently occurs that builders attempt large contracts with too little capital, and thereby become hard pressed for more cash to go through with their undertakings. In such extremities they borrow money upon the credit of buildings, if they have any share in the ownership thereof, or secure advances from the capitalist employing them. It is by no means a rare occurrence that from a single error in the original estimate the builder finds himself completely swamped upon com- pletion of his agreement, particularly if he has bound himself to do the work for a fixed price, and has left no loophole for escape by way of extras in the contract. CHAPTER VIII. SPECIFICATIONS, BILLS OF QUANTITIES, AND TENDERS. § 54. Specification. The specification is the written statement containing a minute description of the par- ticulars of the work to be executed, and is generally made with reference to the drawings and the building contract. When an architect is employed in preparing the design and plans, it is usual for him to make out the specifications. The preparation of the details of build- ing operations requires a thorough knowledge of the art, a practical idea of quantities and qualities of the materials to be used, and a careful study of the plans of the work to be executed. The builder is bound to scrupulously follow the specifications, and cannot justify a departure therefrom by substituting other details, al- though as good as those called forj he must execute the work almost to the very letter of his instructions. He is just as firmly bound by the terms of the specifi- cations as by the covenants of the contract.^ So, where specificixtions are attached to a building contract at the time of signing, it is merged into the contract, and becomes part of it,^ and even the architect cannot change the terms thereof without special authority.^ We have already seen* that the English rule, that 1 Co&y^. Lehman, 79 111. 173; Braggs v. Geddes, 93 111. 39; Dec. 157. ^ Ibid., and Smith v. Flanders, 129 Mass. 322; Dec 176. Actual annexa tion of specification to contract is not necessary, however. Cook v. Allen et al. 67 N. Y. 578; New England Iron Co. v. Gilbert Elevated R. K. Co. 91 N. Y. 153. 8 Adlard v. Muldoon, 45 111. 193; Dec. 51. * Ante, § 49. 88 BUILDING CONTRACTS. when details necessary to complete the work are not mentioned in the contract or specifications, no recovery can be had for them as extras/ is not uniformly upheld in this country, for to the contrary it has been judicially declared that compensation will be allowed in all cases for extra work where the latter is necessary to the pros- ecution of the undertaking.^ I am constrained to say that the former doctrine has stronger reasons to sup- port it. When a builder undertakes a contract to erect a house, he either expressly or impliedly agrees to furnish everything necessary for its completion ; and if he fails to allow for certain details, or commits errors in preparing his estimates, it seems but reasonable that the loss should fall upon him, and not his employer. Nor does it alter the case that insufficient plans were shown to the builder when the job was tendered to him, for there was not an implied warranty that the specifi- cations were sufficient by the party for whom the plans were prepared.^ He has generally a fair opportunity to examine them before he makes his tender ; and as the law presumes that he is competent to fulfil that which he undertakes,* he will not be excused because of omission of necessary details in the specifications.^ So where a party contracted to take down an old bridge and build a new one upon plans and specifica- tion " believed to be correct," but it turned out that extra work was required to complete the job, the court held that the contractor was not entitled to extra com- 1 Williams v. Fitzmaurice, 3 H. & N. 844. 2 Seymour t). Long Dock Co. 5 C. E. Green (N. J.), 397; Dec. 255. * Sharpe v. San Paulo Ry. L. R. 8 Ch. Ap. 597 ; Scrivener v. Pask, 18 C. B. N. S. 785; L. R. 1 C. P. 715. See note 2, ante, p. 86. * Waul .;. liardie, 17 Tex. 553; Hilyard v. Crabtree, 11 Tex. 268; Deo. 341; Sherman!). Bates, 15 Neb. 18; Smith & Nelson !). Bristol, 33 Iowa, 24. 6 Thorn v. Mayor of London, L. R. 9 Ex. 163 ; 10 Ex. 112; 1 Ap. Cas. 120; Sharpe v. San Paulo Ry. L. R. 8 Ch. Ap. 597. INSUFFICIENT SPECIFICATIONS. 89 pensation, although he claimed that the defendants warranted the work to be possible under the specifica- tions, etc.^ The authorities cited in this section are ample to establish, almost beyond dispute, that the fact that a person has asked a builder to estimate work to be done according to specifications presented to him is not an implied warranty of the specifications being sufficient, so that the builder's claim of recovery should not be based upon a breach of warranty, but upon a quantum meruit upon a new and implied contract. Where there is obscurity in the drawings and speci- fications, the contractor must apply to the architect for directions, or he undertakes the work at his own peril.^ Where, however, the work has been performed in full compliance with the specifications, no responsibility will attach to the builder if the structure erected falls, or is practically worthless, owing to defectiveness and insufficiency of the plans and specifications.^ It is the builder's duty to faithfully execute the work for which he has been engaged, and he is not responsible if the undertaking is valueless.* Nor is he liable for defects in a building caused by defectiveness in the plans fur- nished him by the owner, when the defectiveness was of such a nature that it could not have been foreseen by him.^ 1 Thorn v. Mayor, &c. L. R. 9 Ex. 163, 1 App. Cas. 120. In the preced- ing chapter on Extras I have shown that, under certain circumstances, there arises an implied authority for extra work, etc., and reference should he made to that chapter. 2 Clark V. Pope, 70 111. 128; Dec. 52. 8 Clark V. Pope, 70 III. 128 ; Dec. 53. * Graves v. Caruthers, Meigs (Tenn.), 58, 65. ^ Loundsberry v. Eastwick, 3 Phila. 371 ; Wade v. Haycock, 25 Penn. 382. 90 BUILDING CONTRACTS. Where the contractor deviates from the specifica- tions without the authority required to be given by the contract, we have already seen that he cannot re- cover even upon a quantum meruit} So where the contract was to do certain work according to a speci- fication, and under the architect's directions, and the builder was to allow for the old structure, he must de- duct its value from the amount of his claim, unless he can show in evidence that he informed the owner of the land that his estimate did not include the value of the same.^ Neither the builder nor the architect can change the specification or deviate substantially therefrom, even by substituting what is claimed to be better work or material, without authority in accordance with the contract.^ If plans or specifications are accepted, al- though not used, the acceptor is bound to pay for them.* Generally, however, if a building contract is not ex- actly performed according to all the specifications, yet executed in good fliith substantially as called for in the agreement, the builder may recover what the work is really worth.^ § 5-5. Bills of Quantities. It frequently is found ad- visable, before large building contracts are submitted to competitive builders for tenders {i. e. bids), that a schedule of the materials to be furnished, and of the work to be performed, is prepared for their inspection. 1 Ante, § 27; note 2, p. 86 ; post, p. 92, and also Ellis v. Hamlen, 3 Taunt. 52. 2 Harvey v. Lawrence, 15 L. T. N. S. 571. 8 Adlard v. Muldoon, 45 111. 193 ; Dec. 51. * Kutts V. Pelby, 20 Pick. 65. ^ See anie, § 27, chapter on Performance of Contracts, citing Smith v. Lowell Meeting House 8 Pick. 181; Phelps v. Sheldon, 13 Pick. 50; Cullen V. Sears, 112 Mass. 299, and other cases. See, also, Hyland v. Giddings, 11 Gray. 232; Dec: 191; Glacius v. Black, 50 N. Y. 145 ; Dec. 287. BILLS OF QUANTITIES. 91 This itemized list is called a " bill of quantities." Sev- eral copies of it are usually prepared, and submitted to those contractors who enter into the competition. The assigning of prices for the various items mentioned is called " taking out quantities." As with the speci- fication, the bill of quantities may become part of the contract, either by actual annexation thereto, or by undertaking the work in strict conformity with it.^ It is not considered safe or wise to undertake the erection of a building simply upon a bill of quantities, though this is sometimes done, as numerous contingencies are likely to arise which it will not cover, and which the law cannot always equitably adjust.^ For instance, if the amount of materials found to be actually needed to complete the structure is in excess of that called for in the bill, the addition may be charged as extra, and the owner of the building cannot tell beforehand what it is going to cost him. It is well, however, to let it be auxiliary to the contract, especially if it is attached as a schedule of prices for extras which are likely to be needed. In the absence of a stipulation to the contrary, it may be shown that the architect has an implied au- thority, as agent of his employer, to engage a quantity surveyor,^ but this is dependent upon proof of the cus- tom of the building trade.* If, however, an architect is employed to prepare plans and specifications for a house, and to procure a builder to erect it, he may take out the quantities, and represent to the builder that they are correct, and the latter may thereupon 1 Kemp V. Rose, 1 Giff. 258. 2 Ibid. " Moon V. Guardian of V^^itney Union, 3 Bing. N. C. 814. * Taylor v. Hall, 4 Ir. R. C. L. 467; Wigglesworth v. Dallison, Dougl. 201 ; 1 Sm. L. C. (7th ed.) 606. 92 BUILDING CONTEACTS. make a tender, which, if accepted and acted upon, will bind the contracting parties. The builder cannot, in such a case, recover more than the contract price, al- though it turns out that the quantities are erroneous, and that he has expended upon the building a much larger amount than he contemplated.^ When he under- took the job he impliedly agreed to furnish every- thing reasonably necessary for the completion of the building.^ So, where a contractor had put into a build- ing certain joist not called for in the specification or bill of quantities, and contended that the defendant had the use thereof, the court held that the owner was not liable for the value thereof^ The person for whom the building is to be erected is generally liable for the cost of taking out quanti- ties;* but if the offer is accepted by a builder, and afterwards by his act the contract is prevented from being completely executed, he will be liable to the surveyor for his fees in taking out quantities.^ The act of submitting a bill of quantities, which has been prepared for the employer by the architect, does not render the former liable upon an implied war- ranty of their sufficiency,^ unless he can show that the architect was acting as the employer's agent.'' Contracts usually refer only to the plans and speci- fications, wholly ignoring the bill of quantities ; and from the fact that the builder is presumed to under- stand his business, and know, independent of estimates made by the architect, what quantities will be neces- 1 Scrivener v. Pask, L. R. 1 C. P. 715; 18 C. B. N. S. 785. 2 Williams v. Fitzmaurice, 3 H. & N. 844. 3 Per C. J. Mansfield, Ellis v. Hamlen, 3 Taunt. 52. ^ Moon V. Guardians of Witney Union, 3 Bing. N. C. 814. 5 McConnell v. Kilgallen, L. R. Ir. 2 C. L. 119. « Stevenson v. Watson, L. R. 4 C P. D. 148; 48 L. J. C. P. D. 318. ' Kemp V. Rose, 1 Giff. 258. TBNDEKS. 93 sary to execute the work/ he undertakes the work at his own risk. § 56. Tenders. The word "tender" is generally used to mean an offer, either of money or services, in order to save the party offering from the penalty of non-payment or non-performance,^ but as applied to building contracts it is nearly synonymous to " offer " or " proposal." After the specification or bill of quan- tities has been prepared, and submitted to a builder or builders, the owner receives " tender," or estimate of what the work can be done for. A tender, therefore, as applied to building operations, is a formal offer to undertake the erection, alterations, or repairs of a structure for a price named, either directly or indi- rectly referring to some announcement or proposition requesting such an oflfer.^ Tenders usually contain a stipulation that, if ac- cepted, the fulfilment of the contract can be compelled. But until acceptance a tender may usually be with- drawn by the party making it. When accepted, the acceptance implies precisely the same terms as the tender without variation. A tender becomes a con- tract only when it is accepted by the party who re- quested it,* and any deviation from it invalidates the offer, unless agreed to by the parties.^ If the tender is accepted in writing, which also stipulates that a subsequent contract shall be entered into, this conditional acceptance is binding as far as it goes, and neither can be withdrawn.® Thus, where a 1 Williams v. Fitzmaurioe, 3 H. & N. 844. 2 See Bouvier, and other law dictionaries. 8 See Watts, Ex'r, v. Sheppard, 2 Ala. N. S. 425. 4 Tucker v. Woods, 12 Johns. (N. Y.) 190; Tuttle v. Love, 7 Johns. 470. 6 Tuttle V. Love, 7 Johns. (N. Y.) 470. See, also, 4 Wheat. 22,5; 3 Johns. 534; 6 Wend. (N. Y.) 103; 1 Pick. (Mass.) 278. 6 Crossley v. Maycock, L. R. 18 Eq. 180. 94 BUILDING CONTRACTS. builder discovered that he had made a mistake, and withdrew his tender after acceptance, the court held that he was liable to the owner to the extent of the excess over his bid of the amount the owner was com- pelled to pay other builders to do the work.^ Had false representations been made to him as to the char- acter of the work to be done, and he had immediately notified the owner of his intention to withdraw his tender or bid, he would not be responsible for failure to comply with his original offer.^ Where a tender is dependent upon a formal con- tract to be subsequently signed, a question of con- struction is raised as to whether parties intended that the mere acceptance of the tender should constitute a part of the contract, or that a new agreement should stipulate the terms and conditions binding them.^ So, where an advertisement announces that the construc- tion of a certain building is open for bids, the adver- tiser is not bound to give the contract to the lowest bidder when a new agreement is contemplated by the publication.* The doctrine just stated is, however, disputed, and it is recommended that the usual prac- tice of reserving the right of rejecting any or all ten- ders be followed, and so stated in all advertisements calling for bids. When an offer to furnish materials or supply goods is accepted, the party making the ten- der is bound to comply upon any order therefor being given.^ 1 Lewis V. Brass, L. R. 3 Q. B. D. 667. ^ Martine v. Nelson, 51 111.422. 8 See language of Master of Rolls Jessel in Winn v. Bull, L. R. 7 Ch. Div. 29. Contra, Eadie v. Addison, 52 L. J. Ch. 80 ; 47 L. T. 543. ^ Spencer o. Harding, L. R. 5 C. P. 561 ; 39 L. J. C. P. 332; Thatcher u. England, 3 C. B, 254 ; Mainprice v. Wesley, 6 B. & S. 420. 6 Great Northern Ry. Co. v. Witham, L. K. 9 C. P. 16. AUCTION SALES. 95 § 57. Auction Sales. Very similar to the offering and acceptance of tenders is the contract of sale made at auction. In the latter case every bid of any one present is an offer by him to pay the amount of the bi^. The auctioneer is the agent of both parties.^ The bid may be withdrawn any time before accept- ance, but upon the fall of the hammer it becomes a binding contract. An advertisement that a sale at auction will take place on a certain day, does not amount to a warranty that the sale will take place. ^ But the advertisement of a sale without reserve does create a binding contract between the auctioneer and the highest bidder, that the goods will be knocked down to him.^ If a party advertises a sale knowing that it is not within his power to carry it out, he may become liable upon an action for fraudulent represen- tation at the instance of the party who incurs expense in inspecting and valuing the property.* 1 Anson on Contracts, 332, citing Woolfe v. Home, L. R. 2 Q. B. D. 355. 2 Harris v. Nickerson, L. E. 8 Q. B. 286 ; Payne v. Cave, 3 T. R. U8; Hinde v. Whitehouse, 7 East, 568. See Parsons on Contracts, 522 et seq. 3 Warlow 17. Harrison, I E. & E. 295 ; Tliornett v. Haines, 16 M. & W. 367. * Emden on Building, &c. 60, citing Richardson v, Silvester, L. E. 6 Q. B. 34. CHAPTER IX. PENALTIES, FORFEITURES, AND LIQUIDATED DAMAGES. § 58. Penalties Generally. The condition in a writ- ten contract by which one of the parties agrees to pay a certain sum of money, or incur other obligations, if he shall fail to execute the other stipulations of the agreement, is called a penalty. An ancient and pecu- liar custom required the principal to covenant under seal by a conditional bond acknowledging that he was indebted to the other part}' to the amount desired as a penalty, and then reciting that upon fulfilling certain conditions he would be released from the alleged in- debtedness, and the bond be void and of no effect. But the courts of equity soon took cognizance of the injustice imposed by a strict enforcement of these in- iquitous conditions, and laid down the rule that, not- withstanding such stipulations, the amount recoverable is limited to the loss actually sustained.-' The courts of law soon followed those of equity in this matter ; ^ so that now, in construing contracts, the courts will not be guided by amount given, if it can be shown to be of the nature of a penalty. § 59. Liquidated Damages Generally. Although par- ties to a contract have a perfect right to determine be- forehand what shall be the damages which shall be paid by the one who violates it to the other, the law does not always enforce such agreements. Where the 1 Kemble v. Farren, 6 Bing. 148. 2 Noyes et al. v. Phillips, 60 N. Y. 408 ; Novvlin v. Pyne, 40 Iowa, 166. PENALTIES AND LIQUIDATED DAMAGES. 97 amount stated to be paid for a breach of the con- tract is evidently what the parties assess the dam- ages caused thereby, the stipulation will be upheld as liquidated damages ; ^ but where the object is to secure its performance by the imposition of an amount in ex- cess of the loss likely to be sustained, it will be con- sidered a penalty and will not be enforced.^ Liqui- dated damages are, therefore, those which have been determined beforehand by original contract. Such an agreement is sanctioned by the law. § 60. Distinction. The distinction between liqui- dated damages, and penalties attached to the contract for the breach of it, is not easily drawn. The use of the words " penalty " or " liquidated damages " in an agreement will not determine the question, for the law considers the intention of the parties as manifested, not only in the instrument itself but extraneous cir- cumstances.^ The leading case upon the subject * con- tained a clause that, if either of the parties neglect or refuse to fulfil the said engagement, or any part there- of, or any stipulation therein contained, such party should pay to the other the sum of £1,000, to which sum it was thereby agreed that the damages sustained by such refusal or neglect should amount, and which sum was thereby declared to be liquidated and ascer- tained damages and not a penalty, or in the nature thereof. Yet, notwithstanding this direct expression, 1 2 Story Eq. Jur. § 1318 ; Kielly v. Jones, 1 Bing. 302; Tingley v. Cut- ler, 7 Conn. 291 ; Chamberlain v. Bagley, 11 N. H. 234 ; Gammon v. Howe, 14 Me. 250; Watts, Ex'r, v. Sheppard, 2 Ala. N. S. 425 ; Bridges v. Hyatt, 2 Abb. Pr. 449. 2 Kemble v. Farren, 6 Bing. 141; Grocers' Co. v. Donne, 3 Scott, 364; Bagley v. Peddie, 5 Sandf. (N. Y.) 192; Merrill v. Merrill, 15 Mass. 488. ^ 2 Story Eq. Jur. § 1318 ; Perkins v. Lyman, 11 Mass. 76; Graham v. Bickman, 4 Dall. 149. * Kemble v. Farren, 6 Bing. 141. 7 98 BtriLDING CONTEACTS. the court held that the sum was a penalty and could not be recovered.-^ The following rules are generally con- ceded : — Where the sum fixed as liquidated damages is mani- festly above the injury sustained, it will be held as a penalty, and only actual damages can be recovered.^ Where the contract is for a matter of uncertain value, and a sum is fixed to be paid on the breach of it, the sum is recoverable as liquidated damages.^ Where the pa3-ment of the money appears to have been intended only to secure the performance of the contract, it will be construed as a penalty.* Where the contract contains a number of conditions, and the penalty is applied to only one of them, it is not recoverable as liquidated damages." § 61. Forfeitures Generally. Where there is a stipulation in the contract, that for certain breaches the party shall lose his rights under the contract or forfeit a fixed sum, this condition is called a forfeiture. As will readily be seen, a forfeiture is very similar in its nature to a penalty. The distinction cannot be clearly drawn in all cases, so generally the same rules apply to both.^ A forfeiture implies a penalty, and not liquidated damages.^ § 62. The Foregoing Rules as Applied to Building '■ See, also, Beale v. Hayes, 5 Sandf. (N. Y.) 640; Curry v. Larer, 7 Penn. St. 470; Moore v. Platte Co. 8 Mo. 467; Heard v. Bowers, 23 Pick. 455 ; Niveru. Rossnian, 18 Barb. 50; Dakin, &c. c. Williams, &c. 17 Wend. 447, 455. But see Brewster v. Edgerly, 13 N. H. 275, 278. 2 Magee v. Lavell, L. R. 9 C. P. 115; Scofield v. Tompkins, 95 111. 190 ; Lea V. Wliitaker, L. R. 8 C. P. 70. " Kemble v. Farren, 6 Bing. 147. « Merrill <.. Merrill, 15 Mass. 488; Slowman v. Walter, 1 Bro. Ch. 418. " Kemble v. Farren, 6 Bing. 147 ; Bagley v. Peddie, 5 Sandf. (N. Y.) 192. ' Salters v. Ralph, 15 Abb. Pr. 273; Hunter v. Hunter, 17 Barb. 26. ' Ibid. PENALTIES AND LIQUIDATED DAMAGES. 99 Contracts. We have considered it advisable to dwell somewhat generally upon the rules of law governing penalties, forfeitures, and liquidated damages, for the reason that it is quite common to insert penal clauses in building contracts, and it is necessary to explain the common principles of law in order to point out the dis- tinction between assessing a sum to be paid as liqui- dated damages, in the event of a non-performance of a building contract, and a penalty to compel performance.^ § 68. Instances and Effect of Penalties. Where a bviilding contract specified that $20 should be paid for every day's delay in completing a house, the court held the stipulation to be a penalty, and that only nominal damages could be recovered in the absence of proof that the owner was injured by the delay .^ So, where the agreement was to complete the build- ing by a certain day, in default of which to pay £10 per week for every week delayed, and there was among other stipulations a condition that, if all things agreed upon were not faithfully executed, the builders should pay £1,000 as liquidated damages, it was held that the latter was a penalty, and the owner could only recover the actual damages sustained.* § 64. Instances of Liquidated Damages. Where the contract stipulates that the building shall be completed by a certain day, and that in case of failure the builder shall pay a fixed sura for each day or week the com- pletion is delayed, and the actual damage to the 1 Slowman v. Walter, 1 Bro. Ch. 418. 2 Wilcus V. Kling, 87 111. 107. But see Hahn v. Horstman, 12 Bush (Ky.), 249. If the main object of the payment of the money, upon breach of a condition, is to secure performance, it will be construed as a penalty. See Slowman v. Walter, 1 Bro. Ch. 418; Graham v. Bickham, 4 Dall. 149; Merrill v. Merrill, 15 Mass. 488. " In re Newman, Ex parte Capper, L. R. 4 Ch. D. 724; 46 L. J. B. 59. 100 BtriLDING CONTEACTS. owner is uncertain, the amount or amounts stipulated to be paid will be considered as liquidated damages.-^ So, where a clause in an agreement to repair certain buildings for $1,500, complete for occupancy by De- cember 1, and that, for each and every day's delay in the completion after that date, the builder shall forfeit $5, this condition was construed as fixing the amount of liquidated damages and not as a penalty.^ Again, where a building contract contained a stipulation that the building should be finished within two months, and also provided that if completed before that time the builder should be paid for the time anticipated at a specified rate, and that if the building should not be finished by the time, the contractor should allow for the time extended at the same rate, it was held that the latter clause controlled the former, and by neces- sary implication allowed a reasonable time beyond the two months for the finishing of the building upon pay- ing or allowing the fixed rate as liquidated damages.^ The following rule laid down by eminent authority* is applicable to the measure of damages generally, in cases of contracts where the amount is not liquidated : The law aims to award " either such damages as fairly and reasonably may be considered as arising naturally, that is, according to the usual course of things, from 1 Wallis V. Smith, L. R. 21 Ch. D. 243; 52 L. J. Ch. 145; 47 L. T. 389; Crux V. Aldred, 14 W. R. 656. 2 Hall V. Crowley, 5 Allen, 304. See Wallis v. Smith, L. R. 21 Ch. D. 243, where there were several special stipulations, and the sum of £5,000 was to be paid upon failure, and held to be liquidated damages; 47 L. T. 389; 31 W. R. 214. But see, contra, In re Newman, Ex parte Capper, L. R. 4 Ch. D. 724. 8 Folsom V. MeDonough, 6 Cush. 208. See Legge v. Harlock, 12 Q. B. 1015; 18 L. J. Q. B. 45. * See Hadley v. Baxendale, 9 Ex. 441; L. R. 1 C. P. D. 326. But see 6 H. & N. 211. FORFEITURES. 101 such breach of contract itself, or such as may reason- ably be supposed to have Been in contemplation, at the time they made the contract, as the probable re- sult of a breach of it." § 65. Instances and Effect of Forfeitures. Where a contract specified that a certain percentage of each in- stalment of pay to a contractor for building a railroad was to be retained until a certain amount accrued, and this gross sum was to be forfeited as liquidated damages should the contractor fail to complete the road in time, the condition was held to be a penalty, notwithstanding the explicit contrary allegation.-' If a clause of for- feiture be inserted under a mistake as to the amount and difficulty of the work to be performed, it is void, and will not prevent the builder from obtaining the benefit of the other stipulations in the contract.^ It seems, however, that where the time of performance is made material, a failure to perform at the time agreed upon may forfeit the contract.^ If the agreement provides that the benefits of the contract shall be forfeited, and the materials used in the unfinished structure become absolutely the property of the owner of the land, upon breach of performance by the builder within the time prescribed, the enforce- ment thereof can only, in any event, be compelled before the time fixed for completion has elapsed ; * for if the builder has been led to beheve by the conduct of 1 DuUaghan J). Fitch, 42 Wis. 679; especially where it was provided that the parts of the work were to be completed at divers times. Savan- nah, &c. R. R. Co. 0. Callahan, 55 Ga. 33; Lyman t'. Babcoek, 40 Wis. 503. 2 Verzan v. McGregor, 23 Cal. 339 ; Dec. 20. 8 Kemp V. Humphrey, 13 111. 573; Dec. 91. * Walker v. London & North Western Ry. Co. L. R. 1 C. P. D. 518; 45 L. J. C. P. D. 787. 102 BUILDING CONTEACTS, the employer that the time condition will be waived, he will not forfeit that which he has done.^ Forfeitures are not favored either in equity or in law, and when such an enforcement will work a hard- ship upon the defendant, the courts will consider all circumstances tendina; to show a waiver of the for- feiture.^ So where the land-owner, after the date of forfeiture, continued dealing with the builder upon the terms of the contract, the court held that it amounted to a waiver of the forfeiture clause.^ The builder will be compensated in damages if the land-owner wrong- fully takes possession of the building. Specific per- formance cannot be compelled in such cases, or injunc- tion granted ;* but if the builder refuse to complete the work, and prevents the owner from doing the same, an injunction may in certain cases be allowed against him.'' § 66. Summary. The question, whether a sum stip- ulated to be paid upon the breach of the condition of a contract is of the nature of a penalty, is one of con- struction.^ When the specified penal sum is in the nature of liquidated damages, it may be set up against the build- er's claim under a quantum meruit? In cases of a penalty, actual damages only can be re- covered for breach of the contract;^ but in cases which ■ Marsden v. Sambell, 28 W. R. 952. '^ Contra, Kensington v. Brindley, 12 Moo. C. P. 37. But see Ex parte Newitt, L. R. 16 Ch. D. 522, 531. 8 See, also. Arterial Drainage Co. v. Rathangan, &c. 6 L. R. (Ir.) 515. « Garrett v. Banstead, &c. Ry. 4 De G.. J. & S. 462. 5 Corporation, &c. v. Rooney, 7 L. R. (Ir.) 191. 5 2 Story Eq. Jur. § 1318 ; 15 Me. 273 ; VVallis v. Smith, L. R. 21 Ch. D. 223; 62 L. J. Ch. 145; 47 L. T. 389. ' Marshall v. Hann, 2 Harr. (N. J.) 425 ; Dec. 258. ^ Kemble v. Farren, 6 Bing. 147. EFFECT OF PENALTIES. 103 show that the parties intended to fix their own measure of damages, — in other words, when the damages are liquidated, — the party who suffers from the breach may recover the sum stipulated.^ Although the contract may expressly stipulate that the payment of the specified sura upon the breach of its conditions is to be considered as liquidated dam- ages, the court will not be governed by the mere term if the intention is clear that it was inserted to enforce performance.^ § 67. Enforcement. The party who has suffered from the breach of a contract containing a penal clause may either bring an action of debt for the penalty, or upon the contract, and recover damages exceeding the amount of the penalty, if he can prove that he has sustained the same,^ not, however, if he has received the amount of the penalty.* A penalty or forfeiture cannot be re- covered for delay of the builder caused by the owner of the building.® Where the contract stipulates that the builder shall be liable for certain sums every stated period upon certain contingencies, such sums may be deducted from the amount due on the completion of the work from the contract price,® or set off in an action for extras brought by the owner ;^ or suit be instituted to 1 1 H. Black. 232; Astley v. Weldon, 2 Bos. & P. 335, 350 j 2 Term, 32; Lowe v. Beers, 4 Burr. 2228. ^ Cases just cited. ^ See opinion of Mansfield, C. J., in Lowe v. Beers, 4 Burr. 2238; Harri- son V. Wright, 13 East, 343. 4 Bird V. Randall, 3 Burr. 1352; 1 W. Bl. 387. « Ante, §§ 37-4-2, and Russel v. Bandeira, 13 C. B. N. S. 149,;. 3a L. J. C. p. 68 ; 7 L. T. N. S. 804. « Duckworth ,-. Allison, 1 M. & W. 412. ' See, also, Marshall v. Hann, 2 Harr. (N. J.) 425; Dec. 258. 104 BUILDING CONTRACTS. recover the loss sustained. If the contract stipulates that a certain sum or sums shall be deducted from the price, the same may always be available as a set-off.^ We have seen before that specific performance of building contracts is seldom to be had,^ yet, in certain cases, where the court can give such relief, and the agreement is one which contains a penalty or provision for liquidated damages, the court has ordered specific performance ; ^ as where an injunction was allowed to restrain a party from building beyond a certain line.* § 68. Notice. Sometimes building contracts specify that notice shall be given in writing to the contrac- tor when the employer is dissatisfied with the work, whether as to its progress or the quality of the mate- rials furnished, and that, if after notice the contractor fails to comply, the employer can take possession of and complete the work. Any plain statement convey- ing the intention of the party to claim the benefit of the provision will be generally held to be sufficient;^ as for instance : " I give notice to you to supply all proper and sufficient materials and labor for the due prosecu- tion of the works, and with due expedition to proceed therewith ; and further, that if you shall, for seven days (the time named in the contract) after giving of this notice, fail to comply therewith, I shall, as engi- neer, and on behalf of the corporation, take the works wholly out of your hands." ^ 1 Jones V. St. John's Col. L. R. 6 Q. B. 115; 40 L. J. Q. B. 80. ^ See Chapter on Specific Performance of Building Contracts. 8 Howard v. Hopkyns, 2 Atk. 370; Coles v. Sims, 5 De G., M. & G. 9 ; 23 L. J. Ch. 259. * Jones V. Heavens, L. R. 4 Ch. D. 636. 5 A form of notice will be found in the Appendix. 8 Pauling V. Dover, &c. 10 Ex. Ch. 753; 24 L. J. Ex. 128. CHAPTER X. STJEETIES, REPRESENTATIVES, AND ASSIGNEES. § 69. Sureties. Building contracts are seldom en- tered into for the construction of public buildings, or extensive works of any character, without security for the faithful performance of the work. The general rules of law relating to suretyship govern the legal status in this as in other contracts. Thus, where a surety guarantees that a builder will execute his con- tract to the satisfaction of his employer, and the con- tract is materially altered without his a.ssent, he will be discharged from responsibility ^ whether the change or variation in the contract is prejudicial to him or not.^ So if the time of performance is increased with- out his assent.^ The obligation may be discharged by the acts of the owner of the building. Thus where, by the contract, the surety guaranteed the performance of the building agreement, which was to be paid for by instalments, and the owner paid the instalments before they were due, it was held that this act discharged the surety ; * so, also, where the owner failed to insure the property as agreed ; ^ so, also, where he made larger advances 1 Judah V. Zimmerman, 22 Ind. 388; Dec. 102; General Steam Nav. Co. V. Rolt, 6 C. B. N. S. 550 ; St. Albans Bank v. Dillon, 30 Vt. 122 ; Watriss v. Pierce, 32 N. H. 550. 2 Per Story, J., 9 Wheat. 680 ; Commissioners, &c. v. Ross, 3 Binney (Penn.), 520; Miller v. Stewart, 4 Wash. C. C. 26. 8 Burge Suret. 203; Samuell v. Howarth, 3 Mer. Ch. 272;Mayhew«. Cricket, 2 Swanst. Ch. 185, 189. * General Steam Nav. Co. v. Rolt, 6 C. B. N. S. 550. 6 Watts V. Shuttlewort, 5 H. & N. 235; 29 L, J. Ex. 229. 106 BUILDING CONTRACTS. to the builder than contracted for ; ^ so, also, where the owner and the builder change the terms of the obliga- tion in any manner without the consent of the surety.^ The giving of security may be a condition precedent to the owner's liability to the builder if it is made one of the stipulations in awarding the contract, but this condition maj'' be waived by the builder being re- quested to proceed with the work without security.^ No notice, however, of acceptance is necessary where the promise of the surety is absolute and definite in amount ; but otherwise acceptance by the promisee is made a condition precedent.* Where " a contractor, having given security for the performance of his contract, ascertained that he could not complete the work, and, upon notice thereof to his surety, an agreement was made between the contractor and his surety with the owner of the building, whereby the latter agreed to pay such bills for materials purchased by the contractor as should be certified by the surety and the architect, upon the promise of the surety to reimburse him, it was held that this contract did not create any joint liability as between the contractor and the owner, and that no joint action upon it could be maintained against them for materials purchased, and that the owner had no authority and was under no obli- gation to pay any bill for materials not certified to by the surety." ^ Where there is a penalty named in the contract 1 Gordon v. Rae, 3 E. & B. 1065; 27 L. J. Q. B. 185. 2 Miller v. Stewart, 4 Wash. C. C. 26. 8 Roberts v. Brett, 6 C. B. N. S. 635. * Cremer v, Higginson, &c. 1 Mason C. C. R. 323; Russell v. James, &c. Ibid. 368; Stafford o. Lowe, 16 Jolins. (N. Y.) 67. ^ Kelly u. Kellogg et al. 79 111.477; Dec. 86. See Dec. 87 for construction of certain words. LEGAL REPRESENTATIVES. 107 the liability of the surety cannot exceed the amount thereof, but in many cases may be less than the penalty.^ The right of contribution of co-sureties is the same as in other cases, that is, where one of the sureties is compelled to pay the whole debt for which he and one or more others were jointly and severally bound, he may recover from the other sureties not paying his or their share of the debt.^ The remedy of contribution is recognized in both law and equity, but suretyship cannot be validly made except in con- formity with the statute of frauds.* § 70. Effect of Death of one of the Parties to a Building Contract. It is a general rule of law that upon a person's death all his personal estate, and all his rights of action which affect his personal estate, passes to his executor or administrator, subject to all the liabilities chargeable to it ; while his real estate passes to his heir or devisee. Accordingly those con- tracts which are not personal, or dependent upon the skill of the deceased, are part of his estate, and his representatives are entitled to the benefit thereof. But where the contract relates to personal service or skill, death dissolves the contract, for representatives can neither be compelled to execute it or insist upon undertaking to do so.* The contract of an architect is notably one of the latter description.^ On the other hand, it has usually been held that the contract of a 1 Tunison v. Briggs, 2 South. (N. J.) 498; Wilde v. Clarkson, 6 Term, 303; Barney's Ex'r v. Busb, 3 Cow. (N. Y.) 151. 2 Fletcher et al. v. Jackson et al. 23 Vt. 581; 1 Mood. & M. 406; Layer V. Nelson, 1 Vern. 465. 8 29 Car. II. ch. 3. See ante, § 2. * Baxter v. Burfield, 2 Str. 1266; Chamberlain v. Williamson, 3 M. & S. 408; Robinson v. Davison, L. R. 6 Exch. 269. 6 Ante, § 12. 108 BUILDING CONTEACTS. builder passes to his representatives, who, being en- titled to whatever benefit they can derive from com- pleting it, must also suffer whatever damages may thereby be incurred.^ Therefore, if a builder con- tracts to build and complete a house by a certain time, but dies ad interim, his executor or administrator is bound to complete it.^ In another case, where the work was not even begun before the death of the builder, the court held that, " if a party contract for himself and his executors to build a house, and die, the executors must go on, or they will be liable for damages for not completing the work ; if they go on, they may recover as executors."^ If, however, the building proposed to be erected is one requiring spe- cial skill or taste or knowledge, the contract will be discharged by the death of the builder.* There are a few American cases holding that, where a party is prevented from completing his contract by sickness or other reasonable excuse, he can recover upon a quan- tum meruit for what he has done.^ Thus, where a plaintiff, under contract to superintend certain works for a certain time, was prevented from filling his con- tract by breaking his limb, it was held that he could recover in proportion to the rate agreed upon for the whole.^ The latter cases are rather those which uphold contracts for work and service than for entire under- takings. If the party at whose instance the building was to be erected dies before the contract is performed, his 1 Siboni V. Kirkman, 1 M. & W. 418; Wentworth v. Cock, 10 A. & E. 42. ^ Quick V. Ludburrow, 3 Bulstr. 80. 8 Marshall v. Broadhurst, 1 C. & J. 403. * VVentworth v. Cock, 10 A. & E. 45, and cases there cited. 6 Fahy 0. North, 19 Barb. 341. « Hargrave v. Conroy, 4 C. E. Green (N. J.), 281. BANKRUPTCY OF CONTRACTOB. 109 representatives will be bound to pay for the comple- tion of the work if the deceased left sufficient assets, or they must satisfy whatever damages may result to the builder from the breach of the contract.^ § 71. Effect of Bankruptcy or Insolvency of BuiLBBR. Although there is at present no national bankrupt law in this country, the various states have statutes regulating insolvency proceedings within their own borders. These state enactments have no extra- territorial effect. There is considerable diversity in the most important provisions of bankrupt acts, yet this theory is recognized in all, — that upon failure, all the property of the debtor passes into the hands of the assignee, subject only to existing liens.^ The trustee, receiver, or assignee (whichever he may be called) be- comes immediately entitled to the performance of executory contracts and choses in action of the failing debtor. His position corresponds, in many respects, with that of the personal representative of a deceased person, his duty being to do everything in his power for the interest of the creditors ; he has, however, generally, a broader power to avoid executory con- tracts which he may regard as not beneficial to the estate. The contract of a builder, upon insolvency, when not of such a nature as to make it personal, passes to his trustee.^ Indeed, it has even been held that a clause inserted in a building contract providing that, should the builder fail before completion of the work, the owner of the building could consider the contract as rescinded and go on with the work, was 1 Wentworth v. Cock, 10 A. & E. 45; Cooper v. Jarman, L. R. 3 Eq. 98. 2 Avery v. Hackley, 20 Wall. 407; Ex parte Smith (South. D. N. Y.), 1 Bank. Reg. 169; Rogers v. Spence, 13 M. & W. 580. 8 Gibson V. Caruthers, 8 M. & W. 321. 110 BUILDING CONTEACTS. void, as depriving the trustee of his right to complete the contract, and an unjust preference.^ Such a right, however, would not pass to the trustee if the contract required the personal skill of the builder, which the lat- ter refused to give. It has been held in England that a builder cannot make an assignment of future contingent receipts of his business accruing after the commencement of his bankruptcy.^ As the trustee of an insolvent generally has the right to renounce such executory contracts as are not advantageous to the creditors' fund,^ so the trustee of a bankrupt builder may expressly disclaim all unexecuted contracts which he esteems onerous to the estate.* 1 Ex parte Barter v. Walker, L. R. 26 Ch. D. 510; Whitmore v. Gil- mour, 12 M. & W. 810. ^ Kmileii on Building, &c. 191, citing Ex parte Nichols, Re Jones, L. R. 22 Ch. T>. 782; 52 L. J. Ch. 635; 31 W. R. 661. Contra, Ex parte Moss, Re 'I'owanl, L. R. 14 Q. B. D. 310. ' Anson on Contracts, 224. * Lawrence v. Knowles, 5 Bing. N. C. 399; Ex parte Chalmers, L. R. 8 Ch. 289; 42 L. J. Q. B. 37. CHAPTER XI. RIGHT OF PROPERTY IN BUILDING MATERIALS. § 72. General Statement. The right of property in materials furnished (being personal property) passes to the purchaser upon delivery ; but nice questions are apt to arise whether the owner of the premises or the builder is the purchaser. It seems settled, how- ever, that, where materials are furnished upon the credit of the builder, the ownership passes to him, but if upon the credit of the building, to the owner there- of. When this rule is adhered to, the building, during the progress of the work, belongs to the owner, and is not liable for execution for the builder's debts.^ Build- ing contracts frequently contain special clauses deter- mining the right of property. The subject is not as important in this country as in England, for here contractors, mechanics, and others have a lien which they can enforce, irrespective of the ownership of the building. § 73. Builder's Interest. It is usually held, where the property is personalty, — a vessel, for instance, — that the general property passes to the owner as the work advances and is paid for, and the builder has only an interest to the extent of the work not paid for, and to this extent he is a joint owner, and his interest is liable to execution, although the original owner could get possession by paying what was due 1 White V. Miller, 18 Penn. St. 52. 112 BUIIJ)ING CONTEACTS. under the contract.-^ Such a rule would not be ap- plied to realty, unless the materials were detached at the time of execution from the realty ; for instance, where a builder contracted to erect a house, and pro- cured blinds and fitted them to the windows, but sub- sequently took them off to paint them, according to the contract, it was held, that while the blinds were in the builder's hands they were his property, and liable for his debts.^ A presumption at least to the contrary has been held in England : ^ but if the work upon the builder's premises is not subject to the control of the owner of the building, the right of property will be in the builder ; * or if it was not to be paid for until completed, and is upon the builder's premises at the time of the bankruptcy of his employer. The English cases upon this subject have mainly arisen in determining the right of property where clauses have been included in the contract stipulating certain conditions in event of the bankruptcy of the builder. The courts there do not seem to look favor- ably upon such stipulations when they operate in- equitably against trustees or judgment creditors.^ Yet " it is important," says Mr. Emden," " for the protec- tion of the land-owner, that the building contract should contain a clause to the effect that all building materials brought upon the ground shall immediately 1 McElderry v. Flanigan, 1 H. & G. (Md.) 308; Deo. 158; Clarke v. Spence, 4 Ad. & E. 448. 2 Manchester Mills v. Rundlett, 23 N. H. 271; Dec. 241. * Under the Bankruptcy Act of 1883, s. 44, par. iii. " Wilkins v. Bromhead, 6 M. & G. 963; 7 Scott N. R. 921 ; 8 Jur.83; 13 L. J. C. P. 74; Ex parte Marrable, 1 Glyn & J. 402. 6 Reeves v. Barlow, L. R. 12 Q. B. D. 436; 53 L. J. Q. B. 192; Collyer V. Isaacs, L. R. 19 Ch. D. 342; 51 L. J. Ch. 14; 45 L. T. 567. * Emden on Building, &o. 200, citing the above. BUILDING UPOK ANOTHER'S LAND. 113 become his property." ^ If, however, the written agree- ment provides that in case of his bankruptcy the uncompleted contract shall be discharged, and the land-owner receive the benefit thereof, the court will not uphold such a stipulation to the detriment of the builder's creditors.^ § 74. Buildings Erected upon Land op Another. The general rule of law, that whatever is fixed to a freehold becomes part of it,^ is applicable to questions arising from buildings being erected without authority upon the land of another. Thus, where one man vol- untarily erects a house, or other structure, without per- mission of the owner of the estate, he does not thereby acquire an interest in the land, but on the contrary the building becomes the property of the owner of the freehold,* and the unlicensed builder is a trespasser upon his land. In a leading English case,^ where a contract stipulated that all materials brought on the premises by the proposed lessee should become the property of the proposed lessor, but the proposed les- see commenced building without obtaining a lease, it was held that the materials brought on the land by the proposed lessee vested in the owner of the freehold, and were not liable for the debts of the builder. The 1 See Emden on Building, &e. 201 et seq., discussing Brown v. Bateman, L. R. 2 C. P. 272; 36 L. J. C. P. 134; 1 L. T. N. S. 658; 15 W. R, 359; and Blalce v. Izard, IG W. R. 108. 2 Ex parte MacKay, L. R. 8 Ch. 643 ; Ex parte Williams, L. R. 7 CIi. D. 138; Ex parte Jay, L. K. Ch. D. 19 ; 28 W. K. 449. 3 Baldwin v. Reed, 16 Conn. 66; Dec. 23; Curtis v. Hoyt, 19 Conn. 165; Frank v. Brand, 16 Conn. 272. See Dec. 23, 24, and 27. * Baldwin v. Reed, supra (the building is personal property if it belono-s to some one other than the land-owner) ; Curtis v. Hoyt, supra. 6 Blake v. Izard, 16 W. R. 108. 8 114 BUILDING CONTRACTS. same rule has been substantiaHy followed in other cases.-^ § 75. Old Materials belong to the Contractor. Where a building contract makes no reference to the old structure standing upon the land, the materials therein belong to the builder, and the owner is not entitled to an allowance therefor.^ 1 See especially Reeves v. Barlow, L. E. 12 Q. B. D. 436 ; 5 L. J. Q. B. 192; SOL. T. 782. 2 Morgan r. Stevens, 6 Abb. N. C. 356 ; Dec. 273. CHAPTER XII. BUILDING NUISANCES, AND DAMAGES FROM NEGLIGENCE WITH AND WITHOUT PRIVITY OE CONTRACT. § 76. Building Nuisances. A nuisance is defined by Blackstone to be " anything that unlawfully worketh hurt, inconvenience, or damage." ^ It is only proposed in this treatise to briefly mention those nuisances which directly relate to buildings. Nearly every city and town of this country has its own ordinances, or what might be called local statutes, regulating the use of streets and highways for build- ing materials. Although the question of obstructions created by building operations is thus controlled by local law, the authorities generally agree that rights and privileges conferred by such statutes must be ex- ercised reasonably, and with due care not to incom- mode the public or adjoining property-holders more than is absolutely necessary. If a person blockade convenient access to the property of another, when by proper means he could have done otherwise, he is liable to damages.^ So if, by his action in taking up more of the thoroughfare than necessary, he commits a public ■nuisance which substantially injures the plaintiff.^ 1 3 Blackstone Com. 216. A private nuisance is " anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." lb. 215. And a public nuisance is " such an inconvenience or troublesome offence as annoys the whole community in general, and not some particular person." 4 Blackstone Com. 166. 2 Knox V. New York, 55 Barb. 404. 8 Fritz V. Hobson, L. K. 14 Ch. Div. 542; 42 L. T. 225. 116 BUILDING CONTRACTS. Where there is an unauthorized interference or ob- struction of a street or highway, an action lies for special injuries occasioned thereby.^ The general statement may be made that any one doing any act which makes the free use of a street dangerous or inconvenient, as by blocltading it with building materials, leaving open excavations, failing to put up right signals, undermining the pavement, or in any way incommoding or hazarding the public or in- dividuals, comuiits a nuisance for which he is liable to any one thereby injured.^ But if he has obtained a license from the public authorities, and is exercising due care, he will not be liable for accidental injuries.^ § 77. Instances of Building Nuis.\nces. If a man causes a Itay-window to be so constructed that it will project over his neighbor's ground, though from an upper story of his building, and no damage results thereby, the project is a trespass which may be deemed a nuisance.* So, too, if he allows filthy matter'^ or water ^ (if the latter can be prevented) to percolate upon another's land, or drip from roofs;" or fails to take due care of his water-pipes, and negligently allows leakages to occur, thereby injuring his neigh- bor's estate ; ^ or permits ice and snow to lall upon the 1 Whitely P. Pepper, 2 Q. B. D. 276; 46 L. J. Q. B. 436 ; Harris v. Mobbs, L. R. 3 Ex. D. 268; Wilkins i-. Day, 12 Q. B. D. 110. 2 Kimball v. Bath, 38 Me. 219; Robbins l-. Chicago, 4 Wall. 657. ' Kimball v. Bath, supra; Portland v. Richardson, 54 Me 46. * Jlfyer c. Metzler, 51 Cal. 142. See, also, Grove v. Fort Wayne, 45 Ind. 429; Cherry v. Stein, 11 Md. 1. 6 Ball r. Nye, 99 Mass. 582; St. Helen's Chem. Co. v. St. Helen's, L. R. 1 E.x. Div. 196. 8 Wilson V. New Bedford, 108 Mass. 261; Brown v. Bowen, 30 N. Y. 519. ' Bel'ows r. Sackett, 15 Barb. 96; Underwood v. Wahlron, 33 Mich. 232. 8 Bl}lh ('. Proprietors, &c. 11 Ex. 781; Carstairs v. Ta)lor, L. U. 6 Ex. 217; Killion u. Power, 51 Penn. St. 429. INSTANCES OP BUILDING NUISANCES. 117 same,^ having first committed a nuisance by so con- structing his building as to run the water, etc., in that direction.^ But if a proprietor causes a well to be excavated upon his own land, and thereby draws oflf tha subterraneous waters to the injury of others using water from the same source, he will not be liable to damages.^ A building so constructed that snow and ice are likely to slide from the roof into the street below is not necessarily a nuisance, and the owner is only liable if he fails to observe due care in respect to it.* Negligently leaving building materials in streets, thereby obstructing the same or frightening horses, may be nuisances;^ so, also, of a house built so as to obstruct the view of another,^ or preventing easy access to a building.'^ The continuance of a building erected without authority upon the land of another is a renewed nuisance every day it stands, and the owner of the land may bring new suits after recovery and satisfaction for the original erection.^ A building so negligently constructed, or so greatly decayed, that it is likely to fall upon an adjoining ten- ement, or upon persons making use of easements over it, is a nuisance.^ § 78. Abatement of Such Nuisances. The usual remedy for the damage done by building nuisances is 1 Shipley v. Fifty Associates, 106 Mass. 194. 2 Jackson v. Pesked, 1 M. & S. 234; Tucker u. Newman, 11 Ad. & El. 40, and lb. 6. " Acton ... Brundell, 12 M. & W. 324; Smith v. Kenrick, 7 C. B. 515. * Garland v. Towne, 55 N. H. 55. But see Jager v. Adams, 123 Mass. 26. 6 Cook V. Chavlestown, 98 Mass. 80; Foshay v. Glen Haven, 25 Wis. 288. « Stetson V. Faxon, 19 Pick. 147. ' Knox V. N. Y. 55 Barb. 404. 8 Russell V. Brown, 63 Me. 203. 9 Mullen V. St. John, 57 N. Y. 567; Grove v. Fort Wayne, 45 Ind. 429. 118 BUILDING CONTRACTS. an action at law/ but sometimes a restraining injunc- tion is sought. An abatement^ by act of the injured party i.s rarely resorted to, for the reason that a build- ing is not to be destroyed merely because the use to which it is put is a nuisance,^ nor because it gives offence to adjacent owners, if the cause of the offence can be otherwise remedied. There are a few cases where the destruction of the building itself has been justified, but these are instances in which the evil could be stopped in no other way, as where a dwelling was burned to prevent disease.* On the other hand, where a building was destroyed because of the offen- sive smells of the business carried on by the proprie- tor, it was held that the latter could recover the full value of his building.^ So, also, in all cases where the nuisance is not strictly the building itself, but the use to which it is put ; as where a house is used for prosti- tution, or a stable allowed to become so filthy as to give offence.® The abatement of a nuisance by the act of the party injured is a preventive remedy only, and does not pre- clude the party from his action for damages.^ Where a building has been erected in a public street, or without authority on public or private ground, 1 .3 Blackstone Com. 220. 2 Rolle Abr. 665; 3 Dowl. & R. 556. 8 Welch (>. Stowell, 2 Dou;,'l (Mich.) 332 ; Barclay i'. Commonwealth, 25 Penn. St. 500. * Van Wormer t'. Albany, 15 Wend. 262; Meeker v. Van Rensselaer, 15 Wend. 397. s Finley v. Hershey, 41 Iowa, 389; Case of Brightman, 65 Me. 426, citing authorities. ^ Finley v. Hershey, supra; King v. Rosewell, 2 Salk. 459; Ely u. Supervisors, &c. 36 N. Y. 297. ' Pierce v. Dart, 7 Cow. 609; State v. Moffet, 1 Greene (Iowa), 47. EEMOVAL OP OLD BUILDINGS. 119 it is evidently such a nuisance as will justify abate- ment by its destruction.^ In Baldwin v. Smith "^ the question was "whether, when the nuisance consists in a dwelling-house which is inhabited, and which has been wrongfully erected, where the defendant had a right in common, the latter could lawfully pull it down while the family were in it, and the conclusion was that, from the necessary ten- dency of such an act to a breach of the peace, the law could not permit it." § 79. Negligence. Apropos to the subject of nui- sances is that of negligence. Both generally owe their origin to the want of due diligence. The law imposes the duty upon any person suffering a nuisance to exist upon his premises to abate it eo imtanti, and if he fails to do so he is guilty of negligence.^ § 80. Removing Old Buildings. The operation of tearing down old buildings is one in which more than ordinary care must be taken, not only to prevent damages to adjoining property, but to avoid injuries which may be inflicted upon employees and passers- by. It is the duty of the party at whose instance foundations are excavated, and also of the contractor who undertakes the work, to supply walls and other sufficient support for the adjoining structure. If they, or either of them, remove the lateral support which the old building gave, without taking every possible ' Barclay v. Commonwealth, 25 Penn. St. 503. ^ Baldwin v. Smith, 82 III. 162, as cited by Mr. Cooley in his work on Torts, p. 47. " In some cases, however," says the author named, " parties have been justified in removing houses which were nuisances, even while families were in them," citing Davies v. Williams, 16 Q. B. 546; Burling v. Read, 11 Q. B. 904. But there must be a notice of the intention served upon the occupant. Jones v. Jones, 1 H. & C. 1. » 1 Salk. 3S0 ; 6 Mod. 96. 120 BUILDING CONTRACTS. effort to prevent injury, a nuisance is committed.' Yet, if the adjoining land be built upon, the responsi- bility will be changed,^ for in such cases the owner or his builder will be in duty bound to notify the adjoin- ing neighbor before proceeding,^ and then use due care in executing the work;* but the owner will not be responsible if he takes these precautions,^ unless the right of lateral support is acquired by right or prescription as an easement." It has been accordingly held that one cannot underpin a j^arty-wall unless it can be done without injury to the adjoining house.^ Where one building or property of any description is located underneath another, he who builds above or below is likewise bound to exercise due care and skill in his excavations, or otherwise removing the subjacent support.^ Indeed, if he removes the natural support of the upper estate, he must substitute that which is sufficient to protect the same ; if he fails to do so he is liable for damages, though no other negligence on his part be shown.^ There is, however, some doubt whether a party engaged in mining operations is bound to pro- vide for support of buildings upon the land above him. 1 Wyatt V. Harrison, 3 B. & Ad. 871 ; Partridge v. Scott, 3 M. & W. 220; Quincy v. Jones, 76 111. 231 ; Thurston u. Hancock, 12 Mnss. 220. ^ Cases cited above, and Cahill u. Eastman, 18 Minn. 324; McMillan v. Watt, 27 Ohio (N. S.) 306. 8 Brown v. Werner, 40 Md. 15 ; Wyley Canal Co. v. Bradley, 7 East, 368 ; Massey v. Goyder, 4 C. & P. 161. * Jeffries v. Williams, 5 Ex. 792; Charles d. Kankin, 22 Mo. 566; Baltimore & O. R. R. v. Reaney, 42 Md. 117. ° Ibid. See Peyton v. Mayor, &c. 9 B. & C. 725. ^ See po.s7. Chapter on Support, Part IV.; also, Washb. on Easements (3d ed.), 547. ' Pfluiier c. Hockon, 1 F. & F. 142; Bradbee v. Christ's Hosp., &o. 2 D. N. S. 146; 4 M. & G. 714; 5 Scott N. R. 79. 8 Smith V. Darby, L. R. 7 Q. B. 716. ° Hilton !>. Lord Granville, 5 Q. B. 701; Horner u. Watson, 79 Penn.St. 242. LIABILITY FOR BUILDING NUISANCES. 121 If, however, he fails to supply sufficient support for the land itself, there can be no doubt as to his liability, or if the buildings have been upon the land long enough to gain the right of remaining by prescription.^ § 81. Liability of Owner of Building. The owner of the building improvements is liable for the torts of his builder when the latter is acting by his authority, and the tortious acts are confirmed or ratified. The rule is the same where a principal orders his agent to commit a wrong; both are responsible as joint wrong- doers.^ Thus, if a land-owner orders a building to be erected which cannot be done without injury to an- other person, he is liable to that person for the wrong perpetrated.^ But the owner of a building is not responsible for the construction of defective. buildings causing injuries to other property owners, if he employed competent contractors or mechanics to build for him.* Yet a landlord seeking to protect his building from injury, by making excavations on adjoining land, is liable to the tenant for damages if the building falls or becomes untenantable by reason of negligence of his workmen.^ The general rule is, that where the builder contracts to do the entire work, employing his own mechanics, assuming entire charge over the construction of the building, the owner cannot be held liable for injuries 1 Bononi v. Backhause, El., Bl. & El. 622 ; 9 H. L. Cas. 503 ; Fisher v. Beard, 32 Iowa, 346. 2 Woollen V. Wright, 1 H. & C. 5.54 ; 31 L. J. Ex. 513. 3 Addison on Torts, 86; Cooley on Torts, 128; Wilson v. Peto, 6 Moore, 49. ■• Brown v. Cotton Co. 3 H. & C. 511; Ryan v. Fowler, 24 N. Y. 410; Homan i>. Stanley, 66 Penn. St. 464. = McHenryu. Marr, 39 Md. 510; Toole t). Beckett, 67 Me. 544; Campbell V. Portland Sugar Co. 62 Me. 552. 122 BUILDING CONTKACTS. caused by the builder during the progress of the work.^ To render the owner liable for damages incurred by the builder, the relationship of principal and agent, or rather of master and servant, must generally be shown. The authorities have long since settled that an inde- pendent contractor is not the servant of his employer.^ So, where a builder is not working under this direction or control of the owner, but under a contract with him to perforin a lawful undertaking, the latter will not be responsible for the negligence of the former's servants.' '' Where the contract," says Mr. Cooley,* " is for some- thing that may lawfully be done, and is proper in its terms, and there has been no nec?lio-ence in selecting a suitable person to contract with in respect to it, and no general control reserved either as respects the man- ner of doing the work, or the agents employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work, and not in the several steps as it progresses, the latter is neither liable to third persons for the negli- gence of the contractor as his master, nor is he master of the per.^ons employed by the contractor, so as to be responsible to third persons for their negligence." ^ The mere fact that the owner pays tlie builder's workmen does not affect tlie case so as to constitute 1 Senrle v. Laverick, L. R. 9 Q. B. 122; Murrie v. Currie, L. R. 6 C. P. 24; Steele o. S. E. Ry. Co. 16 C. B. 550. ^ Cooley on Torts, 547, citing Cincinnati v. Stone, 5 Ohio N. S. 38, 41; Hale u. Joluison, 80 111. 185, and others. 3 Per Walker, J., Scammonc. Chicago, 25 111. 424, 438; Hilliard ». Rich- ardson, 3 (iray, 349; Allen v. Willard, 57 Penn. St. 374; Eiiton v. European R. R. Co. 69 Me. 520 (railroad not responsible for negligent fires set by contractor? while building the road). * Torts, 548. ' Citing Shearm. & Redf. on Neg. § 73, and Schouler Dom. Rel. 644. LIABILITY POK BUILDING NUISAKCES. 123 him tlieir master.^ So, where the plaintiff contracted with the defendant to build a dam with stone, wliich he obtained as part payment of another contract to remove the stone by blasting. He and his workmen were paid by the day, the defendant furnishing the powder for blasting, and superintending the building of the dam, but having no control over the blasting; it was held he was not a servant.^ But the owner may make himself liable by interfering with the builder. For instance, where a contractor was em- ployed to drain a common sewer, and the workmen placed gravel on the highway, to the injury of the plaintiff, the owner, upon being informed, promised to remove the heap, but the contractor employed a workman to do the work and charged the owner for the same : it was held that the owner was liable, on the ground that he had interfered with the work.* An excellent rule is stated by Mr. Smith, in his work on Negligence,* that '' where the employer of the con- tractor has no duties, but the contractor has, the con- tractor is liable ; but where the employer has a duty towards the plaintiff, he cannot delegate its perform- ance to a third party." This fact is well settled (it may be well to repeat), that the employer of a contractor is not responsible for the negligence of the contractor or his workmen. This rule may be aptly illustrated by cases where an architect was employed to pull down a party-wall;^ a mechanic to dig a drain ; ^ a contractor making a via- 1 Rourke v. White Moss Colliery Co. 1 C. P. D. 556. 2 Corbin v. American Mills, 27 Conn. 274. 8 Bower t). Peat, L. R. 1 Q. B. D. 321; 45 L. J. Q. B. 446; Hughes v. Percival, 8 App. Cas. 444. * Smith on Negligence, 88, citing Hughes v. Percival, supra. 6 Butler V. Hunter, 7 H. & N. 826. « Allen V. Hayward, 7 Q. B. 960; Steele v. S. E. Ry. 16 C. B. 550. 124 BUILDING CONTEACTS. duct;^ a gas-fitter employed by a builder;^ contractors employing sub-contractors who commit torts ;^ sub-con- tractors paving streets;* a railway company employing contractors to construct the road, and sub-contractors for various parts of the same work/ — in all of which it was held that the employer was not liable. The same rule establishes the non-responsibility of the contractor for neghgence of sub-contractor and his servants. But where the contract is to perform some work which will necessarily or probably injure others, the owner cannot escape liability by having the work done by a contractor;^ for if he orders that to be performed which he knows will create a nuisance, the act done by the performer is substantially his act, and he as well as the builder will be responsible for it.'' He will also be liable if he agrees to perform part of the under- taking, and the injury arises from his own neglect,^ or if he fails to see after completion that the contractors left the work in safe condition ; ^ so, again, if he em- ploys even a competent builder to execute work which will probably injure his neighbor.^" Even when he orders every possible precaution to be taken, and there is but slight risk to adjoining property, he is bound to see that the precautions are actually taken, and to repair any injuries occasioned by the negligence 1 Keedie v. L. & N. W. Ry. Co. 4 Ex. 244. 2 Rapson v. Cupitt, 9 M. & W. 710. 8 Pearson v. Cox, L. R. 2 C. P. D. 369. * Overton v. Freeman, 11 C. B. 867. 5 Knii;ht II. Fox, 1 Ex. 721. « Cliicago V. Robbins, 2 Blackf. 418; Clark v. Fry, 8 Oliio (N. S.), 358. ' Ibid.; Ellis V. Sheffield Gas Co. 2 El. & Bl. 767; 25 L. J. Q. B. 42 ; Brownlow v. Met. Board, &c. 16 C. B. N. S. 546; 33 L. J. C. P. 233. ^ Gilbert v. Beach, 5 Bosw. 445. ^ Smith V. Mihie, 2 Dowl. 290 (where a hole was left open by a plas- terer). 1" Angus V. Dalton, L. R. 4 Q. B. D. 162 ; 6 App. Cas. 740. ~ LIABILITY FOR BUILDING NUISANCES. 125 of his builder ; ^ so, where the builder expressly agreed to undertake all risks of excavating near the plaintiff's wall upon the property of the defendant, it was held that the latter was liable for neglect of the builder in providing sufficient means to prevent it from falling.^ § 82. Liability of the Builder for Negligence of his Workmen. The relation of the builder to his employee is that known in law as master and servant. A master is liable for the negligent acts of his servant resulting in injury to others, for the reason that the servant, while he is engaged in the business of the master, is supposed to be acting under, and in conformity to, his directions.^ So, if a builder in constructing a building permits his employees to proceed with the work with- out providing any protection against the debris falling upon passers-by, he (the builder) will be liable if a falling brick injures a traveller, although his servants have exercised due care.* A builder is bound to take reasonable care in the selection of his workmen, and to take reasonable care to furnish them with adequate materials. He is liable to damages, also, if he employs too few men to per- form work where the employment of a sufficient num- ber would have prevented the injury." But a builder would not be responsible if he had given his workmen positive orders which, if obeyed, would have avoided the accidental injury complained 1 Bower V. Peat, L. R. 1 Q. B. D. 321; 45 L. J. Q. B. 445, and cases just cited. 2 Ibid. See, also, the leading case of Hughes v. Percival, L. K. 8 App. Cas. 444; 52 L. J. Q. B. 7]9; 49 L. T. 189. 8 Per Walker, J., in Scammon v. Chicago, 25 111. 424, 438. * Jager v. Adams, 123 Mass. 26. (So where a servant employed an- other man to throw snow off of a roof. Simmons v. Monier, 29 Barb. 419.) 6 Saxton V. Hawksworth, 26 L. T. 851. 126 BUILDING CONTRACTS. of.^ For, as says Mr. Justice Hoar : "If the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable." ^ There are, however, numerous cases in the books tending to show that it is immaterial whether the servant is disobeying the orders of the master or not, and that the latter must not only give proper direc- tions, but must see that they are carried into effect,^ and is liable so long as the servant is engaged in trans- acting his business or usual employment.* So where the master has informed the servant that certain acts will be within the scope of his duties, or, if the acts are usually performed by the servant, the master will be liable.^ The servant also has authority to do all proper acts reasonably necessary for the protection of his mas- ter's property intrusted to him." The authorities are conflicting whether a master is responsible for a tvanton act of his servant during the ordinary course of his employment.^ If a person injured by the tortious act of a servant has the right to bring an action against either, he cannot sue the one after having recovered a judgment 1 Durgin v. Munson, 9 Allen, 396. ^ Howe V. Newniarch, 12 Allen, 49, 57; Fraser v. Freeman, 43 N. Y. 566; McManus v. Crickett, 1 East, 106. s Paulmler v. Erie R. R. Co. 34 N.J. 151; Duggins v. Watson, 15 Ark. 118. 4 Moir V. Hopkins, J6 111. 313 ; Rounds v. Delaware, &c. R. R. Co. 64 N. Y. 129; Coleman ;;. iSIew York R. R. Co. 106 Mass. IGO; Brucker v. Fremont, 6 T. R. 659. ' Barwick v. Eng. Joint Stock Co. L. R. 2 Ex. 259; 36 L. J. Ex. 147. 6 Allen «. L. & S, W. Ky. Co. L. R. 6 Q. B. 65. ' Vanderbilt v. Richmond Turnpike Co. 2 N. Y. 497; Croft v. Alison, 4 B. & Aid. 590; Shearman on Negligence, § 66, p. 85. INSTANCES OF BUILDING NUISANCES. 127 against the other, — he cannot have two judgments for the same injury.^ Where a builder assents to his workmen employing other workmen, he is liable for the negligence of the latter, so long as he controls them bothj^ but if he abandons all control or superintendence over him, the workman thus employed becomes solely the servant of him who engaged him.* § 83. Instances of Liability of Builder. According to the rules stated in the preceding section, a builder will be held liable for injuries caused by the falling of a defective scaflFolding;* falling of badly hung gates ;^ for putting a workman who knew nothing about scaf- folding under a defective one ; "^ for employing a man who was afterwards injured by shoring an arch which the builder had reasonable cause to believe danger- ous;^ for leaving a pole in the ground for an unrea- sonable time ; * for using a defective ladder to the injury of his workmen.^ Where, however, the work- man is not following the employment for which he was engaged, the builder will not be responsible for injuries to third persons resulting from his negligence, as where a carjDenter set fire to a shed while smoking liis pipe, his employer was held not to be liable.^" It is a builder's diity to see that his employees 1 Bird V. Kandall, 3 Burr. 1352; Wadsworth v. Bentley, 23 L. J. Q. B. 3 ; Kitchen v. Campbell, 3 Wils. 304. 2 Holmes v. Onion, 2 C. B. M. S. 790. 8 Dayrell v. Tyrer, El., Bl. & El. 899. * Coughtry v. Globe Woollen Co. 56 N. Y. 124; Wilson v. Merry, L. R. 1 S. & D. 326; L. R. 1 H. L. So. 326; Allen v. Kew Gas Co. L. R. 1 Ex. Div. 251; 45 L.J. Ex. 668. ^ Allen V. New Gas Co. supra. 6 ConoUy V. Poillon, 41 Barb. 366. ' Ogden V. Rummen?, 3 P. & F. 751. 8 Webb V. Rennie, 4 F. & F. 608. 9 Williams v. Clougli, 3 11. & N. 258. lo Williams v. Jones, 33 L. J. Ex. 207; 3 H. & C. 602, in Ex. Ch. 128 BUILDING CONTRACTS. observe due care, and take every precaution to prevent damages ensuing. He is liable if he does not give timely warning to all persons likely to be endangered by his undertaking.' Thus he is liable for damages resulting from the negligence of his foreman or super- intendent in failing to keep up proper danger signals, or in darkening ancient lights of adjoining property.^ In such a case the foreman is also responsible.^ So, also, where he permits acts of trespass by sub-con- tractors and others.* § 84. Builder's Liability to his Workman. It is well settled that the employer is not responsible to his employee for injuries received while engaged in the occupation for which he was employed.'^ The courts hold to the doctrine that, as he who voluntarily under- takes to do certain work does so in view of all the dangers incidental thereto, he may be presumed to have contracted that he would hazard his chances.® If he desires to avoid the risks naturally resulting from his service, he can avoid them at his pleasure by resigning, but if he remains at the work he must hazard the consequences." The rule exempting the master from liability to his servants has been extended to those cases in which the injury results from the negligence of other ser- vants in the same employment* But if the master 1 Domat, Liv. 2, tit. VIII. s. 4. 2 \\'ilf,on V. Peto, 6 Moore, 49. 8 Ibid., and Stone v. Cartwrigbt, 6 T. R. 411. * Monk V. Dillon, 10 L. R. (Irish) 349; 12 L. R. (Irish) 321 (case where the engineer was also held liable). 6 Hutchison v. Yorlc & Newcastle Ry. Co. 5 Ex. 350; Priestly v. Fowler, 3 M. & W. 1, 6; 111. Cent. Ry. u. Cox, 21 111. 20, 26. « Wigniore v. Jay, 5 Ex. 354; Hanrathy v. N. C. R. R. Co. 46 Md. 280. ' Wigniore v. Jay, supra. ' Hutchinson v. York & Newcastle Ry. Co. 5 Ex. 350; Farwell v. Boston, NEGLIGENCE OF BTJILDEE. 129 works with his servants and injures one of them by his own negligence, he is responsible.^ So, also, where a ser- vant is injured by another, whose service is in a distinct branch of the employment, as where a carpenter was employed on buildings and injured by the negligence of a yard-master in making up trains ; ^ but this class of exceptions is not generally recognized by the courts as an exception to the rule.^ Therefore a builder is not liable for injuries to his workmen caused by mechanics employed under a sub - contractor engaged in doing piece-work,* or to a foiimer employee/ any one under the control of his foreman,® laborers erecting scaffold- ing,^ or a volunteer assistant.^ (For the apparent ex- ception to the above rule see § 85.) § 85. Injuries from Builder's own Negligence. If the builder is himself negligent, he is responsible if his negligence causes injury to his workmen, just as much as he would be if the legal status of mas- ter and servant did not exist. So where he has been informed by hi^ employee of certain dangerous de- fects, and promises to make repairs, but fails to do so, and the party is injured while the promise still &c. R. R. Co. 4 Met. 49; 111. Cent. R. R. Co. v. Cox, 21 111. 20; Railroad Co. V. Fort, 17 Wall. 462. 1 Ashworth c. Stanwix, 3 El. & El. 701 ; but see Mellors v. Shaw, 1 Best & S. 43 7. " Morgan v. Ry. Co. L. R. 1 Q. B. 149 ; Nashville, &c. R. R. Co. v. Car- roll, 6 Heisk. 347; Toledo R. R. Co. v. Moore, 77 111. 217, and particularly p. 391. ' Oilman v. Easton R. R. 10 Allen, 233 ; Wonder v. B. & O. R. R. Co. 32 Md. 411 ; Albio v. Agawam Co. 6 Cush. 75. 4 Wigget V. Fox, 11 Exch. 832 ; S. C. 36 E. L. & Eq. 486. 6 Wilson V. Merry, L. R. 1 S. & D. 326 ; L. R. 1 H. L. Sc. 326. « Feltham r>. England, Law Rep. 2 Q. B. 32; 36 L. J. Q. B. 14. ' Gallagher v. Piper, 33 L. J. C. P. 329; 16 C. B. N. S. 669. Potter w. Faulkner, 1 B. & S. 800; 1 H. & N. 773. 9 130 BUILDING CONTRACTS. holds good.^ So, again, where he negligently subjects his workmen to dangerous buildings or machinery, where there are latent perils, of which they know nothing.^ This last statement may not be borne out in all cases, as where a railroad company was held not to be liable for an injury to one of its employees occa- sioned by a latent defect in one of its bridges, when competent persons had been employed to examine the brido;e.^ It must not be inferred from the rule just stated that a builder is bound to see that his buildings are safe beyond all contingencies, or that he exercise ex- traordinary care in guarding against accidents. Al- though he is in duty bound to reasonably provide for the safety of his servants, there are degrees of respon- sibility arising from the age, construction, and charac- ter of the buildings, and much depends upon the work- man's opportunities to judge of these dangers and contingencies. Other instances of a builder's liability to his work- man arise from the following general rules : 1st. Where the master (builder) commands his servant (employee) to undertake risks the nature of which they have no reason to suspect, and which are not within the scope of their employment.* 2d. Where the master (builder) is guilty of negligence in exposing persons of youth or inexperience to perils they could not com- 1 Patterson v. Wallace, 1 Maoq. H. L. 748 ; Clark v. Holmes 7 H. & N. 937. 2 Latham v. Roach, 72 111. 179 ; Beck v. Carter, 68 N. Y. 283. 8 Warner v. Erie K. R. Co. 30 N. Y. 468 ; Ladd v. New Bedford, &c. R. E. Co. 119 Mass. 412. < Malone v. Hawley, 46 Cal. 409 ; Baltimore & O. R. R. Co. v. Wood- ward, 41 Md. 268. BUILDING NUISANCES AND DAMAGES. 131 prehend.^ Sd. Where the master (builder) employs machinery, scaffolding, etc., which he knows to be de- fective, particularly if he has been warned.^ [He does not, however, warrant his machinery, etc., to his em- ployees, and is only responsible when he fails to use due care in the matter.^] 4th. Where the master (builder) can be shown to have been extremely care- less or negligent in selecting competent workmen.* 5th. Where the master (builder) promises to correct defects, upon being informed of them by the servant (employee), but neglects to do so.^ A workman cannot recover against his employer if his own negligence contributed, with that of the latter^ in producing the injury.® 1 Grizzle v. Frost, 3 Fost. & F. 622; O'Connor v. Adams, 120 Mass. 427; Coombs v. New Bedford Cordage Co. 102 Mass. 572. ^ Latham v. Roach, 72 111. 179 (defective scaffold falling); Coughtry v. Globe Woollen Co. 56 N. Y. 124. s Readhead v. INIidland G. Ry. Co. 2 Q. B. 412 ; Ladd v. New Bedford K. R. Co. 119 Mass. 412. ^ Mobile R. R. Co. v. Thomas, 42 Ala. 672; Wilson v. Merry, L. R. 1 H. L. Sc. 326 ; L. R. 1 S. & D. 326. 6 Laning h. N. Y. Cent. R. R. Co. 49 N. Y. 521 ; Patterson v. Wallace, 1 Macq. H. L. 748. ^ Burns v. Boston, &c. R. R.. Co. 101 Mass. 50. The various doctrines of contributory negligence are not within the province of this treatise. See, however, Woodley v. Metropolitan Ry. Co. L. R. 2 Ex. D. 384 ; 4 Am. Law Times Rep. 452. CHAPTER XIIT. THE CONSTRUCTION OF BUILDINGS. § ST) a. Local Laws. The construction of dwelling- lioiises and other buildings is in many respects guarded and regulated by local statutes or ordinances, many cities having strict building laws. Thus in some towns the local law requires the main walls, front and rear, to be not less than a certain number of inches in thickness, no building to be over five stories in height; while in others it provides that all structures shall have what is called a middle wall, in which the chim- ney flues shall be located, and that no less than so many inches of brickwork shall intervene between the ends of joists ; that all party-walls shall be at least so many inches in width ; and almost innumerable other matters touching upon precautions to be observed in building, for the safety of passers-by, such as danger- signals, lights, etc. ; besides sanitary regulations as to plumbing, drainage, and sewerage. Sometimes certain permits must be obtained, and other conditions complied with, before building operations are even commenced. It would be impossible to detail these local regula- tions within the scope of this treatise ; besides, the undertaking would not be profitable, as ordinances are generally framed with sufficient clearness to be readily understood by those for whom intended. It is never- theless proper to state that the general duty of seeing that these regulations are complied with devolves upon the builder rather than the owner of the proposed improvements. PART II. DIGEST OF LEADING DECISIONS AND CASES ON BUILDING CONTRACTS IN THE UNITED STATES. ALABAMA. 1. Building on Another's Land. A having built a mill on B's land , and the parties having afterwards entered into an agreement in writing that A should keep the mill in good order, etc., and B to receive certain benefits, — held, 1st. That B's right to sell the land, with his interest in the mill, did not depend upon A's assent to the sale, but upon his first giving an opportunity to B to purchase it ; 2d. As to the measure of damages in such cases, see Lecroy v. Wig- gins, 31 Ala. 13. 2. Payment as the Work Progresses. Whenever a contract contains a stipulation that the money shall be paid before the completion of the work, or on a day certain, without refererice to the completion by the day, the stipulations are independent, and the perform- ance of the work is not a condition precedent to the payment of the money : otherwise where no time is specified, and the day fixed for payment of the money beyond a reasonable time. Drake v. Goree, 22 Ala. 409. 3. Time op Performance. A stipulation, that the entire work is to be completed before any part of the compensation is demandable, is an entire contract. i 134 BUILDING CONTEACTS. Partridge v. Forsyth, 29 Ala. 200 ; Brunby v. Smith, 3 Ala. 123 ; Kirkland v. Gates, 25 Ala. 465. 4. Where no time is specified, the law presumes a reasonable time. Skinner v. Bedell's Adm'r, 32 Ala. 44; Hussey v. Roquemore, 27 Ala. 281; Adams v. Adams, 26 Ala. 281 ; Allen v. Green, 19 Ala. 34 ; Drake V. Gorgee, 22 Ala. 409. . . . What is a reasonable time is sometimes a question for the court and sometimes for the jury. It is a question for the latter when it depends upon facts exti'insic to the contract. Watts, Ex'r, V. Sheppard, 2 Ala. (N. S.) 425; Drake v. Gorgee, 22 Ala. 409 ; Murrell v. Whitney, 32 Ala. 55. 5. Unfinished Woek; When work is done, not amounting to completion, but accepted by the em- ployer, he is liable for the value thereof Thomas et al. V. Ellis, 4 Ala. 108 ; 15 Ala". 735 ; 25 Ala. 54 ; 7 Ala. 753. 6. A contract to bore a well-hole at the rate of fl.OO a foot for first five hundred feet, and |2.75 for next hundred feet, and a larger sum for the next hun- dred, and so on, requires the contractor to bore as long as practical and the other party is willing that he should continue. If he abandons the work before completed or the time specified, he cannot recover anything whatever. Stewart v. Weaver, 12 Ala. 538. 7. Work must be completed according to contract : and when there are special provisions therein, they must be strictly complied with. Caldwell v. Harrison, 11 Ala. 756. 8. Work Destroyed hy Fire. Under an entire con- tract for a building, which was destroyed by fire be- fore completion, the workman cannot recover. Par- tridge w. Forsyth, 29 Ala. 200. DIGEST OF LilADING DECISIONS. 135 ARKANSAS . 9. Indefinite Contract. A building contract, so un- certain and indefinite in its terms and stipulations as to be incapable of performance, imposes no obligation upon the contractor to undertake it. Ljle v Jackson, 23 Ark. 63. 10. Payment as the Work Progresses. Quantum Meruit. A stipulated to build a mill which should cut and grind a certain quantity of grain, and failed in the performance of his contract : he could not afterwards recover on a quantum meruit for value of the work and labor done, and materials furnished. Simpson v. McDonald, 2 Ark. 370. But if the work is afterwards completed by other workmen with his consent, he can recover if the work is accepted by the owner. In building cases, where the work cannot be rejected without the owner surrendering his freehold, the use and occupation of the building does not amount to such an acceptance as to bind him for the contract price. Ibid. But see 2 Black. Com. 162, 163 ; 1 Viner Abr. 346; 14 Johns. N. Y. 326; 7 Cranch, 299; 4 Taunt. 475. 11. A, B, and C, by agreement under seal, con- tracted with D to furnish all the materials and build him a house by a given day, and in case of failure to forfeit all the work, etc., and $3,000 damages, and D agreed to pay a specified sum by instalments as the work progressed. A, B, and C failed to complete the work by the given time and abandoned it. It was then agreed between C and D that C should go on with the work. Held, agreement between C and D was a new, distinct, and separate contract. Byrd v- Bertrand, 7 Ark. 321. 136 BUILDING CONTRACTS. CALIFORNIA. 12. Abandoning an Entire Contract. If a building contract is entire, and the contractor abandons the work before it is completed, he loses the right which he would have had to the full compensation agreed upon. Blythe v. Poultney, 31 Cal. 2.S3. 13. Deviations from Contract by Consent. Where there has been a special contract to erect a building at a specified price, and according to an agreed plan, and the contract is afterwards deviated from by con- sent, the plaintiff cannot recover upon the express contract. De Boom v. Priestly, 1 Cal. 206. 14. Extra Work. In a suit on quanhmi meruit for work and labor, testimony is admissible to prove that the original contract has been changed at the request of the defendant. The value of the extra work per- formed can then also be shown. Mowry v. Starbuck, 4 Cal. 274. 15. A building contract provided that "all disputes, if any arise, shall be submitted to the decision of one Williams, the architect and superintendent, named in the contract," and the parties differing as to the amount due the contractor on the completion of the work refused to submit to Williams's decision, and he accordingly never acted in the matter. Held, in an action brought by the contractor, that the testimony of Williams as to the deficiencies in the work was not conclusive, and that it was competent for the plaintiff to show by other persons the extent of the deficien- cies. McFadden v. O'Donald, IS Cal. 160. 16. The parties to a building contract may verbally rescind the written provision, " no extra work to be paid for except by contract in writing," and they DIGEST OF LEADING DECISIONS. 137 may orally agree to alterations. Ibid. See Kalman v. Baylis, 17 Cal. 291. 17. Responsibility OF Co-contractor. If two persons jointly contract to do work and furnish materials for another, and the two, as between themselves, are not partners, but each is to perform a portion of the job and receive his proportional part of the pay, and one of the two employs a laborer on his part of the job, the law will not raise an implied contract that both are liable to the laborer. Smith v. Moynihan, 44 Cal. 53. 18. Special Stipulations. 0. and D. entered into a written contract by which 0. was to erect a building for D., and D. was to pay him certain amounts in instal- ments as the building progressed ; and at its comple- tion, for the. balance due, 0. was to take D.'s note, to bear interest and be payable twelve months after date or before, " if the party of the second part wishes to do so. Held, that the words, " if the party of the sec- ond part wishes to do so," relate to the time when the note should be payable, and do not mean that he had the option of giving the note or not. O'Connor w. Dingley, 26 Cal. 11. 19. In a building contract there was a clause pro- viding that the payment should be made in instal- ments upon the certificate of the architect that the materials and labor had been furnished in accordance with the plans and specifications. Held, that the clause as to the production of the certificate was for the benefit of the owners of the building, and that they might waive it at their option, and accept other proofs of the required fact. Blethen v. Blake, 4 1 Cal. 117. 20. Time of Performance. Penalty. A contract contained, among other stipulations, one that, if the 138 BUILDING CONTRACTS. work was not completed by a certain time, the defend- ant should forfeit the contract, and also all moneys due on the same. Held that, if this clause was inserted under a mistake as to the amount and difficulty of the labor to be performed, it was void ; and that it did not deprive defendants of the benefit of other clauses in the agreement. Verzan v. McGregor, 23 Cal. 339. 21. A verbal agreement can be proved to show an extension of time for the performance of a written contract. Luckhart v. Ogden, 30 Cal. 547. CONNECTICUT. 22. Buildings Erected upon Land op Another. The general principle of law is that a building permanently fixed to the freehold becomes part of it, and prima facie belongs to the owner of the land on which it stands. Curtis v. Hoyt, 19 Conn. 165 ; Prank v. Brand, 16 Conn. 272. 23. So, where one man voluntarily erects a build- ing upon the land of another without his consent, he does not thereby acquire an interest in the land, and the building becomes the property of the owner of the freehold. Baldwin v. Reed, 16 Conn. 67. ... In such cases the building is personal property. Curtis V. Hoyt, 19 Conn. 165. 24. A buikling was erected after parol license from the land-owner, and afterwards occupied by the builder and freeholder jointly. Held, the owner could not maintain ejectment against the builder. Benedict v. Benedict, 5 Day, 467 ; Prince v. Case, 10 Conn. 379. 25. A owned a building partly on his own and partly on B's land. Held, that he could remove the part on his own land, but could not disturb the other part, even after notice. Beers v. St. John, 16 Conn. 350. DIGEST OF LEADING DECISIONS. 139 26. Whatever is fixed to the freehold becomes part of it, and cannot be removed. Baldwin v. Keed, 16 Conn. 66. 27. The right to have a building stand on the land of another, " during the life thereof," includes the right to make reasonable repairs upon it from time to time. Beahan v. Muir, 38 Conn. 250. 28. Cheaper Materials. A builder, at tha request of the owner, substituted a cheaper stone than that specified in the contract, the latter asking no reduction at the time. Held, not entitled to any deduction from the contract price. Brabazon v. Seymour, 42 Conn. 555. 29. Destroyed Building. If a building under con- struction is destroyed by fire caused by lightning, the contractor is not thereby relieved of his obligation to finish it by the time specified in the contract. School District v. Dauchy, 25 Conn. 535. 30. Extra Work. A contracted to build a railroad conformably to the directions of the engineer, and appended his estimates of costs to the contract. The costs proved more than the estimates, and the engineer required depot buildings costing more by f 1,000 than his estimate, because much larger than he stated to A before the contract. Held, A could claim nothing for extra costs, as the contract appeared to have been fairly made, and he ran the risk when he executed it. Cannon v. Wildman, 28 Conn. 490. 31. Falling Buildings. A competent mason was employed to alter the foundation of a house, but did the work so negligently that the building fell and in- jured the plaintiff. Held, the owner of the building was not responsible. Lawrence v. Shipman, 39 Conn. 587. 32. Time of Performance. Contractors for building 140 BUILDING CONTRACTS. a railroad agreed that, should they not from time to time truly perforin all their obligations (one of which was to finish by a certain time), the engineer might dismiss them, in which event the contract should be annulled and all sums due them forfeited. Held, that this provision had no reference to the completion of the work by the time agreed upon, but only to de- faults occurring during the progress of the work. Can- non V. Wildman, 28 Conn. 490. 33. A was to build a vessel by a certain time, and B to provide the iron. Held, that if B did not sea- sonably provide the iron, he could not complain of A's delay. Bulkley v. Brainerd, 2 Root, 5. GEORGIA. 34. Acceptance. When work has not been done according to the contract, yet it is received and of benefit to the party receiving it, he shall pay for it a sum equal to the value of the labor and materials. Ford V. Smith, 25 Ga. 675. 35. Repudiated Contract. When a contract has been repudiated by both parties to it, it ceases to be the criterion for measuring the rights and liabilities between the parties to it. Ibid. 36. Severance of Entire Contract. B agreed to build a house for A for |2,650, payable in five instal- ments : |500 when the house should be framed; |500 when inclosed and roofed; f500 when the floor should be laid, and so on. Held, that this was but a single job of work, to consist in building the whole house for f 2,650, and not five separate jobs, with a separate price for each part ; and that, if B built part of the house, he was entitled pro rata with the price agreed upon for the whole house. Freeman v. Greenville Masonic Lodge, 22 Ga. 184. DIGEST OF LEADING DECISIONS. 141 ILLINOIS. 37. Abandoning Work. If a party is prevented from completing his contract by the other party, he will have the legal right to abandon it, and recover for the labor performed upon the same. Guerdon v. Cor- bett, 87 111. 272. 88. A contracted to do the carpenter work on a brick building, to be paid as his work progressed, on estimates to be furnished by the architect ; the brick wall was blown down after an estimate had been made, and before the contract was complete ; the owner re- fused to pay the estimate. Held, that the carpenter was justified in abandoning the contract, and could re- cover, and had a lien for work done. Schwartz v. Saunders, 4C 111. 18. 39. Acceptance. Where a party accepts work upon a house, he does not thereby waive objections to any latent defect there may be in the work. Korf ■?;. Lull, 70 111. 420. 40. Where various plans were drawn and pre- sented, and the plaintiff accepted that of the defend- ant upon the condition that the building could be built for a certain sum, and, when it was ascertained that it could not be built for such sura, the plans were rejected, — held, the plaintiff could not recover for making the plans. Ada Street Church v. Garnsey, 66 111. 132. 41. Approval of Matekials. Where a contract specifies that the materials to be used shall be of the best quality, and be approved before used, the party furnishing them should apply to have them approved, or hfe uses them at his peril. Higgins v. Lee, 16 111. 495. 142 building contracts. 42. Architects' or Supbeintendents' Certificates. When it is provided in the contract that the decision of an architect shall be final on all questions of differ- ence arising under the contract, his decision that the work is completed in conformity with the terms of the contract is conclusive until impeached for fraud. Downey v. O'Donnell, 86 111. 49 ; 92 111. 559 ; Finney V. Condon, 86 111. 76; Snell v. Brown, 71 111. 134; Coey V. Lehman, 79 111. 173. 43. If the architect refuses to sign, suit may be brought. Fowler v. Deakman, 84 111. 130; or if the building be destroyed by fire before completed, the workmen not being in default. Ranson v. Clark, 70 111. 656. 44. Where a building contract provides that the employer shall pay to the contractor a certain sum, in weekly payments, " upon the certificate of the archi- tect," the omission in the certificate to state that the building is completed, according to specifications, will not impair the validity of the certificate under the con- tract. Downey v. O'Donnell, 92 111. 559. 45. Where payments are to be made for work on the certificate of two architects who are partners, and the certificate is signed by one in the firm's name, this will be sufficient to justify a recovery of the pay- ments, where no objection is made to the certificate, but payment refused on the ground of delay in com- pleting the work. Lull v. Korf, 84 111. 220. 46. Where the contract provided that payment therefor should only be made upon the estimate and certificate of the superintendent of the work, — held an action to recover payments, without first obtaining the certificate, was prematurely brought. Packard v. Van Schoick, 58 111. 79. DIGEST OF LEADING DECISIONS. 143 47. Where the superintendent selected by the par- ties capriciously or fraudulently refuses to give the contractor a certificate of completion, the latter is not thereby debarred from recovery after performance. Badger v. Kerber, 61 111. 328. 48. Where the parties to a building contract agree that the architect should decide when the work shall be considered acceptable, and he certifies that when some slight additions shall be made the work will be satisfactory, and it appears that these additions have been made, and on notice thereof no further objec- tions made, it will be sufl&cient acceptance. Mills v. Weeks, 21 111. 568. 49. If parties are to procure the certificate of an architect as to extra work done before they are paid, they must do so, or show a good reason for not doing it. Ibid. 50. A written contract provided that the architect should give a construction to the contract, and, in case of a dispute after his decision, arbitration should be had : the owners of the property cannot, by prevent- ing such arbitration, deprive the contractor of any rights. Parmalee v. Hambleton, 24 111. 605. 51. If a party contracts to erect a building ac- cording to plans and specifications, under the supervi- sion of an architect, the architect cannot change the terms without special authority. Adlard v. Muldoon, 45 111. 193. 52. Where the work is to be done under the direction of an architect, if there is obscurity in the drawings and specifications, the contractors should ap- ply to the architect for directions. If they rely on their own judgment, and a mistake occurs, they must bear the consequences. Clark v. Pope, 70 111. 128. 144 BUILDING CONTEACTS. 53. Defective Work, etc. Where the parties con- tract to build a church, constructing the same in a workinanHke manner, according to the plans referred to in the contract, or, in case of any deviation, to be made by mutual consent, there will be no responsibility attached to them for its subsequent destruction, whether caused by its own inherent weakness in the mode of construction, or from the violence of storms. Clark v. Pope, 70 111. 128. 54. Where the work on a building is not per- formed according to the agreement, and not done in a workmanlike manner, or the materials used are not as good as contracted for, the contractor can only recover the reasonable worth of the work and materials, not- withstanding an acceptance of the building. Estep v. Fenton, 66 111. 467. ... As to instructions to the jury, upon conflicting evidence as to completion of work. Ibid. ... As to contract to erect a church similar to another, and variations afterwards dis- covered. Ibid. 55. Delay Caused bt Others. Damage for delay in completing work is not excused by delay in others. Graveson v. Tobey, 75 111. 540 ; Sperry v. Fanning, 80 111. 371; Wilson v. Bauman, 80 111. 493. 56. "Erection," Meaning of. The agreement was that if a university was ei-ected by a certain time, the plaintiff would give $400. It was not essential that the building should be coynjileted within the time. There is a great difference between erecting a building and completing one. A building may be said to be " erected " when the walls are up and materials on the ground to complete it. Johnston v. Ewing Female University, 35 111. 518. 57- The walls of a building were up, and all DIGEST OP LEADING DECISIONS. 145 the brick and stone work finished, etc. . . . The roof was not on, nor were the sash and door frames in ; no floors were laid. The building, in this condition, was held to be erected within the meaning of the contract. Ibid. 58. Extras. A mason was employed to rebuild a court-house which had been burned down, and to make the walls as good as they were before the fire, according to plans, etc. . . . When the line of re- building specified in the plans was reached, the con- tractor required him to take down more wall to reach solid masonry. Held, contractor liable for extra work. Doulin V. Daegling, 80 111. 608. 59. A building contract provided if any changes or extras were made or called for not in the contract, their cost should be determined by supplemental con- tract. Held, that no claim for extras, except the same were specified in writing, or a waiver of that provision of the contract is shown, can be sustained. Trustees V. Piatt, 5 Brad. 567. 60. Where the plaintiff agreed to complete a build- ing for a certain sum, one half of which was to be paid him in money, and he was to take 41 shares out of 142, which represented the whole interest, held, that when the value of the building was en- hanced by certain changes in the plans, for which the plaintiff had paid nothing, he had no right to any ex- tra shares representing the enhanced value, but was entitled to receive only what he contracted for. Fox K. M. Co. V. Reeves, 68 111. 403. 61. Whether compensation for extra work done shall be at the same rate as for the work done under the con- tract, depends upon whether it is of the same character. Chicago & G. E. R. R. Co. v. Vosburg, 45 111. 311. la 146 BUILDING CONTEACTS. 62. The decision of a party passing upon the work may be impeached for fraud or mistake. 1 West. Rep. 380. In a suit for work done and materials furnished under a special contract, its stipulations govern as to the value of such work and materials, so far as they can be applied. City of Chicago v. Sexton, 3 West. Rep. 455. An agreement to furnish the iron-work for a build- ing to be erected, payment therefor to be fully made when the contract shall be wholly carried out, is an entire contract. Ibid. 63. Easements. As to Water Flowing on Land of Another. It is well settled that, if the owner of a building causes the water to flow from the roof thereof upon the ground of another, he is liable to an action for damages. Tanner v. Valentine, 75 111. 624. 64. A right to overflow land, like easements in gen- eral, may be acquired by an uninterrupted and adverse enjoyment for twenty years. Vail v. Mix, 74 111. 127. 65. As to Light. Entries, stairways, and skylights, made by the owner in fee, during unity of seizin, which are apparent and continuous, and necessary to the reasonable enjoyment of the several parts of the building, will be easements, upon severance of title, as to different parts of the building. Morrison v. King, 62 111. 30. 66. Twenty years' uninterrupted and unquestioned enjoyment of lights constitute them ancient lights, in the enjoyment of which the owner will be protected. Gerber v. Grabel, 16 111. 217. So, also, by prescription. Daniels v. The People, 21 111. 439. 67. An action for obstructing air and light to win- dows can be maintained. In such actions a general DIGEST OF LEADING DECISIONS. 147 averment of the right to the light and air through the windows will suffice. Gerber v. Grabel, 16 111. 217. 68. As to Bupport. Where a party has erected a building upon his own land, but very near the land of another, such other will not be protected in mak- ing an excavation on his own land, so as to injure the building, out of caprice or malice ; but such exca- vation must be consistent with a reasonable and legiti- mate use of the party's own property, and the right must also be exercised with reasonable skill and care in view of the character of the building and nature of the soil, so as to avoid doing unnecessary injury to the building. City of Quincy v. Jones, 76 111. 231. . . . The doctrine seems well settled that an adverse right to an easement can grow out of a mere permis- sive enjoyment for any length of time. Ibid. Qucere ? 69. The owner of a building situate upon a line or boundary of his land may acquire a right to the lat- eral support of the soil of the adjacent owner by con- tract or prescription. Ibid. 70. A prescriptive right of way over the land of an- other is acquired in twenty years. Kuhlman v. Hecht, 77 111. 570. 71. " Finished." In a contract relating to work upon a building, the phrase "when the job is finished" was held to refer to the work specified in the contract, and not to the finishing of the building. Stickney v. Cas- sell, 1 Gilm. 418. 72. Joint Contract Signed by only One of the Con- tractors. Where a contract under seal was in the handwriting of one of two joint contractors, and signed and sealed in the partnership name by the other, it was held, under a non est factum, that the deed was executed by both. Witter v. McNeil, 3 Scam. 433. 148 building conteacts. 73. Law Implies that the Peovisions of a Contract ARE Understood. The fact that a party has contracted to erect a building after certain drawings and specifi- cations imphes that he understands them ; and the law will not allow him to escape liability on the ground that he exercised ordinary care and skill to understand the same, and failed to comprehend them. Clark v. Pope, 70 111. 128. 74. Merger. Where specifications were attached to a building contract at the time of its execution, all pro- visions or contemporaneous agreements as to changes in the specifications are merged in the contract as exe- cuted. Coey V. Lehman, 79 111. 173 ; Braggs v. Geddes, &c. 93 111. 39. 75. Consideration. Where parties engaged to fur- nish materials and perform work claimed they had made a mistake of $500 in price of the same, and refused to go on and complete the contract, and there- upon the other party agreed to pay |500 in addition to the original price, under which the contractor fin- ished the work, it was held that the new and supple- mental agreement was not without consideration, but valid and binding. . . . Cooke v. Murphy, 70 111. 96. One promise is a sufficient consideration to support another. Ibid. 76. A sealed building contract may be changed by a subsequent verbal agreement to pay' an additional sum for the same. Ibid. ; Morrill v. Colehour, 82 111. 618. But the written contract remains in force as to other stipulations therein contained. Cooke v. Murphy, 70 111. 96. 77. "Machinery to be Furnished Complete in the Mill " includes not only the cost of the machinery, but the labor and material necessary to place it in proper position for use. Grove v. Miles, 58 111. 338. DIGEST OP LEADING DECISIONS. 149 78. Mutual Assistance Understood. In a contract to do the carpenters' and joiners' work on a brick building it is always iinderstood, whether the contract so provides or not, that the owner of the building shall keep the masons' work so advanced as to enable the carpenters to do their work within the specified time. Taylor v. Renn, 79 111. 181. 79. Paying. Bi/ Instalments. A contracted to build a house for B, to be paid for in instalments. Held that, on the non-payment of one of these instalments when due, A could not abandon the contract and recover the profits he might have made by completing the build- ing, where such payment was not made a condition precedent to the fulfilling of the contract by A. Co. of Christian v. Overholt, 18 111. 223. . . . Where no time is specified for the payment of materials sold, the law intends that they are to be paid for on delivery. Brady v. Anderson, 24 111. 112. 80. Quantum Meruit. A party erecting a building on the land of another under contract, for mutual occu- pation and use, may sue for breaches of the contract, but cannot seek a rescission of it, and recover the cost of the building on a qiiantmn meruit, unless there be a covenant of purchase. A reserved right to purchase does not create an obligation to do so. Toledo, Wa- bash & Western R. E. v. Depot Building Co. 63 111. 308. 81. For construction of a building contract as to measure of compensation, see 79 111. 535. 82. Work not Delivered. Building Destroyed. Where a contractor agreed to manufacture the iron-work for a house being built, and put up the same, the work to be at his own risk until the building was completed, it was held that the manufacturer did not assume the risk of the building, which was destroyed, but only his ma- 150 BUILDING CONTEACTS. terials furnished, and therefore that the destruction of the building by fire did not prevent him from his right to recover the price of the iron-work manufactured and ready to be delivered. Ranson v. Clark, 70 111. 657; Clark v. Busse, &c. 82 111. 515. 83. In an action to recover the balance of the con- tract price for building a house on the land of the defendant, a portion thereof having been paid, the de- fendant contending that the work was not done accord- ing to the contract, — held, that the plaintiff, notwith- standing he had not performed all his covenants, was entitled to recover such unpaid balance, less any dam- age resulting by reason of his neglect. Lighthall v. Colwell, 56 111. 108 ; Cong. S. of E. v. Hubble, 62 111. 161. 84. Where a person neglects or refuses to com- plete an entire building contract upon the land of another, and it would be impracticable for the employer to abandon it, he may projjerly appropriate the work, so far as it has progressed, without being subject to an action upon a quantum meruit, unless he should render himself liable by an acceptance. Eldridge v. Rowe, 4 Gilm. 91. 85. Where work or materials are accepted by a de- fendant having the right to reject them, the plaintiff will be entitled to recover for a partial performance upon a quantum meruit or quantum valebat. Ibid. 86. Surety. A contractor, having given security for the performance of his contract, ascertained that he could not complete the work, and, upon notice thereof to his surety, an agreement was made between the contractor and his surety with the owner of the build- ing, by which the owner agreed to pay such bills for materials as might be purchased by the contractor as DIGEST OF LEADING DECISIONS. 151 should be certified by the surety and the architect, upon the guaranty of the surety to reimburse him. Held, that this contract did not create any joint liabil- ity as between the contractor and the owner, and that no joint action upon it could be maintained against them for materials purchased, and that the owner had no authority, and was under no obligation, to pay any bill for materials not certified to by the surety. Kelly V. Kellogg, 79 111. 477. 87. The contract described A as principal, and B and C as sureties. Elsewhere in the contract the par- ties were spoken of as " he " and " him." The names of all three were signed, and opposite was the word " contractors." Held, A contracted, and B and C were but sureties. StuU v. Hance, 62 111. 52. 88. SuB-CoNTRACTOR. Where a sub - contractor has performed substantially all he contracted for, and be- fore the entire work is performed by the principal contractor the building is destroyed by fire, and the owner and the original contractor make a settlement in which deduction was made of the value of whatever remained unperformed on the sub-contract, the sub- contractor is entitled to recover for the work actually done by him, nothwithstanding the sub-contract was not completely performed. Clark v. Busse, &c. 82 111. 515. 89. Suspension of "Wore. Where a contract to per- form certain work provides that a suspension of the work by the employer shall give the contractor no claim for damage, etc., a suspension of the same in good faith will not relieve the contractor from his undertaking to abide by the award of an engineer as to the quantity and quality of the work done. Snell v. Brown, 71 111. 134. 152 BUILDING CONTEACTS. 90. Tender. Where a mechanic agrees to do a job of work at a stated price upon certain representations, but, upon seeing what is actually to be done, discovers the job to be of a different and more expensive charac- ter than represented, he should notify the other party of that fact before proceeding with the work. Martine V. Nelson, 51 111. 422. 91. Time. When the time of performance is made material, a failure to perform stipulations at the time agreed upon will avoid the agreement. Kemp v. Humphreys, 13 111. 573. 92. Where no time is specified for the completion of a building, the law presumes a reasonable time. Fowler V. Deakman, 84 111. 130; Driver v. Ford, 90 111. 595. 93. Unfinished Contract. A contracted to bore a hole two inches in diameter in B's land, with a provi- sion that if he should strike what is known as " con- glomerate of iron stone before he reached 300 feet," he might abandon the work, and in that event he was to receive a valuable proportion of the contract price, and by another provision, at the option of B, was to bore any number of feet not exceeding 400 feet, at the rate of $4.00 a foot : the object being to find coal, which was never found. Held, the plaintiff was at lib- erty to abandon the work on coming to the conglom- erate, no matter at what depth. Lumber v. Tullei", 88 111. 260. 94. "When the Building is Inclosed." Held to mean the main building, and not necessarily the tow- ers thereon. Snell v. Church Trustees, 58 111. 292. INDIANA. 95. Acceptance. If work done and materials fur- nished are accepted by the other party, although not DIGEST OP LEADING DECISIONS. 153 coming up to stipulations of the contract, the acceptor is answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he re- ceived. McKinney v. Springer, 3 Ind. 59 ; 4 Ind. 79 ; 5Ind. 31; 15 Ind. 261. 96. If A contracts with B to furnish materials and build a house, and accepts and uses the work done and materials furnished, he is bound to pay for them ; and if the work be not done according to the contract, its value must be determined by the jury. Becker v. Hecker, 9 Ind. 497 ; 7 Blackf 399 ; 3 Ind. 59 ; 4 Ind. 79, 591. 97. Where a complaint alleged that the defendant contracted to build walls and make the floor for a cellar to be water-tight, and that the plaintiff was to furnish the cement, and owing to the lack of skill the walls and cellar floor were not water-tight, and the answer averred that the plaintiff had accepted the work and given his note for a balance unpaid, — held, that the reply was bad. Petrie v. Grover, 39 Ind. 343. 98. A party is not, as a general rule, bound to pay for work and labor voluntarily performed, but a request for such performance may be implied. Trus- tees V. Bledsoe, 5 Ind. 133 ; Indianapolis, B. & W. Ry. V. O'Reily, 38 Ind. 140 (as to sub-contractors). 99. Alteration from Original Contract. Where a building is in process of construction under a special contract, and additions and alterations are to be made, the original contract is held to exist and be binding as far as it can be followed. McKinney v. Springer, 3 Ind. 69. 100. Extras. In an action for work and labor done and materials furnished on a building contract, in which it was expressly agreed that no allowance should 154 BUILDING CONTRACTS. be made for extra work, in order to entitle the plain- tiff to recover, the pleadings should show that the ex- tra work claimed for was expressly authorized by the owner, or that it was distinct from the building con- tracted for. Duncan et al. v. The Board, &c. 19 Ind. 154. 101. Right to Wall Support. A purchased a por- tion of a certain lot of B, giving him, in part payment, a written agreement to build thereon, within a short time, a first-class three-story brick building ; and it was agreed that one of the walls should be a party- wall, each owning one moiety thereof and giving an equivalent of ground, and that, whenever B or his assigns should use said wall by erecting a building on the lot adjoining, B or his assigns putting the joists of their building in said wall, then A to receive one half of the actual cost of building said wall. A complied with his contract, but B subsequently erected a two- story brick building, using A's wall, but did not insert his joists therein. Held, that A was entitled to recover one half of cost of the wall, as the use of the wall was the thing contracted for, and that putting in the joists was only an incident. Greenwald v. Kappes, 31 Ind. 216. 102. Surety. Any material alteration of a contract made without the consent of the surety releases him. Judah V. Zimmerman, 22 Ind. 388. 103. Unfinished Contract. A contractor who pro- ceeds without explicit notice or a new agreement to the completion of work specially contracted for, may be presumed to have done so under the special con- tract; yet if the execution of such a contract, within a limited time, is dependent upon something essential to be performed by the employer, which he neglects to perform, resulting in damages to the contractor, the latter, unless he silently assents to the delay, may hold DIGEST OP LEADING DECISIONS. 155 his employer liable for such damages, notwithstanding the contract has not been abandoned. Louisville & Nashville R. R. Co. v. Hollerbach, 3 West. Eep. 364. 104. The contract price, less any damages incurred by the defendant, is the measure of damages where performance of contract has been unreasonably delayed. Ibid. IOWA. 105. Acceptance. The fact that a party accepted a house erected upon his own land will not preclude him, in an action to recover the contract price of the work, from showing it was done in an unworkmanlike manner. Mitchell v. Wiscotta Land Co. 3 Iowa, 209. 106. A Special Contract for work must prevail un- less the departure from it has been so general as to render it impossible to connect the contract with the work. Hummer et al. v. Lockwood, 3 G. Gr. 90. 107. When a party declares upon a special con- tract, he cannot recover value of work and labor and loss of time. Precher v. Greeseka, 5 Iowa, 472. 108. Building Blown Down. The plaintiff con- tracted to do the carpenter work and furnish the material thereof Having performed all the work ex- cept certain work which was to be done after the plas- tering, the building was turned over to the defendant for the purpose of having the plastering done, and while thus in his possession the building was blown down. Held, plaintiff was entitled to recover for his work, and that the loss fell upon the defendant. Gar- retty v. Brazell, 34 Iowa, 100. 109. Delays. Where the plaintiff sued for work done pursuant to a written contract, it was error to admit evidence to show that he had sustained dam- ages in consequence of delays occasioned by the de- 156 BUILDING CONTRACTS. fendant's failing to furnish material promptly. By claiming; the benefit of the special contract and mak- ing it the gravamen of his action, the plaintiff is pre- cluded from recovering damages for delay, etc. Bush V. Chapman, 2 G. Gr. 49. 110. Easements. Right to Light. It seems not expressly decided that, if a man sells a house with windows and doors looking upon his own vacant ground, he or his grantee cannot afterwards build upon such vacant ground in such a manner as to seriously obstruct the lisrht and air of such house. This is not the law in Iowa. Morrison et al. v. Marquardt, 24 Iowa, 35. But, contra, see Myers v. Gemmel, 10 Barb. 537 ; Collier v. Pierce, 7 Gray, 18 ; Mahan v. Brown, 13 Wend. 216; Cherry v. Stem, 11 Md. 1; Haverstick V. Sipe, 33 Penn. 358. 111. Where a building is destroyed, the parties having easements thereon do not lose them. Ibid. 112. Erroneous Instruction. The court instructed the jury that if the defendants, or any of them, were at or about the house during the construction thereof, giving instructions in relation thereto, and making no objections to the manner of construction, and after the house was completed they received it, not making any objections, they cannot afterwards object to defects. Held, that the instruction was erroneous. Mitchell v. Wiscotta Land Co. 8 Iowa, 209. 113. Extras. Quantum Meruit. Under a quantum meruit count, a party may recover for materials fur- nished and work done under a special contract, whether the contract has been abandoned or has been fully performed on his part; but he will be held to the price fixed by the written contract. Mather v. Butler Co. 28 Iowa, 253. DIGEST OP LEADING DECISIONS. 157 114'. Extra work by builder desired by other party will not amount to an abandonment of the con- tract, and thereby enable the builder to recover upon a quantum meruit for all work performed, regardless of the contract price. Ibid. 115. Grading Streets, etc. Estimates by engineer. Blake v. City of Dubuque, 2 Iowa, 402 ; Crawford v. Wolf et al. 29 Iowa, 567. 116. Law Implies Good Work. Where the contract is silent, the law implies that the work is to be done in a workmanlike manner, and the fact that the price agreed to be paid was grossly inadequate will not modify the rule. Smith & Nelson v. Bristol, 33 Iowa, 24. 117. Nor would the fact, that the defendant saw the work done without objection and had benefited thereby, enable the plaintiff to recover on the contract. His remedy in such case would be on a quantum meruit for the value. Ibid. 118. Measure op Damages. In a suit on a building contract, where the defence claimed the work was done according to contract, it was held that the refusal of the court to instruct the jury that the measure of the defendant's damages would be what it would cost to procure the work necessary to be done, to make the building conform to the contract, was not erroneous. Ibid. 119. Not Amounting to a Contract. Parties entered into a contract by which the plaintiff undertook to fur- nish material and perform work for a building, agree- ably to a certain account or statement in writing. The account was a bill of prices of certain material and work, and was signed by the parties, but contained no undertaking by either, nor any stipulation of any char- acter. It was held not a contract. Eyser v. Weisger- ber, 2 Iowa, 463. 158 BTJILDING CONTEACTS. 120. Penalties. Whether a sum specified in a con- tract, as a penalty for the non-performance thereof, shall be considered as a penalty or as liquidated dam- ages, is a question of construction, in which the court will be aided by the leading cases distinguishing liqui- dated damages from penalties. Foley v. McKeegan, 4 Iowa, 1. 121. In an action on a contract, by the terms of which the parties are respectively bound in the penal sum of $500, payable by the party failing to perform his part, actual damages only, as shown in evidence, can be recovered. Lord v. Gaddis, 9 Iowa, 265. . . . Failure to complete building. Lucas v. Snyder, 2 G. Gr. 590. 122. Pkovisions must be Mutually Acceded to. Plain- tiff told defendant that, if the mortar did not become hard and make a cement in three months, he would not ask the defendant for the last payment on a build- ing contract. It was held that this would not defeat the plaintiff's action unless the proposition was acceded to by the defendant. Demoss v. Noble, 6 Iowa, 530. 123. Quantum Meruit. Where the price is not fixed in a written contract, it is proper to set forth the con- tract and seek' to recover what the services, etc., are reasonably worth. Eyser v. Weisgerber, 2 Iowa, 463. 124. The plaintiff may recover on indebitatus and assumpsit counts for work and labor under a special contract. Stewart v. Craig et al. 3 G. Gr. 502. 125. Though work is improperly performed and not within the time agreed upon, the workman may re- cover reasonable compensation, if his work is valuable to his employer. Davis v. Fish, 1 G. Gr. 406. 126. Where a frame dwelling is defectively erected, but still of substantial value to the defendant for the purpose intended, the plaintiff is entitled to compensa- DIGEST OF LEADING DECISIONS. 159 tion, to be ascertained by deducting from the price so much as the frame is worth less than it would have been if completed according to agreement. Crook- shank et al. V. Mallory, 2 G. Gr. 257. 127. Al party cannot recover upon a contract when he has failed to perform his part thereof, when the adverse party has neither waived, prevented, nor dis- pensed with such performance ; but the party may recover for services performed under such contract upon the quantum meruit, the defendant having the right to set up against the same any damages sus- tained by reason of such non-performance. McClay v. Hedge, 18 Iowa, 66 ; Pixler v. Nichols, 8 Iowa, 106. 128. If, by direction of the defendants, the plain- tiffs are prevented from performing a contract for work, they can recover for the work done in proportion to the stipulated price for the whole job. McCausland et al. V. Cresap et al. 3 G. Gr. 161. 129. If a contractor abandons his contract without the fault of the employer, he can recover what the work is reasonably worth. McClay v. Hedge, 18 Iowa, 66 ; Pixler v. Nichols, 8 Iowa, 106. 130. Salmon Bricks. A building contract providing for the use of hard and well-burnt brick is not satis- fied by the use of salmon bricks. Robertson v. King, 55 Iowa, 725. 131. Sub-Contractor, Orders to. Where the plain- tiff furnished certain materials to a sub-contractor, for which the defendant agreed to pay upon the order of the sub-contractor, held that the presentation of such order was essential to establish a liability upon the part of the defendant. Drake v. Hill, 53 Iowa, 37. 132. Time - Checks. The indorsee of time-checks, signed by a sub-contractor, but not purporting to be 160 BtriLDING CONTEACTS. the obligations of the principal contractors, cannot maintain an action against the principal contractors. Nash V. Chicago, M. & St. P. Ey. 62 Iowa, 49. 133. Void Contract. A contract that a railroad company shall not erect a depot at a certain place is void as against public policy. Williamson v. Chicago, Rock Island & Pacific R. R. Co. 53 Iowa, 126. LOUISIANA. 134. Default. In commutative contracts, he who fails to perform his part, when the other tenders per- formance, is in default, and liable for damages. Hyde V. Grisby, 11 La. 240 ; Oxward v. Locke, 13 La. 449. 135. Sub-Contractor. Where a proprietor and builder agree that plastering shall be done by A, and be paid for out of the amount due the builder, A may re- cover from the proprietor. Mcintosh v. Clannon, 1 8 La. 469. 136. Time. The contractor is not liable for delivery of a boat upon which he has worked, where no time is specified in the contract, and he is hindered and de- layed in his work by an unavoidable accident. Bailey V. Stetson et al. 1 La. An. 332. 137. Unfinished Work. Where, after partially finish- ing work under a contract, the plaintiff is dismissed b}' the defendant, who promises to have the work done, appraised, and pay accordingly, but fails to do so, the plaintiff cannot have an appraisement made unless the defendant be in default. Bradley v. Proctor, 7 La. 516. 138. Where the lessee takes possession of the prem- ises in an unfinished state, under a contract stipu- lating for their completion by a certain time, but does not notify the lessor to complete them, the latter is not responsible. Taylor v. Chase, 18 La. 88. DIGEST OP LEADING DECISIONS. 161 MAINE. 139. Acceptance. Where a person contracts with another to build a mill, the acceptance thereof, after it is finished, is a waiver of any objection to the loca- tion or to the time or manner of building. Emerson V. Coggswell, 16 Me. 77. 140. An Alteration in a Bond oe Contract, if made fraudulently, though immaterial, will avoid the instru- ment. Barret' '0. Thorndike, 1 Me. 73 ; Brackett v. Mountfort, 11 Me. 115 ; Rollins v. Bartlett, 20 Me. 319. 141. Building Railroads. Suspension of work for agreed compensation. Fowler v. K. & P. R. R. Co. 31 Me. 197. As to discontinuance of work by order of engineer, Ricker v. Fairbanks, 40 Me. 43 ; Harris v. S. & K. R. R. Co. 47 Me. 298. Monthly payment stip- ulations, Ibid. Sub-contractor's work on special con- tracts, and assignments of such contracts, Rogers v. ilogan, 58 Me. 305. As to special stipulations, right to use of the trusts, etc., P. S. & P. R. R. Co. w. G. T. R. R. Co. 63 Me. 90. 142. Easement. As to Light. If one sell a building, the light necessary to the reasonable enjoyment of it, coming across the grantor's adjoining land, goes with it as an incident to the grant; but not tkat which would be a convenience simply, without being a neces- sity. White V. Bradley, 66 Me. 254. 143. New Contract. Where A entered into a writ- ten contract to build a house, to be completed by a certain date, and did nothing on it for several years, when another written contract was made materially dilFering from the former in specifications, plans, etc., it was held that the latter contract could not be con- strued as a supplement to the former, but a new and 11 162 BUILDING CONTRACTS. independent contract, and a mechanic's lien secured upon the house could not refer back to the former. Cocheco Bank v. Berry, 52 Me. 293. 144. Outhouse, if attached to, is Part of, a Dwell- ing. The defendant conveyed a dwelling-house, which was partly finished, and gave an obligation to finish it. There was an erection one and a half story high. In the rear was a kitchen, and annexed thereto another unfinished inclosure, intended as a wash-room. It was held that this last erection was part of the dwelling- house, and that the obligation to complete the dwell- ing applied to it. Hovey v. Luce, 31 Me. 346. 145. Quantum Meruit. Where a person undertook to build a road for a certain sum, one half to be paid when the work was completed, and the other half in a year after, it was held that, after the expiration of the time, the contractor could recover on a quantum meruit for so much as was completed, making the con- tract the basis of the value. Hayden v. Madison, 7 Me. 76. 146. Strict Compliance. A part payment on the contract price of a job is not a waiver of an exact per- formance, if, when making the payment, the party did not know that thei-e was insufficiency in the work. Andrews v. Portland, 35 Me. 472. 147. Where labor is not performed strictly within the time, and according to the terms, of a contract, if it be done under the eye of one of those contracting to pay therefor, and accepted by them, this is a waiver of a strict performance, and payment must be at the contract price. Adams v. Hill, 16 Me. 215. 148. A contracted to build a school-house in a par- ticular manner, if the committee waive defects in the early stages of the building. It was held that A is DIGEST OF LEADING DECISIONS. 163 not entitled to recover vmless the subsequent work was in conformity to the contract, or accepted by the other party. Hill v. Milburn, 17 Me. 316. 149. Where a contract for building a dam provided that the wall should be laid on timber and project fifteen feet, and the slope of the bank, etc., the con- tract is complied with if it only projects thirteen feet. Mason v. Bridge, 14 Me. 468. 150. But if the contract requires that the dam shall be built the " same height and thickness and quality as the dam now standing," and the old dam had never been finished, yet the front part had been raised to the intended height, a fair construction of the contract requires that the new dam shall be as high as the front of the old one. Ibid. 151. If a person contracts to build a house in a par- ticular manner, a substantial compliance is not suffi- cient. It must be completed strictly according to the contract. Hill v. Milburn, 17 Me. 316. 152. A. contracted to build the walls of a brick house for B. by a certain day, B. to procure the joiners' work to be done, but A. to do the plastering " as soon after as the joiner shall have it ready." A. built the walls by the time specified, but B. did not complete the joiners' work for several months after. It was held that A. was excused from exact performance by the act or neglect of B. Atkinson v. Brown, 20 Me. 67. 153. The non-fulfilment by mutual consent of one item, in a contract embracing the performance of sev- eral pieces of work, will not defeat the right of a party who is not in default to require a substantial performance of the remainder of the contract. P. S. & P. E. K. Co. V. G. T. R. R. 63 Me. 90. 164 BUILDING CONTRACTS. MARYLAND. 154. Alterations after Contract. Alterations made after the original contract, with the consent of the defendant or by his order, are chargeable to him ; but he will not be liable for alterations made by a party who was jointly interested in the work, if by the contract the plaintiff was to look to each of the de- fendants pro rata. Berry v. Thompson, 6 H. & J. 89. 155. The contract specified that it was " mutually agreed that, should any alterations be made from the present design, it may be done, provided the parties beforehand agree upon price, and indorse it upon the contract ; and unless such agreement be so entered, it is to be taken to be an agreement to make the alterations without any change of price of the origi- nal contract." Held, the builder could not recover for erecting two windows not in the contract. Baltimore Cemetery Co. w. Coburn, 7 Md. 202. 156. Extra Work. " No extra charges to be made unless a written agreement be attached to the con- tract." Held, this clause protects the owner from ex- tras unless attached as specified. ... It does not affect that the extra work was ordered by the owner, provided it was on the house. . . . The law presumes the parties understood the contract. Abbott v. Gatch, 13 Md. 314. 157. Awards, and Merger of Contracts. Award does not destroy the original contract further than the award pursues and conforms with the terms of refer- ence. Walsh V. Gilmor, 3 H. & J. 383. . . . Parties contract to build a railroad, and afterwards enter into another agreement as to the same matter at another price. Held, the second contract extinguishes the first. Howard v. W. & S. R R. 1 Gill, 311. digest of leading decisions. 165 158. Builders' Interest while the Work Pro- gresses. F. contracted to build a sloop for C, C. to pay as the work progressed, and to furnish the materials. Held, that the general property passed to C. as the work advanced and was paid for, and the builder had only an interest to the extent of the work not paid for ; that he was a joint owner with C, and his interest liable to execution for his own debts ; that in case of sale C. could, by a bill in chancery, get possession of the vessel from the execution purchaser, by paying what was due under the contract. McElderry v. Flan- nagan, 1 H. & G. 308. 159. Parol after Written Contract. An addi- tional parol agreement was made after a written con- tract by which the owner was to pay the hands. Held, this parol agreement was but a means of carry- ing the written contract into effect, and was no varia- tion. Andree v. Bodman, 13 Md. 241. 160. Ninety-ninb-Year Building Leases. A mere agreement to lease for ninety-nine years, signed by only one of the parties thereto, is an inchoate in- strument, and passes no interest. Howard v. Carpen- ter, 11 Md. 259. . . . An order directing possession of land to a party, " to whom it has been leased for ninety-nine years," is not in itself an agreement to lease. Ibid. 161. Leasehold estates so far partake of realty that title to them can only be passed by deed. Bratt v. Bratt, Adm'x, 21 Md. 578. 162. Partly Completed Work. A plasterer made a parol contract to plaster five houses for $1,500, the owner to furnish the materials, and the work to proceed to mutual convenience. When the work was partly completed, and the plasterer had received f 650, he 166 BUILDING CONTRACTS. quitted work, alleging the owner did not furnish ma- terial necessary. After notice, other mechanics were called in and finished the job for $328. The plasterer filed a mechanic's lien for $850 as the balance due. Held, only |522 could be due, and the original con- tractor was liable for damages caused by the delay. Hampton v. Lewis, 49 Md. 178. 163, Paying as the Work Progresses. Held, " Pay as much money as such work shall be worth upon a reasonable valuation," meant that the party shall be paid as much money as the work is worth, and not that which the party claimant shall designate. Ramsburg v. MoCahan, 3 Gill, 341. . . . Contract to build and pay four fifths of the monthly estimates dur- ing progress of the work, etc., B. & 0. E. R. v. Res- ley, 7 Md. 297. 164. Quantum Meruit. If a mechanic, working for a contractor, is restrained from filing his claim for a lien by a promise of the owner to pay him. by which his lien against the property is lost, the owner is liable on such promise, though it be not in writing. Andree V. Bod man, 13 Md. 241. ll>5. Where workmen were employed by a con- tractor, and the latter abandoned his contract, they may cqntinue the work for the owner ; and if they do so at his request, he is liable. Ibid. 1(16. So for as work has been performed which re- mains unadjusted between the parties, the plaintiff is at large upon his quantum vieruit, and at liberty to prove the actual value of such work. Rodemer v. Hazlehurst, 9 Gill, 291. 167. Where a contract for work and labor is within the Statute of Frauds, and the services are rendered, the party may recover upon a quantum meruit, and give DIGEST OF LEADING DECISIONS. 167 in evidence the agreement as part of the res gestae. Ellicott V. Peterson, 4 Md. 476. 168. The principle of recovery upon a contract is very different from that on a quantum valebat or quantum meruit : in the latter the plaintiff can claim only what, under all the circumstances, his labor, service, or ma- terials may be worth. Coates v. Glenn et al. 5 Md. 121. 169. Where the contractor is released by consent, he can sue for the work done in assumpsit. B. & 0. R. R. Co. V. Resley, 7 Md. 297. 170. Ratification. Contract made by A with C to build a house for his wife, Mrs. A. C employed D to do the painting. C failed to fulfil his contract, and it was terminated by mutual consent. D was working about the time that C failed ; he afterwards called on A and wife, and was authorized by them to finish the painting. Held, original contract with C revived by the subsequent action of A and wife, as far as D was concerned. Jarden v. Pumphey, 36 Md. 361. 171. Time of Performance. Where a contract for work is silent as to time, the law allows a reasonable time. Coates v. Glenn et al. 5 Md. 121. The stand- ard to estimate damages, in case the owner sustains losses by the failure of the builder to complete work at time specified, is a fair rental of the property for time delayed ; speculative profits are too remote to be considered, unless clearly incidental. Abbot v. Gatch, 13 Md. 314. . . . Losses incidental to, and caused by, the breach of the contract, depend on the nature of the transaction, and, in building contracts, on the object and uses for which the structure was designed. Ibid. 172. Unfinished Buildings Destroyed by Fire, etc. The lumber of a new building was destroyed by fire 168 BUILDING CONTRACTS. after being worked upon by a carpenter wbo had a contract for the work. Held, he could not recover, although it had been agreed that the work was to be paid for as it progressed. Eichelberger v. Miller, 20 Md. 332. . . . Though the owner received the insur- ance on the lumber, the carpenter had an insurable interest only. Ibid. MASSACHUSETTS. 173. Acceptance. The effect of a verbal claim, after the acceptance from the builder and occupancy of a church by a religious society, is only evidence to pre- vent setting up such acceptance as a waiver of any claim for defects. Gray v. James, 126 Mass. 110. A Promise to Complete Work, which the promisor has contracted with a third person to perform, is a good consideration. Allen v. Leonard, 16 Gray, 202. 174. A workman who had contracted to repair a house and out-buildings for a certain sum had nearly completed the repairs on the house, and the owner had entered and occupied it, when the house and out- buildings were destroyed by fire. Held, that the work- man was excused by the fire from the completion of his contract, and entitled to recover for the repairs done on the house when the owner took possession, in an action for work done and materials furnished. Lord V. Wheeler, 1 Gray, 282 ; Cleary v. Sohier, 120 Mass. 210. 175. Evidence Held Inadmissible. A builder bought lumber of the plaintifl" to be used in erecting a house for the defendant, and gave therefor a draft di'awn on the defendant and accepted by him, " payable when house is ready for occupancy." Held, in an action brought on the draft after the house was finished, that DIGEST OP LEADING DECISIONS. 169 evidence that builder did not use the lumber in erect- ing the house and did not finish the house, and that the defendant had to finish it himself, was inadmissible. Cook V. Wolfendale, 105 Mass. 401. 176. A contract for the erection of a building pro- vided that the work should be done, in all respects, according to the plan and specifications. One clause of the specifications required " all walls to be vaulted." By the plan, the walls of the building appeared to be sixteen inches in width, without the appearance of any vault or space intended to be left in them. Held, that by the contract the walls were to be only six- teen inches, including the vault, and that parol evi- dence was inadmissible to explain the contract. Smith V. Flanders, 129 Mass. 322. 177. Extras. Where an agreement to build a wharf in a certain manner for a certain sum, and that any additions to the wall " should be paid for at a certain rate per foot, and additional dredging per cubic yard." Then followed a clause that all materials taken from the dock, etc., should be disposed of by A " within the area of the wall to a certain height," and any surplus of such material in certain places. It was held that the provision for the deposit of the excavated material extended to the enlarged as well as to the original wharf. Boynton v. Lynn Gas Light Co. 124 Mass. 197. 178. Liability for Plans not Used. A drew plans for building at B's request, and C at B's request called for and took them from A, and estimated upon them, but B concluded not to build by them. Held, that B was liable to A for drawing the plans. Kutts v. Pelby, 20 Pick. 65. 179. No Contbact. A entered into a written con- 170 BUILDING CONTRACTS. tract to erect a building for B, the contract including the roofing, and emplojed C to do the roofing. After the building was completed B took possession of it, and A gave C an order on B for the amount of his bill for roofing, which B refused to accept, saying that he preferred to wait and see how the roof proved before paying. A and B afterwards met for a settle- ment, and B complained that the roof leaked, and it was thereupon agreed between them that B should pay A all that was due him under the contract, except the amount due for roofing, and should give a due-bill for the latter amount. A gave his due-bill to C, who afterwards did some work for the purpose of making the roof satisfactory, and then sent a bill to B for the whole work, payment of which B refused. C then brought an action against B. Held, that if there was any privity of contract between B and C, it arose from the giving of the due-bill, and that the action could not be maintained. Farquhar v. Brown, 132 Mass. ,340. 180. A and B agreed under seal that B should build nine houses for A ; that after their completion A should sell four of them to B, or such person as he should direct ; the parties bidding for the choice. Subse- quently it was agreed between B and C that C should bid for and buy one of the houses for not more than $2,400. Held, that a bid by C did not constitute a contract between him and A. Carter v. Gault, 13 Pick. 531. No Recovery for Work on Unfinished Building De- stroyed BY Fire. If a person agrees to build a house for another at a stipulated price, and the building be destroyed by fire before its completion, no recovery can be had for labor or materials supplied. Adams v. Nichols, 19 Pick. 279 ; Lord v. Wheeler, 1 Gray, 282 ; Cleary v. Sohier, 120 Mass. 210. DIGEST OF LEADING DECISIONS. 171 181. Of What a Building Consists. A written con- tract to build a brick dwelling-house " of the same depth back and front the street, and of equal quality, both as to material and finish, with F.'s house " on the adjoining lot, obliges the contractor to build a wooden shed or kitchen in the rear, if there is such an erection behind F.'s house. Eicker v. Cutter, 8 Gray, 248. 182. Paying when Completed. A written order for the delivery of lumber to be used in building the house of the drawer, and which he promises to pay for " when the house is completed," becomes due when the house is substantially finished by any one, although the drawee knew that the person to whom the order requested him to deliver the lumber was building the house under a contract, and it is not completed accord- ing to the terms of the contract. Eussell «. Barry, 115 Mass. 300. 183. See, to same effect, where house was sold and completed by the purchaser, Bobbins w. Blodgett, 124 Mass. 278. 184. See, also, where A was to build a block of houses for B for a sum to be paid in instalments, as to payment of last instalment, orders, etc., Jackman v. Bowker, 4 Met. 235. 185. Quantum Meruit. The unauthorized addition of a seal to a contract will not defeat the plaintiff's right to recover on a quantum meruit, where he has done work under the contract, which he has abandoned jus- tifiably. Cook V. Gray, 133 Mass. 106. 186. If a plaintiff, after doing work under a w-ritten contract has the right to avoid or rescind the contract, he may recover quantum meruit. Simmons v. Lawrence, etc. 133 Mass. 298; Ford v. Burchard, 130 Mass. 424. 172 BUILDING CONTEACTS. 187. A person who contracts to do a certain piece of work, and voluntarily leaves it unfinished without good cause, cannot recover anything for his work. Faxton v. Mansfield, "J Mass. 147; 7 Pick. 185; 19 Pick. 529. 188. Quantum Meruit. Faulty Work. If one under- takes to build a bridge in a particular manner, but builds it so unfaithfully that it falls in a short time and is of no benefit to the defendant, the latter is not liable for any part of the work if it was not accepted by him. Taft v. Montague, 14 Mass. 282. 189. Generally, if a building contract is not exactly performed according to all the specifications, but is executed in good faith substantially like agreement, or if exact compliance is waived, the plainJ^ifF may recover what the work and labor is really worth to the defendant, not exceeding the contract price. Hay- ward V. Leonard, 7 Pick. 187; Smith «. Lowell M. H. 8 Pick. 181 ; Phelps v. Sheldon, 13 Pick. 50 ; CuUen v. Sears, 112 Mass. 299; 109 Mass. 192. 190. Or, as said in Hayward v. Leonard, 7 Pick. 187, the plaintiff may recover the contract price, deducting as much as the work is worth less on account of de- parture from the contract. See Gleeson v. Smith, 9 dush. 484; Veazie v. Hosmer, 11 Gray, 396 ; Clark v. Russel, 110 Mass. 133. 191. Work performed according to a special con- tract, after the contract has, as the workman contends, been terminated by his employer, cannot be recovered for on quantum meruit without proof of a new engage- ment. Hyland v. Giddings, 11 Gray, 232. 192. When complete performance of labor on a con- tract under seal is prevented by defendant, the plain- tiff may recover on a quantum meruit, although, by the DIGEST OF LEADING DECISIONS. 173 terms of contract, part payment was to be made in the larid. Bassett v. Sanborn, 9 Cush. 58. 193. In an action upon a quantum meruit for services rendered to another upon his express request, the com- pensation is to be determined from value of the ser- vices, and not the amount of benefit which the person requesting them receives. Stowe v. Buttrick, 125 Mass. 449. 1 94. Special Provisions. A agreed by indenture to advance money to B for building and completing a house on B's land, and B agreed to build the house and furnish the labor and materials, and upon delivery of a deed to repay to A all his advance, and with in- terest in cash or by a note, and to pay a certain price for the land. Held, that the agreement to deliver the deed and to pay money were mutual and dependent stipulations, and B could not, four years after the com- pletion of the contract, and two years and a half, after A's death, elect to pay by note secured by mortgage, but that, upon payment of the money according to the contract, he was entitled to specific performance. Phil- lips V. Soule, 9 Gray, 233. 195. It was agreed that L., in payment for one of eleven houses, should furnish marble-work for all the houses, and that M. should have the house sold to L. completed by a certain day. Held, that the perform- ance by M. of his agreement was not a condition precedent to the performance by L. of his, and that non-performance by M. was not a groand of defence by him against L., but only ground for a cross-action by L. Leighton v. Meserve, ll7 Mass. 50. 196. By a written contract, C. agreed " to build for W., six machines " for a fixed sum " each," and as fast as finished to place them for sale, and out of the pro- 174 BUILDING CONTRACTS. ceeds pay himself for the cost of building the same, " and pay W. the balance of the funds." It was held that C. was not bound to settle for the proceeds of each machine separately, leaving unpaid his worlc and expenses on the other; and that although W. might treat the contract as executed, and recover any balance existing in his favor, yet, in computing such balance, C. was entitled to reimbursement for the cost of building the unsold machine. Weld v. Clogston, 98 Mass. 147. 197. Where A made a written conti'act to build two ... for a city, in a thorough, skilful, and work- manlike manner, satisfactory to a committee, . . . and to execute the work under their general direction, and to complete the work as rapidly, etc., as could be done, it was held that such general direction and su- perintendence were not limited to the quality of the materials and the manner of doing the work, but also extended to the time of doing the same. Chapman V. Lowell, 4 Cush. 378. 198. A building contract contained a stipulation that the builder should have the buildino; finished in two months, and also provided that, if the building should be completed befoi-e the time, the builder should be paid for the time anticipated at a specified rate ; and that, if the building should not be finished at the time, the builder should allow for the time extended at the same rate : it was held that the latter clause controlled the former, and by necessary implication ah'owed a reasonable time beyond the two months for the finish- ing of the building upon paying or allowing liquidated damages for the delay. Folsom v. McDonough, 6 Cush. 208. 199. As to a contract to deliver materials for build- ing a bridge according to specifications, etc., at a spe- cified time, see Lowell v. Allen, 14 Allen, 130. DIGEST OF LEADING DECISIONS. 175 As to following plans and specifications under archi- tect's directions in contract for a public building, see Stuart V. Cambridge, 125 Mass. 102. 200. In an action to recover for building a barn under a contract, an auditor, to whom the case was referred, found that the contract " was substantially performed, except the hanging of the large doors." It was held that the court could not say on this finding that, as a matter of law, the contract was not substan- tially performed. Eose v. O'Riley, 111 Mass. 57. 201. A party to a written agreement for building a house, the plan of which is subsequently altered by oral consent at his suggestion, so as to postpone the work without fixing any time for its completion, can-- not afterwards object to its not having been completed as originally agreed upon. Palmer v. Stockwell, 9 Gray, 237. 202. Time. One who has contracted with a town for the erection of a building within a certain time, may recover damages for an unreasonable omission to fix the site of the building. Blanchard v. Blackstone, 102 Mass. 343. But if a person contracts to build on a place to be designated by the town committee, and the committee appoint a certain site, they can change the spot so designated by paying the builder for any extra labor incurred by him, in having taken materials, etc., to the first-named place. Damon v. Granby, 2 Pick. 345. 203. When Walls are Completed. A subscription to build a medical college, j^ayable one third when the walls should be completed, is payable when the walls are so far completed as to receive the roof, al- though not then covered with mastic according to the complete design of the building. Worcester Med. Inst. V. Harding, 11 Cush. 285. 176 BUILDING CONTRACTS. MICHIGAN. 204. Quantum Meruit. The basis of recovery in cases where a party fails to substantially comply with an agreement is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing. Allen V. McKibbin, 5 Mich. 449. 205. The party cannot in any case recover more than the contract price on a quantum meruit, and cannot recover that if his work (on an unfinished contract) is not reasonably worth it, or if by paying it the rest of the work will cost the defendant more than if the whole had been completed under the contract. Ibid. 206. Time. Where no time is specified in the con- tract for its performance, the law implies a reasonable time. Strange v. Wilson, 17 Mich. 342. 207. Unfinished Building Burned. One cannot re- cover for work done and materials furnished under a non-apportionable contract to put up an addition to an existing building for a fixed sum, where the house and the partially constructed addition burned, without the fault of either party, before the contract was fully performed, and before any part of the work had been accepted, or in any way appropriated, by the owner of the main building. Tilden v. Besley, 42 Mich. 100. MINNESOTA. 208. Contract to Bore Wells. A contract to bore and finish five wells for a certain party, containing a stipulation that, in case of failure to get a good supply of water, plaintiff should have " no pay," is severable, and the plaintiff is entitled to recover for the comple- tion of some of the wells according to the specifica- tions. Spear v. Snider, 29 Minn. 463. DIGEST 03? LEADING DECISIONS. 177 209. Decision of Third Person. Where an owner and a contractor agree that a certain person shall de- termine when the work is completed, the bond fide decision of such person is binding. Trainor v. Wou- man, 24 N. W. Rep. 297. 210. Party Wall. Easement acquired by special contract right to assign damages, etc. Mackey et al. V. Harmon et al. 24 N. W. Rep. 702. 211. Time op Performance. In case of an agreement to deliver materials for the performance of work con- tracted to be completed by a certain day, in which no time of delivery is specified, delivery must be made within a reasonable time. Palmer v. Breen, 24 N. W. Rep. 322. MISSISSIPPI. 212. Quantum Meruit. When a contract is made by which one party agrees to do certain work for the other, and to furnish the requisite lumber for a stipu- lated price to be paid on completion of the work, he cannot abandon it before it is finished and recover for what has been done. He cannot recover on the spe- cial contract, because he has not complied with it : or on the common count, because there is a special con- tract. But if the other party afterwards use any of the materials so furnished, he will be liable for their fair value. Morton v. Read, 2 S. & M. 585. 213. W. employed L. to erect a mill for him at a certain price, knowing at the time that objections would be raised to the erection of the work as a nuisance. After L. had completed part of the work, its further progress was arrested by an injunction. Held that L. was entitled upon quantum meruit for the work he had done. Whitefield v. Zellnor, 2 Cushman, 663. 214. A contracted with B to furnish for him mate- 12 178 BUILDING CONTRACTS. rials, and do certain brickwork. B represented the bricks, mortar, etc., as of bad quality, but agreed to do the work as well as it could be done with such mate- rials. A was often present during the progress of the work, and examined the materials and condition of the work. After its completion, the work was left exposed to the weather for six months, and it became then worthless. Held, B entitled to recover for the work and materials. Collins v. Money, 4 Howard, 11. MISSOUKI. 215. Acceptance. The use of a building which haa been partially erected, though for the purpose for which it was intended, is not an acceptance of the work or any part thereof; the duty to pass upon the work does not arise until its completion. Yeats v. Bal- lentine, 56 Mo. 530 ; Haysler v. Owen, 61 Mo. 270. 216. Architect's Powers. The written building con- tract, accompanied by specifications, may define the Buperintending architect's powers. Ahem v. Boyce, 2 West. Rep. 405. 217. Delays Caused by Interference with Contractor. If a contractor is prevented from completing his job by the unwarranted acts and defaults of the other party, he may sue upon the contract and claim dam- ages, or he may waive the contract and sue for what his work is reasonably worth: he is not restricted to a pro rata share of the contract price. McCuUough V. Baker, 47 Mo. 401; Fitzgerald v. Hayward, 50 Mo. 516. 218. Evidence. It is error to allow a witness who had merely looked at the outside of the building, and who had taken no measurements, and who knew noth- ing as to how the building was finished inside, to give DIGEST OP LEADING DECISIONS. ' 179 an opinion as to the value of the house. Murphy v. Murphy, 4 West. Rep. 278. 219. Implied Warranty. Where a party contracted to build a bridge, and bound himself to keep it in repair for a term of three years, he is not liable to rebuild if the bridge is destroyed by fire. Livingston Co. V. Graves, 32 Mo. 479. 220. Measure of Damages for Breach. On breach of a contract to construct a building, the owner is en- titled to recover as damages the value of the use of the building during the time he is so deprived of its use. McConey v. Wallace (Mo. App.) 4 West. Rep. 843, 846. 221. No Consideration. A contracted with B to build him a boat. After the work was completed, A promised B that, if he would deliver him possession of the boat, he would pay off the men who had been working upon it. Held, that the workmen could not maintain an action, there being no consideration for the promise. Jones v. Miller, 12 Mo. 408. But see Carr v. Carr, 34 Mo. 513. 222. Party Wall. An agreement made between adjoining owners in relation to a party wall erected on the division line of their lots is binding on the parties, and creates an equitable charge and easement. Keat- ing V. Korfhage, 4 West. Rep. 569. 223. Quantum Meruit. Action of assumpsit is not the proper one for recovery upon a covenant to erect a house, when the progress of building is interfered with by the defendant. Clendennen v. Paulset, 3 Mo. 230. A party cannot waive the contract and sue upon a quantum meruit. Chambers v. King, 8 Mo. 517. See Labeanne v. Hill, 1 Mo. 42 ; Little v. Mercer, 9 Mo. 216. 224. But he may recover the price of extra work 180 BUILDING CONTEACTS. not embraced in the special contract. Chambers v. King, 8 Mo. 517; Powell v. Buckley, 13 Mo. 317. So if the work is accepted and valuable to the employer. Dutro «. Walter, 31 Mo. 516; Thompson v. Allsman, 7 Mo. 530. See 26 Mo. 102. A reasonable amount, quantum meruit, will be allowed where services are ren- dered independent of contract. Crole v. Thomas, 19 Mo. 70 ; Dougherty v. Whitehead, 31 Mo. 255; Rose v. Spies, 44 Mo. 20. 225. A contract to build a house implies an obliga- tion to pay for the work and materials used in its construction. Krey v. Hussman, 4 West. Rep. 261. 226. A contractor prevented from completing his job may waive his action for damages, and sue for the value of the work done and materials furnished, and is not restricted to & pro rata share of the contract price. Ehrlich v. Minn Life Ins. Co. 4 West. Rep. 40. 227. After a breach of a building contract by the contractor, he may recover the i^easonable value of his work, not exceeding the contract price, less the dam- age sustained by the owner by reason of the breach. Ahern v. Boyce, 2 West. Rep. 405. 228. After a breach by the owner, the contractor may recover the reasonable value of the woi'k done, regardless of the contract, or he may recover the dam- ages done him by the breach. Ibid. 229. Tlie reasonable value of work done cannot be shown by proof of the reasonable value of the work which is left undone. Ibid. 230. The superintendent of work under a building contract cannot waive a provision of the contract that, before any extra work shall be done, the contractor and the superintendent shall agree thereto in writing. Ibid. DIGEST OB" LEADING DECISIONS. 181 231. Quantum Meruit cannot be maintained where there is an express contract as to services and price. But the reasonable value of services rendered may be recovered upon proof of an express contract. Crump V. Rebstock, 2 West. Rep. 411. 232. An entire contract to build a hous6 will not give right of recovery for work actually done, on de- struction of a partially completed building by fire or other inevitable accident. Hayes et al. v. 2d Baptist Church, 3 West. Rep. 830. But he who performs work upon a building in occupation by another is en- titled to pay up to the time of the fire. Ibid. 233. An extension of time to complete a contract, and partial alteration in the work to be done, do not authorize the contractor to abandon the contract and sue for the value of the work. Ibid. 234. Where there is a special contract for material or work, before the contractor can recover on the con- tract, he must show a substantial compliance with its terms and conditions in every essential particular ; yet ■where the services rendered by him are of some value to his employer, he may recover what they are reason- ably worth after deducting any damages resulting from the breach. Austin v. Keating, 3 West. Rep. 288. 235. Reasonable Time is inferred. Salisbury v. Renick, 44 Mo. 554. 236. Several Persons engaged in building are all liable for materials furnished therefor, though it was agreed between the owners themselves that each should build a particular part. Saltmarsh v. Rowe, 10 Mo. 38. Nebraska. 237. Lack of Skill. Where a contractor agrees to erect a building in a certain manner, he must comply 182 BTJILDIKG CONTEACTS. with his agreement, and no plea of lack of skill of himself, or any of his workmen or subcontractors, will constitute a defence for a fliilure to comply with the contract. Sherman v. Bates, 15 Neb. 18. 238. Time. Where a time is fixed in which certain work is to be done, it is not in general so far of the substance of the contract that if the work is done, but not until some days later, no compensation can be re- covered. In such case an action for the price will be sustained, leaving the defendant to show any injury he may have sustained by the delay. Homan v. Steele, 26 N. W. Eep. 472. NEW HAMPSHIRE. 239. Quantum Meruit. If in erecting a building the plaintiff deviate from the contract, and the defendant, having notice, acquiesce in the plaintiff's proceeding with the work, he will be liable for the value of the building in a quantum meruit. Bailey v. Woods, 17 N. H. 365. 240. Eeasonable Time Presu]med. When no time is specified for the performance of a condition, it is to be performed within a reasonable time. Tyler v. Webster, 43 N. H. 147 ; Doe v. Thompson, 22 N. H. 218 ; Morse tt. Bellows, 7 N. H. 549. 241. Right to the Property. If one contracts to build a house for another, and procures blinds and fits them to the windows, and then takes them off and paints them accoi-ding to his contract, the blinds while thus in the contractor's hands are his property and liable for his debts. Manchester Mills v. Eundlett, 23 N. H. 271. 242. If a tenant, having the consent of the lessor to erect a stable and shed, and make other needful and DIGEST OP LEADING DECISIONS. 183 proper repairs within a certain limit, make repairs, but does not erect the buildings specified, the estimated expense of such buildings must be deducted from the amount claimed for the repairs made. Batchelder v. Dean, 20 N. H. 467. 243. Special Stipulations. Where it is stipulated that one party shall do the work, the other finding materials, there is an implied agreement that the ma- terials shall be seasonably furnished. Smith v. Boston, C. & M. R. R. 36 N. H. 458. So where it is agreed that work shall be done under superintendence of the other party's engineer, there is an implied agreement that a suitable engineer will be employed, etc. Ibid. NEW JERSEY. 244. Alterations, by Architect's Orders. Where a person employs an architect to prepare working draw- ings for a house, and the architect changes the plan, if the owner directs the work to be altered to conform to the original plan, he must pay the carpenter for such alteration. Guerin v. Rodwell, 8 Vr. 71. 245. Approval op Work. Where a contract under which work is done provides for the approval by a third party, no right to money earned or cause of action accrues until that party's certificate is pro- cured, Kirtland v. Moore, 1 Cent. Rep. 466. 246. The certificate of a superintendent, surveyor, or architect, who by the contract for any work is to superintend its performance, and whose approval is required before any payment is due, cannot dispense with the performance of any substantial part of the contract, but may be binding as to the fact whether the work certified to was done in a workmanlike man- ner, or of proper materials of the kind required. But 184 BUILDING CONTEACTS. such certificate would not make building a brick house a compliance with a contract to build one of marble. Nor would the fact that a house built of brick is sub- stantially and for service as good or better than one of marble make such a building a performance of the contract, upon being certified to be so. Bond v. New- ark, 4 C. E. Gr. 376. 247. The certificate of a street commissioner, who by the contract was to superintend the work, that certain work done for the city had been done accord- ing to the contract, does not dispense with the per- formance of any substantial part thereof Ibid. 248. Bay- Window Projection. The erection of a bay-window one story high, built up from the founda- tion, is a breach of a covenant to place the front wall of a house twelve feet from the line of the street. Kirkpatrick v. Peshine, &c. 9 C. E. Gr. 206. 249. Defective Work. Of Former Contractor. Where a contractor undertakes to finish a tunnel abandoned by a former contractor, erroneous work done by the former cannot be estimated for the benefit of the lat- ter. Seymour v. Long Dock Co. 5 C. E. Gr. 396. 250. Where a house is badly built in consequence of the joint neglect of the architect and contractor, a suit founded on such neglect can be brousrht against the architect alone. Newman v. Fowler, 8 Vr. 89. 251. Entire Contract. Where a building contract is entire, the work cannot be considered done, nor the materials furnished, until the contract is executed ; and a lien can be filed at any time within one j'ear from the time the work was finished. Edwards v. Derrick- son, 4 Dutch. 39; Derrickson v. Edwards, 5 Dutch. 468. 252. Where a contract is made to build and com- DIGEST OP LEADING DECISIONS. 185 plete a building and find materials for a certain entire price, payable as the work progresses, the contract is entire ; and if the building be blown down by a gale of wind, or fall through a latent defect in the ground, the owner may recover the instalments he has paid. School Trustees v. Bennett, 3 Dutch. 513. 253. Excuse for Failure to Perform. Where a plaintiff agreed to superintend certain works for a cer- tain time at a fixed price, and was prevented from filling his contract by a broken limb, — held, that he could recover payment in proportion to the rate agreed upon for the whole. Hargrave v. Conroy, 4 C. E. Gr. 281. 254. Where a contractor agreed to do work under the supervision of an engineer, if his measurements and calculations were not correct, so that extra work is rendered necessary, the loss ought not to fall upon the contractor, but upon the company whose agent the engineer is. Seymour v. Long Dock Co. 5 C. E. Gr. 396. 255. Extras. Pay for extra work will be allowed in all cases where it was necessary to the prosecution of the undertaking. 256. Liability of Owner. Mow fixed. Where a building contract is filed under the Mechanics' Lien Law, an order by the contractor on the owner of the building, for money due under the contract, fixes the liability of the owner when notified thereof Fell v. McManus, 1 Cent. Rep. 678. 257. Loss Caused by Defective Soil Falls on Con- tractor. If a person contracts with the owner of a lot to build and complete a building, and by reason of a latent defect in the soil it falls, the contractor is the loser. School Trustees v. Bennett, 3 Dutch. 513. 186 BUILDING CONTRACTS. 258. Penalties. The specified penal sums for the plaintiflf's refusal or non-performance of work, being in the nature of liquidated damages, may be set up against his claim on quantum meruit. Marshall v. Hann, 2 Harr. 425. 259. Voluntary Services. Where a person renders services relying solely upon the generosity of the re- cipient thereof, and expecting to be compensated by a legacy, he cannot maintain an action at law for the value of his services. Grandin v. Reading, 2 Stock. 370. 260. Where services are rendered in an employment not different from that for which the plaintiff was en- gaged, but more burdensome by reason of the em- ployer's illness, no recovery can be had. Voorhees v. Combs, 4 Vr. 494. NEW YORK. 261. Acceptance. Where a contractor for building a house fails to complete his contract in a material point, the owner does not waive performance by tak- ing possession of and using the building. Reed v. The Board, &c. 3 Keyes, 105; S. C. 4 Abb. Pr. 24; Wells V. Selwood, 61 Barb. 239. 262. A contractor building a vessel at a fixed price cannot recover for extra work merely on proof that it was done at the defendant's request, and that the lat- ter accepted the work when completed ; such request is m-erely notice of a claim that the contract calls for such work. Collyer v. Collins, 17 Abb. Pr. 467. 263. By Architect. Where a building is erected under the supervision of an architect, his acceptance of a different class of work than that contracted for will not bind the owner. Glacius v. Black, 50 N. Y. DIGEST OF LEADING DECISIONS. 187 145 ; Johnson v. De Peyster, 50 N. Y. 666 ; 4 Barb. 614 ; 35 Barb. 602. 264. Where a contract for work and labor requires a certificate of the performance of the worK to be given by some officer, to entitle the contractor to a stipulated payment, the giving of such certificate is a condition precedent to a right of action on the con- tract ; but in the absence of fraud or mistake such cer- tificate is conclusive upon the parties. Adams v. New York, 4 Doer, 295; 44 N. Y. 143; 50 N. Y. 145; 11 Abb. Pr. N. S. 378; 1 Hilt. 388. 265. Upon breach of a building contract by the owner preventing its completion, an architect's certifi- cate to be thereafter obtained becomes unnecessary. Hall v. Bennett, 48 Super. Ct. (J. & Sp.) 302. 266. Where a contract was for a building to be com- pleted on a certain date, payment to be made after completion, upon certificate of satisfaction of architect, and with clause for arbitration : held, evidence of per- formance prevented by defendant, and oral agreement to accept at a later date, properly submitted to jury, to entitle to recover without such certificate, and failure of both parties to invoke arbitration rendered clause immaterial. Smith v. Aker, 2 Cent. Rep. 904. 267. Consideration. An agreement that if the trustees of a literary institution will go on and com- plete a building in course of erection, the defendant will pay a sura of money for a certain number of shares, is founded upon a good consideration. Rich- mondville U. Sem. v. Brownell, 37 Barb. 535. 268. A subscription to the building of a church, on the faith of which, and of the party's subsequent promise to pay, the building is erected, is a binding contract, and the church when incorporated can main- 188 BUILDING CONTRACTS. tain an action. Dutch Church ». Brown, 29 Barb. 335; S. C. 17 How. Pr. 287 ; 4 Abb. Pr. 31 ; 12 N. Y. 18 ; 48 How. Pr. 414. 269. Defective Work. Where a builder agrees to remedy defects, but the owner corrects the same after acceptance, without giving the builder notice or op- portunity to make the repairs, the latter is not liable to the expense of said repairs. Mansfield v. Beard, 82 N. Y. 60. 270. A builder having failed to perfect his contract, owing to slight defects in the work, may recover the contract price, less the damage on account of such defects. Nolan v. Whitney, 88 N. Y. 648 ; 12 Week. Dig. 421 ; Woodward v. Fuller, 8 N. Y. 312. But not if the defects run thronghthe whole work, or be so essen- tial as to hinder the primary object of the employer. Ibid. 271. Joint Liability of all Employers. If an architect renders services on the joint retainer of two persons, an action can be brought against them jointly^ though no partnership exist between them. Beach v. Raymond, 2 E. D. Smith, 496. 272. Letting out Contracts. For public proposals and contracts containing peculiar stipulations as to al- terations, certificate of engineer superintending the work, etc., see Dec. of Ct. of Appeals, Swift v. State of N. Y. 89 N. Y. 52, reversing 26 Hun, 508. 273. Old Buildings belong to the Contractor. When a building contract makes no reference to the old structures standing upon the land, the materials therein belong to the contractor, and the owner is not entitled to an allowance for the value thereof, to be deducted from the contract price. Morgan v. Stevens, 6 Abb. N. C. 356. DIGEST OF LEADING- DECISIONS, 189 274. Party Wall. An agreement by which one of two adjoining land-owners is to build a party wall, one half on the land of each, and the owners to share expense, does not create an interest in land within the meaning of the Statute of Frauds, and is, when per- formed by one of the parties, binding upon the other. Lower v. Winters, 7 Cow. 263 ; 5 Johns. 272 ; 37 N. Y. 106 ; 3 E. D. Smith, 111 ; 1 Duer, 412. 275. Quantum Meeuit. The contract price is the measure of compensation where the plaintiff is pre- vented from completing work under a special contract. Koon V. Greenman, 7 Wend. 121. 276. A claim for services rendered, under a written contract, may be recovered on a quantum meruit, though not literally performed on the part of the agent. Mc- Intyre v. Morris, 14 Wend. 90 ; Arrowsmith v. Catlin, Anth. N. P. 327. 277. A contractor can recover nothing beyond his contract price, notwithstanding an unexpected diffi- culty in the performance of the work. Sherman v. New York, 1 N. Y 316 ; Devlin v. New York, 4 Duer, 337. 278. Where full performance is prevented by sick- ness, etc., party can recover on quantum meruit for what has been done. Foley v. North, 19 Barb. 341. And he may recover the full price where completion of the work becomes impossible. Jones v. Judd, 4 N. Y. 412. 279. Where the parties to a special contract have treated it as rescinded, a compensation for work not embraced in it may be recovered on a quantum meruit. Du Bois V. Delaware & Hudson Canal Co. 12 Wend. 234. 280. Where the parties to a building contract have waived a performance of it within the time specified 190 BUILDING CONTEACTS. therein, the builder cannot abandon the contract, and recover on a quantum meruit for work done, until he has first demanded a performance on the part of the owner, and the latter has failed to perform within a reasonable time thereafter. Lawson v. Hogan, 93 N. Y. 39 ; Newton v. Wales, 3 Rob. 453. 281. That services have not been performed strictly according to contract does not prevent the recovery on a quantum meruit, with a deduction for any injury sustained by the plaintiff's default. Payne v. Hodge, 7 Hun, 612; S. C. 71 N. Y. 598. ^2-^ J ^^7 282. Special Contract. A provision in a building contract giving the owner a right, upon the contractor's neglect to furnish a sufficiency of materials or work- men, to provide them "after three days' notice in writing," held to control and limit a provision in the specifications that as many workmen should be em- ployed as should be approved by the architect, and authorizing the superintendent at his option to con- tinue the work. The right of the owner to proceed depended upon giving the contractor the prescribed notice. Hall v. Bennett (1882), 48 Super. Ct. (J. & Sp.) 302. 283. Where a builder failed to perform certain con- ditions in oral contract for construction of a building, but the land-owner consented that he should proceed and supply omissions, and after partial performance of the second agreement, the land-owner refused the con- tractor permission to proceed, — held, he could recover under the original contract. Fallon v. Lawler, 3 Cent. Rep. 45. 284. A contract between the owners of the lots fronting on a certain street, that the dwelling-houses to be erected thereon shall recede a certain distance DIGEST OP LEADING DECISIONS. 191 from the line of the street, does not inckide a corner lot fronting on another street. Clark v. N. Y. Life Ins. Co. 64 N. Y. 33, reversing S. C. 7 Lans. 32li. 285. Intricate building contract construed, and the rights of the parties thereunder determined. Ct. App. 1881, Kidd V. McCormick, 11 Week. Dig. 460; S. C. 83 N. Y. 391. 286. Substantial Performance. An extension of the time of performance is not equivalent to perform- ance ; to recover the contract price, the party must show performance of the modified contract. Wallman t). Society, &c. 45 N. Y. 485. 287. A substantial performance of a building con- tract must be shown when payment is demanded ; but unimportant omissions or defects, which are technical and inadvertent, will not bar recovery. Glacius v. Black, 60 N. Y. 145 ; Johnson v. De Peyster, 50 N. Y. 666 ; 4 Barb. 614 ; 35 Barb. 602. 288. Where a building contract contained a provi- sion that the work is to conform to the plans and speci- fications, a copy of which is stated to be annexed thereto, actual annexation is not a condition on which the validity of the agreement depends, the original being constructively a part of the agreement. Cook V. Allen, 67 N. Y. 578 ; 91 N. Y. 153. 289. Where a building contract has been substan- tially performed, the builder may recover thereon, al- though the architect has refused to give him the cer- tificate made by the contract a prerequisite to pay- ment. Nolan V. Whitney, 88 N. Y. 648. 290. The performance of a building contract need not in all cases be literal and exact in order to entitle the builder to compensation. If the contract is sub- stantially performed he may recover for his work, not- 192 BUILDING CONTEACTS. withstanding trivial defects in performance, for which compensation may be made to the other party. Smith V. Brady, 17 N. Y. 173; Nolan v. Whitney, 88 N. Y. 648 ; Glacius v. Black, 50 N. Y. 145. 291. A literal performance of a bnilding contract in every detail is not a condition precedent to the right of the builder to require payment. Ct. App. 1880, Heckman v. Pinkney, 81 N. Y. 211. 292. Time of Performance. Where an employer directs a departure from the specification of a contract, it relieves the contractor from the obligation to per- form within the time specified ; his obligation is then to complete the work within a reasonable time. Green V. Haines, 1 Hilt. 254. See Van Buskirk v. Stone, 42 Barb. 9 ; Doyle v. Halpin, IJ. & Sp. 352. 293. A contract for the erection of a structure, re- quiring contractor to begin work within five days after notice from employer's engineer that the foundations were ready, implies an obligation on the emploj-er's part to prepare foundations before giving notice ; and failure to have foundations ready at time of such, no- tice gives contractor a right of action for the result- ing damages, which is not waived by beginning work under protest at the request of the engineer. Mans- field V. N. Y C. & H. R R. R. Co. 3 Cent. Rep. 199. 294. A building contract provided that the con- tractors should begin work within five days after notice that the foundations were ready, and that they should have $500 a day for each day after completion of the work before the expiration of five months after the work was begun. This provision was construed as not entitling the contractors, who began work when the notice was given, although only a portion of the foun- dation was ready, to claim the stipulated sum for the DIGEST OF LEADING DECISIONS. 193 time between the completion of the work, and the expiration of five months after the foundations were completed. Super. Ct. 1882, Mansfield v. N. Y. Cent. R. R Co. 16 Weekly Dig. 272. 295. The rule is well settled, that where the work to be performed by a builder cannot be performed until other work provided to be done by the owner or his employees is finished, the failure of the latter to complete their work in season to enable the builder to end his within the time limited by the contract is a sufficient excuse for his delay beyond the agreed pe- riod of completion. Stewart, &c. v. Keteltas, 36 N. Y. 388, Ct. of Appeals, 1882; Weeks v. Little, 11 Abb. N. C. 416. 296. The fact that some work was delayed by the builder, which was not affected by the employer's delay, does not alter the result, unless it be proved that there would have been delay in such indepen- dent work if the builder had not been hindered. Ibid. 297. The contractor can gain nothing by haste and pressure in one direction so long as an entire comple- tion be delayed by his employers, and the court can- not divide and apportion the fault Ibid. 298. After the parties to a building contract have waived performance within the time stipulated, and have gone on with the work, neither can abandon it without giving notice, and affording the other party a reasonable time to perform. N. Y. C. P. 1881, Lawson V. Hogan, 93 N. Y. 39. 299. Unfinished Buildings Destroyed by Fire. If the plaintiff undertake to perform certain work upon the house of the defendant, and at a stipulated price, and before the work is completed it is destroyed by fire, he is not entitled to recover for part performance. 13 194 BUILDING CONTRACTS. Nible V. Busse, 1 Keyes, 476; S. C. 3 Abb. Dec. 375; Tyng V. Fields, 3 Hun, 75. 300. If a contractor for building a house has sub- stantially performed his contract, but has not com- pletely finished the building, nor delivered it, when it is destroyed by fire, he is liable to refund the money advanced, and to damages for non-performance. Thomp- kins V. Dudley, 25 N. Y. 272. 301. Where the defendant, having agreed to pay the plaintiff for building-stone when the work on the buildings had reached a certain stage, stopped work and sold the buildings before the work had reached that point: held, that having put it out of his power to complete the buildings, defendant was liable at once for the stone furnished. Wright v. Hawks, N. Y. Daily Reg. Dec. 23, 1883 ; Gallagher v. Nichols, 60 N. Y. 638, 648. OHIO. 302. Acceptance. In the absence of other testimony the fact that payments were made as designated por- tions of the work were completed would justify the presumption either that the portions thus paid for were accepted, or that such payments were implied waivers of the right to object to the portions of the work upon which the payments were so made. Goldsmith v. Hand, 26 Ohio St. 101, 107. 303. Condition Precedent. Where a contract for building a court-house, in a workmanlike manner, re- cited that the county commissioners would superintend said work, such superintendence was not a matter pre- cedent to the progress of the work ; for the appoint- ment of such superintendent, and the fact of his approbation of the work, would not dispense with the obligation of the contract that the work should be properly performed. Green v. State, 8 Ohio, 310. DIGEST OP LEADING DECISIONS. 195 304. Defective Work. Responsibility of WorManfor Lack of Skill. Where a mechanic undertakes to build a chimney, the law implies that he employ in the work competent skill to effect the end, and that he proceed according to the usage of the trade. If the work done is useless for the purpose intended, the damages should make good the expense of rebuilding, the injury to the house, loss of rent, discomfort, and the expense of obtaining legal redress. Somerby v. Tappan, Wright, 229. 305. Quantum Meruit. If by the contract a portion of the pay is to be made upon the completion of a portion of the work, the performance of that part of the work is pro tanto a condition precedent, not the performance of the whole work. If the contract be to pay a gross sum, and to advance from time to time, on the estimate of engineers, a percentage of the value, on the performance of the work, the estimate by the engineer, and the notice and refusal to pay, will dis- charge the obligation to go on with the work. Mor- gan V. Ward, Wright, 474. 306. Where, after a part performance of a special contract to build a mill and furnish materials, the party abandons the job without a legal cause, in the absence of proof showing the assent of the employer, or his ac- ceptance of the work unfinished, there can be no recov- ery joro tanto for the work. Allen v. Curies, 6 Ohio St. 505. 307. Quantum Valebat. In an action on a building contract for the contract price, recovery may be had on a quantum meruit, where the work has not been done strictly according to the contract, but substantially so, the omissions and variations being slight. The court in such case should charge the jury that, in finding the value of the work, they should take into consideration 196 BUILDING COiSTTEACTS. the contract price, so that the owner may have the benefit of it; but if the record does not set out every- thing said by the judge in his charge, it will be pre- sumed that he made this explanation. Kane v. Stone Co. 2 Clev. Rep. 291. 308. Special Stipulations. Extras. Where a Avrit- ten contract with a city specifies that no additional compensation shall be claimed for extra work, unless ordered in writing and its value agreed upon in writing beforehand, the city will be responsible if the board managing the work waive the stipulation and give ver- bal orders. 2 Bull. 33. 309. SuB-CoNTRACTOK. After abandonment of build- ing contract by the contractor, the owner is not obliged to notify sub-contractors, or let them finish the work. 1 Bull. 150. Nor, if he finishes the building at less than the contract price, to pay the surplus to the sub- contractors. 5 Eec. 2. 309 a. Where the contractor and sub-contractor agree that the work shall be done to the satisfaction of a designated architect, and the materials are subject to the inspection and acceptance of such architect, if the architect pass material which is fairly exposed to his view, and permit it to go in without objection, he can- not object to it after completion of the building, al- though the chief contractor may be liable to the owner for imperfections. Kane v. Stone Co. 2 Clev. Rep. 291. 310. Substantial Performance. Where a contractor agrees to furnish material for and erect a building in accordance with certain plans and specifications, for a sum to be paid when the building is completed, a substantial compliance with the stipulations of the con- tract on his part is essential to his right to recover the agreed price, or any part thereof. Mehurim v. Stone, 37 Ohio, 49. DIGEST OP LEADING DECISIONS. 197 311. Where a contractor under a written agreement constructed a house for and on the land of the owner, substantially in accordance with the terms of the con- tract, as verbally changed in some respects as to size, form, and materials, by consent of the parties during the progress of the work, and leaving only little to be done to complete it, and the owner, during the progress of the work, had without objections made payments, in pursuance of his agreement, as designated portions of the work were done, and had taken possession and was using the hoiise, in an action brought to recover a balance due on the contract : held, 1st. That the plaintiff might recover without proving that the con- tractor had strictly performed the contract ; 2d. That, as to unfinished work, the plaintiff was entitled to re- cover the balance due at the contract price, less such sums as it would require to construct or complete the unfinished parts ; 3d. That, as to those parts which by consent of both parties had been constructed, the plain- tiff was entitled to recover the balance due at the contract price, less the difference in the value of those parts. Goldsmith v. Hand, 26 Ohio St. 101. 312. Sureties finishing work, the contractor becom- ing involved. Greenlea v. Shuning, 2 Bull. 282. 313. Unfinished Work. If, during the progress of a work, the contractor refuses to go on without extra compensation, and abandons the contract, the employer, instead of suing him for breach, may waive the same and make a new contract, which will be enforced. Benedict v. Cincinnati, 2 Bull. 33. 314. Work on Unlawful Property. The principle is of general application, that agreements contrary to sound morals or public policy, forbidden by law or opposed to the criminal enactments of the state, will 198 BUILDING CONTRACTS. not be enforced in courts of justice. Thus, where the plaintiff performed work as a carpenter, in construct- ing for the defendant, who was the keeper of a cof- fee-house, a nine-pin alley appurtenant to such coffee- house, it was held that he could not recover for his ser- vices, as being work on unlawful property. Spurgeon V. McElwain, 6 Ohio, 442. PENNSYLVANIA. 315. Acceptance. Where a permanent work is erected on the land of another, a taking of possession does not amount to a waiver of a strict performance. Hartupee v. Pittsburg, 97 Penn. St. 107. 316. Architect's Drawings. The obligation of pay- ing for the drawings of an architect usually rests on the employer, not on the mechanics who make use of them. Webb v. School, 3 Phila. 125. 317. Consideration. Unfinished House Destroyed. Where a house is blown down before completion by the contractor, a voluntary promise by the employer to pay an additional sum for rebuilding, being without consideration, will not support an action. Moyer & Morgan v. Kirby, 2 Pearson (Penn.), 64. 318. So, where services have been rendered under a special contract, a subsequent promise to pay extra compensation is void for want of consideration. Fisher V. Harrisburg Gas Co. 1 Pearson (Penn.), 118. 319. Defects. A mechanic who executes work in accordance with his contract is not answerable for its worthlessness in consequence of the defectiveness of the plan furnished by his employer. Loundsberry v. Eastwick, 3 Phila. 371. 320. Where work contracted for has been performed, but not in a skilful manner, the workman may recover, DIGEST OF LEADING DECISIONS. 199 with a deduction for the injury sustained by his want of skill ; but he is not responsible if he followed the direction of his employer. Wade v. Haycock, 25 Penn. St. 382. 321. So, if the owner of a building interfere with the contractor, and direct the performance of the work, the latter is not liable for any defects resulting there- from. Rohrman v. Steese, 9 Phila. 185. 322. Former Contractor's Work. A contract to com- plete work partially performed and abandoned by an- other, does not render the last contractor responsible for the defective work of the former one. Phila. Hyd. W. V. Schenck, 80 Penn. St. 334. 323. Plaintiff contracted to build four houses on defendant's lot; when partly erected, a wall on defend- ant's adjoining property fell and crushed them. Held to be a question for the jury whether the wall was in- sufficient, and whether the defect was one against which a person of ordinary prudence ought to have provided. Sinnott v. Mullin, 82 Penn. St. 333. 324. Actual representation of a material character made by the vendor to the vendee, and relied upon by the latter to his injury, is ground of rescission. Lowry V. McLane, 3 Gr. 333 ; Stewart v. Dougherty, 1 Pitts. 324. 325. Where the certificate of the promisor's agent, that the work has been done in accordance with the contract, is by the terms of the contract prerequisite to payment, the agent's refusal to give the certificate is no defence to a suit for payment, if it is proved that the work was in fact done in accordance with the con- tract. Whelan v. Boyd, 5 Cent. Rep. 651. 326. The fact that the plaintiff's work was inspected by the defendant's engineer during its progress, and 200 BUILDING CONTRACTS. that the former received large sums of money' in pur- suance of a satisfactory report, is not a waiver of de- fects of quality in the materials used not apparent upon inspection. Hartupee v. Pittsburg, 97 Penn. St. 107. "^21. Extras. Where there is a special contract, extra compensation cannot be recovered by reason of the services becoming more onerous. Giflford v. Hoff- man, 3 Phila. 127. 328. Under an agreement in a building contract, that the vsrork done by the contractor shall be valued from time to time by " competent persons," the owner may name the architect as arbitrator on the owners' part. Stoke v. McCullough, 1 Cent. Rep. 55. 329. The absence of authority to engineer to allow for extra work does not deprive the contractor of right to compensation for work done by subsequent authority. McGraw v. P. & L. E. R. R. 2 Cent. Rep. 565. 330. Fraudulent Agreement. An agreement between a contractor and material - man, that the former, in consideration of a release of his personal liability, will make no defence to a scire facias, is void, as a fraud upon the owner. Young v. Burtman, 1 Phila. 203. 331. Quantum Meruit. So, where the defendant has accepted a part performance, the plaintiff may recover pro tanto. Robinson v. Snyder, 25 Penn. St. 203. 332. Special Stipul.ation. Where the stipulations of a building contract are separate and independent, the breach of one is no objection to the enforcement of another by the opposite party. Long v. Caflfrey, 93 Penn. St. 526. 333. Substantial Performance. Under a contract to rebuild a mill which has been burned down, " to be as DIGEST OF LEADING DECISIONS. 201 good as the first one," a substantial performance is suf- ficient. Ellis V. Lane, 85 Penn. St. 265. 334. Although a substantial performance may en- title a plaintiff to recover, he is not necessarily enti- tled to the whole contract price ; the defendant may recoup for defects in the execution of the work. Mo- nocacy Bridge Co. v. American Iron Bridge Co. 83 Penn. St. 517. 335. One who had agreed to erect certain houses, and was to have a mortgage assigned to him by A, in consideration of their erection, when they were finished, engaged plaintiff to plaster them, and assigned his interest in the mortgage to plaintiff in payment there- for, and released A from his obligation to deliver him the mortgage, and the plaintiff assigned the mortgage to A's wife, on A's agreement to pay plaintiff for his work when done. Held, the plaintiff was entitled to recover from A, on completing the plastering, the amount due therefor, notwithstanding that the builder had not finished the houses. Ibid. 336. Unfinished Work. A plaintiff cannot recover for part performance where he has been disabled by a casualty from the performance on his part. Guillon v. Tondy, 5 W. N. C. 528. 337. Where the plaintiff agreed to build a barn for a certain sum, the defendant to furnish the materials, it was held that, if the materials were not furnished, there might be a recovery for part performance with- out proof of notice. Hall v. Rupley, 10 Penn. St. 331. 338. Time. A contract to build a boat, and have her ready " for the spring trade " on the first of March, binds the party to have her ready on that day, without regard to the opening of the spring trade. Young v. White, 5 Watts, 460. 202 BUILDING CONTRACTS. TENNESSEE. 339. Statute of Frauds. A person put into posses- sion of land under a verbal and therefore void sale, cannot recover in assumpsit compensation for its melior- ations and improvements. Mathew v. Davis, 6 Humph- rey, 324. 340. Useless Work. The obligation of a contract for work and labor is not annulled or discharged, either because it is ascertained before the work is begun that it is unnecessary or useless, or because the employer cannot determine how he will have it done. Graves v. Caruthers, Meigs, 58-65. TEXAS. 341. Mechanics Liable for Lack of Skill. Where a mechanic contracts to do work, he is bound to do it in a good and workmanlike manner ; and if, from the want of proper skill, the work prove worthless, he is entitled to nothing for the work ; and if from the un- skilfid manner in which the work is done, damages result to the other party, he is responsible for it. Waul V. Hardie, 17 Tex. 539 ; Hilyard v. Crabtree, 11 Tex. 268. 342. Quantum Meruit. The only assumpsit or promise which the law implies from the performance of work and labor is for the payment in money of the reasonable value of the services rendered. Ross v. Mitchell, 28 Tex. 152. 343. Under a contract to build a house for a stipu- lated price for the whole work, and it be only partly executed, but received and used, the undertaker is only entitled to recover what the work done is reason- ably worth. Hilyard v. Crabtree, 11 Tex. 268; Gon- zales County V. McHugh, 21 Tex. 259. DIGEST or LEADING DECISIONS. 203 344. The correct mode of determining the value of satisfactory work on an unfinished contract is the con- tract price, less what it will take to complete it. O'Con- nor V. Van Horrame, Dallam, 430 ; Gonzales County V. McHugh, 21 Tex. 259. 345. Where a county proposed a plan and specifica- tions for building a jail, and let the contract to the lowest bidder at public outcry, taking bond with se- curity for the performance of the contract by a cer- tain time, and the contractor, having taken the con- tract at one fourth of a fair price, failed to perform any part of it, and the county let it again at public outcry after due advertisement, and sued the original contractor and his sureties on their bond, it was held, that the difference between the prices at which the contract was let was not the measure of damages, but the proper measure was the actual damages to the county upon the basis of fair prices at each letting. Chambers v. Fort Bend Co. 14 Tex. 35. 346. Statute of Frauds. An agreement to divide or partition lands is not within the Statute of Frauds. Nor does the fact that the parties agreed to perform the contract, and bring other lands into the division, bring it within the statute. Smock v. Tandy, 28 Tex. 132. VERMONT. 347. Acceptance. Where one for whom the build- ing {i. e. a barn) is being erected sees the work going on from day to day before his eyes without objection, and finally accepts the thing by silent acquiescence, he is bound by it. Austin v. Wheeler, 16 Vt. 95 ; 27 Vt. 232. 348. The mere use of coal-kilns erected upon the defendant's land, which were defectively constructed, 204 BUILDING CONTRACTS. but the defects not apparent, and only to be discovered by use or by tests, and part payment for the work, . . . were held not to amount to an acquiescence, or waiver of a claim for deduction from the contract price, ex- cept to the extent of the payment. Morrison v. Cum- mings, 26 Vt. 486. 349. Condition Precedent. The plaintiff contracted with the defendant to lay certain floors, the boards to be furnished by the defendant, and worked for a time, and then abandoned the job for the reason that the defendant failed to furnish the boards when needed. Held, that the furnishing of the boards was a condi- tion precedent to the performance on the part of the plaintiff; that, as the defendant had equal means of knowing when the boards would be needed, no special demand was necessary ; and that the plaintiff could recover for the work done. Hill v. Hovey, 26 Vt. 109. 350. Defective Work. The defendant, under a con- tract to complete a mill in a workmanlike manner, did the work imperfectly, but claimed to have performed his contract. The plaintiff afterwards put the mill in condition, and brought his action to recover the ex- pense of such reparation. Held to be no defence that the defendant, alter he had broken his contract and it had ceased to be executory, offered to make such re- pairs at his own expense, but the plaintiff refused him. Clifford V. Richardson, 18 Vt. 620. 351. Extras. A provision in a contract for work that no claim shall be made or allowed for extra work " unless the same shall have been done in pursuance of a written contract, or orders signed by the engineer," and that claims therefor shall be presented within a given time, will bar recovery for extra work, unless such provision be complied with. Vanderwerker v. Ver: Cent. R. R. 27 Vt. 130. DIGEST OF LEADING DECISIONS. 205 , 352. Where the parties under a special contract de- viate from the original plan agreed upon, and the terms of the original contract do not appear to be ap- plicable to the new work, it being beyond what was originally contemplated by the parties, it is undoubt- edly to be regarded and treated as work wholly extra, out of the scope of the contract, and may be recovered for as such. But it is otherwise if the original terms are applicable, and there is evidence from which it may be inferred that it was the intention of the par- ties that the new work should be subject to those terms, as times and mode of payment. Boody, &c. V. R. &B. R R.-24 Vt. 660. 353. Special Stipulation. Upon a stijjulation in a building contract that " the work is to be done in the best style and design of the present time, and adapted to such a house and its several parts, and in as good a style and workmanship and finish as any in Burling- ton, Vt." Held, that the limit is the expensiveness of the style, designs, and patterns of the finish to the style and workmanship and finish of the best houses in Burlington. Herrick v. Noble, 27 Vt. 1. 354. Special Contract. As to contract for building a railroad, and part payment in stocks, Jones v. Cham- berlain, 30 Vt. 196. 355. Stopping Performance. While a contract is executory, a party has the power to stop the perform- ance on the other side by an explicit direction to that eiFect, thereby subjecting himself to such damages as will compensate the other party for being stopped in the performance on his part at that point or stage in the execution of the contract. Danforth et al. v. Walker, 37 Vt. 239 ; S. C. 4 Vt. 257. 356. Time of Performance. A mutual agreement 206 BUILDING CONTRACTS. to extend the time of performance of a special con- tract requires no new extraneous consideration to sup- port it. It is promise for promise, and such new or further agreement may be declared upon, and a re- covery had for such damages as the breach of it has occasioned, though in excess of what would have arisen under the original contract. Hill v. Smith, 34 Vt. 535. 357. Time of Performance and Payments. Under a contract for building of railroad bridges, which was silent as to the time and place of payment, held, that the usage of the company to pay monthly on the esti- mates, having been adopted in reference to the con- tractors, this usage became the rule of payment bind- ing upon the parties by mutual consent. Boody, &c. V. R. & B. R. R. Co. 24 Vt. 660. 358. Unfinished Work. A contracted with B to furnish material and repair a house for B, and com- plete the whole by a day named, and B agreed to pay a certain sum therefor " when the job is completed." A partially performed, when he was sued, and B was summoned as his trustee^ whereupon A abandoned the work, without fault of B and ao-ainst his consent. Held, that the contract was entire, full performance by A being a condition precedent to the payment, and that, as A could not recover a pro rata compensation for the work done, B was not liable as trustee. Kettle v. Harvey, 21 Vt. 301 ; 24 Vt. 515; 33 Vt. 39. 359. But when an unj&nished job is completed by the defendant, the plaintiff may recover the contract price, less defendant's damages and cost to complete the building. Austin v. Austin, 47 Vt. 311. 360. Unfinished Work. Where the plaintiff, a sub- contractor of the defendant for the construction of a DIGEST OP LEADING DECISIONS. 207 section of a railroad, was prevented from completing his contract by reason of the further construction of the road being enjoined in chancery, without the fault or procurement of the plaintiff, held that the defendant was liable as for a breach of his contract, although such injunction was procured without his fault. Doo- little V. Nash, 48 Vt. 441. 361. Plaintiff contracted to build a house by a cer- tain time, part of price to be paid in advance, and balance by a mortgage to be negotiated by plaintiflF. Plaintiff failed to negotiate the mortgage, or to com- plete the house by the time, but was permitted to continue the work for two months thereafter, when defendant took possession and finished it. Held, a waiver of the materiality of time ; and a judgment for the value of the plaintiff's labor and materials was sustained, in the absence of an exception to the manner of estimating damages, and an omission of defendant for an instruction that the measure of damages should be the difference between the contract price and the sum expended in completing the building. Foster v. Worthington, 2 N. E. Rep. 473. WISCONSIN. 362. Acceptance. Where a house is built under a special contract, but not according to it, and the party for whom it was built takes possession of it, he thereby admits that it is of some benefit to him, and is liable to the builder on quantum meruit for the reasonable value of the benefit to him. Taylor v. Williams, 6 Wis. 363. 363. Where A contracted to build a house complete for B, but after doing a small portion of the work abandoned it entirely, without any fault on the part of B, and B thereupon took possession and completed the 208 BUILDING CONTEACTS. work, making use of the materials furnished and work done, held, that A could recover nothing for what he had done. Malbon et al. v. Birney, 11 Wis. 107. 364. Agreement for building a house, with provisions for approval by an architect, the determination of questions by arbitrators, and the completion thereof to the satisftiction of the owner, construed. Tetz v. Butterfield, 51 Wis. 242. 365. Decision of a Third Person. When a contract provides for the performance of work at a stipulated price, to the satisfaction of an architect named therein, who is employed to adjust all claims of the parties to the agreement, and a bond is given to secure a faith- ful performance of the contract, where the party agree- ing to do the work does not fully perform such contract, the other party may sue the principal and sureties on the bond for a breach of the contract before the archi- tect has adjusted any claims arising out of the breach. Oakwood Retreat Assn. v. Eathbone, 26 N. W. Rep. 742. 366. Quantum Meruit. The quantum meruit does not depend merely upon the amount of labor bestowed upon a job, or the mere mechanical skill in its exe- cution, or the ordinary value of a piece of work con- structed as that was, or the cost of its construction at the time and place. All these are proper to be consid- ered, but the inquiry is as well, how much the defend- ant ought to pay, as how much the plaintiff ought to have ; hence the object and design of the work, the in- ducement to its undertaking, its adaptation when com- pleted to the end in contemplation in its engagement, are all proper to be considered in determining the quantum meruit. Cole et al. v. Clarke, 3 Wis. 322. 367. In a contract " to finish the front part of the DIGEST OB' LEADING DECISIONS. 209 basement " of certain stores, the court, unaided by ex- trinsic evidence, held that " the front part of the base- ment " meant not merely the external front, but both sides of the front basement and walls. Bedard v. Bon- ville, 57 Wis. 570. 368. Uncompleted Building Destkoyed. Where the contract was to do the mason work, and furnish a part of the materials in building a house, the remainder to be furnished by the owner, the price being a fixed sum, not to be paid until completion, and the part built was destroyed by fire, it was held that the contractor might recover, especially where the owner had treated the house as his own, by procuring an insurance and receiving money thereon after the loss. Cook w. Mc- Cabe, 53 Wis. 250. 14 PART III. BUILDING LEASES. CHAPTER XIV. PEELIMINARY AGREEMENTS TO LEASE. § 86. Agreements for Building Leases. It is some- times desirable, before entering into a lease of land, to execute an agreement to lease. This is most fre- quently done when the commencement of the term is postponed to some future time, or the final lease is dependent upon the completion of the building or other contingencies. Such agreements must in all cases be in writing, being within the fourth section of the Statute of Frauds ; ^ but a contract after a lease has been made, that the landlord shall improve the prem- ises, may be entered into verbally, not being within the statute.^ So, again, although every grant of an interest in land for permanent use must be in writing, whether for the purpose of erecting or repairing a building, a mere permission to go upon land for a de- finite purpose, and perform certain acts when not in- 1 See 5 Ad. & E. 856 ; Browne Stat, of Frauds, 501-532. A lease to commence in futuro may be made in Maryland for a term not exceeding three years. Union Bank v. Gittings, 45 Md. 181. 2 Woodfall Landlord and Tenant, 81, 85; Williams v. Brisco, L. R. 22 Ch. D. 441; 48 L. T. 198. PRELIMINARY AGREEMENTS TO LEASE. 211 tended to pass title, is not required to be in writing.^ But an executory agreement for a lease contemplates more of an interest in land than this, — it is clearly for a future interest, and practically, in most cases, an assignment of a present interest in land ; so that, unless the intention of merely an interest in futuro is ex- pressed or implied from the nature of the agreement, and there can be an inference reasonably drawn that it is not to run from the day of the agreement, it will not comply with the statute unless some memoranda thereof be reduced to writing.^ § 87. Leases Defined. A lease is usually defined as " a species of contract for the possession and profits of lands and tenements, either for life or for a certain term of years, or during the pleasure of the parties ; " ' as Dr. Washburn puts it, " An estate created by a con- tract, whereby one man, called the lessor, lets to another, called the lessee, the possession of lands or tenements for a term of time fixed and agreed upon by the parties to the same." * An under-lease is created where a lessee parts with a portion of the estate which has been granted to him. If he disposes of his whole interest, he makes what is called an assignment thereof 1 Cook V. Stearns, 11 Mass. 5.33 ; Phillips v. Thompson, 1 Johns. Ch. 131 ; Dubois v. Kelly, 10 Barb. 496. 2 Marshall v. Berridge, 19 Ch. D. 233. ' Bouvier Law Dictionary. * Washburn Real Property, 291, citing Smith Land and Ten. 18. Prior to the time of taking possession of the property, the interest -which the lessee has in the land is called an inieresse termini. Williams Real Prop. 329. A mere authority from the owner of land to another to take posses- sion of it, not accompanied by anything showing a contract for the pos- session and profits on one side, and for a recompense to be made on the other, will amount to a license, but not to a lease, nor would it convey an estate or interest in the land. Goodman v. Jones, 26 Conn. 268. A term or lease for years is a chattel, Webster v. Parke, 42 Miss. 461; Mont- gomery V. Dillingham, 3 Smedes & Marshall (Miss.), 647. So a lease for 99 years is personal property, and does not descend to the heir, but is as- sets in hands of administrator. AUender's Adm. v. Sussan, 33 Md. 11. 212 btjilding leases. § 88. Distinction between a'Lease and an Agreement TO Lease. The distinction between a contract for future lease and an actual lease is one of great importance ; for the reason that the latter cannot be waived by eq- trinsic evidence, while the former is sometimes subject to variation by additional covenants, and explainable by competent testimony.^ The courts, in determining whether an instrument is to be construed as a lease or as an agreement for a lease, will follow the usual rules of construction, looking mainly to what appears to be the intention of the parties.^ If the contract entered into leaves nothing to complete it, but takes effect immediately, it acts as a present demise or lease.^ So where the preliminary agreement provides that it shall be binding until a more formal lease is executed, it is complete in itself until succeeded by a lease, and will be considered as a present lease.* Thus where, by the agreement, a man was to expend £2,000 in building upon the land of another, upon the condition that the owner of the land was to grant him a lease as soon as the house was roofed, the court held that this was a present lease.^ Again, an agreement to build a wharf, to be used by the grantee at a stipulated rent, was construed as a present lease.'' So where the owner " agreed to rent and lease " certain land to a gas com- pany, which, acting upon this agreement, stored ma- terial upon it for building on adjoining land, the agree- ment was held to be a lease.'' 1 1 Wash. Real Prop. 300 ; Anderson v. Critcher, 11 G. & J. (Md.) 450. 2 Hallett V. Wylie, 2 Johns. (N. Y.) 47; 9 N. Y. 44 ;j Wright v. Treve- zant, 3 Carr. & P. 441 ; Doe v. Ries, 8 Bing. 1 78. ' Doe V. Ries, supra. * Shaw V. Farnsworth, 108 Mass. 357. ^ Poole V. Bentley, 12 East, 168. « People V. Kelsey, 14 Abb. Pr. 372. ' Kabley v. Worcester Gas Co. 102 Mass. 392; Stanforth v. Fox, 7 Bing. 69. PRELIMINARY AGREEMENTS TO LEASE. 213 Words of demise, when used in an instrument, do not always determine its nature. For instance, where a paper contained such words, followed by a stipulation on the part of the land-owner to make certain alter- ations and improvements, and the other party to take a lease, the court construed the instrument, according to the evident intention of the parties, to be an agree- ment for a lease. ^ So where a builder agreed to make certain repairs for a fixed sum to be paid when the work was completed, and the owner agreed that the builder should hold the premises, the contract was con- strued as a simple agreement and not a lease.^ So, again, where there were words of present contract used that the lessee should take immediate possession, and a future lease be made, was construed only as an agree- ment to lease. ^ § 89. Suggestions Concerning Agreements for Leases. In the preparation of the preliminary agreement to let lands for building purposes, great care should be observed that no essential conditions are omitted. All the covenants to be followed in the subsequent lease should be stated, to avoid disputes. Indeed, the lease to be executed in futuro is often dependent entirely upon the stipulations contained in the agreement, which may in many cases properly be termed a tem- porary lease, serving as it does this purpose ad interim. Thus, in Bacon v. Bowdoin,* though the lessor was to complete the building in terms, and the lessee was to 1 Jackson v. Delacroix, 2 Wend. 433; Poole v. Bentley, 12 East, 168. 2 People V. Gillis, 24 Wend. 201. « Goodtitle v. Way, 1 T. R. 735. See Adams v. Hagger, L. K. 4 Q. B. D. 480 ; Poole v. Bentley, 12 East, 168. A mere agreement to lease for 99 years, signed by only one of the parties, is an inchoate instrument, and passes no interest. Howard v. Carpenter, 11 Md. 259; Dec. 160. * Bacon v. Bowdoin, 22 Pick. 401. 214 BUILDING- LEASES. have a right to use it for certain purposes from the date of the agreement, the agreement was construed as a present lease. If it is intended that the tenant shall pay taxes or damages of any kind, or keep the property in repair, or rebuild in case of fire, or insure for the benefit of the landlord, or have the privilege of assigning his interest, it is proper to so specify in the agreement, for there may be valid objections to such stipulation when the time for executing the lease arrives ; and it is well settled that, as all negotiations between the parties prior to or contemporaneous with the lease are merged into the lease, no evidence can afterwards be admitted to vary its terms.-^ It is always well to provide either that the owner of the land shall execute separate leases for each building to be erected, or, if one lease is to be executed for the entire lot, that it will be so framed that the lease- hold interest of the purchaser of one or more of the houses shall not be liable to reentry for the non-pay- ment of rent by the holder or holders of the other houses. In the absence of such a stipulation, if the owner in fee does not consent to an apportionment of the rents, all the leaseholds, whether held by different persons or not, will be liable to the ground proprietor's claim. The usual plan in Maryland, and I believe elsewhere in the United States, is to divide the land into the desired number of building lots, each one being made independently subject to a given rental, and liable only to the aliquot part it represents of the whole.^ 1 Pattison v. Hull, 9 Cow. 747 ; Cleves v. Willoughby, 7 Hill, 83. ^ In England it is considered the better plan to assign the lease to one purchaser, and he grants under-leases for the whole term, less one day, to PEELIMINAEY AGREEMENTS TO LEASE. 215 It is usual to provide in these agreements that the builder shall have power of entry only for the purpose of building, and that if he fails to complete his contract the owner of the fee may take possession of the build- ings and complete the same ; ^ but it is advisable to further provide that the agreement shall create a ten- ancy at will in order to entitle the landlord to the right to distrain.^ It is also well to let the description of city lots run from the centre of the division wall of each other, so that there is no danger of overlapping, and the holders of the leaseholds will have a clear title to their severable interests in the party walls. In fact, these agreements for leases should set out with the same particularity all the covenants intended to be included in the lease. A careful lawyer will never prepare an agreement simpl}' reciting that the lease shall contain the ^^ usual covenants," for what are the '•' usual covenants " is a doubtful question, dependent upon the circumstances of each particular case, the construction given by the court to the contract, and the customs of the locality.^ For large buildings it will often be found desirable to annex a form of the lease to the agreement. In a recent English case,* where the tenant held possession of land under an agreement other purchasers, reserving to himself the apportioned rents. Emden on Building, &c. 78, citing 2 Davidson, pt. 1, (4th ed.) 421; Toleman v. Portbury, L. R. 5 Q. B. 288. 1 Goodtitle v. Way, 1 T. R. 735. 2 Walsh V. Lonsdale, L. R. 21 Ch. D. 9; 52 L. J. Ch. 2; 46 L. T. 858; Adams v. Hagger, L. R. 4 Q. B. D. 480. s Bennett v. Womack, 3 C. & P. 96, 98. " To rebuild the premises in case of fire',' is not a usual covenant. Doe v. Sandham, 1 T. R. 705. Covenants in restraint of trade, or not to carry on a particular business, are not usual covenants. Bennett v. Womack, 3 C. & P. 96. But see Doe d. Marquis of Butei). Guest, 15 M. & W. 160; 5 Davidson, pt. 1 (4th ed.) 1-16. * Walsh V. Lonsdale, L. R. 21 Ch. D. 9; 52 L. J. Ch. 2; 46 L. T. 858; 31 W. R. 109. 216 BUILDING LEASES. to lease, Master of the Rolls Jessel said : " He holds under the same terms in equity as if a lease had been granted, it being a case in which both parties admit that relief is capable of being given by specific per- formance. That being so, he cannot complain of the exercise by the landlord of the same rights as the land- lord would have had if a lease had been granted. On the other hand, he is protected in the same way as if a lease had been granted ; he cannot be turned out by six months' notice, as a tenant from year to year." § 90. Building Leases Dependent upon Contingen- cies. Sometimes agreements for leases expressly stipu- late that the work of the builder shall be subject to the approval of the land-owner or his architect; in other words, a satisfactory performance of the builder's covenants is made a condition precedent to the ex- ecution of the lease.^ In such cases substantial con- formity with the plans and specifications will usually satisfy the condition without an exact compliance with minor and unimportant details.^ A reference to the chapters referred to in the foot-notes ^ will show upon what condition certificates of completion can justifia- bly be refused, and the general authority of the archi- tect when the agreement constitutes him as sole judge.* So, also, as to time stipulations.^ Where the agreement for a lease is for several lots, and made dependent upon the completion of the houses to be erected thereon, reserving a separate rent to the holder of the fee, the contract is generally con- 1 See ante. Chap, iii., on Approval by Architects and Others. 2 See § 26 et seq. and cases there cited; also Hollis v. Whiting, 1 Vern. 151; Jackson v. Pierce, 2 Johns. 226. 8 Ante, Chap. II., III., IV. 4 Ante, Chap II. § 12; Chap. III. § 18. 5 Ante, Chap. V. PEBLIMINABT AGBEBMENTS TO LEASE 217 strued as meaning that the builder is to have a lease for each house as it is completed, and not that he must complete all the houses before he can obtain any leases. If the contrary construction was given to the divisi- bility of these agreements, builders would frequently be compelled to abandon work, owing to lack of funds arising from inability to dispose of the houses as com- pleted.^ There is a common practice in England of stipulat- ing, in these agreements for building leases, that the leases are to be given either to the lessee or persons named by him. In such case the appointment of a nominee is a condition precedent to the execution of the lease.^ 1 Wilkinson v. Clements, L. R. 8 Ch. Ap. 96; 42 L. J. Ch. 38. 2 Williams v. Brisco, L. R. 22 Ch. D. 441; 48 L. T. 198; 31 W. R. 907. CHAPTER XV. SPECIFIC PERFORMANCE OF LEASES, AND AGREEMENTS FOR LEASES.^ § 91. Parol Agreements and Leases. Notwithstand- ing the fact that a verbal contract for a lease fails to satisfy the requirements of the Statute of Frauds,^ it may still be enforced in courts of equity when there has been a part performance of it.^ What constitutes a sufficient part performance to justify the application of the principle, that it will be a fraud upon the oppo- site party not to complete the contract,* depends upon circumstances. The fact that a contract has been partly performed, and the parties cannot be restored to their original position, is the basis upon which courts, exercising their own discretion, may decree specific performance, when, if it had not been acted upon, they would refuse to enforce it.^ § 92. Effect of Possession. The taking possession of land by the consent of the owner, and making improve- ments upon it, will generally be construed as sufficient part performance to warrant the admission in equity of evidence of parol contract,® and decree specific per- 1 See ante, Chap, vi., on Specific Performance of Building Contracts. 2 See ante, § 86. 8 HoUis V. Whiting, 1 Vern. 151; Walker v. Walker, 2 Atk. 98; Jack- son V. Pierce, 2 Johns. 226. * McCray v. McCray, 30 Barb. (N. Y.) 633; Dickerson v. Crisman, 28 Mo. 134; Godfrey, Adm., v. Dwinell, 40 Me. 94. 5 Price V. Corporation of Penzance, 4 Hare, 506; South Wales Ry- Co. V. Wythes, 1 K. & J. 200. « 9 Wis. 79; 5 R. I. 149; 8 Mich. 463; 30 Vt. 516; 10 Cal. 156 ; Wills V. Stradling, 3 Ves. 378. SPECIFIC PEEFOEMANCB. 219 formance if necessary. Indeed, bare delivery of pos- session under an agreement to lease has been deemed a part performance;^ but if the tenant, after enter- ing with the privity of the landlord, make substantial improvements, and expend any considerable sum of money in building, the court will be bound to consider extrinsic evidence of verbal agreement? The court in- terferes to prevent injustice being done by the land- lord refusing to give a lease after allowing his tenant to expend money upon improving land in which he could have no other interest than the promised lease.^ § 93. Possession aftee Expiration of a Foemee Lease. It does not affect the construction of posses- sion, being a part performance of an agreement, whether it is gained at the time of the alleged con- tract, or is evidenced by tenant holding over after the expiration of his original lease. Where such reten- tion of possession can only be accounted for by an agreement to renew the lease, it will be construed as a part performance thereof;* particularly where, by vir- tue of the parol agreement, the lessee holding over agrees to an increase of rent, or change of other stip- ulations.^ An illustration of the above rule is found in the leading case of Pain v. Coombs, where a verbal contract was made for a lease, and the solicitor, acting for both parties, was ordered to draw up a written agreement. After the solicitor had prepared a rough 1 Parker v. Taswell, 2 De G. & J. 559. 2 Lester v. Foxcraft, Colles Pari. Cas. 108; Carter «. BoeHn, 3 Burr. 1919; Mundy v. Joliffe, 5 Myl. & C. 167. 3 Williams v. Evans, L. R. 19 Eq. 547; 44 L. J. Ch. 319 (outlay by sub- tenant) ; and Frames v. Dawson, 14 Ves. 386. * Rankin v. Simpson, 19 Penn. St. 471. 6 Spear v. Olendorf, 26 Md. 37; Switzer v. Gardner, 41 Mich. 164 (specific performance granted of a lease which had expired by substitu- tion of new one, third parties becoming interested). 220 BUILDING LEASES. draft of the terms and conditions, he explained the same to the lessor, who thereupon gave the lessee pos- session, and ordered the solicitor to complete his draft. He afterwards refused to execute the agreement, and gave the lessee notice to vacate the premises. The lessee brought an action on the imwritten contract, and the court held that possession under such circum- stances constituted part performance, and thereupon decreed enforcement in specie} It may be stated, as a general rule, that the court will specifically enforce an agreement to lease, or direct the renewal of an un- expired lease, if the tenant is in possession and there is a portion of the time still to run.^ So, also, even if the time agreed upon is expired, but there is sufficient reason for renewal arising from the fact that defend- ant has acted upon the new agreement.^ So, wher- ever a verbal agreement is made by a landlord with his tenant to grant a renewal of the lease, after the expiration of the original lease, and the holding over can reasonably be referred to the supplemental ver- bal agreement, or not reasonably accounted for on any other supposition, such holding over will be a part per- formance.* The payment of an increased rate of rent is further evidence of the part performance of a verbal agreement.'^ § 94. Laches. The maxim, that he who seeks equity must do equity, is applicable to all cases wherein spe- ' Pain V. Coombs, 1 De G. & J. 34. 2 Parsons on Contracts, 323; Furnivall v. Crew, 3 Atk. 83; Carr v. Elli- son, 20 Wend. 178. 8 Wilkinson v. Torkington, 2 Younge & C. Ex. 726. * Pain V. Coombs, 1 De G. & J. 34; Uowell u. Dew, 1 Y. & C. C. C. 345; Blunt V. Tomlin, 27 111. 93; Holmes v. Holmes, 44 111. 168 ; Spear u. Olen- dorf, 26 Md. 37. 6 Wills V. Stradling, 3 Ves. 378; Kunn v. Fabian, L. K. 1 Cb. 36; 11 Jur. (N. S.) 868; Wiles v. Fox, 1 Rand. 165. SPECIFIC PBEFOKMANCE. 221 cific performance is sought. Accordingly the plain- tiff must not only show that his claim is equitable in all respects, and that the contract is fair, but that his own conduct has been proper,^ for if he has been guilty of laches the court will refuse his petition.^ So, where the tenant makes false representations as to buildings or other improvements upon neighboring lands, or as to his object in leasing the property and the purposes to which he intends to put it, which influ- ence the lessor in making the agreement, the court will not decree a lease.* So, again, where the party seek- ing performance is not able to perform his part of the contract, the court will not compel the giving or ac- ceptance of a lease.* In all cases a plaintiff is ex- pected to exercise due diligence in enforcing his claim, for, an application of this kind being addressed to the discretion of the court, specific enforcement will not be entertained in favor of one who has long slept upon his rights.^ So, in a case where the agreement for a lease had been entered into a long time before, the court refused to decree a lease because some of the covenants of the contract had been broken by the plaintiff." So, where a period of twelve years elapsed after the expiration of a lease for ninety-nine years, re- newable forever, before the enforcement of a renewal 1 Flood V. Finlay, 2 Ball & B. 16 ; 1 Sim. Ill; Plumber v. Keppler, 26 N. J. Eq. 489. 2 Garrett v. Besborough, 2 Dru. & Walsh, 441 ; Gibson v. Goldsmid, 5 De G. M. & G., 757 ; 24 L. J. Ch. 279. 3 Myers v. Watson, 1 Sim. N. S. 523; Peacock v. Penson, 11 Beav. 355; Piggott V. Stratton, 1 De G., F. & J. 33. ^ Fildes V. Hooker, 2 Mer. 424; 3 Madd. 193. ^ Hudson V. Bartram, 3 Madd. 440; McDermott v. McGregor, 21 Minn. 17. 8 Gregory u. Wilson, 9 Hare, 683; 10 Eng. L. & Eq. 133; Moxhay v. Inderwick, 1 De G. & J. 708. 222 BaiLDING LEASES. was sought, and the tenant had set up an adverse title, the claim of the original owner of the fee to renewal was denied.^ It may, therefore, be stated, as a general rule, that courts of equity will not decree specific performance of an agreement for a lease when one or more of the con- ditions have been broken by the intended lessee.^ § 95. Forfeiture. Specific performance will not be decreed when it will effect a forfeiture. So, where a lessor was unable to comply with the terms of his lease, as to the construction of certain roadways, without for- feiting the lease, the court declined to give specific en- forcement.^ So, where a lessee covenanted to repair after notice, and the lessor, having given notice, after- wards waived the default of the lessee by continuing negotiations, the court relieved the forfeiture.* So, also, where the performance will cause a breach of a prior agreement with another person.^ The court will not, however, permit a defendant to purposely put himself in such a position that his performance will create a forfeiture.'' § 96. Bankruptcy of Builder. The bankruptcy or insolvency of a builder is a weighty objection to grant- ing specific enforcement of an agreement to lease prop- erty to him.^ § 97. Agreements to Repair in Case of Fire. Courts 1 Myers u. Silljaoks, 58 Ind. 319. 2 Jones V. Jones, 12 Ves. 188; Lille v. Leigh, 3 De G. & Jones 204; Pomeroy on Spec. Perf. of Contracts, 355, 356. 3 Peacock w. Penson, 11 Beav. 355; Willmott u. Barber, L. R. 15 Ch. D. 96. » Hughes V. Metropolitan Ry. 46 L. J. C. 583. 5 Willmott V. Barber, L. R. 15 Ch. D. 96. « Helling V. Lumley, 3 De G. & J. 493; 28 L. J. Ch. 249. ' Buckland v. Hall, 8 Ves. 92; Price v. Ashton, 1 Young & C. Ex.444; Neale v. Mackensie, 1 Keene, 474. See ante, § 71. SPECIFIC PERFORMANCE. 223 of equity will not specifically enforce an agreement on the part of a lessor, contained in a lease, to repair dam- ages in case of fire.^ § 98. Acting upon a Verbal Agreement by Making Improvements. It is well settled that if a builder, after a parol promise from the owner of land to let him have the use thereof for a certain period, or even if the landlord gives only an implied promise by allowing and encouraging the man to erect valuable improve- ments, and the builder accordingly, upon faith in such express or implied promise, with the assent or knowl- edge of the landlord, expends money upon the land, the court will decree specific performance.^ Illustra- tions of this are to be found in several cases where tenants have, upon encouragement or silent acquies- cence on the part of the landlord, while laboring under an erroneous supposition, erected and repaired build- ings on the land, and courts of equity have declined to allow the landlord to take advantage of such improve- ments.^ The following rules were laid down in a leading English case,* and concisely express the law upon this subject : — 1. If a tenant builds on his landlord's land, he does not, in the absence of special circumstances, acquire any right to prevent the landlord from taking posses- 1 Beck V. Allison, 56 N. Y. 366, discussing City of London v. Nash, 1 Vesey, 11 ; 3 Atk. 512; Lucas v. Commerford, 3 Brown, 166; Kayner v. Stone, 2 Eden, 128, and other English authorities. ^ Lester v, Foxcraft, Colles Pari. Cas. 108; Carter v. Boehn, 3 Burr. 1919; HoUis v. Whiting, 1 Vern. 151. * Frames v. Dawson, 14 Ves. 386; Williams v. Lynch, 2 Sch. & Lef. 1; Carter v. Boehn, 3 Burr. 1919; Jackson v. Pierce, 2 Johns. 221. * Ramsden v. Dyson, L. 1 H. L. 129, as cited hy Emden on Building, &c. 90. See, also, Bankart v. Tennant, L. R. 10 Eq. 141 ; 39 L. J. Ch. 809; Willmott V. Barber, L. R. 15 Ch. Div. 96; Baldwin v. Reed, 16 Conn. 67. 224 BUILDING LEASES. sion of the land and the buildings when the tenancy has determined.-^ 2. If the tenant, being a mere tenant at will, builds on the land in belief that he thereby acquires a title afterwards to claim a lease of the land, and the land- lord allows him so to build, knowing that he is acting in that belief, and does not interfere to correct the error, equity will interfere to compel the grant of a lease .^ 3. If a stranger begins to build on land supposing it to be his own, and the real owner, perceiving his mistake, abstains from setting him right, and leaves him to persevere in his error, a court of equity will not afterwards allow the real owner to assert his title to the land. 4. But if a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from afterwards claiming the land, with the benefit of all expenditure on it.^ Other rules may be added to the above as fol- lows : — 5. Where a purchaser, after part payment of the purchase-money, has entered and made improvements upon lands, and the owner sets up the fact that the agreement to purchase was not in writing and there- fore void under the statute, the purchaser may recover in equity the value of the improvements.* 1 Curtis V. Hoyt, 19 Conn. 165. 2 Frames v. Dawson, 14 Ves. 386; Lindsay v. Lynch, 2 Sch. & Lef. 1. 8 See, also, Curtis v. Hoyt, 19 Conn. 165; Frank v. Brand, 16 Conn. 272; Baldwin v. Keed, 16 Conn. 67; Eennie v. Young, 2 De G. & J. 136; Crampton v. Varna Ry. Co. L. R. 7 Ch. Ap. 562. 4 1 Jones Eq. N. C. 302, 339; 14 Tex. 331 ; 1 Dev. & B. Eq. No. C. 9. Payment of part, or even the whole, of the purchase-money is not of itself sufficient part performance to take the case from the operation of the statute. 14 Tex. 373 ; 22 111. 643 ; 4 Kent Com. 451. SPECIFIC PEEFOEMANCE. 225 6. Where repairs or improvements are necessary to the proper enjoyment of the leasehold, the court may decree specific performance.^ So, also, if the interest of the tenant will be permanently injured if the repairs are not made.^ 7. Where the landlord does not know that the tenant is making repairs upon faith of a lease to be secured, or given him encouragement in that direction, an action for specific performance cannot be main- tained.^ This is corollary to the general doctrine that no contract can be specifically enforced other than such as is binding at law,* complying with the Stat- ute of Frauds, or sufficiently performed in part to take it out of the statute,^ and having all the essentials to make it binding as to consideration, legality of pur- pose, etc. 8. At law, upon the failure of the owner to comply with his ivritten agreement for a written lease, the pro- posed lessee can recover as damages all expenses in- curred in preparing to remove to, or in occupying, the premises, together with the difference between the real value of the lease and the contract price .^ But in equity, although the agreement to lease may not have been in writing, if there has been a part performance the plaintiff may also recover the amount he has ex- pended upon the land.^ § 99. Indefinite Agreements. We have already 1 Lane v. Newdigate, 10 Ves. 192 (canal and arch for lessee). 2 Vallotia v. Seignett, 2 Abb. Pr. 121. 8 Willmott V. Barber, L. K. 15 Ch. Div. 96. < 33 Ala. N. S. 449. 6 Kamsden v. Dyson, L. R. 1 H. L. 129. 6 Ward V. Smith, 11 Price 19; Duggs v. Dwight, 17 Wend. 71. ' Pulbrook V. Lawes, L. R. 1 Q. B. D. 284; 45 L. J. Q. B. 178 ; 34 L. T. 95. 15 226 BUILDING LEASES. seen -^ that specific performance of contracts will only be decreed in those cases where the character of the work to be done is definitely stated.^ So where the agreement was to take a lease of a house when it " should be put in thorough repair, and the drawing- room handsomely decorated according to the present style," the court considered this statement to be too in- definite to warrant a decree for specific performance.^ Again, in determining whether a written instrument was intended as an agreement for a lease or a present demise, the court will not enforce either if the intention of the parties is indefinite, or the conditions cannot readily be inferred.* The same is also held where un- certainty exists.* But, on the other hand, it was held, in a case where the lessor agreed to put the house " in substantial and decorative repair," the court decreed specific performance, with an inquiry as to whether the repairs had been properly executed ; and if not, then as to damages." The weight of authority is otherwise. For instance, where an agreement stipulated that a lease would be given as soon as the lessee built a house of certain value, " according to a plan submitted to and approved by the lessor," specific performance was re- fused.^ Where, however, the lessor was to have the house " complete, finished, and fit for occupation," and the proposed lessee took possession, but found faults 1 Ante, §§ 44, 45. '' Stiiyvesant v. Mayor of New York, 11 Paige Ch. 414; Story Eq. Jur. § 728. 8 Taylor v. Portington, 7 De G., M. & G. 328. See, also, Myers v. Forbes, 24 Md. 298 ; Lancaster v. De Trafford, 31 L. J. Ch. 554. * Femes v. Hepburn, 2 Y. & C. 158; Gordon c. Trevely, 1 Price, 64. 6 But see Hodges v. Horsfall, 1 Euss. & M. 116; Clinan v. Cook, 1 Sch. & L. 33. « Samuda «. Lawford, 4 Giff. 42 ; 8 Jur. N. S. 739. ' Brace v. Wenbert, 25 Beav. 348. SPECIFIC PERFORMANCE. 227 which were declared by an expert to be immaterial, he was compelled to take the lease.^ If the building plans or specifications are subject to approval of architects or others, or if arbitrators fail to agree as to details, specific performance will not be decreed.^ An agreement to spend a certain amount of money in building, as a condition precedent to the acceptance of a lease, will not be specifically enforced.^ Nor will a preliminary agreement when the intention of a more formal one is evident.* For the same reason, that is, indefiniteness, and the fact that adequate remedy is to be had by an award of damages, courts seldom decree specific performance of agreements to make repairs.^ So where a covenant in a lease of a gravel-pit guaranteed to make good the ground at the end of the term, specific performance was refused.^ § 100. Incidental Stipulations It is important to distinguish those cases where, for general uncertainty of statement, the court cannot exact performance in specie, and those in which the enforcement is necessary in order to give the injured party a remedy upon the breach of the other covenants. Equity will interfere in the latter instances when it is clear that the law 1 Faulkner v. Llewellin, 11 W. R. 1055; 12 W. R. 193; Parker v. Tas- well, 2 De G. & J. 559. 2 Tillett V. Charing Cross Bridge Co. 26 Beav. 419 ; Brace v. Wenhert, 25 Beav. 348. 8 Mosely v. Virgin, 3 Ves. 185. ^ Wood 0. Silcock, SO L. T. 251 ; 32 W. R. 845. s City of London v. Nash, 3 Atk. 512; Lord Abinger v. Ashton, L. R. 17 Eq. 358. 8 Flint V. Brandon, 8 Ves. 159. A privilege contained in a lease, that the lessee might do such quarrying as was necessary to carry on his busi- ness as a boat-builder, confers a property in the rocks so quarried. McKee V. Brooks, 20 Mo. 526. 228 BUILDING LEASES. affords no adequate remedy. If, therefore, a prelimi- nary agreement is merely incident to a lease for which specific performance is required in order to sue upon the lease, equity will decree a lease.-' Thus the execu- tion of a lease to contain covenants to build, according to an agreement to that effect, will be decreed so as to give the lessor a remedy upon the covenants.^ The rule seems to be, that equity will only enforce a cove- nant to make improvements when there is no other adequate relief.^ Where an agreement was to execute a building lease that the lessor might erect certain buildings, the court decreed the lease and directed in- quiry as to damages.* § 101. Other Instances of Specific Enforcement. Where the plaintiff had assigned a lease to the defend- ant upon faith in his agreement to pay the plaintiff an annuity, and furnish him a house worth £10 a year to live in, although the objection was raised that the plaintiff had rescinded the contract, specific perform- ance was decreed.^ Again, where a lessor broke off negotiations with other parties, and allowed the lessee to take possession of land upon a promise to execute a formal lease, which was not complied with, specific performance was compelled two years afterwards.^ Where a tenant built upon his own land instead of that of his landlord, performance in specie was en- forced.'' So, where a land-owner agreed to lease a cer- 1 Kay V. Johnson, 2 H. & M. 118; Middleton v. Greenwood, 2 De G., J. & Sm. 142. 2 City of London v. Southgate, 38 L. J. C. 141 ; Paxton t>. Newton, 2 Sm. & G. 437. " Stuyvesant v. Mayor, &c. 11 Paige Ch. 414. ' Middleton u. Greenwood, 2 De G., J. & Sm. 142; Soames v. Ed. Harrison, 17 Johns. 66; Shaw v. Earnsworth, 108 Mass. 857. 244 BUILDING LEASES. vided there is no covenant to the contrary in the orig- inal lease. There is no privity of estate between the original lessor and the tenant of the lessee or sub- lessee/ and the latter cannot be sued by the former upon the lessee's covenants.^ It must not be under- stood, however, from the above statement, that the land is discharged from the claims of the original les- sor, for, to the contrary, the latter may distrain upon the chattels of the sub-lessee.^ An under-tenant is jus- tified in paying his rent to the original lessor, and not his immediate landlord, if necessary to save his estate.* When a lessee underlets the premises he becomes the landlord of the sub-lessee, and may thereby be totally divested of the right of possession ; ^ yet he can compel his tenant to pay rent by the same remedies the original proprietor has against him, and enforce all covenants made with him.^ The power of distress is incidental to the letting, and the sub-lease need not specify this as a reservation.^ It should be remembered that an under-lease must be for a period less, in point of time, than the term of the lessor,^ for when the whole interest is aliened it 1 1 Washb. Real Property, 339; Halford t). Hatch, 1 Dougl. 183; Robin- son V. Lehman, 72 Ala. 401; 1 East, 502. 2 Williams Real Property, 336; Jennings v. Alexander, 1 Hilton, 154; Dartmouth Col. v. Clough, 8 N. H. 22; Halford v. Hatch, 1 Dougl. 183; Earl of Derby v. Taylor, 1 East, 502; Robinson v. Lehman, 72 Ala. 401. 8 Arnsby v. Woodward, 6 B. & C. 519. * Peck V. Ingersoll, 3 Seld. 528. 6 Nave V. Berry, 22 Ala. 382; 31 Ala. 412; Shannon v. Burr, 1 Hilton, 39; 25 Penn. St. 229. « McFarlan v. Watson, 3 N. Y. 286; Jackson i;. Davis, 5 Cow. 129; Ritzter v. Raether, 10 Daly, 286. ' Co. Lit. 141 b, 142 a; Curtis v. Wheeler, 1 Mood. & M. 493. 8 2 Prest. Conv. 125; Palmer u. Edwards, 1 Dougl. 187; Doe v. Bate- man, 2 B. & Aid. 168. CAPACITY OF PARTIES. 245 amounts to an assignment.^ And it is evident that a tenant cannot create an under-lease which shall run for a longer period than his own, thereby curtailing his landlord's estate.^ § 115. Tenants for Life. A tenant for life has the right to lease his interest ; but only in special cases, and by virtue of a power specially vested in him, can he lease for a period beyond his own life, or that of the cestui que vie? No man can confer on another an estate larger than he himself possesses.* Accordingly, if the tenant for life die before the rent of his tenant is due, his representatives cannot recover the amount due up to his death.^ While he has power to assign his entire estate, or underlet any portion of it for any period not exceeding his own,® he cannot do so except by deed.^ Several states have statutes regulating the duration of leases created by tenants for life. In New York, for instance, he may, by virtue of a power vested in him, make leases for not more than twenty-one years, to commence in possession during his life.^ § 116. Tenants at Will. The chief characteristics of a tenancy at will are, that it is not constituted until the lessee has taken actual possession,^ and is deter- minable any time at the will of either party to the de- 1 1 Washb. Real Property, 336; 2 Piatt on Leases, 421; Pingrey v. Wat- kins, 15 Vt. 479, 488. 2 Pike V. Eyre, 9 B. & C. 909; Oxley v. James, 13 M. & W. 209; Kelley V. Patterson, L. R. 9 C. P. 681. s Strafford v. Wentworth, 1 P. Wms. 180; Wms. Ex'rs, 709. * Ex parte Smyth, 1 Swanst. 353; Symons u. Syraons, 6 Madd. 207; . Doe V. Archer, 1 B. & P. 531. 6 Perry v. Aldrich, 13 N. H. 343; 15 Mass. 268. * Jackson v. Van Hoesen, 4 Cow. 325. ' Stewart v. Clark, 13 Met. 79. 6 N. Y. R. S. 733, § 87. Cheever v. Pearson, 16 Pick. 272; Co. Lit. 55 a ; Pollock v. Kittrell, 2 Taylor (N. C), 152. 246 BUILDING LEASES. mise.^ From the uncertainty of its duration, the tenant's interest is not defeasible,^ and he has nothing to assign or sublet.^ If he surrenders the estate his interest is determined ; * so, also, if he mal' Sheppard's Touchstone, 270; Coombe's case, 9 Co. 76. CAPACITY OP PAETIES. 249 be perfect, rigidly followed, and the act done must be done as that of the principal, and not as of the agent acting for himself.^ In many cases, however, the ap- pointment of an agent may be implied from his habit to do such acts.^ The Statute of Frauds requires the authority of agents to do certain acts to be in writing, and while the provisions thereof might apply to the execution of a lease, it is not generally held that written authority be given to an agent to enter into an agreement for a lease.* Where a lease is required to be under seal, the appointment of the agent must also be under seal,* though equity may compel the principal to ratify the act of his agent if only a seal is lacking.^ The power of attorney authorizing an agent to exe- cute a lease must always be recorded when the lease is required to be recorded.^ § 121. Usual Terms for Building Leases. There is no fixed rule as to running time of building leases. But, on account of the expenditure of money upon buildings and other improvements, it is always advis- able to procure leases for long periods, renewable at pleasure. The practice in some places is to create leases for sixty or ninety (or, as in Maryland, ninety- nine) years, renewable forever. While the law does not prohibit leases being made for any period, however long, the court will consider all the stipulations of the lease and circumstances of the particular case as indi- ' Sheppard's Touchstone, 270; Coombe's case, 9 Co. 76. 2 Story on Agency, §§ 239, 260. « Lake v. Campbell, 18 111. 109; Lawrence v. Taylor, 5 Hill, 107. * Blood V. Goodrich, 9 Wend. 68; 5 Mass. 40; 10 Paige, 386. ^ Story on Agency, § 49; Harrison v. Jackson, 7 T. R. 207. 6 Stewart v. Hall, 3 B. Mon. 220. 250 BULLDING LEASES. eating the real intention of the parties.^ Thus, a term for nine hundred and ninety-nine years was held to be too extravagant, although there was a stipulation for expending money upon buildings, but the expen- diture was only commensurate with a term of ninety- nine years.^ Generally, building leases provide that rent shall not commence until a future day, or upon the completion of the buildings. § 122. Tenant in Fee Simple. For the reasons stated in the preceding section, building leases are usually created with the owner of the fee. From the fact that " a fee simple is the largest possible estate which a man can have in lands," ^ and the owner having abso- lute power of disposing of it as he chooses, it follows that he can make building leases for any number of years, upon any terms he deems proper.* 1 Earl of Shrewsbury v. Keightlcy, L. R. 2 C. P. (Ex. Ch.) 130. 2 1 Piatt on Leases, 35; citing Atty. Gen. v. Green, 6 Ves. 452; Atty. Gen. V. Backhouse, 17 Ves. 291. » 1 Washb. Real Property, 53. « Cora. Dig. Estates (G. 2). CHAPTER XVII. BUILDING LEASES UNDER POWERS. §123. Nature OP Powers Generally. It is not within the province of this treatise to enter into a detailed discussion of powers, yet it is deemed advisable to give a brief outline of the general doctrines thereof, in order to more clearly set forth the subject as applied to building leases. "A power is an authority enabling a person, through the medium of the Statute of Uses, to dispose of an interest in real property, vested either in himself or another person:"^ but it may be "a mere right to limit a use ; " ^ or " a mode or medium of rais- ing a future use ; " ^ or, as defined by the New York Revised Statutes,* " an authority to do some act in re- lation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserv- ing such power might himself lawfully perform ; " or " a method of causing a use, with its accompanying estate, to spring up at the will of a given person." ^ A " power appendant " is one in which the donee is authorized to exercise out of the estate limited to him, and which depends for its validity upon the estate which is in him.^ A " power in gross " is one which gives a donee 1 Bouvier Law Dictionary; Clere's case, 6 Coke, 17 b; Sugd. Powers, 82 ; 4 Kent Com. 316. 2 4 Kent Com. 334; 2 Washb. Real Property, 301. 8 Cornisla Uses, 89. * N. Y. R. S. 732, § 73 et seq. 6 Mansfield v. Mansfield, 6 Conn. 559; 2 Wasbb. Real Property, 300; Williams Real Property, 245. 8 Burton Real Property, § 179; Bergen v. Bennett, 1 Caines Cas. N. Y. 15. 252 BUILDING LEASES. authority to create such estates only as will not attach on the interest limited to him, but will enable him to create an estate independent of his own.'- § 124. American Law. Powers do not constitute an important branch of the law of real property in this country, as in England.^ There it is said that every well-prepared will or settlement of an estate should contain a power for leasing,^ while here, in the United States, such provisions are extremely uncommon.* In New York, and one or two other states, the general law of powers has been abolished, and the whole mat- ter made subject to statutory regulations.^ Yet else- where in this country the doctrines and principles of powers are recognized as forming part of our law.® § 125. Creation and Destruction of Powers. Powers may be created by deed or will,' by grant or reserva- tion.^ The reservation need not be in the same instru- ment if made at the same time.^ No particular form or words is necessary to create a power,^" but' the in- tention must be manifest," yet an equitable construc- tion of words will be applied.^^ Any one having capacity to contract, or to make a valid will, may execute a power over his own land ; ^ 1 VTilson V. Troup, 2 Cow. (N. Y.) 237 ; Tudor Lead. Cas. 293; Burton Real Property, § 180. 2 2 Wasbb. Real Property, 312; 2 Greenl. Cruise, 474, n. ^ See remarks of Lord Mansfield, cited by Piatt on Leases, 393; Atkyns u. Hord, 1 Burr. 120, 121 ; Campbell v. Leach, 2 Ambl. 748. * 2 Greenl. Cruise, 474, u. ; 2 Washb. Real Property, 312. 5 N. Y. R. S. 732, § 73 et seq.; Lalor Real Property, 180. s 2 Washb. Real Property, 311. ' Borland v. Borland, 2 Barb. 80; 2 Washb. Real Property, 312. 8 4 Kent Com. 319 ; 1 Sugd. Pow. 96. " 1 Sugd. Pow. 158. 10 2 Wash. Real Property, 31.5 ; Borland v. Borland, 2 Barb. 80. " Jameson v. Smith, 4 Bibb, 307; Funk w. Eggleson, 92 111. 511; Pome- roy V. Partington, 3 Term Rep. 665. 12 Jackson v. Veeder, II Johns. 169 ; Rew v. Bulkley, Bougl. 293. " Sugd. Pow. 148; 4 Kent Com. 324; Logan i;. Bell, 1 Com. B. 872. POWBES. 253 an infant can execute a collateral power;-' and afeme covert may do the same without her husband's consent,^ whether for his benefit or that of a stranger.* If the manner of executing a power is not prescribed, it may- be done by an instrument of writing, with or without sealing ; * but if a form is required by law, the require- ment must be strictly complied with.^ The execution of a power cannot be by an assignee,^ unless author- ized by the limitation "^ or coupled with an interest ; ^ nor can a power to appoint by deed be executed by will, or vice versa ; ^ nor can a power be delegated when accompanied by a personal trust,^° unless the execution be merely formal." A power may be extinguished or destroyed by a complete execution thereof ;^^ by any assurance which carries the whole of the grantor's estate ;-^* by a release,^* and sometimes by the death of the donee, or perform- ance becoming impossible. § 126. Powers as Applied to Building Leases. "We have already seen that the power to lease lands by one in possession thereof is incidental to the right of owner- 1 2 Greenl. Cruise, 482; 4 Kent, 324. 2 Wright V. Talmadge, 15 N. Y. 307; 2 Greenl. Cruise, 484. 8 Hover v. Samaritan Society, 4 Whart. 445 ; Kush v. Lewis, 21 Penn. St. 72. * 4 Kent Com. 320; Hawkins v. Kemp, 3 East, 430. 6 2 Washb. Real Property, 321; Longford v. Eyre, 1 P. W. 740; Doe V. Smith, 1 Brod. & B. 92. « 2 Washb. Real Property, 321. ' 4 Cruise, 211. 8 Wilson 0. Troup, 2 Cow. (N. Y.) 237. ' Darlington v. Pulteny, Cowp. 260. i» Tanner v. Clark, 13 Met. 226; Berger o. Duff, 4 Johns. Ch. 368; Cole V. Wade, 16 Ves. 27. 11 Ibid. " 2 Greenl. Cruise, 576; Hawkins v. Kemp, 3 East, 410. 13 Sugd. Pow. 57; Barton v. Briscoe, 1 Jacob, 603. M 1 Buss. & M. 431, 436; 1 Coke, 102 b. 254 BUILDING LEASES. ship, and this authority is supplemented by the oper- ation of the Statute of Uses, whereby it is competent to convey lands so that seisin shall be in one, with a power in another to create a leasehold interest for a third person.^ In such a case the latter derives his estate from the original conveyance, while the donee is the medium through which it is ascertained in whose favor the lease shall take effect.^ A lease under a power arises from the estate of the donor of the power, and therefore is not limited to the life of the donee.^ § 127. Instances. When the instrument contained an authority in a general way " to insert all usual powers," it was held that the trustee could insert powers of granting building leases.* But a tenant for life or in tail, or other person having a limited estate, cannot create a lease binding against a remainder- man or reversioner without an express power being given ; it cannot be implied from general statements suscepti- ble of other meaning.^ So, while a power of leasing conferred upon a female is not relinquished by cover- ture, but can be executed by her jointly with her hus- band,^ a stipulation in a marriage settlement that it should contain a power of leasing for twenty-one years in possession, and " all usual powers," does not author- ize a power to grant building leases, although, from ' 1 Washb. Real Property, 305. ^ Ibid., citing Smith Land, and Ten. 43; Williams Real Property, 254; 2 Crabb Real Property, 725; Maundrell v. Maundrell, 10 Ves. 246. 8 Sugd. Pow. ch. 7, §§ 8, 11. ^ Hill V. Hill, 6 Sim. 145; Duke of Bedford u. Marquis, &c. 1 Myl. & Cr. 312. '' Duke of Bolton v. Grantham, 3 Burr. 1259. ^ 2 Piatt on Leases, 401 ; even the concurrence of husband is not defi- nitely settled. POWBES. 255 change of circumstances, the situation of the premises might be rendered extremely eligible for buildings.^ The nature, design, and mode of execution of pow- ers being dependent upon various circumstances, the intention of the donor is to be ascertained from the meaning of the words used,^ and whether the lease is designed for agricultural, mining, or building pur- poses,^ — in short, the ordinary rules of construction of written instruments will apply.* It seems that if one acts upon a pretended power, or wrongfully assumes authority not vested in him by granting leases, although the lessee by virtue thereof, has entered into possession, the owner of the land is estopped from revoking the lease if he recognizes the lessee as his tenant, or accepts benefits from the oper- ation of the lease.^ Marriage settlements, which, by the way, are un- common in this country, but of frequent occurrence in England, ordinarily contain stipulations whereby ten- ants for life are authorized to create leases which shall extend beyond the period of their own estates.* The usual practice is to authorize the one who is to have the estate for life to make leases for twenty-one years, and in such cases the lessee will have the right 1 Pearce v. Bacon, Jacob, 158. 2 Hall V. Bulkley, 1 Dougl. 279; Griffith v. Harrison, 4 T. R. 737. 3 1 Piatt on Leases, 395; Jegon v. Vivian, L. R. 2 C. P. 422; 3 H. L. Cas. 285; 36 L.J. C. P. 145. * Ibid., and Pomeroy v. Partington, 3 T. R. 665; Bartlett v. Rendle, 3 M. & S. 99. 5 McClain v. Doe, 5 Ind. 237; Kendall v. Garland, 5 Gush. 74. These cases have arisen from questions of agency rather than the wrongful as- sumption of powers, and, although they serve to support the text, the subject under discussion must not be confounded with mere powers of attorney, which are authorizations of agencies for particular acts. « 1 Washb. Real Property, 305; Wms. Real Property, 2.i4; Maundrell V. Maundrell, 10 Ves. 246. 256 BUILDING LEASES. to hold for his whole term, though the tenant for life dies before his lease expires.^ If the lease is for a longer term than authorized by the power, it will hold for the full time for which it could have been made, but not in excess thereof.^ A power to lease for ninety- nine years is rarely if ever given in a marriage settle- ment, unless under peculiar circumstances.^ § 128. Form and Effect of Powers in Building Leases. While no particular form of words is necessary either to create or execute a power, and either words of com- mon law demise or of apportionment may suffice, the intention of the donor to create, or the appointee to execute, must be clear.* In drafting an instrument conferring a power to create leases, it will be well to provide, (1), that a proper rent shall be reserved ; (2), that the desired covenants be inserted; (3), that the lease shall not be in reversion, but in possession;^ yet, if the settlement does not stipulate as to covenants, any covenant may be inserted or omitted, if not detri- mental to the estate in reversion.^ A power of leasing cannot be delegated,' but it may be conferred upon the assignee of the estate of the first donor."* So, where the execution of a power is dependent upon the acquiescence of a third person, his consent 1 4 Cruise, 157; Sugd. Pow. ch. 10, § 1; Maundrell v. Maundrell, 10 Ves. 246; Kew v. Bulkley, 1 Dougl. 292; 2 Washb. Real Property, 305.^ 2 Campbell v. Leach, Ambl. 740; Tud. Lead. Cas. 317. = Atty. Gen. u. Owen, 10 Ves. 560. * 1 Piatt on Leases, 407. 6 Sugd. Pow. 711, 835; 1 Piatt on Leases, 394. ' Emden on Building, &c. 40; citing Goodtitle d. Clarges, v. Ifinucan, 2 Dougl. 575; Isherwood v. Oldknow, 3 M. & S. 382. ' See citation in Coombe's case, 9 Co. 76 a ; Palm. 436 ; Coxe v. Daily^ 15 East, 118; Syiuons v. Symons, 6 Madd. 207. 8 Whitefield v. Howe, 2 Show. 57; CoUett v. Hooper, 13 Ves. 255. POWERS. 257 must be given in the manner prescribed/ and if he die,^ or become a lunatic/ before his consent is ob- tained, the power cannot be exercised at all. The strictness with which a power must be executed is further extended to cover an exact compliance with stipulations requiring it to be exercised in writing,* or within the time agreed upon.^ Yet in certain instances there may be an equitable, as well as legal, execution of a power.'' For instance, where an agreement for a lease by a tenant for life was finally concluded within the power, a court of equity held that it was as bind- ing upon the holder of the remainder as a formal lease would have been,^ and specific performance may be decreed.* Although a power to lease for a chattel interest will not authorize the grant of a freehold,^ yet, where the power was given to lease all or any part of the land for any time or term desired, with or without renewals, » it was held that this broad power authorized leases for 999 years with fines.-^" It may be sometimes desirable to insert clauses in settlements or wills providing for the apportionment 1 1 Piatt Leases, 404. ^ Danne v. Annas, &c. 2 Dyer, 219 a; Simpson v. Hornsled, Prec. Ch. 452. 8 Ex parte Smyth, 2 Swanst. 393. * 1 Piatt Leases, 404, and citations therein. 5 Freshfield v. Reed, 9 Mees. & Wei. 404. « 1 Piatt Leases, 408. ' Campbell v. Leach, 2 Ambl. 740; Lowe v. Swift, 2 Ball & B. 53T; Symons v. Symons, 6 Madd. 20; Clarke v. Moore, 1 Jo. & La Tou. 723. 5 Corry v. Corry, Wallis & Lyne, 278. 9 1 Piatt Leases, 425; Evans w. Vaugh, 4 Barn. & Cr. 261; 6 Dow. & Ry. 349. 1" Atty. Gen. v. Moses, 2 Madd. 294; Atty. Gen. v. Wray, Jacob, 307 (1,000 years); Atty. Gen. v. Green, 6 Ves. 452. 17 258 BUILDING LEASES. of rents when several buildings are contemplated to be erected upon the land.-^ " A power to grant building leases will not author- ize a mere repairing lease without any obligation to build." ^ Thus, where trustees had power to grant building leases, but granted those which contained no covenants to build, though they contained covenants to repair and keep the property in order, the lease was declared invalid for the absence of a covenant to build.^ 1 Emden on Building, &c. 42, citing Doe d. Pulteney v. Cavan, 5 T. K. 567. 2 Emden on Building, &c. 44, and illustrative cases. 8 Hallett V. Martin, L. K. 24 Ch. D. 624; 52 L. J. Ch. 804; 32 W. R. 112. CHAPTER XVIII. WASTE IN BUILDINGS BY LESSEES. § 129. General Statement. Tenants for life or for a term of years are generally liable for waste.^ Waste may be defined to be a spoiling or destroying of the estate with respect to the lands, houses, or other cor- poreal hereditaments.^ Voluntary waste is that which consists in the commission of some destructive act, as tearing down buildings, uprooting gardens, etc. ; * while permissive waste is that which results from the mere omission or neglect to do what will prevent injury, as suflFering buildings or other improvements to go to de- cay.* In the absence of any express agreement to the contrary, the lessee or tenant is bound to keep the demised premises in as good condition as he found them, that is, to make all necessary repairs ; ® damages resulting from the act of God, as lightning and tem- pest, or from invasion by the public enemy, or other inevitable accident, only excepted.^ The law of waste is regulated by statute in many of the states. § 130. Pulling Down Buildings. Waste is ordinarily committed by a lessee in pulling down buildings,^ re- 1 2 Black. Com. 281 ; 4 Kent Com. 75; Crockett v. Crockett, 2 Ohio St. 180; Pynchon v. Stearns, 11 Met. 304. ^ Bouvier Law Dictionary; Walker's American Law, 312. 8 1 Washb. Real Property, 108; 1 Paige Ch. (N. Y.) 573. * Bouvier Law Dictionary, for distinction, note ; 3 Dane Abr. 214; 2 Black. Com. 281; 1 Washb.' Real Property, 108. « 4 Bos. & P. 298; 10 Barn. & Cr. 312. « 2 RoUe Abr. 818; 10 Ad. & E. 398; 4 Leon. 240. Co. Litt. 53 a; 2 Greenl. Cruise, 1224; Clemence v. Steere, 1 R. L 272. 260 BTTILDING LEASES. moving floors, wainscots, benches, shelves, furnaces, windows, doors, or other things fixed to a freehold.^ So, also, in unroofing or altering in any manner struc- tures,'^ or permitting them to decay ,^ or changing them from one kind to another, as a dwelling-house to a store,* or rebuilding them in a diflferent style.^ It does not alter the case if the improvements or alterations by the tenant be advantageous to the property,*' as where a lessee, after pulling down an old building, erects an- other upon a more favorable site.' So strict was the common law in this respect that the building of a house where there was none before,^ or tearing it down after it had been built, were deemed waste.^ A more liberal rule of construction, however, is applied in this country, and also in England, at the present time. A tenant will not be generally held liable for waste so long as he has not done, or suffered to be done, any act which will materially or permanently change the nature of the property, or render it impossible for him to re- store the premises substantially as he found them when he took possession.^** In the case just cited of Winship V. Pitts, it was held that " it is not waste for the tenant to erect a new edifice upon the demised prem- ises, provided it can be done without destroying or materially injuring the buildings or other improve- 1 Austin V. Stevens, 24 Me. 520; Wall v. Hinds, 4 Gray, 256; Thatcher V. Plinney, 7 Allen, 146. 2 Co. Litt. 53 a; Douglass u. Wiggins, 1 Johns. Ch. 435 ; Agate v. Lowenstein, 57 N. Y. 604. I 8 2 Greenl. 124; Long v. Fitzsimmons, 1 Watts & S. 530. * 1 Washb. Keal Property, 113; Taylor Landlord and Tenant, 166. s Huntley v. Russell, 13 Q. B. 588. 8 2 Rolle Abr. 815, pi. 17, 18. ' Greene v. Cole, 2 Saund. 252, n. 7 ; Huntley v. Russell, 13 Q. B. 588. 8 Co. Litt. 53 a. 9 2 East, 88; 4 Pick. 310; 1 H. & J. (Md.) 289. JO Winship v. Pitts, 3 Paige Ch. 262. WASTE BY LESSEES. 261 ments already existing thereon. He has no right to pull down valuable buildings, or to make improve- ments or alterations which materially or permanently change the nature of the property. ... It cannot be waste to make new erections upon the demised prem- ises, which may be removed at the end of the term without much inconvenience, leaving the property in the same situation as it was at the commencement of the tenancy, and the materials of which the new build- ings are composed, if left on the premises, would more than compensate the owner of the reversion for the expense of their removal." ^ So cutting a door in a house,^ tearing down an old dilapidated building and erecting a better one in its stead,^ building a new smoke-house in place of an old one,* removing a build- ing erected by the tenant, but not afl&xed to the free- hold,® were held not to be waste. § 131. Permissive Waste. A tenant is required to use ordinary care to prevent buildings going to decay, yet he is not bound to make extraordinary expendi- tures in that direction,^ and he may defer repairs until they shall be less expensive.'^ If he erects a new house upon the land, he is under the same obligation to keep it in repair as he was the old one.^ But if the old house was in a ruinous condition when he took pos- session, he is not liable for waste if he has suffered it 1 Winship v. Pitts, 3 Paige Ch. 262 ; Beers v. St. John, 16 Conn. 329. 2 Young V. Spencer, 10 B. & C. 145; Jackson v. Tibbitts, 3 Wend. 341. 3 Beers v. St. John, 16 Conn. 329. * Sarles v. Sarles, 3 Sandt. Ch. 601 ; Clemence v. Steere, 1 R. I. 272. ^ Clemence v. Steere, 1 R. I. 272. Contra, if affixed to freehold, Austin V. Stevens, 24 Me. 520; Washburn v. Sproat, 16 Mass. 449. « Wilson V. Edmonds, 24 N. H. 517; 4 Foster, 517. ' Harvey v. Harvey, 41 Vt. 373. 8 3 Dane Abr. 215. 262 BUILDING LEASES. to remain so.^ Nor is he responsible for the ordinary wear and tear of the premises.^ Although a tenant is liable for waste committed by a stranger,^ he is not responsible when the damage is caused by lightning, tempest, or the public enemy.* The common law also held a tenant to be answerable for damages done by fire, accidental or otherwise, but this has been changed by an English statute/ which has generally been reenacted, with or without modi- fications, throughout the United States. The injury or destruction of a house by lightning, tempest, etc., will not be waste, but if the tenant permits an un- roofed house to remain so, thereby inflicting further damage, he commits vvaste.^ Yet it may be stated, as a general rule, that if a fire or other inevitable accident occurs, without the privity or fault of the tenant, while he is exercising due care, he will not be liable in the absence of a covenant to the con- trary. ^ § 132. Effect of Covenants and Powers m Building Leases. It frequently happens that there is a stipula- tion contained in the lease that the lessee shall hold the lands without impeachment of waste. It is per- fectly competent for such leases to be made,® and, although this was held at common law as a license to 1 Clemence v. Steere, 1 R. I. 272; Co. Litt. 53 a. 2 Torriano v. Younp;, 6 Car. & P. 8. » 2 Dougl. 745; 1 Taunt. 198 ; 1 Den. N. Y. 104. * Sheppard Touchst. 173; 4 Kent Com. 77; 5 Coke, 21. 6 14 Gi'O. III. c. 78. 8 Co. Litt. 53 a; 3 Dane Abr. 221; Pollard v. Shaffer, 1 Dall. 210; 2 Rolle Abr. 818; 10 Ad. & E. 398. ' 1 Greenl. Cruise, 133, n.; Clark v. Foot, 8 Johns. 421; Barnard v. Poor, 21 Pick. 378. 8 1 Washb. Real Property, 117. "WASTE BY LESSEES. 263 commit waste,^ equity early put a reasonable construc- tion upon this clause by restraining the tenant from pulling down houses and destroying property unrea- sonably.^ But, in building leases, any act which is authorized by the covenants of the lease, or within the terms of the power creating it, can be permitted without being punishable as waste.^ Thus, where the power stipu- lated that " no such lease can be made with impeach- ment for waste by any express words," it was held that the donee might authorize the pulling down of the old buildings in order to erect new ones.* Another illustration is found in a case where the power au- thorized the tenant for life to lease the premises to any person willing to build, and to lease certain mines so that the lessees thereof be not made " dispunish- able for waste by any express words." The lessees, however, were permitted, by the lease made under this power, to dig and use stone from the premises for building purposes, and the jury found that a power to build was necessary and usual. The court held that the lease was not in excess of the power.^ If a lessee, under a lease exempting him from impeach- ment for waste, underlets the premises, his sub-tenant will have the same exemption as himself Neither, however, are at liberty to wilfully and maliciously com- 1 Co. Liu. 220; 11 Coke, 81 b; 15 Ves. 425. 2 2 Vern. Ch. 739; 3 Atk. Ch. 215; 6 Ves. Ch. 110; 16 Ves. Ch. 375. 8 Doe d. Hopkinson v. Ferrand, 20 L. J. C. P. 202. ■• Jones d. Cowper v. Verney, Willes, 169; Chance Pow. 347; Doe d. Lord Ejremont v. Stephens, 6 Q. B. 208. 6 Morris v. Rhydydefed Colliery Co. 3 H. & N. 473, 485. « 2 Bl. Com. 283, n. ; Cholmeley w. Paxton, 2 Bing. 207; Tud. L. Cas. 67. 264 BUILDING LEASES. mit waste, and, if either do so, a court of equity may interpose by injunction.^ Leases containing such cov- enants are seldom found in this country.^ 1 Washb. Real Property, 121, citing Marker v. Marker, 4 Eng. L. & Eq. 95 ; Vane v. Lord Barnard, 2 Vern. 738. 2 4 Kent Com. 78, n. CHAPTER XIX. CONDITIONS AND COVENANTS IN BUILDING LEASES. § 133. Conditions Generally. A condition in a lease has been defined as a qualification annexed to the estate of the lessee, whereby it may be defeated or avoided.^ A condition is usually stipulated with the intent of securing performance of certain provisions of the lease by stipulating that upon the breach thereof the lessor may enter and defeat the lessee's estate.^ Conditions tending to defeat an estate for years are more favored by the law than those which tend to de- feat a freehold estate.^ When a condition or a cov- enant works a forfeiture, courts are inclined to give a strict rather than liberal construction ; * thus, a condi- tion not to underlet will not be broken by an assign- ment of the entire term,^ nor, vice versd, is a condition not to assign broken by underletting.^ So, if a landlord desires to prohibit his lessee from sub-renting or assign- ing, he must insert a condition to that effect.^ A con- 1 Brown V. Bragg, 22 Ind. 122; Doe v. Branch, 4 Barn. & Aid. 401; Reid V. Parsons, 2 Elliot, 247. * 2 W^ms. Real Property, 32; Jones v. Carter, 15 M. & W. 718; Clark v. Jones, 1 Denio, 516. 8 Burton Real Property, § 852; Lloyd v. Crispe, 5 Taunt. 249 ; Cart- wright V. Gardner, 5 Cush. 211. * 1 Washb. Real Property, 315 ; Crusoe v. Bugby, 3 Wils. 234; Doe v. Smith, 5 Taunt. 795; Spear v. Fuller, 8 N. H. 174; Den v. Post, 25 N. J. L. 285. s Lynde v. Hough, 27 Barb. 415; Den v. Post, 1 Dutch. 285; Green- away V, Adams, 12 Ves. 400. « Crusoe V. Bugby, 3 Wils. 234; Doe«. Smith, 5 Taunt. 795; Greenaway V. Adams, 12 Ves. 400. ' Den V. Post, Crusoe v. Bugby, supra; 1 Smith Lead. Cas. 66. 266 BUILDING LEASES. dition not to alien will not operate as a forfeiture where the lessee goes into bankruptcy, unless expressly stipulated.^ While a lessor may with propriety require any rea- sonable covenants or conditions to be inserted in the lease which are not illegal, or contrary to public pol- icy,^ a lessee, will be released from an entire condition if the lessor accepts a part performance of it.^ A condition may be created by the phrases, on con- dition, provided, and so that ; but the words, if it hap- pen, do not make a condition unless followed by a clause of reentry ; * and the first mention may some- times operate as a qualification or limitation, and some- times as a covenant : the construction, however, is de- pendent upon the intention of the parties as gathered from the instrument.^ § 134. Covenants Generally. It may be generally stated that, where the wording of a lease is such that a doubt is left whether a condition or a covenant was intended, the courts will construe clauses as covenants only, rather than conditions or conditional limitations.^ Covenants are either express or implied.^ While any covenant in the least pertinent to the object of the lease may be introduced therein as an ex- press covenant,^ those which are implied by the law, • ' 1 WasUb. Real Property, 315; Smith v. Putnam, 3 Pick. 221; Jackson V. Corlis 7 Johns. 221; Burton Real Property, § 854. '^ Roe d. Hunter v. Galliers, 2 Term Rep. 133 ; Pennant's case, 3 Rep. 64. 8 Dakin, &c. o. William, 17 Wend. 447; Cartwright v. Gardner, 6 Cash. 281; Doe v. Bliss, 4 Taunt. 735. * 2 Hilliard Abr. Real Property, 362. 6 Ibid. ^ Wheeler v. Dascomb, 3 Gush. 285; Doe v. Phillips, 2 Bin. Lumley, 39 Cal. 151. 2 Ibid., and Welles v. Castles, 3 Gray, 325; Tibbets v. Percy, 24 Barb. 39. s Ward v. Kelsey, 38 N. Y. 80; Flynn v. Hatton, 4 Daly, 552; 45 How. Pr. 333. * Stanley v. Twogood et al. 3 Bing. N. C. 4 ; Guttridge v. Munyard, 7 Car. &P. 129. * Brown V. Blunden, Skin. 121; Douse v. Earle, 3 Lev. 264; Douse v. Cale, 2 Vent. 126; Nouaille v. Flight, 7 Beav. 521. 6 See 3 Dane Abr. 215. ' In re Newberry, White v. Wakley, 26 Beav. 17; 28 L. J. Ch. 77; Doe d. Trustees, &c. v. Rowlands, 9 C. & P. 734. 270 BUILDING LEASES. ings affixed to the freehold/ but not in some cases to temporary structures,^ as sheds built for fakirs, or buildings resting upon blocks or pattens.^ In an Eng- lish case, cited by Mr. Emden,* where a lessee, under a covenant to repair, tore down the three houses upon the land and erected four in their stead, the court held that his liability extended to the fourth house also. It seems that covenants to repair may be so framed that they virtually operate as covenants to rebuild at the end of the term.^ § 136. Citations from Decisions upon Covenants to Eepair. Unless there is an express agreement on the part of the landlord to repair, the tenant must take the premises as he finds them, and he cannot recover for repairs made by him, or damages sustained by reason of a want of repairs.^ So, if a tenant makes repairs or improvements on the demised premises in excess of the sum agreed on by the landlord, he cannot be allowed credit for such excess as against the rent.^ Repairs covenanted for in a lease must be made within a reasonable time.^ Some courts have held that, where there is no stipulation between the parties to a lease in 1 Penry v. Brown, 2 Stark. 403; West v. Blakeway, 3 Scott N. K. 199, 218. 2 Nay lor u. CoUinge, 1 Taunt. 19; Woodf all's Landlord and Tenant, 594, 599 ; Davis v. Jones, 2 B. & Aid. 165. 8 Ibid. * Emden on Building, &o. 310, citing Douse v. Cale, 2 Vent. 125. He also cites Lant v. Norris, 1 Burr. 287, and other cases to the same effect. ' Bennett v. Herring, 3 C. B. N. S. 370; City of London v. Nash, 3 Atk. 512. * Smith V. Kinkaid, 1 Brad. 620. Nor can the custom of a locality in which the premises are situated change this rule, and make the lessor bound to pay for improvements by lessee. Biddle v. Reed, 33 Ind. 529. ' Morris v. Tillson et al. 81 111. 607. A covenant by lessor to repair is not implied. Kellengberger v. Foreman, 13 Ind. 475. s Lunn et al. v. Gage, 37 111. 19. COVENANTS GENERALLY. 271 respect to repairs, the tenant takes the risk of the future condition thereof, and is bound to keep them in repair, and that even a promise by the landlord, after the tenant is in possession, to do so, is without consid- eration.^ A general covenant of the lessee to repair demised premises is binding under all circumstances, even if the injury proceeds from the act of God, from the ele- ments, or from the act of a stranger.^ But where the lease is of a building and not of the land on which it rests, and there is no covenant to repair, the destruc- tion of the building terminates the lease and the rela- tion of landlord and tenant, and no rent can be re- covered subsequent to the destruction of the building.^ Neither the covenant to rebuild nor to repair is a usual one in leases, and cannot be demanded.* Where the lessee of a store-room in a building undertakes to make all needed repairs and alterations in and about such room, the lessor by implication will be bound to keep the residue of the building in repair so as to protect the room.^ If a tenant from year to year abandons the premises befoi'e the expiration of a year, without the landlord's consent, he remains liable for the rent for the residue of the year ; nor will he be released from such liability by the neglect of the landlord to repair, and by the fact that the condition of the premises when left was 1 Libbey v. Talford, 48 Me. 316. ^ But see post, § 138 ; Pololack v. Pioche, 35 Cal. 416; Nave v. Berry, 22 Ala. 383; Ely v. Ely, 80 111. 532. 8 Ainsworth v. Ritt, 38 Cal. 89 ; McMillan v. Solomon, 42 Ala. 356. • Eaton V. Whitaker, 18 Conn. 233. 5 Bissell V. Lloyd, 100 111. 214. A covenant to remove rubbish, held to refer to rubbish accumulated by tenant's own use of the premises, and not that left there before his occupancy by a former tenant. Coppinger v. Arm- strong, 5 Brad. 637. 272 BUILDING liEASES. not materially diflferent from what it was at the be- ginning of the year; nor by reason of trivial injuries by fire, where no demand was made on the landlord to repair them ; ^ nor if the landlord accepts some other person as his tenant.^ A landlord is not obliged to keep the premises even tenantable/ but a tenant is not answerable, in the ab- ' sence of a covenant, if the building occupied be de- stroyed by accident.* "Under a covenant to repair generally, the cove- nantor will be bound to keep the building in as good a state as it was when the covenant was made, and to make good all deteriorations arising from natural decay or inevitable accident ; but he is not bound to do more, as to avert the consequences of the elements, but only to keep it in the state in which it was at the time of the demise, by timely expenditure of money and care." ^ " There is no implied obligation between owners of distinct parts of a building, which will enable either to maintain an action against the other for mere refusal and neglect to repair his tenement, whereby the plain- tiff is injured." ® So, " the owner of a room on the lower floor of a dwelling-house, and the cellar under it, is not liable in assumpsit to the owner of the chamber over the room, and the remainder of the house, for con- tribution to necessary repairs on the roof.' A lessee may maintain an action on a covenant of a 1 Lockwood V. Lockwood, 22 Conn. 433. 2 Bacon v. Brown, 9 Conn. 338. 8 Estep V. Estep, 23 Ind. 114. ^ Wainscott v. Silvers, 13 Ind. 497. 5 MiddlekaufE v. Smith, 1 Md. 340. e Pierce v. Dyer, 109 Mass. 374. ' Loring v. Bacon, 4 Mass. 575. See Calvert v. Aldrich 99 Mass. 75. THE COVENANT TO INSURE. 273 lessor to repair, without previous notice to him of want of repair.^ § 137. Covenants to Insure. A clause in a lease exempting the tenant from liability to restore the buildings in case of fire does not relieve him from his obligation to pay rent even in case of destruction by fire.^ A covenant by a lessee to insure in companies approved by the lessor does nq.t necessarily bind him to renew a previous policy in favor of the lessor. He may insure by a new policy for the benefit of both, according to their respective interests.^ In an Illinois case, where a tenant was bound by a covenant to rebuild in case of fire, and the landlord's wife as owner of the property insured the same, but the tenant refused to pay the premium, it was held, in an action brought after the destruction of the prem- ises (the tenant having voluntarily rebuilt in the inter- val), that he was not entitled to any contribution by the lessor, nor had he any claim, legal or equitable, to insurance money, or any part thereof.* Another case, where the circumstances were rather peculiar, may be stated : The lessee covenanted to erect on the lease- hold premises a building worth a specified sum, and to keep the same insured. After the building was erected he obtained a decree in a court of chancery upon his building contract, and under this decree he took pos- session of the premises without a sale ; the court held that his possession was unauthorized and permissive only, and did not make him an assignee of the lease, so as to render him liable upon the covenants con- tained in it, and if he, while thus in possession, insured 1 Hayden v. Bradley, 6 Gray, 425. 2 Beach v. Farris, 4 Cal. 339. * Sherwood v. Harral, 39 Conn. 335. * Ely V. Ely, 80 111. 532. 18 274 BUILDING LEASES. the premises to the extent of his interest in the lease, the policy did not enure to the benefit of the lessor or his assignee, nor was the builder liable on the covenant to insure.^ § 138. Covenants to Rebuild. To illustrate the state- ment concluding the preceding section : an express cov- enant to repair and keep in repair may be so framed as to bind the lessee to rebuild in the case of fire.^ Al- though neither the lessor nor lessee is bound to rebuild if the premises are destroyed by inevitable accident, in the absence of an express covenant,^ yet it never- theless is the law that, when a lessee covenants to re- pair and to restore the premises in the same condition as when he received them, he will be thereby obligated to rebuild though the buildings be destroyed without his fault.* An eifort has been made by a few courts to draw a distinction between the causes which occa- sioned the destruction of the property, and to exempt from the obligation of rebuilding, arising from cove- nants to repair, those cases where the damages resulted from the act of God to which no human agency con- tributed,^ but such a distinction has not generally been recognized. 1 Mercliants' Ins. Co. v. Mazange, 22 Ala. 168. A covenant by a lessee to return the premises in good repair, is a covenant to rebuild in case they are destroyed by fire. Abby v. Billups, 35 Miss. 618. Covenants to repair, to rebuild, or to insure are covenants running with the land. Thomas, Adm., v. Vonkapff, Executors, 6 G. & J. (Md.) 372. A lease does not terminate by fire where no covenant to insure or repair ; Fowler V. Glover, 4 Dane Abr. 383; 21 Pick. 431; 7 Gray, 553; nor does partial destruction. Walls o. Hinds, 4 Gray, 256. But see Stockwell v. Hunter, 11 Met. 448. 2 Scott V. Scott, 18 Gratt. 166 ; Holt v. Holt, 91 Penn. St. 88 ; Abby v. Billups, 35 Miss. 618. 8 Postu. Vetter, 2 E. D. Smith, 248; Welles v. Castles, 3 Gray, 323; Nave V. Berry, 22 Ala. 383. * 2 Saund. 422, n. 2; Abby v. Billups, 35 Miss. 618; Shep. Touch. 173. Contra, Warner v. Hitchins, 5 Barb. 656; Gibson v. EUer, 13 Ind. 125. '' Pololack V. Pioohe, 35 Cal. 416, and cases last cited. COVENANTS EUNNING WITH THE LAND. 275 Ordinarily a covenant by a lessee to rebuild will not render him liable to erect a new house in the same manner, style, shape, and elevation as the old one, for, if this is intended, it should be clearly expressed in the covenant.^ Yet a lessee of a wooden building is re- leased from his obligation under an express covenant to rebuild in the case of fire, if at the time, and subse- quent to the destruction of the building, there is an enactment prohibiting the erection of frame or wooden structures.^ § 139. Covenants Eunn'ing with the Land. In order to fix the liability of the assignee of a lessee to cove- nants made in an original lease, it is often important to distinguish those covenants which run with the land from those which are personal, and which do not bind the estate.^ Spencer's case * is regarded as the leading case upon this subject, and in the report cited below will be found a full discussion of the law to pay rent,^ to insure," to reside on the premises,' to repair or de- ^ Low V. Innes, 4 De G., J. & S. 286. A stipulation in the lease to " deliver up " the premises, merely imposes an obligation against holding over, and not to rebuild in case of destruction by fire. Nave v. Berry, 22 Ala. 383. 2 Cordes v. Miller, 39 Mich. 581. 8 1 Washb. Real Property, 326 ; Burton Keal Property, § 855 ; Taylor Landlord and Tenant, § 260. * 1 Smith Lead. Gas. 139 et seq. The lease of apartments in a building in a town confers upon the lessee only such an interest in the subjacent land as is dependent upon the enjoyment of the apartments rented and necessary thereto ; and if they are destroyed by fire this interest ceases, and of course does not run with the land, for the relation of landlord and tenant is dissolved by the destruction of the demised premises. McMillan V. Solomon, 42 Ala. 356. 6 Demarest v. Willard, 8 Cow. 206; Graves v. Porter, 11 Barb. 592; Rowland v. Coffin, 12 Pick. 125. 5 Vernon v. Smith, 5 B. & Aid. 11; Thomas, Adm., v. Vankapff, Execu- tors, 6 Gill & J. 372 ; Doe v. Beck, 1 Barn. & Adol. 428. , ' Tatem v. Chaplin, 2 H. Bl. 133. 276 BUILDING LEASES. liver up in good condition/ to abstain from carrying on offensive trades,^ to permit lessor to use certain rooms/ to cultivate the land in a particular manner/ to renew lease perpetually/ to pay for new buildings erected on the land/ to do services on the premises/ to maintain fences.^ So, also, negatively, covenants not to let premises for a certain purpose/ not to erect build- ings in front of others,^" not to assign or sublet/^ run with the land. Yet a covenant by a lessor with lessee not to exercise a particular trade on another parcel of land does not bind the grantee of the latter parceU^ Nor can an assignee be held answei-able for breaches of covenants before he became such." § 140. Covenants for Renewal of Lease. It is usual in Maryland, and other states where leases for ninety-nine years are common, to stipulate that the ten- ant shall have the right of renewal forever. Where there is a covenant in these leases that the tenant shall renew " at any time during the term, on applica- tion of the lessee," equity will compel the lessor to renew, even after the term has expired, if the lessee has not been guilty of laches}'^ Care should, however, always be taken that covenants of renewal should be 1 Bennet v. Waller, 23 lU. 97; Spencer's case, 5 Co. Rep. 16; Pollard V. Shafer, 1 Dall. 210. 2 Payne v. Haines, 16 M. & W^. 454. 3 Bush V. Callis, 1 Show. 389. * Mayor v. Patteson, 10 East, 130. ^ Blackmore v. Boardman, 28 Mo. 420; Piggot v. Mason, 1 Paige Ch. 412. " Hunt I'. Danforth, 2 Curt. C. C. 692. ' Norman v. Wells, 17 Wend. 136; Morse v. Aldrich, 19 Pick. 449. 8 Kellogg V. Robinson, 6 Vt. 276. 9 Norman v. Wells, 17 Wend. 136. ' 1" Trustees v. Cowen, 4 Paige, 510. 11 Wiliams v. Earle, 9 B. & S. 740, 753. 12 Taylor Landlord and Tenant, § 261 ; Taylor v. Owen, 2 Blackf. 301. 18 Pauf V. Nurse, 8 Barn. & Cr. 486 ; Huitze v. Thomas, 7 Md. 348; John- son V. Sherman, 15 Cal. 287. " Venerable, Real Prop, in Md. 44, citing Banks v. Haskie, 45 Md. 207. THE COVENANT OE EBNEWAL. 277 definite as to terras and amount of rent/ for cove- nants of this description are not favored by law, owing to their tendency to create perpetuities? Yet, if clearly expressed, renewal will be specifically enforced.^ A lessee is not bound to take a renewal of lease when the lessor only covenants to renew.* Yet he can gen- erally declare his option any time before the expira- tion of the running lease.^ It has been held in California that a covenant for a lease to be renewed indefinitely, at the option of the lessee, is in effect the creation of a perpetuity, and is against the policy of the law.^ So, in Connecticut, a lease for 999 years to an ecclesiastical society, for a sum paid down, was held to be practically a convey- ance in fee, and void under a statute? The policy of the law, therefore, seems to discourage these long-term leases and indefinite renewals, and courts will gener- ally require that covenants for this purpose be taken advantage of within at least a reasonable time after the expiration of the term. Thus, in an Indiana case, where a lease for five years contained a covenant for renewal, the court held that the lessee must elect to renew the lease at or before the expiration of the first term ; that it was too late to do so after the expiration of eighteen months, and notice to quit ; that holding 1 Cunningham v. Pattee, 99 Mass. 248 ; Pray v. Clark, 113 Mass. 283; Norton v. Snyder, 2 Hun, 82 (as to effect of indefiniteness). 2 Baynham v. Guy's Hosp. 3 Ves. 295; Banker v. Braker, 9 Abb. N. C. 411. 8 Willan V. Willan, 16 Ves. 84 ; Blackmore v. Boardraan, 28 Md. 420. * Bruce v. Fulton, 79 N. Y. 154. s Kenoud v. Daskam, 34 Conn. 512; Thiebaud v. First Nat. Bank, 42 Ind. 212. * Morrison v. Rossignol, 5 Cal. 64. ' See, as to these long-term leases, Brainerd v. Colchester, 31 Conn. 410, 411 ; Seymour v. Hartford, 21 Conn. 486; Hartu. Cornwall, 14 Conn. 228; Osborn v. Humphrey, 7 Conn. 339. 278 BUILDING LEASES. over did not renew the lease for another five years/ But a reasonable time for renewal will usually be given. In another case, renewal of a ninety-nine years' lease was compelled after more than three years.'^ The relation of landlord and tenant exists, no mat- ter for how long a term a lease may be made.^ § 141. Penalties. It sometimes happens that penal- ties are affixed in leases for breach of covenants, and it is often a difficult matter to determine whether the sum to be paid for the valuation is in the nature of a penalty or of liquidated damages. This subject has already been discussed in this treatise,* and it is only deemed necessary to add here that, in case of a pen- alty, equity will not allow a recovery to be had there- on, but will direct an issue to ascertain the amount of damages, and compel the lessor or lessee to pay a rea- sonable compensation for the breach.'^ § 142. Discharging Express Covenants. A lessee is not bound by any express covenants contained in a lease when he has not signed the instrument of de- mise ; ^ and such instruments are generally required to be under seal." Actual performance is the only means by which a covenantor can discharge his express covenant,^ ex- 1 Thiebaud v. First Nat. Bank, 42 Ind. 212; 40 Ind. 521 ; Falley v. Giles, 29 Ind. 114. 2 Banks v. Haskie, 45 Md. 207. 3 Venerable, Real Property in Md. 44, citing Carroll v. Shipley, 41 Md. 81. * See Part I. §§ 58-68, Chapter ix. ^ Taylor Landlord and Tenant, § 671, citing Sloman v. Walter, 1 Bro. C. C. 418 (an agreement to perform certain work by a limited time under a certain penalty is not to be construed as liquidated damages) ; Tayloe v. Sandtord, 7 Wheat. 113. " Taylor Landlord and Tenant, § 245 (if lessor accepts unsigned instru- ment, and puts it on record, he thereby waives the express covenants of the lessee); Davis v. Lyman, 6 Conn. 249; Liffy v. Staples, 39 Me. 166. ' Harper v. Hampton, 1 H. & J. 622. 8 Stone V. Dennis, 3 Porter, 231. GENERAL COVENANTS. 279 cept with the concurrence of the covenantee. If the covenantee does some positive act which defeats per- formance/ as where a lessee took possession before the lessor had time to fulfil his covenants, the waiver of an exact performance may be implied.^ It may be sufficient excuse, however, where the covenantee sim- ply forbids the covenaiitor to proceed.^ § 143. Covenants Peculiar to Building Leases. The following express covenants are frequently inserted in building leases and contracts : * — The builder, acting as lessee, covenants that he will complete the building or buildings in a satisfactory manner, subject to the approval of the lessor, or his architect or superintendent. Various rules have been laid down to determine covenants running with the land ; for instance, Mr. Jus- tice Best declared that " a covenant in a lease which the covenantee cannot, after his assignment, take ad vantage of, and which is beneficial to the assignee as such, will go with the land." In other words, " if it is a covenant beneficial to the owner of the estate, and no one but the owner of the estate, and therefore may be beneficial to the estate, and so directly within the principle on which the covenants are made to run with the land." ^ Other eminent authority establishes the rule that, if a covenant refers to a thing in being, and touch or con- cern the estate, as to rebuild or repair, it runs with the land ; ® and if it relates to a thing not in being, which ^ Borden v. Borden, 5 Mass. 67. 2 Carrell v. Bead, Cro. El. 371. 3 Porter v. Stewart, 2 Ark. 427. * Ante, Chapter iv. on Performance of Building Contracts. 6 Vernon v. Smith, 5 B. & Aid. 11; Laffan v. Naglee, 9 Cal. 677 ; Piatt Covenants, 534. ' Spencer's case, 5 Co. Rep. 16. 280 BUILDING LEASES. yet is to be done upon the land with a beneficial ten- dency, whether to enhance its value or increase the en- joyment of the occupant, the assignee, if named, will be bound.^ Yet if the covenant be to do some act, not upon the premises and only collateral thereto, such ,as to build a house upon adjoining land, or to pay a collat- eral sum to the lessor or to a stranger, it would not run with the land.^ In other words, " it must not only concern the land, but there must be a privity of estate between the contracting parties," ^ and must alBfect the nature, quality, or value of the property or its mode of enjoyment, and not be merely collateral.* Implied covenants run with the land ; ^ so do cove- nants for quiet enjoyment, whether express or im- plied : ^ so, too, a covenant to pay taxes or assessments ; '' that he will not trespass upon adjoining land ; that he will erect houses of certain dimensions, of not less than a specified value ; that he will erect buildings suitable for the purpose for which they are designed ; that he will construct all proper roads, give bond, if necessary, for the completion of his undertaking ; see that local ordinances are complied with, and have streets or alley- ways cut through and paved ; that he will erect all houses with uniformity of elevation, etc., and not out- 1 Taylor Landlord and Tenant, § 260, citing Spencer's case, 5 Co. Kep. 1 6, and Hansen v. Meyers, 81 111. 321. A covenant to insure held to run though word " assigns " not in lease. Masury v. Southworth, 9 Ohio St. 340. 2 Spencer's case, supra ; Piatt Covenants, 1 ; 1 Washb. Real Property, 331 ; Keppell v. Bailey, 2 Mylne & K. 517; Dolph v. White, 12 N. Y. 296; Curtis V. AVhite, Clarke, 389. 2 Taylor Landlord and Tenant, § 261, and citations there given. * Ibid., citing Norman v. Wells, 17 Wend. 136; Dunn v. Barton, 16 Fla. 765. 5 Markland v. Crump, 1 Dev. & Bat. 94; Rowland v. Coffin, 12 Pick. 125; Harvey v. McGraw, 44 Tex. 412. ^ Shelton V. Codman, 3 Cush. 318 ; 2 N. Y. 394. ' Kearney v. Post, 1 Sandf. 105. COVENANTS TO BTJILD. 281 side of the building line. Sometimes the lessor of the ground covenants that he will improve the adjoining land by houses uniform with those undertaken by the lessee or builder ; or that he will allow certain ease- ments, roads, or drains, or use in common of alley- ways over his land. The owner of the land, when he leases the same for building purposes, should see that the builder is re- stricted by covenants from erecting inferior buildings to those contemplated, or for use of offensive trades, with the view of the security he acquires in the build- ing for the payment of his ground-rent : while the builder should assure himself that the lessor is the owner of the fee, or tenant for a long term ; that his lease is made for as long a period as can be obtained, and renewable at pleasure ; that covenants which bind him are not too restrictive, or the rent-charge too high ; ^ and that the adjoining land, if owned by the same lessor, will not subsequently be improved by buildings of a nature which will detract from the value of the premises. § 144. Covenants to Build in a Particular Manner. While no precise or technical words are necessary to create an express covenant,^ an indefinite covenant, as where one simply agrees to erect such a house as he may deem proper, binds the covenantor to nothing.* It is, therefore, extremely important that the buildings to be undertaken be described with reasonable definite- 1 Andrew v. Aitkin, L. R. 22 Cli. D. 218; 52 L. J. Ch. 295; 31 W. R. 425. 2 Davis V. Lyman, 6 Conn. 249; Bull v. FoUett, 5 Cow. 170 (covenant may be in form of a condition or exception) ; Holder v. Taylor, 1 Rolle Abr. 518; Penn v. Preston, 2 Rawle, 14. s Rosher v. Williams, L. R. 20 Eq. 210; 44 L. J. Ch. 419; Andrew v. Aitken, L. R. 22 Ch. D. 218; 52 L. J. Ch. 295. 282 BUILDING LEASES. ness. As we have already said, a decree of specific performance will not ordinarily be decreed in a cove- nant to erect a house of a certain style or pattern.^ Yet if the covenant binds the lessee to build a house or houses to correspond with the adjoining houses al- ready built, as to elevation, etc., a court of equity may exact specific performance.^ At common law a cove- nant (being a contract imder seal) could not be altered by parol agreement,^ so that even a request not to commence a building would not discharge a covenant,* but equity courts and subsequent legislative enact- ments ha-ve considerably modified this rule.^ A builder is always excused from performing cove- nants which would involve a violation of a statute or a local ordinance, although the duty undertaken may have been lawful at the time of the covenant- ing.'^ Thus, a builder is not compelled to erect a frame dwelling, although he has covenanted to do so, when such erections are forbidden by town laws.' So, also, where a person who had covenanted for himself and his assigns not to build on certain lands, was com- pelled by act of parliament to assign said lands to a railway corporation. It was held that the lessor and his assignee were discharged from the covenant.^ § 145. Unifoemity in Building. While it is per- fectly lawful for a lessor to exact a covenant from his lessees that they will observe uniformity in building, and not erect any building above or beneath a certain 1 Ante, § 98. 2 Franklyn v. Tuton, 5 Madd. 469; Mosely v. Virgin, 3 Ves. 184; Nokes V. Gibbon, 3 Drew. 651. 8 Littler v. Holland, 3 T. R. 590. ^ Cordwent v. Hunt, 8 Taunt. 596. ^ Ante, Chapter xv. 6 Cordes v. Miller, 39 Mich. 581; Brewster v. Kitchell, 1 Salk. 198. '' Cordes D. Miller, 39 Mich. 581. 8 Baily !>. De Crespigny, L. R. 4 Q. B. 180; 38 L. J. Q. B. 98. COVENANTS TO BUILD TJNIFOEMLY. 283 elevation, and any lessee wHo ignores such a condition may be enjoined or restrained/ it seems that, if the lessor dispenses with such a covenant in favor of one tenant, he can only claim damages at law for breach by the others ; for if he takes away the benefit of his general plan from some of his tenants, he cannot come into a court of equity for an injunction against the others.^ Where a covenant stipulated that " no building ex- cept dwelling-houses " not costing less than £200 each should front opposite to the plaintiff upon a certain road, and the party who came into possession erected a garden-wall alongside the road eight feet high, it was held to be a breach of the covenant ; yet, while dam- ages were awarded, an injunction was refused.^ Op- posite a certain plot of land, when used in such a covenant, means only the land which is immediately opposite, and of the same width as that demised* If a lessee agrees to take down an old house and build a new one in its stead, he is not bound, in the ab- sence of an express agreement, to build the new one in the same style and shape as the one he pulls down.^ In another case, where the defendant covenanted to build private houses only of a certain value each, but erected for one of them a stable with a bedroom over it, yet left sufficient space for it still to be possible to build the house, it was held that he had not thereby violated his covenant.^ 1 Lloyd V. London, C. & D. Ry. Co. 2 De G., J. & S. 568 ; Foster v. B. W. & D. Ey. 2 W. R. 378. 2 Roper V. Williams, Turn. & R. 18. 3 Bowes V. Law, L. R. 9 Eq. 636. * Patching v. Dubbins, Kay, 1 ; 2 Eq. R. 71. ^ Low V. Innes, 4 De G., J. & S. 286. 8 Russell V. Baber, 18 W. E. 1021. 284 BUILDING LEASES. Tet, generally, a court will restrain one from vio- lating a covenant not to build beyond the building line.^ A projecting bay window may be regarded as a violation thereof; ^ so, also, a projection in the rear of a house,^ and ornamental projections.* If the lessor desires, he can covenant not to build upon adjoining land, and his agreement will be binding,^ for, although he covenants that the adjoining land shall be forever left open and not built upon, he does not violate any principle of public policy.® A simple agreement be- tween the owners of adjacent estates for the erection of buildings thereon in a uniform manner, and at a cer- tain distance from the street, does not by implication require that the building shall thereafter remain in the same position, or the same style or shape, as when erected/ § 146. Outlook. The common law imposes no re- striction upon a person from building, simply because the structure he desires to erect will injure his neigh- bor's view or prospect.* As the right to an outlook over the property of another can only be acquired by grant or covenant, and never by prescription,^ to erect a building obscuring the same is not committing a nuisance.^" If the right of prospect could be acquired as an or- 1 Coles V. Sims, 5 D. G., M. & G. 1; 23 L. J. Ch. 258. 2 Lord Manners v. Johnson, L. R. 1 Ch. Div. 673 ; 45 L. J. Ch. 904; Coles V. Sims, supra. 3 Gaskin o. Balls, L. E. 13 Ch. Div. 324. * Simpson v. Smith, L. R. 6 C. P. 87. 5 McLean v. McKay, L. R. 5 P. C. 327. « Ibid. ' Hubbell V. Warren, 8 Allen, 173. 8 Atty. Gen. v. Doughty, 2 Ves. Sen. 453; Aldred's case, 9 Co. Rep. 58 b. " Emden on Building, etc. 287. 1" Per Lord Hardwicke in Atty. Gen. v. Doughty, 2 Ves. Sen. 453 ; Aldred's case, 9 Co. Rep. 58 b. T7NLAWPTJL LEASES. 285 dinary easement, i. e, by prescription, the growth of towns and cities would be greatly restricted ; in fact, to use the language of Lord Hardwicke, " there could be no great town." ^ An injunction, therefore, will not be granted to restrain the erection of a building simply because it obstructs the plaintiff's store from the view of passers-by.^ An agreement or covenant, however, may be made,^ or implied from representations made in securing the lease,* whereby the right to an uninter- rupted outlook may be established. § 147. Unlawful Leases. To constitute a valid lease, a good and valuable consideration is generally requisite, for leases founded upon immoral or illegal consider- ations will not be upheld by the courts.^ Although such leases may generally be said to be void,® they will not be so construed as to operate against innocent persons holding under the lessee as sub-tenants.'' The knowledge that the lessee intended to use the prem- ises for an illegal or immoral purpose would not of itself be sufficient to avoid the lease, unless the lessor was a party thereto,^ although declared void by statute.^ A lease for the life of a person not in existence is void by reason of indefiniteness,^" but a lease for the lives of several persons is valid as to those named who are living.^"^ 1 Atty. Gen. v. Doughty, 2 Ves. Sen. 453. 2 Butt V. Imperial Gas Co. L. E. 2 Ch. 158 ; Smith v. Owen, 85 L. J. Ch. 317; W. K. 422. " Piggott V. Stratton, 1 De G., F. & J. 33; Tulk v. Moxhay, 2 Ph. 774. * Piggott V. Stratton, supra ; seaview case. 6 Dyett V. Pendleton, 8 Conn. 727 ; Smith u. White, L. R. 1 Eq. 626. « Kellogg V. Carkin, 3 Chand. 133; MoUow w. Irwin, 1 Sch. & L. 310. ' Gibbo'ns v. Pearsall, 1 E. D. Smith, 90. 8 Edelmurth v. McGarren, 45 How. Pr. 192. 9 Gibson v. Pearsall, 1 E. D. Smith, 90. 10 Updike V. Campbell, 4 E. D. Smith, 570. " Doe V. Edwards, 1 Mees. & W. 553. 286 BUILDING LEASES. § 148. Time Covenants. Where a lessee agreed to erect certain buildings within a specified time with a power of reentry to the lessor, although no lease was to be granted until the buildings were completed, it was held that the lessor might reenter or maintain ejectment if the buildings were not completed by the time agreed upon.^ But if no time is fixed in the lease for the erection of the buildings, the lessee may erect the same at any time during the term, and even his positive declaration that he would not build at all is not a breach of his agreement.^ It seems that a covenant to build within a given time is not a continuing covenant; and if the lessee fails to build, the receipt of rent by the lessor, accruing after the end of the time given, is a waiver of the for- feiture.^ On the other hand, where a contract of lease of a hotel stipulated that the building should be ready for occupancy by a certain time, it was held that the lessee could recover for any damage sustained by him for defects in its general construction, unfitting it for the use of a hotel, and that taking possession thereof did not bar the lessee's claim, nor did the fact that the lessor had sent competent mechanics to make the repairs.* It should be remembered, however, that the failure of a lessor to make repairs, alterations, or build additions to th. Burr, 41 Conn. 473. So, where H. erected a wooden barn upon stone piers, on a lot which he had leased to P., under a parol agree- ment that P. should pay an additional sum as rent for the barn, and should have it for a certain sum whenever H. should sell the lot. H. sold to S. by an absolute deed, but the barn was verbally excepted from the con- veyance. S. then conveyed the barn by an absolute deed to L., a hona fide purchaser for value without notice. Held, that aside from the original agreement the barn had been a fixture from the first, and that the agree- ment could not operate against L. London v. Piatt, 34 Conn. 522, 524. 1 Van Ness v. Packard, 2 Pet. 137. 2 Kelly V. Austin, 46 111. 156. 8 Dooley v. Crist, 25 111. 551. 4 Emerson i>. VV. V. R. R. Co. 75 111. 176. 6 Dunsledter v. Dunsledter, 77 111. 580. 310 BUILDING LEASES. is admissible.^ If he intended that it should be per- manent, so it will remain, unless severed by removal or an executed agreement for that purpose.^ And such declarations of a lessee are admissible if against the assignee of the lease.^ The general rule is that a tenant may remove fix- tures put upon land if the same can be done without injury to the freehold : * the right must be exercised during his term, or he becomes a trespasser.^ The only real exception is that, if the person erecting the improvements be a mere tenant at will, or for an un- certain pei'iod, he will be allowed a reasonable time after the expiration of his tenancy.® A lease contained a provision that the tenant might remove all his improvements at the expiration of the lease, if all arrears of rent were fully paid, and the other conditions of the lease fully complied with. The tenant subsequently erected a frame building, resting on posts ; the builder put a mechanic's lien upon it, foreclosed the same, and was about to remove the structure during the lease, and while the tenant's rent was still in arrear. Upon a bill for injunction filed by the landlord, it was held that the builder could only remove the building on the same terms as the tenant himself." As we have already said, a building erected upon ' O'Kane v. Treat, 25 111. 557; Linahan v. Burr, 41 Conn. 473. 2 Ibid. ' Linahan v. Burr, 41 Conn. 473. ^ Allen V. Kennedy, 40 Ind. 142; Cronne et al. v. Hoover, 40 Ind. 49; Sullivan v. Carberry, 67 Me. 531; Dingley v. Buffiugton, 57 Me. 381. ^ Cases last cited. See Melvers iv. Estabrook, 134 Mass. 550, for ap- parent exception, where it was implied tenants at will waive right to remove. See, also, Madigan v. McCarthy, 108 Mass. 376. " Sullivan c. Carberry, 67 Me. 531. ' Oswald V. Buokholtz, 13 Iowa, 506. FIXTTTKES. 311 the land of another, with the consent of the land- owner, with the builder's own means, is personal prop- erty,^ and can be treated as such ; thus, an action of replevin will lie at the instance of the owner for re- covery of such a building from the land-owner.^ So, also, of trover.^ Where a lessor gave a lessee a permit authorizing him to erect a building upon his leased land, and allow- ing him to take it away or sell it upon the ground, it was held that such a permit limited the right to take away the building, but not to sell it, and that a pur- chaser thereof might take it away after the term for which the lease was originally given.* If, however, a husband, voluntarily and without any contract, erects buildings xipon his wife's land, he can- not remove them, nor can his administrator sell them to pay his debts : they become part of the realty.^ A building without underpinning, standing on wooden blocks, is personal property.^ So, also, is a small house placed on another's land without cellar, chimney, or plastering, and intended to be taken apart in sections.'' 1 Curtis V. Ilojt, 19 Conn. 165 ; Fuller v. Taylor, 39 Me. 519 ; 2 Amer. Lead. Cas. 693; District Township v. Mooreliead, 43 Iowa, 466. ^ District Township v. Moorehead, 43 Iowa, 466, and cases supra. ^ Osgood V. Howard, 6 Me. 452 ; Hilborne v. Brown, 12 Me. 162; Bonney V. Foss, 62 Me. 240. * Adams v. Goddard, 48 Me. 212 (an interesting case on various points). ^ Washburn v. Sproat, 16 Mass. 449. This is an exception to the rule that where there is an agreement, express or implied, that when property is annexed it shall remain what the parties intended, altliough actually attached to the freehold. O'Donnell u. Hitchcock, 118 Mass. 401; Doty V. Gorham, 5 Pick. 487; Hartwell v. Kelly, 117 Mass. 235. " Hinckley v. Baxter, 13 Allen, 139. ' O'Donnell v. Hitchcock, 118 Mass. 401. So is a building erected by an individual upon government land. Marcy v. Darling, 8 Pick. 283. PART IV. EASEMENTS RELATING TO BUILDINGS. CHAPTER XXI. PRINCIPLES OF LAW OF EASEMENTS. §161. G-ENERAL Statement. It is not within the scope of this treatise to enter into detailed consideration of the law of easements and servitudes, other than to briefly present a general view of these incorporeal rights, and to specially dwell upon those directly affecting buildings and building operations. The ob- ject of this chapter is to sketch an outline of the whole subject, in order to more clearly elucidate the impor- tant questions arising in the use of party walls, right of lateral and subjacent support, light, and air. § 162. Nature of Easements. An easement is an in- corporeal right or privilege which one proprietor has over the property of another.^ As defined by Chan- cellor Kent, it is " a liberty, privilege, or advantage without profit, which one proprietor has in the estate of another proprietor, distinct from the ownership of the soil." The terms " easement " aud •' servitude " are used synonymously. An easement is distinguished from a license in that it implies an interest in land, while a license carries no such interest, and may be ' Kitger v. Parker, 8 Cush. 145; Brakely v. Sharp, 1 Stockt. 9. PEINCIPLES OP LAW OF EASEMENTS. 813 revocable at any time.^ The right to an easement may be acquired in various ways. It may be granted expressly by deed, as where one land-owner covenants to allow another the enjoyment of certain privileges over his land ; or it may be gained by prescription, as where one has enjoyed the right of way unmolested for a certain period ; ^ or it may arise from necessity, as where one purchases land so hemmed in that access cannot be gained without crossing the land of the vendor.^ An easement cannot be granted by any one having less than an entire interest in the land.* Thus, one of a number of tenants in common cannot create an easement to the detriment of the other tenants,® nor can a co-proprietor.'' Yet either may acquire an easement over other land, which will operate as a benefit to the other co-tenant or co-proprietor.'' This corresponds with the case of minors and married women, who, owing to legal disabilities, cannot grant easement, but yet can acquire the same in favor of their estates.^ When an estate is assigned, or passes by devise, all things connected with it, easements included, pass with the title, provided the same are necessary to a proper enjoyment of the land.^ Thus, where one owns two dwelling-houses, and disposes of one of them, 1 See (Ustinotion discussed, Washb. on Easements, 5, 19. 2 3 Kent Com. 441. s Carbrey v. Willis, 7 Allen, 364; Abbott v. Stewardstown, 47 N. H. 228. * Washburn on Easements, 29 ; 3 Kent Com. 436 ; Portmore v. Bunn, 3 Dowl. & R. 145. 6 Collins V. Prentice, 15 Conn. 423; Watkins v. Peck, 13 N. H. 360, 381. ^ Portmore v. Bunn, 3 Dowl. & R. 145. ' Bartletti). Harlow, 12 Mass. 348; Varnum v. Abbott, 12 Mass. 474. 8 Washburn on Easements, 30. 9 HinchclifEe v. Kinnoul, 5 Bing. N. C. 1. 314 BUILDING BASEMENTS. which cannot be used without passing through the passage-way of the other, the right to use the passage- way is of necessity, and an incident to the grant of the house.^ § 163. Presckiption. Easements may be acquired by immemorial or long-continued enjoyment: this mode of gaining the right is called prescription. The period of uninterrupted enjoyment necessary to gain an ease- ment is sometimes tixed by statute, but now the term of twenty years is usually considered sufficient.^ The right arises from the presumption of a grant from long- continued usage. A custom differs from a prescription in that it is a local usage not accruing to a particular person, being the means by which the public may ac- quire the prescriptive right by long enjoyment.^ The principles of law governing easements are similar, in many respects, to those governing the acquisition of title to the land itself by adverse possession. Indeed, an easement, being connected with and appurtenant to real estate, so far partakes of the character of the land that it can only be acquired by grant or prescrip- tion, ivhich implies a previous grant.* The following rules are applicable to both : — A title to an easement may be acquired by enjoy- ment only when the possession or enjoyment has been, — 1st. Under claim of right. 2d. Uninterrupted and undisputed. 1 See 2 Washb. Real Property, 32; Hills v. Miller, 3 Paige, 254. 2 1 Greenl. Ev. § 17; Linnett v. Wilson, 3 Bing. 115; Sargeant v. Ballard, 9 Pick. 251, 255. 8 Perley D. Langley, 7 N. H. 233; Curtis v. Keesler, 14 Barb. 511; Lade v. Shepherd, 2 Strange, 1004; Cincinnati v. White, 6 Peters, 431. See further of the distinction, Washb. Easements, 77 eJ seq. * Forbes v. Balenseifer, 74 III. 183. PEINCIPLES OP LAW OF BASEMENTS. 315 3d. For twenty successive years (or the statutory period, as the case may be). 4th. The easement must have been enjoyed in the same degree, and to the same extent, as claimed in the suit involving it.^ § 164. Desteuction or Loss of Easements. It is clearly settled that, while an incorporeal right may be acquired by adverse enjoyment, it may also be lost by a discontinuance of the enjoyment. This may happen in all cases, unless there be some act indicating an in- tention to resume the enjoyment within a reasonable time.^ So we find that not only an express release of an easement will destroy it,^ but that failing to use it for a long space of time will be a strong fact to show intention to abandon the right ; and so the cessor of use, coupled with an act clearly indicative of an inten- tion to abandon, will operate as a release.* An easement may be extinguished by, — 1. An actual or constructive release.^ 2. The right to the collateral thing, and an estate in the land itself, coming into the same hands.^ In such cases the easement is lost, or merged into the ownership of the fee. But it is held that the estate in the land cannot be less, in quantity and duration, than the estate in the easement ; for if the estate in the land should be less, or if it should be defeasible, the col- lateral thing will only be suspended during the con- 1 Postlethwaite v. Payne, 8 Ind. 104. " To establish an easement by prescription there must be clear, definite, and unequivocal proof of a con- tinued user with the acquiescence of the owner of the land for a period of twenty-one years." Jones v. Crow, 32 Penn. St. 398. 2 Moore v. Ranson, 3 B. & C. 332; 3 L. J. K. B. 32. See Pickard v. Bailey et al. 26 N. H. 165. 8 Glenn v. Davis, &c. 35 Md. 208. * Glenn u. Davis, supra; Browne v. Trustees, 37 Md. 108. ' Washb. Easements, 516. 6 Chains Real Prop. 62. 316 BUILDING EASEMENTS. tinuance of the estate in the land, and will be revived upon the determination or defeasance of the latter.^ Yet it may be generally stated that, if " the owner of one of the estates, whether dominant or servient, be- comes the owner of the other, the servitude which one owes to the other is merged in such ownership and thereby extinguished." ^ It virtually amounts to this : that no man can have an easement in his own land.^ 3. An easement arising out of necessity may be ex- tinguished by becoming unnecessary.^ Such an easement may, however, be revived.^ 4. Abandonment, or non-use. 5. Executed license. If the owner of the easement authorizes the owner of the land to do certain acts which prevents the former from any longer enjoying the easement, the effect will be to extinguish it.® § 165. License Distinguished feom Easement. It is important to readily distinguish an easement arising from an express grant and a mere license. An ease- ment cannot be created save by deed or prescription, but parol licenses are revocable, although executed by the licensee.'' So, although an easement may be im- paired or destroyed by a parol license, it cannot be created thereby.^ While an easement always implies an interest in the lands in or over which it is enjoyed, a license does not carry with it such an interest.^ 1 Co. Liu. 313 a, b. ^ Washb. Easements, 517, citing Pardessus, Traite des Servitudes, 411. ^ Ibid., citing Hancock v. Wentwortli, 6 Met. 446; Gayetty v. Bethune, 14 Mass. 53, 55 ; Keiffer v. ImbofF, 26 Penn. St. 438. ^ Grant v. Chase, 17 Mass. 443, 445. 5 Pomfret v. Ricroft, 1 Wms. Saund. 323, u. 6. « Washb. Easements, 560; Hewlins v. Shippam, 5 Barn. & Cr. 221. ' Cook II. Stearns, 11 Mass. 533; Morse v. Copuland, 2 Gray, 302. 8 Lane v. Miller, 27 Ind. 534. ^ Washburn Easements, 5. PRINCIPLES OP LAW OP EASEMENTS. 317 Again, a license may be revocable at Will by the land- owner, while an easement may be a freehold and irrev- ocable.^ § 166. Enforcing Easements. Injuries to the proper enjoyment of easements, like injuries to other species of property, have appropriate remedies at law and in equity. Generally, to recover at law, actual damages must be shown to have been sustained by the plaintiff; yet, if his right is clearly shown, the law may presume damages to have resulted from the wrongful act of the defendant, and, by a rendition of judgment therefor, establish the plaintiff's right, and protect it from inter- ruption.^ An action upon the case for a nuisance may be brought where the plaintiff seeks to recover for consequential damages to an easement ; an action for trespaiss will not lie.^ Ejectment cannot be main- tained against one claiming an easement in a parcel of land.* Where the land-owner has destroyed the easement, as, for instance, fills up the well from which the right to draw water existed, or erects buildings over it so that it cannot be reached, and then conveys it to a stranger, the latter would not be liable to the owner of 1 Wolfe V. Frost, 4 Sandf. Ch. 72. A simple or voluntary license is merely authority, without regard or consideration to a particular act or series of acts on another's land, without passing any interest or estate in the same, and need not be in writing. Winn v. Garland, 19 Ark. 23. Such a license is revocable at the pleasure of the grantor, but its revoca- tion will not be allowed, where the grantee has been induced to expend his money towards its enjoyment, without reimbursing him. But an ease- ment is a liberty, privilege, or advantage which one man may have in lands of another without profit, and must be held under a deed, or some other instrument in writing, or by prescription. Ibid. 2 Ashby V. White, 2 Lord Raym. 939; Woodman v. Tufts, 9 N. H. 88; Tillotson V. Smith, 32 N. H. 90. 8 Baer v. Martin, 8 Blackf. 317. * Child V. Chappell, 6 Seld. 246, 251. 318 BrrrLDiNG basements. the land for the loss of the easement.-' It is gone be- fore he became owner.^ A more adequate remedy, however, is generally to be had in courts of equity. For, where easements or servitudes are annexed by grant or covenants or oth- erwise to private estates, the due enjoyment of them will be protected against encroachments by injunc- tion.^ Thus, where one builds so near the house of another as to darken his window-lights, courts of equity may interfei-e to prevent the nuisance, as well as to remedy it if already done, although an action for dam- ages would lie at law.* Such an interference, however, will not be inter- posed to aid an individual to sustain his right to enjoy a public easement, when the injury of which he com- plains affects the whole community.^ But in cases of private nuisances, equity courts have concurrent juris- diction with those of law.^ Whether an injunction will be granted is largely within the sound discretion of the court.' § 167. Estoppel. If the owner of land subject to an easement expends large sums in erecting buildings which interfere with such easement, with the knowl- edge of, and without objection from, the party entitled to it, the latter will be estopped from afterwards dis- puting the right of the former to enjoy such improve- ments.^ ^ Washb. Easements, 572. 2 Ballard u. Butler, 30 Me. 94. 8 Thurston v. Minke & Humbird, 32 Md. 487. * 2 Story Eq. Juris. Redf. ed. §§ 925, 926. ^ 2 Story Eq. Juris. Redf. ed. § 927; Hartshorn v. South Reading, 3 Allen, 501; Brainard v. Conn. Riv. R. R. Co. 7 Cush. 506. 8 Gardner v. Kewburg, 2 Johns. Ch. 162 ; Van Bergen v. Van Bergen, 2 Johns. 162. ' Williams v. Jersey, 1 Craig & P. 91 ; 2 Story Eq. Juris. § 969 a. 1 Mitchell V. Leavitt, 30 Conn. 590. PBINCIPLES OF LAW OP EASEMENTS. 319 § 168. Conveyance of an Easement. An easement may pass, without express mention, as an incident to the grant of the adjacent premises ; but the fee in one piece of land not mentioned in the deed will not pass as appurtenant to another tract granted by an accurate description giving it a definite and limited boundary.^ Nothing passes as an incident to such a grant but what is requisite to its fair and reasonable enjoyment. The fee in the land still remains in the grantor, and he may use the same and appropriate it to such purpose as he pleases consistent with the grantee's easement.* 1 Gebhardt v. Keeves, 75 111. 301. 2 Bakeman v. Talbot, 31 N. Y. 366; Houps v. Alden, 22 Iowa, 160; Amondson v. Severson, 37 Iowa, 602. CHAPTER XXII. LIGHT AND AIR. § 169. General Consideration. Although there can be no absolute property in light and air, these elements are incidental to the ownership of land and houses. The modern English law on this subject is not favor- ably received in this country.^ The doctrine recognized in England is, that if A build a house on the edge of his ground, with windows looking into B's field or garden which is adjacent, B may next day, or at any time with- in twenty years, run up a house or wall shutting out the light entirely from A's windows ; but if B allows A's house to stand twenty years without building, he is forever prevented from building on his own land so as to darken A's lights, for A then acquires a prescriptive right to an easement over B's lands. In some cases (but not generally) the doctrine has been carried so far as to hold that a person could not only gain a ser- vitude as to light, but also of prospect. In Scotland, however, it has almost invariably been held that B may, after twenty years, or at any other period, build on his own land and darken A's windows, provided he do not act maliciously.^ In the United States, courts have 1 Myers v. Gemmell, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Ray V. Lynes, 10 Ala. 63. ^ A distinction is recognized in England between easements acquired over light and those to air, the latter being regulated by the Prescription Act (2 & 3 Wm. 4, c. 71, § 3), while the latter is dependent upon common law. Injuries resulting from polluting the air by offensive trades are treated in works upon nuisances ; and for all practical purposes the text of this chapter will be equally applicable to both light and air. LIGHT AND AIE. 321 time and again declared the English doctrine to be untenable. It seems, in fact, that such an anomaly of the law could not be applied to the growing cities and towns of this country without most mischievous conse- quences.-^ In many states it is well settled that an easement in light and air cannot be gained by pre- scription ; ^ while in others an implied grant of an easement of light will be sustained only in cases of real necessity, and will be denied or rejected in cases where it appears that the owner claiming the ease- ment can, at a reasonable cost, have or substitute lights to the building.® In any event " no action lies for the obstruction of the lights of another, if they be not ancieiit lights." * The old doctrine was that a party could not maintain an action for a nuisance to an an- cient light, unless he had gained a right to the window by prescription;^ but this has been so modified that, upon proof of adverse enjoyment of lights for more than twenty years, a jury may presume a right by grant or otherwise.^ § 170. Adjoining Houses. Disputes as to the right to light and air generally arise in growing cities and towns between owners of adjoining houses, for such easements can only be claimed as appurtenant to buildings. To uphold the English doctrine, that the occupants of houses in cities are entitled to the same 1 Parker v. Foote, 19 Wend. 316; Myers v. Gemmell, 10 Barb. 5c7 Klein v. Gehrung, 25 Tex. Supp. 240; Ray v. Lynes, 10 Ala. 63. 2 Hiett V. Morris, 10 Ohio State, 523 ; Mullen v. Strieker, 21 Ohio Statt 139; Richai-dson v. Pond, 15 Gray, 387. See, also. Ward u. Neal, 35 Ala. 602; Hubbard v. Town, 33 Vt. 295. " Powell V. Sims, 5 W. Va. 1. * Mahan v. Brown, 13 Wend. 216; Pickard i-. Collins, 23 Barb. 444. 6 Kirby v. Eccles, 1 Leon. 188 ; Bury v. Pope, Cro. Eliz. 118. « Yard v. Ford, 2 Saund. 175 a; Klein v. Gehrung, 25 Tex. Supp. 240. 21 322 BUILDING EASEMENTS. privilege of unimpaired enjoyment of ancient lights/ would be to most effectually check building operations. Air and light are not, properly speaking, subject to own- ership, and the enjoyment thereof is adverse to no one; yet it is nevertheless a hardship to allow an adjacent owner to deprive his neighbor thereof by erecting a wall upon his land, perchance, for the mere purpose of shutting out the light from his neighbor's windows. On the other hand, it is well taken that one land- holder has an equal right with the other to determine when, how, and what he shall build upon his own land, and that if his neighbor wants light let him so con- struct the building that light can be had independent of the condition of adjoining property. § 171. How THE Easement may be Acquired. Like other easements, the right to the continued or per- petual use of light and air may be acquired by express grant or by prescription.^ As express grants of such easements are almost unknown, a single illustration will be sufficient to show that the American courts are not inclined to uphold the English view that a clause in a building agreement or lease not to obstruct an- cient lights, should be construed as a grant of the ease- ment of light to such windows over land of the lessor.^ In a Maryland case the owner in fee of two lots leased one of them to B for the renewable term of ninety- nine years, and in the lease covenanted that the lessee should have the right and privilege to make openings 1 Yates ti. Jack, L. R. 1 Ch. 295; Martin v. Headon, L. R. 2 Eq. 425. ^ Denied in some states. See ante, § 169. 8 Lowe u. Innes, 10 Jur. (N. S.) 1037; Davies v. Marshall, 1 Dr. & Sm. 557. As with the doctrine of ancient lights, so with the doctrine of an- cient rights, neither forms part of our law; there is no presumption of right from the mere fact of enjoyment for twenty years. Parker « . Foote, 19 Wend. 309 ; Myers v. Gemmell, 10 Barb. 537. LIGHT AND AIR. 823 and place lights in the wall which he contemplated erecting on the western line of the property leased. After the wall was erected and the windows placed in position, overlooking the west lot, A conveyed the reversion in the east lot to B in fee by deed. After said conveyance in fee to B, A conveyed to C in fee the west lot. C began to build up to or near the easternmost line of his lot, the effect of which would have been to obstruct the light and air from B's win- dows. C was notified, and an action was brouo-ht on the covenant against A, on this supposed breach of warranty, the breach alleged being the existence of the said windows in B's house. The court emphatically re- jected the English doctrine as inapplicable to this coun- try, and held that the common proprietor conveyed the right, and that the relative rights and incidents of the two tenements were fixed at the time of the severance by the first grant, and, unless restrictive words were used, the easement followed, and that the warranty did not lay A liable to the purchaser.^ It is exceedingly doubtful whether the easement of light can be acquired by a period of enjoyment through the mere acqui- escence of the owner of the servient estate. Even the English cases justify the statement that mere acqui- escence is not sufficient ; that there must be some act or conduct on the part of the owner of the land to show consent to the easement, and the burden of proof lies on the claimant of the right to show such consent.^ Enjoyment for the period of prescription against a tenant will not bind the reversioner.^ 1 Cherry v. Stein, 11 Md. 1 ; Jane v. Jenkins, 34 Md. 1. 2 Dunn V. Spurrier, 7 Ves. 235; Davies v. Sear, L. R. 7 Eq.427; Cotch- ing V. Bassett, 32 Beav. 101. ' Shelf. Real Property Stat. 98 ; Baker v. Richardson, 4 Barn & Aid. 578 ; Daniel v. North, 11 East, 372. 324 BUILDING BASEMENTS. Possibly Alabama, Illinois, New Jersey, and Louisiana are the only states in this country recognizing the Eng- lish rule. In the leading New York case,^ the court said : " Light and air admitted by windows overlook- ing the land of another are not subjects of property beyond the moment of actual occupancy, and for over- looking one's privacy no action can be maintained. The party has no remedy but to build on the adjoining land opposite the offensive window. In case of lights, there is no adverse user, nor indeed any use whatever of another's property, and no foundation is laid for in- dulging any presumption against the rightful owner." ^ § 172. Where Original Ownership of Adjoining Lots WAS in the Same Person. Although it has been gen- erally held that a conveyance of a tenement with win- dows overlooking a vacant lot owned by the grantor, creates no easement therein for light and air as against a subsequent purchaser,^ there have been decisions to the contrary.^ Thus in Massachusetts, in the case of Story V. Odin, the court held that after the grant with- out any reservation of a right to build on adjacent ground, or to stop the lights in the building sold, the grantor could neither darken the lights by building upon the adjoining lot, nor authorize a purchaser to do so.^ But this decision was overruled in Keats v. Hugo,^ 1 Parker v. Foote, 19 Wend. 309. ' English oases taking contra view. See Tapling v. Jones, 11 H. L. C. 290; 20 C. B. (N. S.) 166; 34 L. J. C. P. 342; Truscott v. Merchant Tailors' Co. 11 Ex. 855; Turner v. Spooner, 1 Dr. & Sm. 467; 9 W. R. 684. 8 Shipman v. Beers, 2 Abb. N. C. 435; Myers ji. Gemmell, 10 Barb. 537. » Story V. Odin, 12 Mass. 157; Grant v. Chase, 17 Mass. 443 ; White v. Bradley, 66 Me. 254; Roswell v. Pryor, 12 Mass. 9; Fifty Associates u. Tudor, 6 Gray, 255. 5 Cases just cited. ' Keats V. Hugo, 115 Mass. 204. LIGHT AND AIE. 325 where the court declared, after discussing at length the previous Massachusetts cases, that " the grant of an ease- ment of light and air is not implied from the convey- ance of a house having vrindows overlooking land retained by the grantor." In another case, where two lots belonging to the same owner were sold at auction on the same day, " with the privileges and appurte- nances " belonging to each, the court held that the purchaser of the lot on which the building stands acquires no right of light and air over the other lot, though the sale and conveyance to him respectively precedes the sale and conveyance to the other.^ In Carrig v. Dee,^ the fact that windows on hinges swung outwards over the defendant's land was held not to constitute such adverse possession as to make any difference. But in Maine it has been held that, " if one sell a building, the light necessary to the reasonable enjoy- ment of it ceming across the grantor's adjoining land goes with it, as incident to the grant, but not that which would be a convenience simply without being a necessity."^ Yet, from the early cases in that state, the courts are adverse to the acquisition of an easement of light by prescription.* In Illinois an action for obstructing air and light to windows can be maintained.^ So, in New Jersey, 1 Collier V. Pierce, 7 Gray, 18; Johnson v. Jordan, 2 Met. 234. Contra, Fifty Associates v. Tudor, 6 Gray, 255; Back v. Stacey, 2 Carr. & P. 465. ^ Carrig v. Dee, 14 Gray, 583. But see Havens v. Klein, 51 How. Pr. 82. » White i'. Bradley, 66 Me. 254; see Herrick U.Marshall, 66 Me. 435. * Pierre v. Fernald, 26 Me. 436. ^ Gerber v. Grabel, 16 111. 217. And in such actions it is not necessary to aver a rii^ht by prescription in the use of windows obstructed. A gen- eral averment of the right to the light and air through the windows is sufficient. 326 BUILDING EASEMENTS. "the court will interfere by injunction to prevent the obstruction of ancient lights," which " must not be disturbed after having existed^ for twenty years undis- turbed, particularly by the person who built the house containing the ancient lights." ^ So, also, in Louisiana,^ and probably Alabama.* In South Carolina an action lies against the owner of adjoining soil for obstructing lights of which there has been uninterrupted enjoy- ment for more than twenty years ; ^ yet, in case of a " window overlooking adjacent house and land, which gives no right of action to owner of space overlooked, he was held not bound to obstruct the light coming to his neighbor across his land within twenty years to pre- vent acquiescence of right."' ^ But in Texas, '■'■ when one builds upon his own land, immediately adjoining the land of another person, and puts out windows over- looking that neighbor's land, he does more than ex- ercise a legal right, and, as he can make no en- croachment upon the right of his neiglibor, he cannot thereby impose any servitude or acquire any easement by the exercise of such a right for any length of time." ^ In Maryland, the English doctrine was denied, the court holding it to be only applicable where the same party is, at the time of the sale, owner of both lots.^ In Ohio, an easement in light and air cannot be acquired 1 Robeson v. Pettenger, 1 Gr. Ch. 57; Barnett u. Johnson, 2 McCart- Ch. (N. J.) 481. 2 Ibid. See, also, King v. Miller, 4 Halst. Ch. (N. J.) 559 ; Bechtel v. Carslake, 3 Stock. 500. ^ Diirel V. Boisblano, 1 La. An. 407. ^ Ray I.. Lynes, 10 Ala. 63 ; Ward v. Neal, 35 Ala. 602. 1^ McCready v. Thomson, Dudley (S. C), 131. « Napier v. Bulwinkle, 5 Rich. (S. C.) 312. ' Pierre u. Fernald, 26 Me. 436 ; 2 Greenl. Evidence, § 529 a; Klein !>. Gehrung, 25 Tex. Supp. 240. See leading English case of Cross v. Lewis, 2 Barn. & Cress. 686. 8 Cherry v. Stein, 11 Md. 1; overruling Wright w. Freeman, 5 H. & J. 477. LIGHT AND AIE. 327 by use or prescription;^ but when the owner of two adjoining lots conveys one of them, no grant or reser- vation for Ught and air will be implied merely from the nature or use of the structures existing upon the lots at or prior to the time of conveyance.^ In Con- necticut a similar adverse view of the Engflish rule will probably be adhered to ; ** Avhile in Pennsylvania, though the question has not been expressly adjudicated, the court, in Haverstick v. Sipe,* said : " It has never been considered in this State that a contract for the privilege of light and air over another man's ground could be implied from the fact that such a privilege has been long enjoyed." In another case in the same State, where two houses belonging to the same owner were sold at public auction under a power in a will, and in the one last sold were windows overlooking the other property, the court held that no easement for light was thereby created, and that the property first sold did not become servient to the other in this re- spect.^ So, where the owner of two adjoining tene- ments sold to different vendees, no easement for light and air was created.^ In a later case it was de- clared that such a conveyance does not create an ease- ment for light and air, unless such windows be a real necessity for the enjoyment of the property granted^ § 173. Deprivation of Light Affecting Tenancies. It has been held in Pennsylvania that the erection of 1 Mullen V. Strieker, 19 Ohio St. 135; Hiett «. Morris, 10 Oliio St. 523. 2 Hiett V. Morris, supra, citing 1 Best & Sniitli, 571; 16 M. & W. 463 ; 33 Penn. St. 368. ^ Ingraham v. Hutchinson, 2 Conn. 584. See the Connecticut Statutes. * Haverstick v. Sipe, 33 Penn. St. 368. See, also, Maynard v. Esher, 17 Penn. St. 222; Hayu. Sterrett, 2 Watts, 331. 6 Maynard v. Esher, supra; Hazlett v. Powell, 30 P-enn. St. 293. « Haverstick u. Sipe, 33 Penn. St. 368; King v. Large, 27 Leg. Int. 148. ' Rennyson's Appeal, 94 Penn St. 147. 328 BUILDING EASEMENTS. a party wall by a third party, obstructing the windows of a tenant, does not amount to an eviction.^ But in New York the contrary appears to be the rule ; for a demise of a building having windows overlooking a vacant lot owned by the lessor, was construed as con- ferring the right to have such windows unobstructed during the term.'' Yet in another case it was held that a landlord could lawfully build upon his adjoining house, though he thereby darken and obstruct the windows of the demised premises.^ § 174. Obstructions by Lessees. It has been almost conclusively settled that, in case of premises demised adjoining that of the owner, the lessee has no right to obstruct the lights in the other tenement.* A lease ordinarily by a covenant for quiet enjoyment, confers on the tenant only the ordinary right to light as it existed at the time of lease .^ § 175. Incidental and Absolute Eights. It has gen- erally been held that the owners of property adjacent to a highway have a right to receive therefrom light and air.^ While equity will not generally interfere to prevent trivial obstructions," yet any positive inter- ference with the plaintiff's rights will be enjoined. Thus, equity restrained a canal company from erecting a building over their canal which would have shut out the complainant's windows from facing the canal.^ The right to use the air for the purpose of running 1 Hazlett V. Powell, 30 Penn. St. 293. 2 Doyle P. Lord, 64 N. Y. 432 ; Spies v. Damm, 54 N. Y. 293. 8 Myers v. Gemmell, 10 Barb. 537. ^ Riviere v. Bower, Ry. & M. 24. 5 Leech v. Scliweder, L. R. 9 Ch. 463; 43 L. J. Ch. 487; 30 L. T. 586. li Barnett v. Johnson, 2 McCart. Ch. (N. J.) 481. ' Atty. Gen. v. Heishon, 3 C. E. Gr. 410, 413; Shreve v. Voorhies, 2 Gr. Ch. 25. " Plum V. Morris Canal Co. 2 Stock. 256. LIGHT AND AIK. 329 a windmill may be acquired like any other easement.^ Occupants of dwelling-houses have an absolute right to freely enjoy pure air, and he who corrupts or pol- lutes it is liable to an action for maintaining a nui- sance. "A conveyed to B land, and a new house thereon, bounding said land on the estate of D. B's administrator conveyed to D, reserving to the house of B the right of eaves-drops where it bounds on said lot, and also the right of forever keeping open the stair- case window at the back of said house, bounding on said lot," said window being twenty-five inches distant from the line of D's land. Held, that the reservation in the deed of the right to keep open the window was merely a right then existing, to wit, the right to light and air coming from the space of twenty-five inches between the window and the line of D's land, as it stood before the deed was given. ^ § 176. Extent of the Right. The extent of the right to light and air, once gained as an easement, depends upon the same rules as other easements. That is to say, it is proportionate to the actual and necessary en- joyment by the user during the prescription period as defined by the grant.^ Such a right may extend to the proper use and enjoyment of the building, and to adapt it to the use of the occupant.* It is also settled that the 1 Goodman v. Gore, 2 EoUe Abr. 704. But see Webb v. Bird, 10 C. B. N. S. 269. 2 Dyer v. Sanford, 9 Met. 395. Entries, stairways, and skylights made by the owner in fee during the unity of seizin, which are apparent and continuous, and necessary to the reasonable enjoyment of the several parts of the building, will be easements upon severance of title to different parts of the building. Morrison v. King, 62 111. 30. ^ Lanfranchi n. Mackenzie, L. R. 4 Eq. 421 ; 16 L. T. 114; Younge v. Shaper, 21 W. R. 135; Kelk v. Pearson, L. R. 6 Oh. 809. *■ Yates V. Jack, L. R. 1 Ch. 295 ; Martin v. Headon, L. R. 2 Eq. 425; 35 L. J. Ch. 602. 330 BUILDING EASEMENTS. dominant owner may enlarge his ancient lights without sacrificing his easement to the extent of his acquired rights/ yet any substantial alteration in the plan of windows destroys the easement.^ While " the domi- nant owner cannot acquire any new or additional right to light by enlarging tlie dimensions or increasing the number of windows, he may alter or improve them in any way he desires, to obtain a larger amount of light through the ancient windows."^ It seems in this country that the grantee of an easement to light has the right to the open and unobstructed passage of air from the ground upwards, and throughout the length of the passage-way.* Although a grantee is restricted by a covenant from making "any addition to his building" northwardly, he may always raise his building higher, though by so doing he obstructs the free access of light and air to the windows of the grantor's house.^ § 177. Loss OF THE Right. If the owner of an ease- ment for light and air permits other permanent erec- tions, which substantially intercept it, the easement is thereby extinguished.'' So, also, if he Avho enjoys the right closes up his windows indefinitely, or otherwise abandons the casement,^ and generally, in equity, an easement may be lost by either acquiescence or agree- ment.^ 1 Ecclesiastical Com. v. Kino, L. R. 14 Ch. D. 213; 49 L. J. Ch. 529; Cooper V. Hiibback, 30 Beav. IGO. 2 Emden on Buildings &c. 409, citing Newson i;. Pender, L. R. 27 Ch. D. 43; 52 L. T. 9. 8 Ibid. ^ Brooks V. R.'vnolds, 106 Mass. 31. '' Atkins V. Bordnian, 20 Pick. 291. ^ Lattimer >•. Livennure, 72 N. Y. 174. ' Mooi-e V. Raiison, 3 Barn. & Cr. 332 ; Pickard v. Bailey, 26 N. H. 165. 8 Waterlow u. B.uton, L. R. 2 Eq. 514; 35 L.J. Cb. 643; Salaman v. Glover, L. R. 20 Eq. 444; Bannon v. Angier, 2 Allen, 128. LIGHT AND AIR. 331 If the owner of the dominant estate licenses the owner of the servient estate to do some act which pre- vents further enjoyment of the easement, it will be extinguished.^ Thus, if the dominant owner erects a permanent blank wall in the place of that from which his windows formerly had an outlook, the easement will be gone forever.^ So in Winter v. Brockwell,* where a license given by the owner of the dominant estate authorized the owner of the servient estate to build a skylight, the effect of which was to extinguish the easement. In these cases the licenses given were held to be irrevocable. In Winter v. Brockwell, Lord EUenborough declared that, as the license given had been acted upon, it could not be rescinded, and cer- tainly not without putting the defendant in the same position as before, by paying all expenses which had been thereby incurred by him.* As we have previously said, the right of an ease- ment of light may be lost or diminished by non-use. It is difficult, however, to define the effect of tempo- rary abandonment by closing apertures and other acts. In the leading case of Stokoe v. Singers,^ the judge instructed the jury that right to light and air might be lost by abandonment, and that closing windows, with the intention of never opening them again, would be an abandonment destroying the right, but that closing them for a temporary purpose would not be so. . . . Though the person entitled to the right might not 1 Moore v. Ranson, .3 Barn. & Cr. 332; Lavillebeuve v. Cosgrove, 13 La. An. 323. " Dyer v. Sanford, 9 Met. 393; Moore v. Kanson, supra. ' Winter v. Brockwell, 8 East, 308. See, also, Morse v. Copeland, 2 Gray, 302. * Winter y. Brockwell, supra. See, also, Liggins v. Inge, 7 Bing. 682; Mold V. Wheatcroft, 27 Beav. 510. 5 Stokoe V. Singers, 8 Ellis & B. 31. 332 BUILDING EASEMENTS. really have abandoned his right, yet, if he manifested such an appearance of having abandoned it as to in- duce the owner of the adjoining land to alter his posi- tion, in the reasonable belief that the right was aban- doned, there would be a preclusion as against him for- ever."^ Several English cases may be found accept- ing the doctrine that the right continues wholly intact so long as any part of the ancient area continues to supply light, although some of the apertures may be permanently closed.^ It seems, however, that where the right of light has been acquired simply by occu- pancy, it is lost when the person who gained it discon- tinues the occupancy.^ In Newson v. Pender,* the owner of a. building, hav- ing right to certain easements of light, tore it down and rebuilt. The windows in the new building were larger in size, but some of them occupied the same places as the old. The defendant denied the contin- uance of the easement, and commenced to erect a building opposite, which would darken the plaintiff's lights. The court held that the right of the dominant owner was not lost by rebuilding. From this and other English cases may be gathered the doctrine that a dominant owner does not lose his easement by simply altering the size, or by opening new windows, pro- vided that some portion of it corresponds with the position of the ancient light.'' A different rule may be 1 Stokoe i\ Singers, 8 Ellis & B. 31; Perkins v. Dunham, 3 Strobli. 224; per Krle, J., IMoore o. Ranson, 3 Barn. & Cr. 332. 2 Bulli-n u. Dickinson, 1 W. N. 1885, p. 23; 33 W. R. 540; Newson «. Pender, 33 W . R. 243; L. R. 27 Ch. D. 43. * W;islib. on Easements, 545, citing Moore v. Ranson, 3 Barn. & Cr. 332, 341. * Newson v. Pender, L. R. 27 Ch. D. 43; 33 W. R. 243; 52 L. T. 9. 6 Ibid.; Tiipling v. Jones, 11 H. L. C. 290; 20 C. B. (N. S.) 166; 34 . J. C. P. 342. LIGHT AND AIE. 333 stated where the easement has been acquired by ex- press grant, for in such a case the intention of the grantor is generally clear that the grantee should have only the right to a window of a certain size, and in a certain location.^ Non-use of an easement for twenty years will ex- tinguish it.^ So, where an ancient window had been bricked up for twenty years, and an adjacent owner had constructed a privy upon his premises, which was not a nuisance so long as the window remained closed, was held not liable for such, although when the former owner again opened his window the privy proved a nuisance.^ Alterations in windows may be permitted so long as they do not change the position of the parties, but if, in any substantial manner, the enjoyment of light by the dominant owner thereby becomes more disadvan- tageous to the servient estate, the owner thereof may avoid the same.* So, where a bay window was erected in the place of a plain flat window, the easement was defeated ; ^ not, however, by merely enlarging the old window;" but, if the owner of the servient estate de- sires, he can obstruct the light through the enlarged window, if he can do so without decreasing the domi- nant owner's original rightJ § 178. Swinging Shutters. " Where a common owner 1 Blanchard v. Bridges, 4 Ad. & E. 176; 5 L. J. K. B. 78 ; 5 N. & M- 567; Hutchinson v. Copestake, 9 C. B. N. S. 863; Cherington u. Abney- mill, 2 Vern. 646. ^ Reg. V. Choiley, 12 Q. B. 515; Pope v. Devereux, 5 Gray, 409. ' Washb. Easements, 547, citing Lawrence v. Obee, 3 Campb. 514. « Garritt o. Sharp, 3 Ad. & E. 325. 5 Tapling >\ Jones, 11 H. L. C. 290; 20 C. B. (N. S.) 166 and cases cited supra, note 1. « Chandler v. Thompson, 3 Campb. 80. ' Renshaw v. Bean, 18 Q. B. 112-130; Thomas v. Thomas, 2 Crompt., M. & B. 34-40. 334 BUILDING EASEMENTS. of two tenements (the windows of one of which over- look the yard of the other, and receive light and air therefrom, its shutters swing out over such yard, and access from its fire-escapes, which overhang the yard, is had to such yard) severs the same by conveyance to different persons, an easement is created in favor of the dominant tenant which was first conveyed ; the grantee of the servient tenement having notice thereof from the construction of the several tenements with respect to each other." ^ § 179. Privacy. It seems no action can be main- tained for overlooking one's privacy, and the only remedy the party has is to build on his own property, shutting out the annoyance.^ For a property owner has no right to close up the windows of his neighbor's dwelling-house, though they open upon the yard of the former.^ Even if a party cuts a new window through a blank wall, thereby disturbing the privacy of his neighbor, he is not liable to an action therefor.* Nei- ther a court of law nor of equity will intei^fere with a man's right to open new windows, notwithstanding an invasion of the privacy of his neighbor.^ § 180. Prospect. We have already said that the right of prospect cannot be acquired by prescription,* but may be by express grantJ Therefore no action ' Havens v. Klein, 51 How. Pr. 82; Chandler v. Thompson, 3 Campb. 80. 2 Parker v. Foots, 19 Wend. 309. ' Havens v. Klein, 51 How. Pr. 82; Doyle v. Lord, 64 N. Y. 432. * Turner v. Spooner, 1 Drew. & Sm. 467; 30 L. J. Ch. 801; Tapling v. Jones, 11 11. L. Cas. 290; Repenny v. S. E. Ry. Co. 7 El. & Bl. 660. ^ Ibid., and Manner v. Johnson, L. R. 1 Ch. D. 680; 45 L. J. Ch. 404. 8 Parkur v. Foote, 19 Wend. 309; Swinston !'. Finn, 52 L. J. Ch. 235; 48 L. T. 636; Aldred's case, 9 Coke, 58. ' Piggott V. Stratton, Johns. (Eng.) Ch. 341-357; Atty. Gen. v. Doughty, 2 Ves. Sen. 453. LIGHT AND AIE. 335 can be maintained for simply obstructing a property- owner's outlook.^ § 181. Remedies for Injuries to the Eight. The easement of light and air once gained will usually be protected, as other incorporeal rights of which pre- vious mention has been made.^ That is to say, the owner of the dominant estate has a remedy at law by an action for damages, or he can ask for an injunction in equity, which is the usual practice. He has, besides, the right in certain cases to remove or abate the ob- struction, but such a redress is unadvisable, for he may thereby lay himself liable to an action for dam- ages.^ To support an action at law, there must be a substantial violation of the plaintiff's right and actual damages ; * yet the court may allow damages to be implied from slight interference with light in certain cases.^ Light permitted to come from an angle of 45° to the window is not, according to an English rule, a violation of an ancient light.^ The action may be brought by a lessee,'^ by a tenant for years,^ — in fact, by any one whose legal interest in the property has been injured by the deprivation of the light. Courts will in proper cases interpose to prevent, a wrongful obstruction of light and air; for instance, where some contract exists that the light should not be interfered with by building upon the adjoining 1 Knowles v. Kicliardson, 1 Mod. 55; Wells v. Ody, 7 C. & P. 410. 2 See ante, § 166. s 2 Story Eq. Jur. § 925; Hyde v. Graham, 1 H. & C. 598; Rex v. Ros- well, 2 Salk. 459. 4 Dent V. Auction Mart Co. L. R. 2 Eq. 238; 35 L. J. Ch. 555. 6 Herti! V. Union Bank, 2 Gif. 686; 1 Jur. N. S. 127. 8 Parker v. First Avenue Hotel Co. L. R. 24 Ch. D. 282; 49 L. T. 318. ' Gale V. Abbott, 10 W. R. 748; 8 Jur. N. S. 987. 8 Jaconib V. Knight, 3 De G., J. & S. 533; 11 W. R. 812. 336 BUILDING BASEMENTS. premises, and a proposed obstruction is about to be erected in violation of such agreement.* The court will not grant the injunction where the injury will probably be trifling,^ or where the right is doubtful,^ or in all cases where an action on the case might be sustained.* In a few instances mandatory injunctions have been granted after a building has been partly erected, directing the defendant to take down the of- fensive structure. But instances of such orders are extremely rare, as the injury to the plaintiff's property can be compensated for by an award of damages.^ Sometimes the court will allow the defendant to com- plete the building, with an undertaking to tear it down if required to do so.^ The case of Aynsley v. Glover^ indorses the well- settled I'ule that whenever an action at law could be had, and substantial damages obtained for the obstruc- tion, an injunction will be granted, subject to discre- tion of court when special circumstances of the case arise. While few cases can be cited where an equity court has ordered an unfinished building to be torn down, it seems that it has no jurisdiction to decree that a completed building shall be demolished or removed.^ 1 Atty. Gen. v. Niohol, 16 Ves. 338. 2 Ibid. 5 Biddle v. Ash, 2 Ashm. 211; Robeson v. Pettenger, 1 Green. Ch. 57. * Atty. Gen. v. Nichol, 16 Ves. 338. 6 Newson v. Pender, L. R. 27 Ch. D. 43; 33 W. R. 243; 52 L. T. 9; Darrell v. Pritchard, L. R. 1 Ch. 244; 35 L. J. Ch. 223; Isenberg v. East India Co. 33 L. J. Ch. 392; Aynsley v. Glover, L. R. 18 Eq. 550; 44 L. J. Ch. 520. ^ Newson v. Pender, supra. ' Aynsley v. Glover, 23 W. R. 459; L. R. 18 Eq. 553; 44 L. J. Ch. 345. 8 Curriers' Co. v. Corbett, 11 Jur. N. S. 719; 4 De G., J. & S. 764. But see cases cited supra, note 5. LIGHT AND AIE. P7 This, however, is disputed by Lord Selborne in a lead- ing English case.-' The court will usually compare the injury inflicted upon the defendant by pulling down his building with that of the plaintiff,^ the value of the buildings upon both lots, and all the circumstances of the case, in esti- mating damages.^ 1 City of London Brewing Co. v. Tennant, L. R. 9 Ch. 219; 43 L. J. Ch. 457. 2 Aynsley v. Glover, and Curriers' Co. v. Corbett, supra. 8 Sayers v. CoUyer, L. K. 28 Ch. D. 103; 54 L. J. Ch. 1; 48 L. T. 939; 33 W. R. 91. 22 CHAPTER XXIII. PARTY WALLS AND EXCAVATIONS. § 182. Meaning of " Party Wall." Ordinarily a party wall means a wall built partly on the land of one and partly on the land of another, for the benefit of both, in supporting timbers used in the construction of contiguous buildings.^ Yet it should be borne in mind that a party wall can only exist by virtue of a contract, by statute, or by prescription ; the common law creates no such right. Consequently, although a wall may have been erected between two adjoining buildings, and used in common for the mutual support thereof, yet it would not be legally a party wall, for each tenant might still own his half in severalty. If, how- ever, this joint use continues for a period of twenty years, it becomes a party wall, and each of the adjoin- ing owners has a right to enjoy it, while neither has the right to remove it.^ So a division wall may become a party wall by agreement, either actual or presumed; and, although such wall may have been built exclu- sively upon the land of one, if it has been used and enjoyed in common by the owners of both houses for a period of twenty years, the law will presume, in the absence of evidence showing that such use and enjoy- ment was permissive, that the wall is a party wall.^ 1 Brown and Otto v. Werner, 40 Md. 15. ^ See Washb. on Easements, 454. ° Brown and Otto v. Werner, 40 Md. 15. In this case the wall was a common nine-inch division wall between the two houses, and it appeared that one of said houses was built into and rested upon the said wall, and PAKTY WALLS. 339 So, in a New York case,^ where a grantor conveyed land to the centre of a wall, and at the end of ten years the grantee built against it, and thus used it for ten years more, it was held to be a party wall. If the owner of two adjoining lots erects houses thereon, with a wall between them for mutual support, and conveys them on the same day to different pur- chasers, even if one of the deeds excludes the wall, the purchaser of the other house is nevertheless charged with the servitude of having the wall stand as a support to the other house, for it is a party wall as " long as the buildings shall endure." ^ So, where the owner of several lots conveys the dwellings by metes and bounds, by a line running through the cen- tre of the " division wall," an easement is created, and the right of support of each house by the entire wall secured.^ In such cases neither of the grantees can interfere with such party wall to the injury of the other buildings without being liable to damages, though he do so for the purpose of making improve- ments upon his own lot, and exercise the utmost care and diligence in performing the work,* and for such an injury the owner may recover damages, though the building be leased to a tenant who has covenanted to repair.^ that this use and enjoyment had continued for more than twenty years. Held to be a party wall. 1 Brooks V. Curtis, 4 Lans. 283. Where a builder erects a wall partly on the adjoining lot, which he subsequently becomes the owner of by pur- chase, he may after such purchase continue to treat the same as a. party wall in subsequent conveyance of the two properties. Beaver v. Nutter, 10 Phila. 345; but see Finley v. Stuburn, 38 Leg. Int. 386. ^ Rogers v. Sinsheimer, 50 N. Y. 646. 3 2 Wash. Real Property, 78 ; 3 Kent Com. 437 ; Matts v. Hawkins, 5 Taunt. 20; Websterw. Stevens, 5 Duer, 563; Partridge U.Gilbert, 15 N.Y.601. * Eno V. Del Vecchio, 4 Duer, 53 ; Daly f. Grunby, 22 Pitts. L. J. 8. •- Ibid. 340 BUILDING EASEMENTS. '■' Party wall," however, is susceptible of other mean- ings, for, while it is generally used as above defined, it may mean a wall of which two adjoining proprietors are tenants in common ; ^ or.it may be used synony- mously with division wall, as signifjang a wall dividing adjoining estates,^ or " as a wall divided into two moie- ties, each moiety being subject to a cross-easement in favor of the other." ^ The subject of party walls is, to a considerable ex- tent, regulated by statute, yet the principles of civil law, and enactments recognized by common law, are so important to the subject of building, that we will treat the doctrine somewhat at length in this chapter. § 183. Building a Party Wall. The owners of ad- joining building lots, in the cities and towns of this country,* are not generally legally bound to join in building party walls on the partition line, unless special ordinances regulate the matter. The proprie- tor of land has the indisputable right to decide when he will build, how he will build, and if he will build at all. He is lord paramount over his own land and everything that pertains to it. If some one usurps 1 Vi^iltsliire v. Sidford, 1 M. & R. 404. 2 Matts V. Hawkins, 6 Taunt. 20. " Watson V. Gray, L. R. 14 Cb. D. 192. ■• "In Scotland, a party building close to wall of another's house can compel tbe owner of the first house to give him half of the wall or gnble on paying half tbe expense, while in England there is no such compulsion. In Scotland, where the practice exists of building bouses in flats, lying each upon the other, the law is not clearly settled, and requires to be cleared up, as to what is the nature of the property or interest which each proprietor of a flat has in that part of the gable bounding his own flat. The better opinion is, that each is the entire owner of his half of the gable, the others merely having cross servitudes ; and hence it follows that if the flats on both sides of a gable belong to one owner, he can make a communication through the gable, provided he does not injure the chim- ney-flues of the lower flats or the stability of the structure." — Chambers Encyclopoidia. PARTY WALLS. 341 his land, and erects or improves buildings upon it, he does not thereby lose his rights, but can eject the tres- passer and retain the building. So, if one half of a partition wall is erected upon his lot, he does not thereby become obligated to share the expense thereof without authority, and lien can attach to his interest in the same.^ The fact that an original wall stood upon the site, and the old building was destroyed by fire, does not render him liable to share in rebuilding. In such a case neither party has a right to pull down the wall without the other's consent, yet an agreement to jointly rebuild is not implied from the preexistence of the party wall.^ The grant of the right of building on the grantor's wall is not determined by destruction of the property by fire, leaving the wall standing.^ While it is the duty of the party erecting a party wall to make it of sufficient strength to support an- other building similar to the one of which it forms a part, yet he is not bound to make it strong enough to support any kind of a building which may be erected by the adjoining proprietor.* In Iowa, it seems that where one of two adjoining lot-owners wishes to build, he has a right to erect a wall of the usual thickness, one half on his own lot, and one half on the lot adjoining. The owner of the adjoining lot may use the wall so erected upon pay- ment therefor of one half of its value, and after such ' Sherred u. Cisco, 4 Sandf. 486 ; Ingles u. Bringhurst, 1 Dall. 341 ; Campbell v. Meister, 4 Johns. Ch. 334. 2 Ibid. » Brondage v. Warner, 2 Hill (N. Y.), 145. * Cutter V. Williaims, 3 Allen, 196; Gilbert v. Woodruff, 40 Iowa, 320. If one builds on the line of his lot so unskilfully, or with such defective materials, that, when the adjoining owner improves his property, the wall falls in consequence of its inherent defects, it is damnum absque injuria. Richards v. Scott, 7 Watts, 460 ; Dunlop v. Wallingford, 1 Pitts. 127. 342 BUILDING EASEMENTS. payment he becomes a joint owner with the other.^ So, in Pennsylvania, it was held that every builder is entitled to erect a party wall partly upon his neigh- bor's land,^ but for no purpose other than that of mu- tual support.^ Where the same person becomes the owner of two houses having a common or party wall, and tears it down and rebuilds on the same foundation, he is not liable to the original builder of the wall, though it is a personal charge.* One has no right to erect a party wall on the in- terior line of his neighbor's lot, from which the latter can derive no benefit.^ So where a street is widened, without prejudice to existing structures until rebuilt, a party cannot continue a party wall on what has be- come a public highway.® Held, in South Carolina, "a good custom to allow contribution or moiety of expense for building a party wall."^ § 184. Building upon a Party "Wall. Either of the ' Lugenbuhler v. Gilliam et al. 3 Iowa, 391 ; probably not elsewhere. See Nash v. Kemp, 49 How. Pr. 522; S. C. 12 Hun, 492. But see Baptist Pub. Soc. ('. Wistar, 33 Leg. Int. 212; S. C. 2 W. N. C. 333; Monroe v. Conroy, 1 Phila. 441. 2 Monroe v. Conroy, 1 Phila. 441. 3 Baptist Pub. Soc. v. Wistar, 33 Leg. Int. 212; S. C. 2 W. N. C. 333. It has been held in Pennsylvania, wliere the owner of two contiguous lots erects a brick messuage on one of them, with a division wall partly on each lot, and sells to different purchasers, it does not thereby become a party wall. Oats v. Middleton, 2 Miles (Penn.) L. Eep. 247. * Pratt V. Meigs, 2 Pars. Eq. Cas. (Penn.) 302. ^ Whitman v. Shoemaker, 2 Pears. (Penn.) 320 ; Roedearnel v. Hutchin- son, Ibid. 324. If the foundations of a wall be laid partly on the lands of adjoining owners, it will be deemed a party wall, though, from the level of the ground, it is on the builder's land. Gordon u. Milne, 10 Phila. 15; S. C. 81 Penn. St. 54. « Wistar's App. 6 W. N. C. 140. ' Walker v. Chichester, 2 Brew. 67. PARTY WALLS. 343 owners of a party wall have the right to increase its height, provided such increase can be made without det- riment to the strength of the said wall, or to the prop- erty of the adjoining owner, but he makes such addition at his peril.^ The exercise of this privilege brings about the peculiar circumstance that a wall may be a party wall to a certain height, and subject to the sole ownership of one of the adjacent proprietors above said height.^ In such a case the court will hold that, so far as the wall between the buildings is concerned, it is a party wall, while it may grant an injunction prohibiting the removal of the other portion.^ " We have known in this court," said James, L. J., in Weston v. Arnold, " cases in which property in London is intermixed in such a way that one man's basement and cellar ex- tend under another man's shop ; and, again, the first floor of one house is over the shop of the next house. In such a case there would be a party wall between the two buildings below, while above would be only a pri- vate partition between two rooms in the same house. There is nothing in fact or in law to make it impossible or improbable that a wall should be a party wall up to a certain height, and above that height be separate prop- erty of one of the owners." But the owner of one half of a party wall has no right to extend it to the line of the street, thereby occupying a portion of his neighbor's land not built upon.* 1 Brooks V. Curtis, 50 N. Y. 639 ; Daly v. Grunby, 22 Pitts. L. J. 8 ; Musgrave v. Sherwood, 54 How. Pr. 338. 2 Weston V. Arnold, L. R. 8 Ch. 1084 ; 43 L. J. Ch. 123 ; Knight v. Pursell, L. R. 11 Ch. D. 412; Watson v. Gray, L. R. 14 Ch. D. 192; Mus- grave V. Sherwood, 54 How. Pr. 338. 5 Knight V. Pursell, supra. * Nash V. Kemp, 49 How. Pr. 522 ; S. C. 12 Hun, 592. According to the French Code, either owner can raise a party wall, provided he does not thereby injure its solidity or strength, but he cannot call upon the 344 BUILDING BASEMENTS. § 185. Use op a Party Wall. One of the joint owners of a party wall can do any act concerning it which he desires, so long as he does not injure the property of the other. That is to say, he may " under- pin the foundation, sink it deeper, and increase its thickness within the limits of his own lot, or its length or height, if he can do so without injury to the building on the adjoining lot. . . . He cannot pare off the part of the wall that stands on his own land, so as to render the remainder insufficient or unsafe, or excavate under the part of the wall upon his own premises, to the permanent injury thereof."^ So, again, a party wall may be used by the owners for whose mutual benefit it was constructed, not only for the support of their beams, and for the construction thereon of fire-places and flues, but also to form a complete and perfect jimction, in an ordinarily good, mechanical manner between it and the exterior walls of the house.^ Yet neither of the joint owners can underpin the wall with- out permission, unless it can be done without injury to other party for indemnity for the expense of supporting the portion lie has added. Pardessus Traite dus Servitudes, 265; 3 Toullier Droit Civil Fran- (jais, 135. Where parties build, falling back from the line of the street, and their respective houses so remain for a period of fifty years, one of them cannot extend the party wall to the line of the street without assent of the other. Duncan r. Hanbest, 2 Brewst. 362. ' Wa^hb. on Easements, 455, citing Eno !>. Del Vecchio, 4 Duer, 53, and 6 Duer, 17; Webster v. Stevens, 5 Duer, 553. On the other hand, where the wall is not a party wall, and a party inserts the beams of his house therein without permission, the wall does not thereby become a party wall and the owner may pull it down ; nor is a license to make a window in and to hang shutters upon such wall a ratification of the act of inserting the beams. Roberts v. White, 2 Kob. (N. Y.) 425. The ri;^ht to insert joists in the wall of an adjoining house is a servitude, and the extent to which it damages the property is for the jury. JSlern v. Sacger, 34 Leg. Int. (Pa.) 21. 2 Nash V. Kemp, 49 How. Pr. 522; S. C. 12 Hun, 592. PAETY WALLS. 345 the adjoining property.^ Where a party wall is erected in place of one condemned by the building inspector, it has been held in Pennsylvania that the other party cannot use the same without paying his share of the costs.^ § 186. Agkeements and Covenants Concerning Party Walls. A license to erect a portion of a party wall, given by the owner of an adjoining lot, is irrev- ocable if it has been acted upon by building the whole or part of the wall.^ Yet the covenant to pay half the cost of building a party wall has generally been held to be a personal one, therefore not passing to the grantee of the covenantor ; * but if the grantee use or occupy a part of such wall, he is liable for the reasonable value thereof.^ So, while liability to pay for a party wall may he held to be personal, the use thereof runs with the land.^ In the leading case of Keteltas v. Penfold,'^ where the owner of a city lot granted to the owner of the adjoining lot the use of a portion of his land for the purpose of building a party wall, with a covenant in the deed, for himself, his heirs and assigns, that when- ever he or they should build upon his or their lot, to pay one half the value of the said wall, the court held this covenant to be the grant of an easement therefor running with the land, and charging the grantee of the reversion. In another case, however, where the wall had been erected by two tenants for years, it was 1 Bradbee v. Christ's Hospital, 4 Mann. & G. 714, 761; Webster u. Stevens, 5 Duer, 553 et acq. 2 Bailey's App. 1 W. N. C. 350. 8 Wickersham u. Orr, 9 Iowa, 253. 4 Brown v. McKee, 57 N. Y. 684; Curtis v. White, Clarke's Ch. 389; Blach I). I.-ham, 28 Ind. 37; but see Thompson v. Curtis, 28 Iowa, 229. 6 Wickersham v. Orr, 9 Iowa, 253. 6 Thompson v. Curtis, 28 Iowa, 229. ' Keteltas v. Penfold, 4 E. D. Smith, 122. 346 BUILDING EASEMENTS. held not to create an easement, as neither could grant a permanent interest in the land, or bind the rever- sioner.-' As a covenant to pay half costs of building a party wall is a personal one, it is not enforcible against the land in the hands of a purchaser ; ^ and ac- cording to New York decisions, not even an express covenant to reimburse the first builder for the use of a party wall runs with the land, or binds the grantee of the covenantor.^ It has, therefore, been held that a party wall is not a legal incumbrance,* and a pur- chaser without notice may use the wall standing on his own land, although he cannot be compelled to pay the first builder the value thereof^ Indeed, the right to reimbursement for the use of a party wall does not pass by a conveyance of the premises,^ or by a mort- gage thereof.^ In Burlock v. Peck,^ there was an agreement that the adjoining owner was to have " the privilege of 1 Webster v. Stevens, 5 Duer, 553. 2 Curtis V. White, Clarke Ch. 389; Scott v. McMillan, 19 Alb. L. J. 279 ; Brown v. McKee, 57 N. Y. 684. 8 Cole V. Hughes, 54 N. Y. 444; Brown v. McKee, 57 N. Y. 684. * Hendricks v. Stark, 37 N. Y. 106; Waterman v. Van Every, 3 Alb. L. J. 30. ^ Sberred v. Cisco, 4 Sandf. 480. So, where a husband builds on his wife's land, and, in pursuance of an agreement with the adjoining owner, erects a party wall one half on such property, for which the latter agrees to reimburse him when the wall is used, this was held to be a mere chose in action and not to pass to the wife's grantee. McDonnell v. Culver, 8 Hun, 156; Stewart v. Aldrich, 8 Hun, 24. 6 Cole 1'. Hughes, 54 N. Y. 444; Brown v. Pentz, 1 Abb. Dec. 227; Doyle V. Ritter, 6 Phila. 577; 8 Phila. 264. So, also, in Pennsylvania: Hart V. Kircher, 5 S. & R. 1 ; Davids v. Harris, 9 Penn. St. 501; Gilbert V. Drew, 10 Penn. St. 219 ; but since the Act of April 10, 1849 (P. L. 600), the right of the first builder is an interest in the realty, and passes to the grantee of the land. Knight o. Beenken, 80 Pa. 3 72. ' Thompson v. Somerville, 16 Barb. 469. See McGittigan v. Evans, 8 Phila. 264. 8 Burlock V. Peck, 2 Duer, 90. PARTY WALLS. 347 building a party wall twelve inches thick, extending six inches on each side of the line," for which the grantor agreed to pay one half the cost when the wall should be used. After the grantee died, his adminis- trator sued the grantor for the cost of the wall. It was held that the covenant ran with the land, and the administrator recovered.^ The weight of authority, however, seems to be that a reservation of the right to use a party wall, to be erected by the grantee, only gives a right of support for an adjoining building, and confers no interest in the land itself.^ But an agree- ment under seal can convey half the use of a party wall, thereby creating the easement ; ^ in fact, an un- sealed written agreement may be sufficient to create an easement to use a wall as a party wall.* So, in Ohio, where a wall is in existence at the time an agreement that an adjoining proprietor can use it is made, the use of the word " assigns " is not necessary to make the easement run with the land, " nor does the want of privity of estate between the parties pre- vent a conveyance from running with the land." ^ Where a wall is built over an adjoining lot by con- sent of the parties, and that lot is left vacant for the benefit of both parties, the owner, when he builds, must pay for the wall built over the alley, as much as for any other party wall.^ 1 Murley v. McDermott, 8 Ad. & E. 138. ^ Ogden V. Jones, 2 Bos. 685. 3 Piatt V. Eggleston, 20 Ohio St. 414 ; 2 Duer, 91. * Pendleton v. Posdick, Ohio Superior Court, 1879 ; 8 Rec. 148, 486. 6 Ibid. * Haines v. Drips, 2 Pars. Eq. Cas. (Penn.) 236. In this case the pur- chaser of a lot at a sheriff's sale was required to pay a moiety of the cost of a party wall which he used. The party by whose order a house is erected is the builder, and liable for the value of the party wall, though the house were erected under a contract for a gross sum, "including party walls," which had been paid. Davids v. Hart, 9 Penn. St. 501. S48 BUILDING EASEMENTS. If either owner of a party wall raises it above its original height, he will be obliged to keep the addition in repair ; but if the adjoining owner uses the addition for the support of the building upon his side, he will properly be chargeable with the cost thereof, as the whole wall thereby becomes a party wall.-' Where two adjoining proprietors have verbally agreed to build a party wall, which had been partly completed, it was held that the one who had prepared his materials and planned his building, relying upon the performance of the contract, upon the refusal of the other party to proceed, may, after notice, go on and finish the wall and recover one half the expense thereof.^ In an Ohio case,^ where the court was called upon to construe an agreement to erect dwelling-houses upon their respective lots in a city, and built a partition w;dl, one half on each lot, and there was no stipulation as to the duration and joint use and occupancy of said partition wall, the court held that such a contract, like others, is to receive a reasonable construction to effect the reasonable intent of the parties deducible from the words employed as applied to the circumstances sur- rounding the contracting parties. § 187. Ownership of Party Walls. Where a wall is enjoyed by adjacent owners, the presumption arises that they hold the wall as tenants in common.* So, "where the quantity of land contributed by each is not known, the reasonable presumption from the com- mon use of the wall was, pr'und facie, that the wall, and ' AVaslib. on Easements, 471. 2 Rinclge v. Baki_-r, 57 N. Y. 209. 8 Hiett V. Mon-is, 10 Ohio St. 523. * 3 Kent Com. 438; Hutchinson v. Mains, Ale. & Nap. 155; Duke, &c. V. Clarke, 8 Taunt. 627. PARTY WALLS. 349 the land on which it was built, were the undivided property of both." ^ Yet, although the law presumes a common ownership, in fact the easement of a party wall, it is nevertheless competent for one of the parties to show that the wall stands entirely upon his own land ; ^ so, where the exact extent of the land origi- nally belonging to each can be ascertained, they are not tenants in common of the wall.^ So, where two ad- joining proprietors put up a partition fence between them, agreeing that each should own that portion of the fence put up by himself, and the fence built by one is mistakenly located upon the land of the other, who sells the land to one who has no notice of the agreement as to the ownership of the fence, the fence was held to pass to the purchaser of the realty, not- withstanding the presumption of common ownership.* The right of property in a party wall, though built by the owners thereof jointly, follows the ownership of the land upon which it stands ; that is to say, there is no 'change of title, for, while the land is severally owned as before, the only difference is that each of the owners, for the use of his soil, and mutual benefit conferred and received, has an easement of support upon that portion standing upon the land of the other.^ Where, however, a wall has been erected by a contract or agreement between the adjoining owners, their re- » Wiltshire v. Sidford, 8 Barn. & Cr. 259, n.; Guy v. West, 2 Selwyn N. P. 1297; Cubitt v. Porter, 2 M. & R. 267. 2 Murley v. McDermott, 8 Ad. & B. 138 ; Sherred v. Cisco, 4 Sandf. 480, 490. « Matts V. Hawkins, 5 Taunt. 20; Taylor v. Stendall, 7 Q. B. 634. * Climer v. Wallace, 28 Mo. 5.56. On the completion of a building, the party wall is the property of the owner of the house and not of the con- tractor. Brierly v. Tudor, 2 Am. L.J. 191; Eichert v. Wallace, Ibid. 326. 6 Weston V. Arnold, L. R. 8 Cli. 1084; Murley v. McDermott, 3 N. & P. 356; 8 A. &E. 138. 350 BUILDING EASEMENTS. spective property rights may be regulated to a certain extent by the agreement itself; and in the absence of such an agreement, the law presumes that their rights are equal.^ We have already seen that, where two houses belonging to the same owner are sold to differ- ent purchasers, each may take to the centre of the division wall, which thereby becomes a party wall,^ each owning one half, yet having a cross-easement over the other half ^ But in Pennsylvania it has been held that, where the owner of two contiguous lots erects a brick messuage on one of them, with a division wall partly on each lot, on a subsequent sale to different purchasers it does not become a party wall within the meaning of the statute.* Where half of a wall rests on a vacant lot, the pre- sumption is that it belongs to the owner of the con- tiguous lot whereon rests the main building, if such half wall has been used by the owner of it.^ § 188. Repairing and Rebuilding Party Walls. The owners of a party wall which has become ruinous are bound to contribute pro rata to its reerection, but not to build it higher or of more costly materials.® But, on the other hand, if one of the joint owners takes down a party wall while it is still in sound condition 1 Pardessus Traitd des Servitudes, 248. See Taylor v. Stendall, 7 Q. B. 634. 2 Partridge v. Gilbert, 15 N. Y. 601. « Knight V. Pursell, L. R. 11 Ch. D. 412. ' Oat V. Middleton, 2 Miles, 24 7; McGittigan v. Evans, 8 Phila. 264. 5 Bertram v. Curtis, 31 Iowa, 46. " A grant with a covenant of war- ranty for quiet enjoyment, reserving the right to enter on certain part of the premises to dig and take the clay and sand fit for brickmaking, does not impose upon the grantor the obligation of leaving a lateral support for the land adjoining his excavations; it is a reservation, not an exception." Kychman v. Gillis, 57 N. Y. 68; Ludlow v. H. R. R. Co. 57 N. Y. 128. •5 Campbell v. Meister, 4 Johns. Ch. 334: but see Sherred v. Cisco, 4 Sandf. 486 ; Partridge v. Gilbert, 15 N. Y. 601. PARTY WALLS. 351 and sufficient for the purpose for which it was erected, he is not only liable for the cost of rebuilding, but also for any damage he may thereby have occasioned the other owner.^ When a party wall, however, has become dilapidated, or wholly unfit for use, it seems that either owner may pull the whole wall down and rebuild it, upon giving reasonable notice to the other owner; and in such a case, if he uses proper care, he will not be responsible for damages thereby occa- sioned.^ In Reynolds v. Fargo it was held that, in the absence of any covenant to the contrary, neither party is bound to rebuild a party wall which has been torn down as a measure of safety.^ This decision is hardly borne out by the authorities ; the law, in fact, seems to be the other way. The question once arose before Chancellor Kent in a case where a plaintiff had pulled down a party wall which had become unsuitable. He had given fair notice to the other owner, but the latter refused to consent, and requested him expressly not to remove the wall. The evidence showed the wall to be in a ruinous condition. The chancellor ordered the defendant, the owner of the adjacent estate, to con- tribute an equal share towards reconstructing the wall. The doctrine now seems fairly well settled that, if a party wall requires repairing or rebuilding in the esti- mation of experts, one party can compel the other to contribute a ratable proportion of the cost thereof* So, in an Ohio case, the declaration set forth that T. and 1 Potter V. White, 6 Bos. 644. ^ Partridge v. Gilbert, supra. 8 Reynolds v. Fargo, 1 Sheld. 531. * Campbell v. Meister, 4 Johns. Cli. 334; Peck v. Day, 1 N. Y. Leg. Obs. 312; 3 Kent Com. 438. In Brondage v. Warner, 2 Hill, 145, the plaintiff was allowed to use a party wall after the rest of the adjoining building had been burned down. 852 BUILDING EASEMENTS. H., owners of adjoining property in the city of Cincin- nati, between whose buildings a party wall had stood for twenty-one years, and the grantee of H., desiring to erect upon his lot a building adapted to its increased value, notified the plaintiff of his intention to pull down his half of the partition wall, and, upon the plain- tiff refusing, the defendant took down the wall, using due care, but the plaintiif's wall fell; it was held that the facts stated did not constitute a good cause of action.-^ In Richardson v. Frank, it was held that, " where a party wall is decayed and needs rebuilding, it may be removed by either party for the purpose of rebuilding, whether the other party consents or not. And where a preliminary injunction had been dissolved on its appearing that the wall needed rebuilding, the court retained the petition, so that, should any damage be caused by negligence during the work, it could be recovered." ^ It is important to observe that the reasoning upon which the foregoing decisions are based is not appli- cable to those cases in which party walls have been destroyed by fire or other calamity ; for, " there being no agreement to build a second wall, neither party is under obligation to join with the other in doing so." ^ There is but slight, if any, distinction between a par- tial destruction of a wall through natural causes and 1 Hiett V. Morris, 10 Ohio St. 523; 19 Wend. 318; 11 Md. 7; 33 Penn. St. 369. " Kichardson v. Frank, 2 Sup. C. K. 60, and Hiett v. Moviis, supra. One who has consented to a joint wall cannot tear it away after a building has been erected thereon upon faith in his acquiescence in its location and construction. Miller v. Brown, 33 Ohio St. 547. 8 Washb. on Easements, 460; Sherred v. Cisco, 4 Sandf. 480; Partridge v. Gilbert, 15 N. Y. 601. The principle laid down in the French Digest, 5 Duranton Cours de Droit Fran9ais, 342, that neither party has a right to pull down a party wall at pleasure, will generally be upheld in this country. PARTY WALLS. 353 a total obliteration thereof, and it seems that, " if the right of mutual support continues, by means of the original arrangement, or by prescription, it is for just such an easement as was originally conceded, or which has been established by long enjoyment. But in the changing condition of our cities and villages it must often happen that edifices of different dimensions and an entirely different character would be required. And it might happen, too, that the views of one of the pro- prietors, as to the value and extent of the new build- ings, would essentially differ from those of the other, and the division wall which would suit one of them would be inapplicable to the objects of the other." ^ A Pennsylvania decision declares that if, by the set- tling of a party wall, it leans over upon the adjoining lot, the person using it must nevertheless pay a moiety of its cost, deducting the damage sustained by the encroachment.^ The subject of party walls is largely regulated by statutes which generally bear close resemblance to those doctrines laid down by the French Code. English authorities substantially confirm the prin- ciples set forth in this chapter. Thus, it is well settled one can pull down any wall standing upon his freehold, provided it is not owned in common with the proprietor of the adjoining premises,^ or an easement for mutual support has not been granted.* The rule is otherwise if the wall is a party wall ; in such cases the one who 1 Denio, J., Partridge v. Gilbert, 14 N. Y. 601; Sherred u. Cisco, 4 Sandf. 480; citing Richards v. Rose, 9 Exch. 218; Pardessus Traits des Servitudes, 251. ' Sauer v. Monroe, 20 Penn. St. 219. This case also lays down that, " if an adjoining owner breaks into a party wall without notice, he thereby waives his right to choose arbitrators, or a decision of the regulators." ' Wiltshire v. Sidford, 1 M. 8e R. 404; Wigford v. Gill, Cro. Eliz. 269. * Ibid. 23 354 BUILDING EASEMENTS. pulls it down is liable to his co-owner for damages occa- sioned thereby.^ Either owner may put any amount of weight he desires upon it, provided he does not thereby injure its stability.^ Either may maintain an action for an injury done to his half of a party wall ; he may also pull it down for the purpose of rebuilding, though he may thereby render himself liable to an action for waste, in the event that the wall did not need rebuilding, or he proceeded with the work with- out reasonable notice to the other owner.^ The law does not seem settled as to the rights and liabilities of the owners of a party wall to keep the same in repair, or to rebuild in case of fire or natural decay.* In Brown v. Windsor^ the doctrine is recognized that, although each of two adjoining owners may hold his half in severalty, and can gain an easement of support so long as the wall shall stand, neither can do any- thing to injure this mutual right. When the wall is owned in severalty, each of the owners uiay bring an action for injuries done to his half;^ but, where the wall is a party wall, neither owner can bring an action of trespass or trover against the other, unless there has been a total destruction or conversion of the common property.' An action of ejectment can be maintained if there has been an actual ouster of the plaintiff.^ § 189. Window Lights in Party Walls. In the city of Philadelphia a party wall must be built without 1 Gayford v. Nichols, 9 Exch. 708; Davis u. Blackwall Ry. Co. 1 M. & Gr. 709. ^ Sheffield Industrial Society v. Jarvis, W. N. 1871, 208. 3 Cubitt V. Porter, 2 M. & R. 267. * Ibid.; Murley v. McDermott, 2 Ad. & E. 138. ^ Brown V. Windsor, 1 Crompt. & J. 20. ' Matts V. Hawkins, 5 Taunt. 20. ' Voyce V. Voyce, Gow, 201; Co. Litt. 200. 8 Stedman v. Smith, 8 El. & Bl. 1. ■WALL SUPPORT. 355 openings, and the putting of windows therein will be restrained by injunction.^ Yet, after acquiescence in the enjoyment of a window in a party wall for the period of prescription, the right to use thereof is not lost by the lapse of time ; ^ but by a later decision in Pennsylvania it was held that a party cannot, by twenty -one years' adverse user, acquire the right to maintain a window in a party wall.^ § 190. Right op Support Generally. An adjacent owner has no right to deprive his neighbor of the natural support afforded by his soil;* for, as we have already seen,^ this right exists independent of con- tract.^ While he who makes excavations upon his own land must provide for the support he takes away from his neighbor, he is not responsible for buildings erected upon the adjacent land ; in other words, his liability is limited to the extent only of a natural support for the soil, and not for the weight put upon it by his neigh- bor.^ The right of a land-owner to make excavations must, however, be exercised with due care and skill where the adjacent lot has been built upon, and he must observe all reasonable precautions to prevent injury to the adjoining tenement.^ It is his duty to notify his neighbor of the contemplated improvements.® 1 Volmer's App. 61 Penn. St. 118; Vansyckel ». Tryon, 6 Phila. 401. This does not apply to other places in Pennsylvania. Shell v. Kemmerer, 2 Pears. 293. 2 Rondett v. Bedell, 1 Phila. 366. 3 Milnes' Appeal, 81 Penn. St. 54. * Shafer v. Wilson, 44 Md. 268. 6 Seean(e, § 188. « Thurston v. Hancock, 12 Mass. 220; Beard v. Murphy, 37 Vt. 98. ' Wyatt V. Harrison, 3 B. & Ad. 871; Quincy v. Jones, 76 111. 221; Richardson v. "Vt. C. li. R. 25 Vt. 465. 8 Brown v. Werner, 40 Md. 15; Wyley Canal Co. u. Bradley. 7 East, 368. 9 Schriever v. Stokes, 8 B. Hon. 453; Richards v. Scott, 7 Watts, 460; Shafer v. Wilson, 44 Md. 268. 356 BUILDING EASEMENTS. The right to collateral support for buildings may be gained by prescription, as other easements.^ If a land-owner excavates his land so close to that of another as to injure the latter's natural support, whereby the soil gives way, the owner maliing the excavations is responsible for all the injury thereby occasioned to the land, and also for the disturbance of a right of way over the same, without proof of careless- ness, negligence, or want of skill in making the ex- cavations, but not for injuries to the buildings of his neighbor, unless an easement of support therefor has been granted or gained.^ § 191. Extent of the Eight to Lateral Support. The right to latei-al support seems ordinarily limited to the preservation of the soil in its natural state,^ so that, if land not subject to artificial pressure sinks or falls away in consequence of removal of such support, the owner is entitled to damages.* Where buildings have been erected, the right to natural support is not lost,^ nor is it extended thereby, for the query is whether the land would have sunk if the weight of the build- ings had not been upon itj® yet the damages may be more where the injury has been to an adjacent estate upon which buildings stand.^ In a Maryland 1 Waslib. Easements, 547; Richards v. Scott, 7 Watts, 460 ; Dalton v. Angus, L. E. 6 App. Cas. 740. " Foley V. Wyeth, 2 Allen, 131. So in Gilmore v. Driscol, 122 Mass. 199, it was held that, where one digs a pit on land so that it caves an ad- joining estate by the operation of natural or ordinary causes, he is liable for injuries to the land, but not to buildings. » Busby i). Holthaus, 46 Mo. 161; McGuire D.Grant, 1 Dutch. 356; Bell V. Love, L. II. 10 Q. B. D. 547; Hamer v. Knowles, 6 H. & N. 454; Bir- mingham V. Allen, L. R. 6 Ch. D. 284. * McGuire v. Grant, 1 Dutch. 356. ' See note 2. « Smith u. Thackerah, L. R. 1 C. P. 564; Brown v. Robbing, 4 H. & N. 186 ' Chapman v. Day, 47 L. T. 705. SUPPORT POIi BUILDINGS. 357 case, where the house of the adjoining proprietor was shown to be so weak that it could not stand the reason- able improvements of the other proprietor, though con- ducted with skill and care,, it was held that the latter had no right to hasten its fall by making excavations.* So, while a land-owner has an unquestionable right to dig to the line of his estate, and as between abuttors such digging is justified on the principle that a pro- prietor has entire domain over the whole of his land,* this privilege is restricted, to a certain extent, by the cross-right which his neighbor may have to support ex jure natiirce. § 192. Support for Buildings. The right to support buildings is acquired only by grant or prescription, and is not, like that of natural support for land, a primd fade adjunct to the ownership of property.^ When, however, the right has been acquired, it is governed by the same legal rules as that of natural support.* Where the owner of two adjoining building lots sells one of them, reserving the other for his own enjoy- ment, the easement of support is implied ; but such a right only extends against the vendor as far as the buildings are concerned, while the natural right " runs with the land," and is binding upon the grantees of the owner of both the adjacent and subjacent (as of mines) land.^ The right of support for buildings from adjoining buildings may also be implied when the 1 Shafer v. Wilson, 44 Md. 268. 2 Thurston v. Hancock, 12 Mass. 220; Greenleaf v. Francis, 18 Pick- 117; Howland o. Vincent, 10 Met. 371. ' Dalton V. Angus, L. K. 6 App. Cas. 740; Bonomi u. Backhouse, 1 El., Bl. & El. 625. • * See opinion of Lord Shelborne, Dalton v. Angus, L. R. 6 App. Cas, 740. » Goddard, 181. 858 BTTILDING BASEMENTS. owner of both lots sells the same to different pur- chasers.^ So, where a man leases or conveys part of his land for building purposes, an easement of sup- port for the buildings to be erected may be implied as coextensive with the known uses of the premises.^ The leading English case on this subject is that of Dalton V. Angus, and in this it is positively held that a right to lateral support may be acquired for buildings.^ In an American case * an action of tres- pass on the case was brought by a joint owner of a party wall to recover for damages sustfiined by the removal of the said wall. The evidence sbowed that adjoining brick houses had been built about fifty years before, with an alley-way between them for mutual use, its walls terminating above in an arch, upon the centre of which, and upon beams of wood extending from the top of one alley to the other, was built the partition wall between the second, third, and garret stories of the two houses. The defendant, after giving the plaintiff due notice, proceeded to take down the walls of his house, together with the alley wall next thereto, in consequence of which A's house fell. Al- though it was further shown in evidence that alter- ations had been made some years before in the plain- tiff's house, and that he had placed props against it to prevent it from falling, it was held that the right of support as an easement had been gained, and the de- fendant had no right to disturb the wall. The courts do not, however, imply an easement of support unless a grant can be readily gathered from the adverse en- 1 Murchie v. Black, 19 C. B. N. S. 190; Peyton v. Mayor, 9 B. & C. 736. " Kobinson v. Grave, 29 L. T. 7. 8 Dalton V. Angus, L. R. 6 A pp. Cas. 740. SUBJACENT SUPPOKT. 359 joyment, or other circumstances, and not from the mere lapse of time ; * and, as a rule, where the owner of a lot builds on his building line, and such building is thrown down by reason of excavations made upon the adjoining lot, in the absence of improper motives, or carelessness, no recovery can be had for injury done to the building.^ So, where the owner of land built a house within two feet of his boundary line, and ten years afterwards the owner of the land adjoining ex- cavated the earth on his own land to such an extent as to endanger the house, and the owner of the house for that reason took it down, it was decided that he could maintain an action for the falling of his natural soil into the excavation, but not for the damage done the building.^ An English case, Solomon v. Vintners' Co.,* recog- nizes a distinction between houses separated from others by intervening houses and those immediately adjoining. In this case a small row of buildings had been out of perpendicular for years, and then fell from pulling down of one of them. The court held that the owner of the house not immediately adjoining could not recover. § 193. Right of Subjacent Support. Ordinarily the owner of land is entitled to subjacent support, not only for the land itself, but also for the buildings upon it ; ^ but if he desires he can contract with other parties in such a way that he may still retain the ownership of the surface of the land while another person owns mines below the surface, and still another becomes \ 1 Downing v. Hennings, 20 Md. 179. 2 McGuire v. Grant, 1 Dutch. 356. s Thurston v. Hancock, 12 Mass. 220. * Solomon v. Vintners' Co. 4 H. & N. 585. 5 Smith V. Thackerah, L. K. 1 C. P. 564. 360 BUILDING BASEMENTS. the proprietor of stories above. It is well settled that the owner of the sub-surface is liable for injuries caused to the land or buildings above by his failure to pro- vide sufficient support for the land in its natural state.^ Yet it is doubtful to what extent mine-owners are re- quired to furnish support for buildings upon the surface where a right has not been gained by prescription.^ It frequently occurs that buildings are erected in such a manner that each story is complete in itself^ as a dwelling, and is let or sold to different persons from those holding the other floors or flats. In such cases it is but just that the owner of the upper story, inde- pendent of any express grant, should have a right to the support of the lower story .^ And, as a general rule, the proprietor of the lower flat or foundation is bound to maintain the walls and other support for the owner above.* So it has been held that, " when a house is divided into different floors or stories, each occupied by different owners, the proprietor of the ground floor is bound by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property, so that it may be able to bear such weight." ^ On the other hand, where the owner of the upper story brought an action in assumpsit for repairs he had made to the roof, which was in need thereof, against the owner of the lower floor for contribution, ' Jones V. Wagner, 66 Penn. St. 429; Horner v. Watson, 79 Penn. St. 242 ; Bonomi v. Backhouse, EL, Bl. & El. 622. ^ Bonomi v. Backhouse, supra. » Humphries v. Brogden, 12 Q. B. 739, 747; Smith v. Martin, 5 Ellis & B. 30, 47. * Richards v. Rose, 9 Exch. 219; Humphries v. Brogden, 12 Q. B. 747. ' Graves v. Burdan, 26 N. Y. 501; Loring v. Bacon, 4 Mass. 575; Cheesborough v. Green, 10 Conn. 318. EXCAVATIONS. 361 it was held that, as the owner of a dwelling above that of another can compel the latter to preserve the walls and timbers intact so as to support his dwelling, it is correspondingly the duty of the upper tenant to keep the lower tenant from injury coming from above.^ In a Connecticut case ^ the court declared that the owner of the lower story of a house cannot maintain an action against the owner of the upper for neglecting to repair the roof, though he might have a remedy in equity. § 194. Remedies for Damages to Support. As to injuries to other easements, courts of equity will allow an injunction to restrain attempted injuries^ to sup- port, or an action for damages may be brought* A party cannot, however, maintain a suit until actual damage has resulted from the removal of the support of his building.^ So, where an excavation for a cellar is made adjoining an existing building, the owner of the latter cannot claim damages until damages ensue ; * yet Chief Justice Cockburn dissented from this view^ and held that a second action might be maintained for prospective damages. As to the measure of damages, the court's instructions in a leading Maryland case may be quoted :^ " If they" (the jury) " should find the wall between the two 1 Loring v. Bacon, 4 Mass. 475; Tenant v. Goldwin, 6 Mod. 311; Keil- way, 98 b, pi. 4. As to rights of tenants of upper and lower floors to easement of common entrance-way, see Browning v. Dalesme, 3 Sandf. 13. 2 Cheesborougb v. Green, 10 Conn. 318; but see Anonymous, 11 Mod. 7. 8 N. E. Ky. Co. V. Elliott, 29 L. J. Ch. 808; Balton v. Angus, L. R. 4 Q.B. D. 162. * Ante, § 190. 6 Bonomi v. Backhouse, EL, Bl. & EI. 620. ° Ibid. ' Upheld by Md. Court of Appeals, Brown & Otto v. Werner, 40 Md. 15. 362 BUILDING EASEMENTS. houses to be a party wall, and that the defendant A employed the defendant B to improve his (A's) build- ing, and, with a view to such improvement, without giving notice to the plaintiff of such intention, the cellar of A's house was dug below the foundation, and that the same was done so carelessly and negligently that portions of the said wall fell in, and caused injury to the other portions of the plaintiff's house, and hazarded the falling in of the entire wall, so as to make the occupation of the plaintiff's house dangerous, and that he was for some days unable to carry on his busi- ness, then the plaintiff is entitled to recover such damacjes as would enable him to reinstate the wall, and the house itself, in as good condition as they were be- fore the injury, and as would compensate him for loss consequent upon the interruption of his business." CHAPTER XXIV. WATER. § 195. Eeservoir or Water Companies. In many cities and towns, water is supplied to the inhabitants from reservoirs by service-pipes, owned and controlled by private corporations, usually styled " Water - Trust Companies ; " while in other places the water-works are entirely under the control of the public or muni- cipal authorities. Private water companies generally take out charters and operate thereunder, subject to statutory restrictions. They are usually empowered to lay their pipes in the beds of streets and other public ways, and are licensed to make all necessary repairs to their mains, etc. If companies, having no charter or statutory right to serve water, break up streets or other highways to lay pipes, or otherwise incommode the public, they are liable to indictment or injunction.* Such unchartered companies cannot be compelled to supply water to any one on any terms.^ § 196. Property in Water. Strictly speaking, nei- ther light nor water is subject to ownership, and only when an easement of use is gained or granted can any property rights therein be claimed. Thus, water is neither land nor tenement, and therefore not covered 1 Michael & Will on Gas and Water, 72. ^ Ibid. " A permit to open a street for the purpose of laying a drain is not to be construed as a grant of a right to lay and continue a drain, but simply as a license to disturb the surface of the street." Glasby v. Morris, 3 C. E. Gr. 72. 364 BXJILBING EASEMENTS. by a covenant of warranty ; ^ but water conveyed by pipes is a thing which is created and controlled by the parties, and is in its very nature different from a natu- ral watercourse.^ So, where one man leased to another " a perpetual privilege to him, his heirs and assigns, forever," the right to lay a pipe one half an inch in diameter from the spring on his land, and from said spring to conduct by such pipe to the dwelling-house of the grantee, with the right to dig a trench in which to lay the pipe, it was held that this was an easement appurtenant to the granted land, and that the grantee had a right to draw all the water that would run through an half inch pipe continuously, although he might not use the same.^ So, again, " where the owner of three adjoining houses, two of which are drained through pipes connecting with those in the third, sells the former, without reservation as to drainage, and re- tains the third house, the grantees acquire an easement in the drain-pipes, and the grantor will be enjoined from injuriously interfering therewith." * So we may conclude as to water in its natural state, used in connection with the occupation of the soil, as a stream, etc., the use of it may become an incorporeal hereditament, but the water itself is not property. Yet the right to enjoy it in connection with the soil may be ' Mitchell V. Warner, 5 Conn. .518, 524, 526. So, "an entry on land to take water, and an actual taking of it, do not constitute an eviction, nor does a diversion of water from water-works whicli renders them useless. 2 Brakely v. Sharp, 1 Stock. 9; 2 Stock. 206. « Bissell V. Grant, 34 Conn. 215, 217. * Hamell o. Griffiths, 49 How. Pr. 305. So, again, a grantor of the servient tenement, "as the same is now inclosed, built, and occupied," takes subject to a right of drainage through the land granted, bj drain- pipes then laid in the soil. Flint v. Bacon, 13 Hun, 454. WATBE. 365 acquired.* The easement in water is gained only where it flows naturally, without the art of man, upon land, and does not apply to pipes and drains.^ § 197. Subterranean Watercourses. While it is not within the province of this treatise to enter into a gen- eral discussion of the law relating to watercourses, flowing streams, and the use thereof for milling and other purposes, it is nevertheless proper to make men- tion of such principles of the law as bear upon build- ing operations. It seems well settled that no action can be main- tained for the obstruction of a subterranean stream, though it results in an injury to an adjacent land- owner.^ So where a person by digging a well inter- cepts from a stream water which would otherwise have flown in it by percolation through the soil, though such loss of water was a natural effect reasonably to be expected by digging the well ; * but not if the inter- ference with subterranean water be wantonly or mali- ciously done to injure the water-supply of his neighbor and not for his own benefit.® There may possibly be another exception where the subterranean water is drawn from a stream flowing in a well-known channel,^ although in such a case the party claiming an inter- 1 Per Parke, B., Embrey u. Owen, 6 Ex. 353; 20 L. J. Ex. 216; Thomas u. Brackney, 17 Barb. 654. 2 Kauffiuan v. Griesemer, 26 Penn. St. 407, 413; Martin v. Jett, 12 La. 501. 3 Ellis V. Duncan, 21 Barb. 230; S. C. 29 N. Y. 466; Acton v. Brun- dell, 12 Mees. & W. 336; Greenleaf v. Francis, 18 Pick. 117. 1 Cliasemore v. Richards, 26 L. J. (N. S.) Ex. 393; 29 L. J. (N. S.) Ex. 81 ; 7 H. L. Cas. 349; Frazer v. Brown, 12 Ohio (N. S.), 294. 6 Contra, Chatfield w. Wilson, 28 Vt. 49. But see Greenleaf u. Francis, 18 Pick. 117; Thurston v. Hancock, 12 Mass. 221; Panton v. Holland, 17 Johns. 92. 8 Dickson v. Grand Junction Canal Co. 7 Exch. 282, 300; Whetstone 0. Bowser, 29 Penn. St. 59; Wheatly v. Baugh, 25 Penn. St. 629. 366 BUILDING EASEMENTS. ference would have the burden of showing the course of the underground stream.^ While water flowing naturally under the ground can be lawfully utilized by the owner of the soil above, if it be introduced into buildings, or harvested in res- ervoirs, the owner thereof is responsible for whatever damages it may cause to others by percolation or otherwise, and such liability is not dependent upon proof of negligence,^ though this is questioned where a reservoir is sufficiently protected and diligent care has been observed.^ § 198. Falling Water. One has no right to con- struct his house in such a manner that the water will drip from the eaves thereof upon the premises of an adjoining proprietor, but such a right may be given by express grant or acquired by prescription. So, also, a wrongful act may be done by building so near the boundary line that the water from the roof must escape through the neighbor's property.* By both the civil and common law, the right to discharge rain-water from a roof over adjoining land could be acquired as any other servitude;^ but a right to have water drip from eaves does not confer the right to collect it in gutters or spouts, and discharge it in a stream across the land of another;" nor can he make any change in ^ Hanson v. McCue, 42 Cal. 303; Mosier v. Caldwell, 7 Nev. 363. 2 Pixley V. Clark, 35 N. Y. 620, 531 ; Gray u. Harris, 107 Mass. 492; Shipley II. Fifty Associates, 106 Mass. 194. " Monson et al. v. Fuller, 15 Pick. 554; Wilson w. New Bedford, 108 Mass. 261. ■* Bellows V. Sackett, 15 Barb. 96; Underwood v. Waldron, 33 Mich. 232. 6 1 Kauf. Mack. § 312; Washb. Easements, 391; Cherry v. Stein, 11 Md. 1, 25. 8 Reynolds v. Clark, 2 Ld. Raym. 1399. WATER. 867 the plan of his roof that will farther injure the servient estate.-' Yet the servitude is not lost by tearing down an old house for the purpose of rebviilding on the same general plan, provided the easement does not thereby become more burdensome.^ On the other hand, a pro- prietor, having acquired the right of water falling from his premises upon that of his neighbor, can remove his building, and not be liable to the servient owner for injury as non-user.^ So where a plaintiff, by erecting a house on his own land, prevented the water falling upon the adjoining lot as it did formerly, it was held that he could not recover for damages thereby occa- sioned to himself.* So where a person had an ease- ment for a drain, it was held that, though he had a right of entry to make repairs, he had no right to make the burden greater than it was at the time it was granted or acquired.^ Judge Cooley thus states the law : ^ " If one constructs his buildings so as to cast water therefrom upon the land of his neighbor, he commits an actionable wrong ; '' but if he puts proper eave-troughs or gutters upon his buildings, for leading off the water upon his own ground, and keeps them in proper order, and is guilty of no negligence in this re- gard, an adjoining proprietor can have no legal com- plaint against him for injuries resulting from extraor- 1 Thomas v. Thomas, 2 Crompt., M. & R. 34 ; 2 Fournelle Traitd du Voisinage, IT 5. "■ Ibid. 8 Arkwright v. Gell, 5 Mees. & W. 203, 233 ; Wood v. Waud, 3 Exch. 748, 778. ■• Doerbaum v. Fischer, 1 Mo. App. 149. « Roberts v. Roberts, 7 Lana. 55; S. C. 55 N. Y. 275. « Cooley on Torts, 574. See Norton v. Valentine, 14 Vt. 239; Ark- wright V. Gell, 6 Mees. & W. 203. ' Citlno' Baker's case, 9 Co. 53 b.; Jackson v. Pesked, 1 M. &. S. 234; Tucker u.°Newman, 11 Ad. & El. 40; Fay v. Prentice, 1 C. B. 828; Ash- ley V. Ashley, 6 Cush. 70; Aiken v. Benedict, 39 Barb. 400; Shipley v. Fifty Associates, 106 Mass. 194. 368 BUILDING EASEMENTS. dinary or accidental circumstances for -which no one is in fault; and such injuries must be left to be borne by those on whom they fall." ^ § 199. Injuries Caused by Watek-Pipes and Reseb- voiKS. The English doctrine that he who brings water upon land by artificial means must keep it at his peril, and that injuries occasioned thereby are not excused simply because of the absence of negligence,^ is not applicable in this country.^ His only legal excuse, when damage has been occasioned by leakage of his water-pipes or reservoir, is, that the injury was occa- sioned by the act of God, or vis major, or that he was compelled by law to keep water on his premises, and that the injury resulted while performing his duty.* On the other hand, in the United States, it has gen- erally been held perfectly lawful for any one to intro- duce water into his own premises, for domestic or other purposes, by means of pipes, or to erect a reservoir ; and, while he is bound to use due dilicjence and care in regard to such, his liability is dependent upon whether he has or has not exercised due care to pro- tect his neighbor from damage.^ It is the duty of the proprietor of a reservoir to see that it is constructed of sufficient strength to stand the pressure of water for which it is intended, to guard against its being surcharged, and to keep it in a safe 1 Underwood v. Waldron, 33 Mich. 232. 2 Fletcher v. Rylands, L. R. 3 H. L. 330; 37 L. J. Ex. 101; Smith v. Fletcher, L. R. 7 Ex. 305; L. R. 2 App. Cas. 781; 41 L. J. Ex. 193; 43 L. J. Ex. 70. " Losee v. Buchanan, 51 N. Y. 476; Moore i;. Goedel, 7 Bosw. 591; Killion V. Powers, 51 Penn. St. 429. * Nichols V. Marsland, L. R. 2 Ex. D. 1 ; 46 L. J. Ex. 1 74 ; Dixon v. Metropolitan Board, 7 Q. B. D. 418. ' Cases cited, supra, note 4 ; Wendell v. Pratt, 12 Allen, 464; Fuller V. Chioopee, &c. 16 Gray, 46 ; Everett v. Hydraulic Co. 26 Cal. 225. WATEB. 369 condition and in proper repair. He is clearly re- sponsible for injuries arising from failure of duty in any of these respects.^ In the leading English case of Rylands v. Fletcher/ it was held that the owner of a reservoir was responsible for injuries caused by the breaking away thereof in consequence of original and latent defects of which the owner was ignorant. How far this rule would be carried in cases of inevitable accident, or where the injury was by the act of God, is doubtful.^ American cases hold that negligence must be shown to establish liability.^ 1 Pixley V. Clark, 35 N. Y. 520; Wendell v. Pratt, 12 Allen, 464; Ips- wich V. County Commissioners, 108 Mass. 33. 2 Rylands v. Fletcher, L. K. 1 Exch. 265; L. R. 3 H. L. Cas. 330, 339. » Smith V. Fletcher, L. R. 7 Exch. 305. * New York v. Bailey, 2 Denio, 433; Moore v. Goedel, 7 Boaw. 591; Wendell v. Pratt, 12 Allen, 464. 24 CHAPTER XXV. GAS. § 200. General Statement. Gas, as an artificial light, was hardly known at the beginning of the pres- ent century, yet, so economical and advantageous has it proven to be, that now its use is almost universal in cities and towns throughout the world. § 201. Gas Companies. Gas is usually served by in- corporated companies, having privileges conferred upon them by their charter to break up streets to lay their pipes, etc. While this plan of furnishing gas is usual, it must not be inferred that its manufacture and sale cannot be carried on as any other trade or business. A gas company is not necessarily a public corpora- tion ; ^ and, unless the charter under which it operates renders it such, it can discontinue the manufacture at pleasure, and its rights and obligations are controlled by its contracts. It may refuse to supply gas to ob- jectionable persons.^ We have already seen that a similar rule applies to unchartered water companies.^ The gas-works of the city of Philadelphia are prac- tically owned and controlled by the muncipal corpora- tion. They were originally constructed by a stock company, but afterwards taken by the city, and the 1 McCune v. Norwich City Gas Co. SO Conn. 521 ; Bloomfield & Roches- ter Natural Gas Co. u. Richardson, 63 Barb. 437; N. Y. Cent. R. R. Co. V. Metropolitan Gas Co. 63 N. Y. 326; Commonwealth v. Lowell Gas Co. 12 Allen, 77. 2 McCune v. Norwich Gas Light Co. 30 Conn. 521. 8 Ante, § 195, citing Michael & Will on Gas and Water, 72. GAS. 371 stock replaced by a loan issued by the city to the stockholders and made a sinking fund. They are now known as the Gas Trust Works, and are con- trolled by trustees.' § 202. Liabilities op Gas Companies. The principle of law, that " those who carry on operations dangerous to the public are bound to use all reasonable precau- tions," is well settled.^ The manufacture of gas is clearly such an operation; for gas is both poisonous and explosive. Courts are, therefore, constrained to hold that these companies and their servants are re- quired to exercise more than ordinary care ; ^ while statutes have frequently been enacted subjecting the parties to heavy penalties for negligence in this matter. They are required to keep the gas constantly under their control, and prevent it from escaping into a dwelling ; * they must keep their pipes and mains in good and sufficient repair, and are liable for any dam- age occasioned by negligence ;* they must also promptly investigate defects reported in the pipes of the customers.® It seems, however, that their liability to investigate leakages does not apply in the absence of notice, or reasonable chance of knowing, when the escape is from the pipes of a consumer, and not of the company.^ So, as a gas-light company generally has ^ Western Saving Fund Society of Philadelphia v. Philadelphia, 31 Penn. St. 175. 2 Blenkiron v. Great Cent. Gas Co. 2 P. & F. 440. " Smith V. Boston Gas-Light Co. 129 Mass. 318; Emerson v. Lowell Gas Co. 3 Allen, 410. * Ibid. 6 Mose V. Hastings Gas Co. 4 F. & F. 324. ^ Burrows v. March Gas Co. L. R. 5 Exch. 67. It is the duty of a gas company to investigate a leak, no matter by whom reported. Hunt v. Lowell Gas Co. 3 Allen, 418. ' Lannant;. Albany Gas. Co. 46 Barb. 264; 44 N. Y. 4.59; Smith «. Boston Gas-Light Co. supra. 372 BUILDING EASEMENTS. nothing to do with the gas-pipes and fixtures inside of the meters, except to see that they are tight when the gas is turned on, it was held that a company was not liable for an injury caused bj' an explosion in the plaintiff's room, occasioned by the negligence of a person permitted by the company to turn on the gas after fittings had been made.^ So the rule in Rylands V. Fletcher^ does not apply, a gas company not being liable for damages caused by a leak from their pipes without evidence of negligence on their part.^ § 203. Damages Occasioned in Laying Gas-Pipes. Gas companies, though empowered by their charters to tear up streets for the purpose of laying pipes and mains, must do as little damage in doing so as possible, and make fair compensation therefor.* So, where a company dug a trench in a street, and had it filled up, but heavy rains so affected the filling that the plaintiff fell into the trench and was injured, the court held that the company was liable for imperfectly filling up the trench, and that, " although work be approved of and accepted by the officials of a city, it is not only the duty of the company to put the streets in as good condition as before, but also to exercise a careful fore- sight, so as to prevent any injury afterward which might be occasioned to the work by storms and rain- falls.^ The question of due care is for the jury.^ It 1 Flint )). Gloucester Gas-Light Co. 3 Allen, 343; 9 Allen, 552; Lannan V. Albany Gas Co. 46 Barb. 264; 44 N. Y. 459. Not liable without notice of leak. Holly v. Boston Gas-Light Co. 8 Gray, 123. 2 Rylands v. Fletcher, as cited ante, § 199; L. R. 1 Ex. 265. 8 Strawbridge v. City of Phila. 13 Reporter, 216; Holly v. Boston Gas- Light Co. 8 Gray, 123; Smith ii. Boston Gas-Light Co. 129 Mass. 318. * London & Blackwall Ry. Co. v. Limehouse, 26 L. J. Ch. 164! Michael & Will on Gas and Water, 15. 6 Dillon i;. Washington Gas-Light Co. 1 MacArthur (D. C), 626. « Butcher v. Providence Gas Co. 12 R. I. 149. GAS. 373 has been held in England to be an indictable nuisance to obstruct a public highway ; ^ but it seems that the " disturbance of the pavement of a town by an unin- corporated gas company, without lawful authority, for the purpose of laying down pipes, is not a nuisance so serious and important that a court of equity will in- terfere by injunction.^ So an injunction was refused where an old gas company claimed an exclusive ease- ment, and sought to restrain a new company from lay- ing its pipes J ^ but an injunction was granted in New Jersey, where a new company only had existence under a general statute, on the ground that the state alone could confer the right to break up its streets.^ In Philadelphia an injunction to prevent a new com- pany from laying pipes was refused, and it was held that the municipality had power to make reasonable regulations.^ A gas company cannot lay pipes or introduce gas into a private way or building without permission from the owner thereof.® § 204. Authority for Laying Gas-Pipes. It seems that only the legislature of a state can grant the priv- ilege to a gas company to tear up streets and other highways for the purpose of laying pipes and mains.'' 1 Eeg. V. London Gas Co. 2 El. & El. 650; 8 Gas J. 165. ^ Atty. Gen. v. Cambridge Consumers' Gas Co. L. R. 4 Chan. 71; 17 Gas J. 429, 593, 867; Atty. Gen. v. Sheffield Gas. Co. 3 De G., McN. & G. 304 ; but see contra, City of Brooklyn v. Fulton Municipal Gas Co. 7 Abb. N. C. 19. s Sheffield United Gas Co. v. Sheffield Consumers' Co. 2 Gas J. 360. See Des Moines Gas Co. o. City of Des Moines, 44 Iowa, 505. < Jersey City Gas Co. v. Bwigbt, 29 N. J. Eq. 242. 6 Commissioners, &c. v. North Liberties Gas Co. 12 Penn. 318 ; Straw- bridge V. City of Phila. 13 Rep. 216. 6 Thompson o. Sanderland Gas Co. L. R. 2 Ex. D. 429. ' State of Ohio v. Cincinnati Gas-Light & Coke Co. 18 Ohio St. 262; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; Boston Gas-Light Co. V. Richardson, 13 Allen, 160. 374 BUILDING EASEMENTS. The city council of a city has no such authority, unless conferred upon it by statute.^ So a local board can- not fix a gas-lamp to a private house without permis- sion.^ In the language of Van Fleet, V.-C, " The right to use the public street for the purpose of laying gas-pipes therein is a franchise which the state alone can confer." ^ In an Ohio case, where the charter of a gas company reserved the right of the legislature to " alter, modify, or repeal " the same, it was held that the legislature could give to the city council of the city in which the gas company was situated, by subsequent acts, the right to regulate by ordinance, from time to time, the price of gas to be charged by such gas com- pany, and that the gas company was bound by said ordinance.* Yet it seems that this power must be exercised in good faith, and for the purpose of limiting the gas company to a fair price ; and " it is competent for the company to show that the ordinance was passed for a fraudulent purpose," or to compel the gas com- pany to furnish gas for a price so low that the city might take advantage of the injury thereby resulting to purchase the works.^ When the right has been conferred upon a chartered gas company to lay pipes in the streets of a city, they are the owners of an easement therein, and not of a mere license.'^ But the use of a street by a gas com- pany for twenty years, by permission of a city council, does not imply a right to exclusive use.' Yet, when 1 State of Ohio v. Cincinnati Gas-Light & Coke Co. 18 Ohio St. 262; Norwich Gas-Light Co. v. Norwich City Gas. Co. 25 Conn. 19. 2 Meek v. Landon, 37 L. T. 181. » Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242. * State of Ohio v. Cincinnati Gas- Light & Coke Co. supra. « Ibid. ^ Providence Gas Co. u. Thurber, 2 R. I. 15; People ex rel. Maybury v. Mutual Gas-Light Co. of Detroit, 38 Mich. 154. ' State of Ohio v. Cincinnati Gas- Light & Coke Co. supra. GAS. 375 the consent of local authorities has once been given to breaking up streets, it is good for all time.^ § 205. Larceny of Gas. Illuminating gas, like any other commodity, may be the subject of larceny.^ So, where a person secretly opened a service-pipe belong- ing to a gas company, and connected the same with another pipe, through which he received and used the company's gas, the court held the offence to be lar- ceny, and not embezzlement.* On the other hand, on the trial of an indictment under a New York statute, which made it a misdemeanor to connect gas-pipes in the street and building, or to take gas without passing through the meter, it was held that, " to convict, the prosecution must prove : 1st. The incorporation of the gas-light company. 2d. That the company was sup- plying gas ; 3d. That a meter was by it provided ; 4th. That the defendant connected a pipe, with which he supplied the burners of his house, with the com- pany's service-pipe in such a manner as to supply his burners without passing through the meter, with the intention of injuring or defrauding the company." * So, in an English case, where the defendant bored certain pipes, and used the plaintiff's gas for a period of six years.® In an action for the conversion of a quantity of gas, and for the price of gas sold and delivered to the de- fendant, it appeared that in some way the meter in the 1 Dover Gas-Light Co. v Mayor of Dover, 7 De G., M. & G. 545. 2 Commonwealth v. Shane, 4 Allen, 308; Reg. v. White, 20 Eng. L. & Eq. 585; 22 Law J. N. S. 123. So where the gas was stolen through an india rubber tube. Keg. v. Mitchell, 22 Gas J. 137; Reg. u. Jenkins, 5 Gas J. 214. s Ibid. * People V. Wither, 4 Parker's Crim. C. 1 9. 5 Imperial Gas-Light & Coke Co. v. London Gas-Light Co. 10 Exch. 39; 28 Eng. L. & Eq. 425; 3 Gas J. 483. 376 BUILDING EASEMENTS. defendant's premises had tilted over, so that the water ran out and gas passed through without being regis- tered. Suit was brought to recover the price of the estimated amount of gas which passed through, while the defendant held that he was only liable for the amount actually registered. The verdict was for the plaintiff.^ § 206. Fixtures. Authorities are conflicting whe- ther gas-pipes, mains, chandeliers, etc., are personal property or fixtures, and therefore part of the realty to which they are attached. Thus, gas-burners have been declared to be fixtures ;^ so of chandeliers, when affixed with screws : ^ so of gasaliers ;* but these conclu- sions have been denied in strongest terms,^ and pen- dant gas-burners,'' brackets,^ and chandeliers,^ gas-pipes,^ and even mains,^" have been held not to be fixtures, but personal property. But mains laid in a street have been considered realty." Gas fixtures have been held not to be subject to mechanic's lien.-'^ • Victoria Docks Gas Co. v. Burton, 16 Gas J. 103. ^ Keeler v. Keeler, 31 N. J. Eq. 191. See ante, Chapter xx. Fixtures. 2 Jolinson's Executors v. Wiseman's Executors, 4 Metcalf (Ky.), 357. * SewL'U V. Angerstein, 18 Law Times (N. S), 300. ' Vaughen v. Haldeman, 33 Penn. St. 522; Gutbrie . Tison, 12 Rich. 88; Washb. Easements, 129; Hale v. McLeod, 2 Mete. (Ky.) 98. 6 Post V. Pearsall, 22 Wend. 451 ; Kelsey v. King, 33 How. 39. The owner may still use it in any way not inconsistent with the public's rights. Hunter v. Trustees o£ Sandy Hill, 6 Hill, 411. 8 Green v. Chelsea, 24 Pick. 71; Child v. Chappell, 5 Seld. 256; 9 N. Y. 257. ' Poole V. Huskinson, 11 M. & W. 827; Surrey Canal Co. v. Hall, 1 M. & Gr. 392. DEDICATION OP HIGHWAYS. 387 perfect an act of dedication ; ^ it may be by acts in pais, and, when once made and accepted by the public, it is in its nature irrevocable,^ even to a town not yet incor- porated.^ A married woman, though she cannot convey her estate, may have a dedication of a right of way over it presumed against her.* There need not be any specific grantee in esse at the time, to whom the fee could be transferred.^ Under the New York statute it has been held that a way used by the public for twenty years may be deemed a public highway, though the owner, be an infant, married woman, or lunatic.^ There must, however, be an acceptance of the way on the part of the public ; " but the acceptance may be at any time before the tender is withdrawn by the owner of the fee.^ No matter for what period of time a private way, clearly intended as such, may be used by persons other than those for whom it was granted, it will not become a highway.® There must be an intention — on part of the owner — to present the way to the public to constitute it a highway.^" So, where parties have left unin closed strips of land bordering upon highways, they are at liberty to take them for 1 Hunter v. Trustees of Sandy Hill, 6 Hill, 407. 2 State V. Trask, 6 Vt. 355; New Orleans v. U. S. 10 Pet. 662; Ragan 11. McCoy, 29 Mo. 356. 8 2 Smith Lead. Cas. 5tli ed. 209 ; Cincinnati v. White, 6 Pet. 431. * Schenley v. Commonwealth, 36 Pa. 29 ; Ward v. Davis, 3 Sandf. 502. ^ Warren v. Jacksonville, 15 111. 236. ^ Davenpeck v. Lambert, 44 Barb. 599. ' Niagara Suspension Bridge v. Buchanan, 66 N. Y. 261; Field v. Man- chester, 32 Mich. 279; Bartlett v. Bangor, 67 Me. 460; Fox v. Union Sugar Refinery, 109 Mass. 292 ; State v. Trask, 6 Vt. 355 ; Cincinnati v. White, 6 Peters, 431. 8 Simmons v. Cornell, 1 R. L 519. 9 Hale V. McLeod, 2 Mete. (Ky.) 98. " Poole V. Huskinson, 11 Mees. & W. 827 ; Stacey v. Miller, 14 Mo. 478. 388 BTJILDING EASEMENTS. building purposes, no matter how long they have re- mained open, provided no intention to dedicate can be shown.-' It is generally for the jury to determine whether the evidence is sufficient to show the inten- tion of the owner of the land to dedicate the use of it to the public.^ Dedication need not be absolute, that is to say, the act may be qualified, or certain reservations made. Thus, the owner of a fee may dedicate a roadway to the public for special purposes, as to be used as a foot- path, carriage-way, a public square,^ and public com- mons ; * but there cannot be a dedication to part of the public.^ Neither can a person reserve the right of making cuts through a way for purpose of draining after dedication.^ But a land-owner may dedicate a way, and reserve the right to have doorsteps or cellar- flaps and shutters projecting ; '^ or to keep a gate across it ; ^ or to have a stile projecting ; '' or to have coal-chutes and steps in it.-"* As has been said before, the land-owner does not part with his title to the fee upon dedicating a high- way over it to the public : he still retains the right to make any use of it he chooses, provided he does 1 Gowen V. Philadelphia Exc. Co. 5 Watts & S. 141. ^ Gould V. Glass, 19 Barb. 171, 195. It seems, however, that, from use and occupation for over twenty years, the grant may be presumed. 3 Kent Com. 451 ; McManus v. Butler, 51 Barb. 436. « Cincinnati v. White, 6 Pet. 431. ' Watertown v. Cowen, 4 Paige, 510. s Poole V. Huskinson, 11 Mees. & W. 827 ; Hemphill v. City of Boston, 8 Cush. 195. 8 Rex V. Leake, 2 Nev. & Man. 595. ' Fisher v. Prowse, 31 L. J. Q. B. 213; Irvin v. Fowler, 5 Rob't. (N. r.) 482. ' James v. Hayward, Cro. Car. 184. » Ibid. 1° Fisher V. Prowse, supra. DEDICATION OP HIGHWAYS. 389 not interfere with the uses for which it was dedicated,^ Nor does he thereby bind himself to keep it in repair^ for, if the public accept and use a highway, they must keep it in repair.^ Nor can adjoining owners be compelled to bear the expense of keeping it in repair : it must be done by the public at large.* § 217. Dedication Implied, when. We have already remarked that the act of dedication is not within the Statute of Frauds, and therefore may either be formally made in writing, or informally made without writing, by acts of the owner, when such acts clearly show an inten- tion to donate the way to the public.^ Unlike a grant gained by prescription, or uninterrupted use of it for a given length of time, it may be presumed from a single act, and takes place immediately whenever there is a clear intention to dedicate manifested.^ Thus, where a land proprietor builds houses, or makes other improvements upon his land, in such a manner as to form a new street, and this street is used by the pub- lic as a highway, the intention to dedicate is immedi- ately implied.' So, where a man builds a double row of houses, facing upon a way in common, and opening an ancient street, the way so formed becomes instantly a highway.^ So, where the owner of land in a city makes a map or plan of his land, laying down upon it certain streets and alley-ways between the lots, and 1 Abbott V. Mills, 3 Vt. 521 ; Hobbs v. Lowell, 19 Pick. 405. 2 Reg. V. Lordsmere, 19 L. J. M. C. 210. » Healey v. Mayor of Batley, L. R. 19 Eq. 375; 44 L. J. Ch. 642. < Reg. V. Hutchins, L. R. 5 Q. B. D. 353. 5 Ante, § 215; Washb. Easements, 139. « Green v. Chelsea, 24 Pick. 71 ; Child u. Chappell, 5 Seld. 256. ' Lade v. Shepherd, 2 Str. 1004 ; Rex v. Lloyd, 1 Campb. 260. 8 Woodyear v. Hadden, 5 Taunt. 125; Trustees of British Museum v. Fin- nis, 5 Car. & P.,460; Jarvis v. Deane, 3 Bing. 447; Holdane v. Coldspring, 21 N. Y. 475; Macon v. Franklin, 12 Ga. 239; Pearsall v. Post, 20 Wend. 119. 390 BtnUDING EASEMENTS. sells the lots according to the plan, dedication will be implied, though no part of the streets thus formed have been adopted by the public authorities.^ It must be understood, however, in such cases, that the mere laying down or platting land into streets and squares — though they be publicly offered for sale thereby — does not imply a dedication of itself,^ but if the high- way be both laid out and accepted, the act of dedica- tion will be completed and rendered irrevocable.^ So, where the houses are sold,* a dedication may almost invariably be presumed from the sale of building-lots described by reference to maps and plats upon which are designated streets and alleys,* but user by the public is generally necessary to complete the dedica- tion.*' Several of the states have statutory enactments whereby dedication is made a matter of public recoi'd by the land-owner acknowledging and recording a plat or map of his land, and expressly vesting the use of certain portions of it as streets in the principal corpo- 1 Bissell V. N. Y. Cent. R. R. Co. 23 N. Y. 61; De Witt v. Village of Ithaca, 15 Ilun, 568. ^ In re Rhinelander, 68 N. Y. 105. Generally a dedication will be pre- sumed if a man forms a street across liis lands, and fails to erect a gate, or other bar against public use. Lade v. Shepherd, 2 Str. 1004; Rex v. Lloyd, 1 Campb. 260. » Mercer v. Pittsburg, &c. R. R. Co. 36 Peun. St. 99 ; Abbott v. Mills, 3 Vt. 521 ; State v. Trask, 6 Vt. 355. ■• Hobbs V. Lowell, 19 Pick. 405; Woodyear v. Hadden, 5 Taunt. 125; Matter of 32d St. New York, 19 Wend. 128. 5 L-win V. Dixon, 9 How. 10; Wyman v. Mayor of N. Y. 11 Wend. 486; Matter of 32d St. supra; Hannibal u. Draper, 15 Mass. 639; Smith v. Flora, 64 111. 92. ^ Niagara Suspension Bridge w. Buchanan, 66 N. Y. 261; Field c. Man- chester, 32 Mich. 279; Bartlett v. Bangor, 67 Me. 460; Fo.x t-. Union Sugar Refinery Co. 109 Mass. 292. (That mere survey without use is not a dedication, see U. S. v. Chicago, 7 How. 198 ; Bailey v. Copeland, Wright, 150.) DEDICATION OF HIGHWAYS. 391 ration for the use of the public. Such grants may be made, though the town at the time of making the same has no corporate existence.^ These statutes do not prevent dedication from being inipHed as at com- mon law,^ and a compliance with their requirements is only evidence of a dedication which may be rebutted.^ It is not necessary for a street to be completed before it is dedicated. It may become a public high- way though a considerable portion of it be not ready for use.* The extent of land dedicated to the public as a highway is determined by the terms of the grant, or if by implication, from the user. Thus, where for fifty years owners along the line of a certain street, acqui- esced in a certain width, they cannot detract from it, nor make it conform to an original survey.^ So, where a party built a street fifteen feet wide and allowed it to become a thoroughfare.^ So, where a road was widened from forty to sixty feet, silent acquiescence is not ' sufficient of itself to imply dedication,^ though it may, however, after twenty years, give the right of way, as by prescription.^ § 218. Rebutting Peesumptions op Dedication. It frequently happens that a land-owner, in the improve- ment of his land, desires to construct roads across it, or build houses in rows facing upon a way in common, 1 Canal Trustees v. Havens, 11 111.554; Waugh jj. Leech, 28 111. 488. 2 Manly et al. u. Gibson, 13 111. 308; Fulton v. Melirenteld, 8 Ohio, 358- » People V. Beaubieu, 2 Dougl. 258; Hoole v. Atty. Gen. 22 Ala. 190. * Barclay v. Howell's Lessee, 6 Peters, 498. « Smith V. State, 3 Zabr. 130; Maxwell v. East River Bank, 3 Bosw. 124. 6 Gamble v. St. Louis, 12 Mo. 617. ' Cyr V. Madore, 73 Me. 53; Trustees British Museum t;. Finnis, 5 Carr. & Payne, 460; Chicago v. Johnson, 98 111. 618. 8 Trustees British Museum v. Finnis, supra; Chicago v. Thompson, 9 III. 524; State v. Trask, 6 Vt. 355. 392 BtriLDING EASEMENTS. yet does not deem it advantageous that the ways thus formed shall become public property. In other words, he finds it to his advantage to rebut all pre- sumptions of dedication in order that he may reserve the absolute right to control the land of the ways thus formed. To give notice that he has no intention to dedicate the use thereof, he can place a gate or bar at its entrance, or post a written or printed notice, "No thoroughfare," conspicuously. It is well settled that such acts may prevent it from becoming a public high- way,^ though the gate or bars open and shut at pleas- ure.^ Yet a person passing over a way, apparently open to the public, will not generally be deemed a tres- passer.® Nor is this method of rebuttal always con- clusive.* Thus, where bars were placed over a private way to prevent the entrance of carriages, but were soon knocked down, and the land-owner suffered them to remain down, it was held that the way was dedi- cated ; ^ so where a gate was left down for twelve years ; ® but not where gates were removed for the making of repairs upon a street, and then restored to their former place, though in the interval the land- owner allowed the public free use of the way,' and permitted it to be paved at public expense.* ' Rugby Charit yw. Merryweather, 1 1 East, 376, n. ; Carpenter v. Gwynn, 35 Barb. 395, 406; Proctor v. Lewiston, 25 111. 153. 2 Commonwealth v. Newbury, 2 Pick. 51 ; State v. Strong, 25 Me. 292 ; Proctor V. Lewiston, supra. * Stafford v. Coyney, 7 Barn. & Cr. 257; Bowers v. Suffolk Mg. Co. 4 Cush. 332; Cleveland v. Cleveland, 12 Wend. 172. * Davies v. Stephens, 7 Carr. & Payne, 570. ' Roberts v. Karr, 1 Campb. 262, n. ; 1 Taunt. 435. ' Lethbridge v. Winter, 1 Campb. 263, n. ' Carpenter v. Gwynn, 85 Barb. 395, 406. ' Denning v. Roome, 6 Wend. 651. DEDICATION OP HIGHWAYS. 393 The length of time a roadway must be used to raise the presumption of dedication is not material, when the clear intention of the land-owner to dedicate his land can. be shown. User in such cases, however, is evi- dence of acceptance on part of the public. The rules applicable to the acquisition of easements by prescrip- tion are not applicable to those gained by dedication. Where, however, a clear and unequivocal intention, to dedicate cannot be shown, there must be user for the prescription period of twenty years.^ In Iowa, public use for more than ten years makes a road a public highway ; ^ in Pennsylvania public user for twenty-one years is required.^ But where the inten- tion to dedicate is manifest, no particular period is necessary ; indeed, the act of dedication, if accepted, may be instantaneous.* So in Regina v. Patrie,^ the use of a road by the public for a period of six years was considered primd facie evidence of assent of the owner. In another case,^ four or five years' use of a passage-way by the public, with the owner's consent, was deemed suffi- cient. When the intent to dedicate is clear, as where a land-owner built a street,'' or erected rows of houses fronting upon opposite sides of an open way,^ length ' Hoole V. Atty. Gen. 22 Ala. 190; Noyes v. Ward, 19 Conn. 250; Epler V. Numan, 5 Ind. 459; Lewiston v. Proctor, 27 111. 414. 2 State V. Green, 41 Iowa, 693. 3 Commonwealth v. Cole, 26 Pa. 187. * Woodyearu. Hadden, 5 Taunt. 125; Missouri Institute, &c. ti. How, 27 Mo. 211. 5 Kegina v. Patrie, 30 Eng. Law & Eq. 207. ^ Jarvis v. Dean, 3 Bing. 447. ' Lade v. Shephard, 2 Stra. 1004; Miles v. Kose, 5 Taunt. 705; Conne- han V. Ford, 9 Wis. 240. 8 Woodyear v. Hadden, 5 Taunt. 125. 394 BUILDING EASEMENTS. of time is immaterial;^ otherwise a period of twenty years' uninterrupted enjoyment iriay have to be shown.^ § 219. Public Authorities. The power to pass laws and regulations concerning highways is vested in the legislatures of the various states. Municipal authorities have no such power unless expressly conferred upon them by statute.^ The authority, however, is frequently delegated to them, and ordinarily town or city coun- cils, through their officials, may grant permits for any reasonable temporary obstructions for building and other purposes;* or for doorways, steps, porticos, and the like projecting in the street ; or gates, doors, and shutters swinging outwardly ; ^ or for digging trenches for gas-pipes ; ^ or for piling lumber or logs,' lime, gravel, and other building materials in heaps.* The introduction of water - pipes, telegraph poles, sewers, drains, and gas-mains may be controlled by the cities.® Indeed, the legislature may delegate its entire au- thority to municipal corporations, giving the latter the right to allow all sorts of obstructions, and even en- tirely discontinue a highway for the purpose of re- 1 Ct-metery Association i: ML-ninger, 14 Kan. 312; Hading u. Town of Hale, 61 111. 192. - 3 Kent Com. p. 451; Post v. Pearsall, 22 Wend. 450; Rex u. Lloyd, 1 Campb. 260. ^ Stetson V. Faxon, 19 Pick. 147; Commonwealth v. Rush, 14 Pa. St. 186. * Woods u. Mears, 12 Ind. 515; People v. Cunningham, 1 Denio, 524; O'Linda v. Lothrop, 21 Pick. 292. ^ O'Linda r. Lotlirop, xnpra. Reg. (.. Sheffield Cas Co. 22 Eng. Law & Eq. 518. ' Mould V. Williams, 5 Ad. & El. 469; 1 Hawk. P. C. 76, §§ 48, 50. 8 Bush V. Sleinman, 1 B. & P. 404; Burgess v. Gray, 1 Man., Gr. & Scott, 678. « Cbapman v. Albany & S. R. R. Co. 10 Barb. 360 ; Blanl v. L. L R. R. Co. 10 Barb. 26; Boston v. Richardson, 13 Allen, 146 ; West v. Bancroft, 32 Vt. 367. EEPAIRING WAYS. 395 grading.^ So, also, the duty of keeping roads, drains, bridges, sewers, and the like in order is frequently regulated by statute, and often devolves upon the municipal authorities. In such case the town's liabiHty for damages caused by neglect to keep same in proper repair is determined. § 220. Extent of Easement of Way. Where a right of way has been acquired by express grant, the natural construction of the grant defines and determines its extent.^ If it has been granted for a particular use or purpose, it is restricted to that purpose, and any essen- tial change in it extinguishes it.^ Such easements gained by prescription are determined in their char- acter and extent by user;* they are stricti juris; so that, if it is impossible to determine exactly at what period or to what extent user applies, no easement is gained.^ Of what a " reasonable use " of an easement consists is often a question for the jury ; ^ but generally an ease- ment may be used in a,ny manner whatsoever, so long as such user does not inflict greater injury to the servient estate. § 221. Repairing Ways. We have already seen'' that liability for repairs to public highways is de- pendent upon and determined by statute, or by au- thority vested in municipal corporations. With a private way, the law genei'ally exacts that the owner thereof shall keep it in repair. While he cannot call 1 Cases cited note 9 preceding page. Such power was conferred on the city of New York by special statute. 2 Washb. Easements, 168; Cannon v. Villars, L. E. 8 Ch. D. 415. 3 Allan V. Gomme, 11 Adolph. & E. 759. * Ballard v. Dyson, 1 Taunt. 279 ; Bower v. Hill, 2 Bing. N. C. 339. 6 Goldsmid v. Tunbridge, &c. L. R. 1 Cb. 349. e Hawkins v. Carbines, 27 L. J. Ex. 44'; Skull v. Glenister, 16 C. B. N. S. 81. 7 Ante, §§ 216, 219. 396 BUILDING EASEMENTS. upon the owner of the servient tenement to make such repairs unless a covenant exists to that effect between them, he can go upon the part of the land, when necessary for him to do so, to make proper re- pairs/ He cannot, however, go outside of the limits of his way to make repairs.^ So it has been held that the grant of a parcel of land, bounding upon a private way, does give the grantee the right of way over the same, but not a right to carry away the materials thereof, although he could use the sand, gravel, stone, etc., within the passage-way, for the purpose of grading, filling, and repairing it.^ § 222. Obstructing Highways. A highway is a pub- lic thoroughfare or roadway, and must be kept free and open for all persons. Any obstruction, whether by failure of duty by those charged to keep it in re- pair, or by actual obstructions, is an offence against the public. While any act which unnecessarily in- commodes the public, or impedes the lawful use of a highway, is a nuisance and may be indictable,* yet such an act is not actionable unless an individual has suf- fered some special damage beyond what is common to the rest of the public.^ The entire length and breadth of a public way must be kept free and open. But it seems that the tem- porary use of a portion of a street or other highway 1 Com. Dig. Chimin D. 6 ; Pomfret v. Eicroft, 1 Saund. .322 ; Williams V. Saflford, 7 Barb. 309; Doane v. Badger, 12 Mass. 65, 70 ; Rider v. Smith, 3 T. 11. 766. 2 Taylor v. Whitehead, 2 Dougl. 745 ; Williams v. Safford, 7 Barb. 309. * Phillips V, Bowers, 7 Gray, 21. So, where a land-owner enjoys the right of carrying water by means of pipes over his neighbor's land, the right carries with it the privilege of going upon same to make necessary repairs. Bell i^. Twentyman, 1 Q. B. 766; Alston v. Grant, 3 El. & Bl. 128. « Angell on Highways, 3d ed. § 222. 6 Ibid. OBSTRUCTING HIGHWAYS. 397 for building purposes, when actually necessary, is permissible, so long as the encroachment is not un- reasonably continued.^ Though building is a neces- sity, it is the duty of those engaged therein to use due care that the public is not unduly inconven- ienced. Clearly, then, not every obstruction of a highway amounts to a nuisance.^ Thus, in rebuilding or re- pairing a house, the public must bear the incon- venience necessarily connected therewith, and only when the inconvenience is unreasonably great, or con- tinued unnecessarily, can the offending party be in- dicted for nuisance.^ So, where a land proprietor em- ployed a builder who constructed a shed so far out into the street as to permanently encroach thereupon, the owner was held guilty of a nuisance.* But in another case, where the way was a private way, — i. e. not dedicated to the public, but used in common by all the abutting proprietors, — the court held that he could not be compelled to remove a building erected over, but so far above, the way as not to obstruct the right of passage.^ Any permanent encroachment upon a street is a nuisance.^ So any one may remove any materials ob- structing a highway; he cannot convert the same to ^ People V. CunniDgham, 1 Denio, 524. 2 Wood on Highways, 2d ed. § 81; Atty. Gen. v. Parmenter, 10 Price, 378 ; Regina v. Hand, 1 Car. & M. 496. * Commonwealth v. Passmore, 1 S. & R. 219 ; St. John v. Mayor of N. Y. 6 Duer, 314. ■> Bush V. Steinman, 1 B. & P. 407. ^ Harrison v. Pike, 4 Bull. 156 (Ohio Superior Ct. 1879) ; Harrison v. Craighead, 5 Bull. 270. 6 Smith V. State, 23 N. J. L. 712; Atty. Gen. v. Heishon, 18 N. J. Eq. 410. Building a house higher than it was before, whereby the street becomes darker, is not a nuisance on account of the darkness only. Rex V. Webb, 1 Ld. Kaym. 737. 398 BUILDING EASEMENTS. his own use/ nor remove it if the removal involves a breach of the peace ; ^ nor can he do so by means which encroach upon or obstruct its lawful use. An obstruction is not considered such a nuisance as will justify abatement, unless it actually encroaches upon the travelled part of a highway.' § 223. Remedies. If the owner of a servient tene- ment obstructs the enjoyment of a right of way over his land, the owner of the dominant tenement may bring; an action at law against him for damages, or even enter upon his land and abate the nuisance.'* Generally any obstruction placed upon a way, whether a gate, bar, and it has sometimes been held a house, may be removed by the injured party, provided he does no more damage than is necessary.^ So, if the owner of a right of way encroaches upon the servient estate by doing acts which inflict a greater burden upon the latter, the proprietor of the servient estate may obstruct the excessive user of the way," provided he does not interfere with the proper enjoyment thereof.' Courts of equity will generally grant mandatory in- junctions to prevent improper obstructions to a private way.^ The remedy, however, will not be extended 1 1 Hawk. p. C. c. 76, § 187. 2 Day V. Day, 4 Md. 262. ° Hopkins V. Crombie, 4 N. H. 520. In this case the frame and cellar of a building extended about ten feet into the higliway, but did not cover or obstruct any part of the travelled way thereof: the court held that it could not be abated by any individual whose passage was not actually ob- structed, narrower v. Ritson, 37 Barb. 301. * 2 Roll. Abr. Nuisance, 81; Wigtord v. Gill, Cro. Eliz. 269; Perry v. Fltzhowe, 8 Q. B. 757. 6 Bro. Abr. Nuisance, 105 b, pi. 33. 6 Greenslade v. Halliday, 6 Bing. 379; 8 L. J. C. P. 124. ' Ibid. 8 2 Story Eq. Juris. Red. ed. § 927; Stevens ti. Stevens, 11 Mete. 251. OBSTRtrCTING HIGHWAYS. 399 to cases where an individual seeks to sustain his right to enjoy a public easement, when the injury of which he complains affects the whole community.^ Whether the injunction will be granted at all is within the sound discretion of the court.^ It seems that any one who is prevented from using a public highway may abate the nuisance by remov- ing the obstruction, whatever it may be; and this, too, though he enter for the purpose upon adjoining land of the party erecting or continuing it.^ It is clearly established that one has no right to construct a building with a roof overhanging the sidewalk,* or to leave cellar openings not guarded,'' or to make ex- cavations so near the highway as to endanger passers- by,^ or to erect stair-steps, bay windows, or any projec- tion liable to inconvenience or endanger the publicJ While excavations or other dangerous operations * near highways are indictable as nuisances, the same may be permitted if proper authority be obtained, and danger signals and all other proper guards be ^ Hartshorn o. South Reading, 3 Allen, 501 ; Brainard o. Connecticut River R. R. 7 Cush. 506. ^ Williams v. Jersey, 1 Craig & P. 91; Short v. Taj'lor & Anonymous, 2 Eq. Cas. Abr. 522. 5 James v. Hayward, Cro. Car. 184; Arundel v. McCulloch, 10 Mass. 70; Moffett v. Brewer, 1 Iowa, 348. * Garland v. Towne, 55 N. H. 56. The question as to what is an un- reasonable use of a highway for building purposes is considered at length in Fritz v. Hobson, 42 L. T. (N. S.) 225. See, also. Wood on Nuisances, §256. * Coupland v. Hardingham, 3 Campb. 398; Irvine v. Wood, 31 N. Y. 224. ^ Clark V. Fry, 8 Ohio St. 359. In these cases the offence is also action- able. ' Commonwealth t?. Blaisdell, 107 Mass. 234; Reg. u. Burt, 11 Cox C. C. 399; Stephani u. Brown, 40 111. 428; House v. Metcalf, 21 Conn. 631; Beatty v. Gilmore, 16 Pa. St. 463; Portland v. Richardson, 54 Me. 46. 8 Reg. V. Nutter, 34 L. J. M. C. 22. 400 BUILDING EASEMENTS. taken for protection of the public." Property bound- ing on a highway must not be allowed to become in a dangerous condition. Thus, a house in danger of fall- ing down is a nuisance, and must be removed.^ What would otherwise be deemed a nuisance may some- times be avoided by taking all reasonable precautions ; thus, in an English case,^ a board was used for protect- ing the public from inevitable danger, but still left them a free passage by another way : though it neces- sarily obstructed the whole street, it was not a nui- sance. While no one has a legal right to so construct his house that water therefrom will drip, fall, or run over his neighbor's land, yet the right may be acquired by continued user.* The easement, however, only ex- tends with, and is determined entirely by, the user, and may be destroyed entirely by increasing the burden to the servient estate. Thus, while the right will not be lost by altering the house of the dominant tenement, so long as the burden is not increased,^ the owner of the easement cannot change the direction of his rain spout,^ or so construct it that it will gather a large volume of water to precipitate upon his neigh- bor's land.' 1 Proctor V. Harris, 4 C. & P. 337; Stevens v. Stevens, 11 Met. (Mass.) 251; McCamus v. Citizens' Gaslight Co. 40 Barb. 380. 2 Reg. V. Watts, 6 Salk. 357. 3 Bex V. Ward, 4 Ad. & El. 405. ' Sury V. Pigott, Palmer, 446; Fay v. Prentice, 1 C. B. 828. 5 Thomas v. Thomas, 2 C., M. & R. 34. "11 Henry 7, f. 25; Lady Browne's case, cited in Sury v. Pigott, supra. ' Reynolds v. Clarke, 2 Ld. Raym. 399. CHAPTER XXVII. DRAINS, SEWERS, CESSPOOLS, AND PERCOLATIONS. § 224. Why this Chapter. The subject of Drains, Sewers, Cesspools, and Percolations is one of so much importance in building operations that it has been deemed advisable to supplement the cursory remarks contained in the chapter on Building Nuisances.^ The writer will not here restrict the treatment of the subject under consideration to the law of ease- ments relating thereto, but will briefly sketch the law pertaining to these matters, though in so doing he trespasses upon " Nuisances," " Negligence," " Torts," and " Easements " generally. § 225. Sewerage and Drainage. It has been said that all filth and other matters giving off noisome odors are dangerous to human health if suffered to remain near our habitations ; and for this reason it is the duty of all persons to remove all filth caused by them, as speedily and as effectively as possible. Systems of sewerage and drainage are undergoing radical changes in this country. In nearly all our cities boards of health have been established, and upon their recommenda- tions privy-pits and cesspools are fast disappearing. But a few years since, privies were attached to houses of every description, whether located in the country, in towns, or in cities ; and to this day, in many of our Southern cities, no regular systems of sewerage have been adopted. Excrement and other filth is allowed 1 Ante, Chap. xii. §§ 76-85. 26 402 BUILDING EASEMENTS. to accumulate in large wooden hogsheads, or bricked- up vaults, in close proximity to dwelling-houses. In many instances these dangerous and offensive places are neglected, or so improperly constructed that dam- ages result to neighboring wells, etc. Actions at law are frequently brought, or injunctions sought, to remedy and to prevent the injurious consequences of such places. Not long since, rigid ordinances were enacted to prevent inhabitants from allowing any matter other than rain or surface water to pass into the public drains or sewers ; but of late years sanitary regulations have so changed that in many cities there exists a complete underground net-work of sewer-pipes and drains, which carry off both rain-water and "filth. Little natui;-al streams flowing through towns have been tunnelled over, and made to become the chief avenues into which the filth passes to be carried on with the water in its natural course. Generally the large drains are made of sufficient size to allow men to pass along their entire length in order to keep them clean, but some towns have adopted a system whereby smaller drains are utilized, and water introduced into them for cleansing purposes by artificial means. Many legal complications may still arise after public systems of sewerage have been adopted, but in nearly all of such the municipal corporation becomes a party, and litiga- tion will not b'^ so frequent as under the old plan. Municipal corporations can adopt any system of sewerage they deem best, and they are not liable for damages occasioned because of their failure to choose the best system, or because they erred in judging of the necessity of sewers.^ 1 Lynch v. New York, 76 N. Y. 60; Darling v. Bangor, 68 Me. 108; Denver v. Capelli, 4 Col. 25, but see Franklin Wharf Co. v. Portland, 67 DBATNS, SBWEES, CESSPOOLS, AND PEKCOLATIONS. 403 § 226. Cesspools and Privies. These terms are gen- erally used synonymously. A cesspool, however, is usually a large underground tank or hogshead, built of viTood or brick, into vs'hich excrement and all other sewerage of dwelling-houses is discharged. The term "privy" ordinarily means the "necessary house," hav- ing only a pit dug in the ground to receive the filth deposited, such as is attached to cottages in country districts. Both are prima facie nuisances.-^ Typhoid, typhus, and innumerable other fevers are apt to be contracted from the poisonous atmosphere of such places, while wells and subterranean streams become surcharged with deadly gases. Yet, unless public sys- tems of sewerage and drainage be adopted, cesspools or privies are necessary, and indispensable in connec- tion with dwelling-houses. It is, nevertheless, the legal duty of him who has filthy matter from a privy or other place upon his premises, to see that it does not annoy or trespass upon the property of his neighbor ; 2 and he commits an actionable nuisance if he allows his filth to percolate through the soil of the adjacent prem- ises, injuring his neighbor's cellar, fouling his well, or causing other damage.^ The law requires the owner o£ such places not only to take reasonable precautions ^ but to absolutely and effectually exclude the filth from his neighbor's land : only an inevitable accident can excuse him.^ These " necessary houses "^ may become Me. 46, where a city was held responsible for filling up a dock with sewer- age matter. 1 Wood on Nuisances, 665; Jones v. Powell, Hutt. 135. 2 Tenant u. Goldwin, 1 Salk. 360; 6 Mod. 311. 8 Ibid. See also Ball v. Nye, 99 Mass. 582 ; St. Helen's Chemical Co- V. St. Helen's, L. R. 1 Exch. Div. 196; Greene v. Nunnemacher, 36 Wis. 50; Pottstown Gas Co. v. Murphy, 39 Penn. St. 257. * Ball V. Nye, 99 Mass. 582; Hodgkinson v. Ennor, 4 Best & S. 229. 5 Webster's Dictionary. 404 BUILDING EASEMENTS. nuisances if from them oflFensive odors arise, destroy- ing a neighbor's comfortable enjoyment of his prem- ises;^ or if built in such a manner as to annoy other tenants^ (for "he who erects a building which is liable to become a nuisance, except great care is exercised, is liable for the consequences occasioned thereby " ^), or if filthy matter escapes,* corrupting water of a well or fouling a stream.^ Indeed, it may be laid down as a general rule that the owner of a cesspool or privy-pit is bound to keep the tilth collected in it upon his own premises, and prevent it from becoming a nuisance.® So, where a land-owner had a well sunk upon his premises sixty feet deep, and his neighbor constructed a cesspool at a distance of fourteen yards of the well, and dug said cesspool to a depth of forty-seven feet, or within thir- teen feet from the level of the well, and it was found shortly afterwards that the water contained in the lat- ter was aflfected thereby to such an extent as to be- come unfit for family use, the court granted an in- junction restraining the owner of the cesspool and all other persons from using it.^ The rule is substantially the same as that laid down 1 Barnes v. Hathorn, 54 Me. 124; Wahle v. Rembach, 76 III. 322. 2 Jones V. Powell, Hutt. 135; Tenant v. Goldwin, 2 Ld. Raym. 1089. 8 Rex V. Pedley, 1 Ad. & E. 822. * Tenant ii. Goldwin, supra. 6 Norton v. Schofield, 9 M. & W. 665; Wormesley v. Church, 17 L. T. (N. S.)190. " Marshall v. Cohen, 44 Ga.489; Mackey v. Greenhill, 30 Jur. 746. But where the different floors of a building were let to several tenants, and there was a water-closet on the second floor, it was held that the landlord was not liable for injuries sustained by the lower tenant by reason of the water-closet being neglected by his other tenants. Robbins v. Mount, 4 Robertson (N. Y. Sup. Ct.), 553. ' Wormesley v. Church, 17 L. T. (N. S.) 190. See, also, Ottawa Gas Co. V. Thompson, 39 111. 601; Brown v. Illinois, 25 Conn. 583. DKAINS, SEWEES, CESSPOOLS, AND PERCOLATIONS. 405 in Fletcher v. Rylands/ that when a man brings upon his land water, or anything else which is apt to injure his neighbor, he is bound to use the greatest amount of care and diligence that it does not become a nui- sance.^ § 227. Joint Privies. In many towns and cities pri- vies are constructed partly upon the land of each of two adjoining houses, and used in common by the tenants of both buildings. Many of the doctrines and principles of law concerning party walls and fences are applicable to litigation arising in such cases, particu- larly as to repairs and the cleaning out of the accumu- lating filth. In the leading English case on this subject,^ the plaintiff excavated a cellar so near the privy vault of the defendant that filth therefrom, by reason of cer- tain defects in the vault, flowed upon the plaintiff's premises. Lord Holt held that the defendant is bound to exercise the greatest care* that his privy does not injure his neighbor, and that he is bound to keep it in proper repair. Mr. Washburn, in citing this case, draws a further conclusion therefrom, that " if one erect a privy adjoining a vacant estate, and the owner of the latter would dig a cellar or erect a house near the privy, it will be for him to erect a wall to protect his premises. And the same rule would apply if the owner of such house is also the owner of the vacant lot, and he sell the latter. If the purchaser would oc- cupy it, he must protect himself, by works upon his 1 Fletcher v. Rylands, 1 Exch. 265 ; L. R. 3 H. L. 330; 37 L. J. Ex. 101. See ante, § 199. 2 Cahill V. Eastman, 18 Minn. 324; Tenant v. Goldwin, 6 Mod. 311; 2 Ld. Raym. 1089. 8 Tenant v. Goldwin, supra. * See Fletcher v. Rylands, supra; Cahill v. Eastman, 18 Minn. 324. 406 BUILDING EASEMENTS. own land, against the privy already standing upon the adjacent lot." ^ § 228. Drains as Easements. The right of drainage of one man's land over the land of another may be acquired by express grant or prescription, as other easements,^ and such a right, like those of ways, water- ways, light and air, are continuous and apparent ease- ments passing by implication with a grant of the land.^ Thus, the right passes to the assignee of a dominant owner when, whether by grant or prescription, the latter has acquired the easement of running water, by means of pipes or trenches, over the lands of his neigh- bor ; * so, when drains or sewers, from the very nature of their construction, bear evidence that their builders intended that they should remain after the severance of the property, the necessity of the easement may be established ; ® so where a party purchased two lots of land adjoining each other, and one having an arti- ficial drain over the other, connecting it with a distant canal ; so although, while both belonged to the same person, the easement was merged, but held to be re- vived upon his selling the lots separately to different purchasers.® The private right of drain, it seems, once gained, is not lost by the construction of a public drain through the lands, though thereby the private drain 1 Wasbb. on Easements (4th ed.), p. 647, citing Tenant r. Goldwin, 2 Ld. Raym. 1089; Holt, 500; Salk. 360. 2 Kent Com. 3 DeLuze v. Bradbury, 25 N. J. Eq. 70; Havens v. Klein, 51 How. (N. Y.) Pr. 82; Simmons v. Cloonan, 81 N. Y. 557; Cave v. Craft, 53 Cal. 136. * Wasbb. on Easements (4l]i ed.), 50; Hill v. Miller, 3 Paige, 254; Pyer V. Carter, 1 Hurl. & Nor. 916. 6 Wortbington r. Gimson, 29 L. Jour. Q. B. 116; 2 EI. & El. 618. ^ Ferguson v. Witsell, 5 Rich. 28; Shaw v. Etbridge, 3 Jones (Law), 300. DRAINS, SEWEES, CESSPOOLS, AND PBKCOLATIONS. 407 ceases to be necessary ; ^ but if, in gaining an easement of drain, the use thereof be materially changed, the period of prescription (twenty years) runs from the time the change was made ; ^ nor can a drain granted for a particular purpose be used for any other pur- pose.^ § 229. The Construction and Repairing op Drains. Ordinarily a man cannot be compelled to drain his land so long as it remains in its natural state.* He can allow the floods to wash it away, rank weeds to grow upon it, or ponds and malarious marshes^ to form. No matter how great an annoyance it becomes to his neighbors, or how unhealthy it may be,* he is not bound to drain it. But from the moment he builds or makes excavations upon it his legal liability is entirely changed. While he still retains the right to lay drain- pipes or dig trenches upon his land, and carry the water from his premises, he must observe due care. He cannot allow the water to collect after building or excavating : he must provide good and sufficient drains. If he still allows water to accumulate, or become stag- nant or to percolate, upon the land of his neighbor, he is bound to abate the nuisance, and is also liable for damages.'' One neighbor cannot force another to remedy de- fects in the latter's land, so long as it remains in its natural state : he must guard against these himself, but 1 Hastings v. Livermore, 7 Gray, 194. 2 Cotton V. Pocasset Mg. Co. 13 Met. 429; Steen v. Burder, 24 Ala. 130. 3 Carter w. Page, 8 Ired. 1 90. * Hartwell u. Armstrong, 19 Barb. 166; Woodruff v. Fisher, 17 Barb. 224. 5 Hartwell v. Armstrong, supra. * Woodruff V. Fisher, supra. ' Baird v. Williamson, 33 L. J. C. P. 101. 408 BUILDIKG BASEMENTS. as soon as a land-owner undertakes to change the nat- ural surface of the land he renders himself liable to see that it is properly and efficiently drained. Drains put upon property must not only be of good and sufficient capacity to discharge all the water with which they are likely to be surcharged, but they must be kept clean and repaired by him who owns them.^ The principle of law is that, where water is brought upon land, or artificial drains made to regulate its course, though it accumulates from rain-falls, every reasonable precaution must be taken to prevent it from causing injury to others.^ Where, however, a sewer or drain has been properly built by competent workmen, and all usual or reasonable methods em- ployed to efficiently carry off the natural fall, the owner of the house cannot be held responsible for damages caused by unforeseen circumstances.^ If a man owns two houses, through one of which a drain passes which is defective, or so much out of re- pair as to be a nuisance, and while in this condition he leases the house through which the drain passes, he will be liable for damages if he suffers the drain to re- main out of repair, though it does not become in a worse condition than when the house was leased.'* § 230. Seweks. The remarks contained in the pre- ceding section are generally applicable to sewers, the terms '• sewer " and "drain" being ordinarily used sy- nonymously. Callis calls a sewer " a fresh-water trench compassed in on both sides with a bank, and is a small current or little river," — in other words, " a common 1 Kookwood V. Wilson, 11 Cusli. (Mass.) 221. ^ Chicago & N. W. R. E. v. Hoag, 90 111. 339. 8 Kohlhammer v. Weisbaeh, 90 111. 3U. ^ Alston V. Grant, 3 Ellis & B. 128. DRAINS, SEWERS, CESSPOOLS, AND PERCOLATIONS. 409 public stream." ^ These definitions are hardly accurate, since sewers of modern times are usually far from being " fresh-water trenches." We therefore will call it a drain, pipe, trench, or other passage (usually under ground) artificially constructed, for the purpose of carrying off water and filth. Beneath many of the large cities of the present day there exists a com- plete net-work of these subterranean canals, especially adapted for carrying off both water and filth.^ Sewers are ordinarily under the control of the sani- tary authorities, usually municipal officials. Such be- ing the case, individual citizens would have no right of action against the authorities for allowing persons to use sewers wrongfully. Possibly the authorities themselves could obtain an injunction to restrain the wrongful use, and generally they are empowered by law to prevent such offences ; but they are not re- sponsible as private individuals, for they are at the most but agents or servants of the corporation.^ We will speak in the next section of the liability of muni- cipal corporations in such matters. To render indictable the act of fouling a stream by constructing sewers so that their contents cause the in- jury complained of, there must be an actual evasion of the right to have the stream free from pollution.* § 231. Liability of Municipal Corpoeations. In some cases the act creating a corporation imposes upon it the duty of keeping sewers and drains in proper condition. Where such a duty is imposed, and there is clearly a breach of it, the corporation is liable 1 Callis on Sewers, 57-59. 2 Ante, § 225. » Atty. Gen. v. Guardians of Dorking, L. E. 20 Ch. D. 595; Charles v. Finchley Local Board, L. R. 23 Ch. D. 767. * See Lilly-white v. Trummer, 16 L. T. N. S. 318 (held not sufficient). 410 BUILDING EASEMENTS. for any and all damage thereby occasioned.^ So, where an injury is caused by a corporation, whether by its failure to perform a positive duty or performing it in a negligent or wrongful manner, an action for negligence against it may be sustained.''* Neither a corporation nor an individual is liable for doing that which is authorized by the legislature, provided the authority is not exceeded ; and even if there is an omission to perform a certain duty imposed by law, but no negligence is shown in the omission, there is no liability established.^ But where a corporation negligently omits to per- form a duty, or performs it in such a manner that un- necessary damage is occasioned, or there is a failure upon its part to exercise more than ordinary care,* or, knowing, permits the duty to be performed improperly, it is clearly liable.^ Thus, where a city had an ordi- nance requiring all private drains to be made to empty into a main sewer, the corporation must keep the sewer open ; ® but where there was no such ordinance the corporation would not be liable.'' The point of dis- tinction is that, corporations having power conferred upon them to construct and repair sewers, are liable for any damages which may result from defective con- 1 Hammond v. Vestry of St. Pancras, L. B,. 9 C. P. 316; 43 L. J. C. P. 157. ' Ibid. In this case a sewer was overflowed. In Broughton v. Midland Grand Ry. of Ireland, 7 Ir. R. C. L. 169, water was turned into a stopped- up sewer. ^ Hammond v. Vestry of St. Pancras, supra. * Campbell on Xegligence, 18; Smith on Negligence, 151. ^ Geddis v. Bann Reservoir, L. R. 4 App. Cas. 430; Parnaby v. Lancas- ter Canal Co. 10 Ad. & El. 223 (canal company, operating under statute). See, also, Sumner v. St. Paul, 23 Minn. 408. " Child V. Boston, 4 Allen, 41. ' Barry v. Lowell, 8 Allen, 127. DRAIKS, SEWERS, CESSPOOLS, AND PEECOLATIONS. 411' struction,^ if they have failed to use due diligence in taking every reasonable precaution ; ^ while they are not liable if they have strictly followed and not ex- ceeded the authority vested in them. So a city was held liable for damages occasioned by building a sewer in such a manner that its contents were discharged on the property of an individual.^ So in a canal;* so in a previously unpolluted stream.^ To estabUsh liability of a city for failure to keep its sewer in repair, negligence must be shown.® Where .a sewer was constructed lara-e enough for its original purpose, but damages resulted in conse- quence of the increased size of the city, from an extra- ordinary fall of rain, the corporation was held not to be liable.' While, on the other hand, it has been held that a city is liable for want of capacity of a culvert erected by it to carry off the water of a natural stream.* " When a corporation has a positive duty to per- form, it is no answer to an allegation of negligence upon its part that its officers, servants, or agents were ordered to do it,^ nor that they have contracted with a competent person for the performance of such 1 Barton v. Syracuse, 36 N. Y. 54 ; Montgomery v. Gilmer, 33 Ala. 116; Logansport v. Wright, 25 Ind. 512. ^ Fleming v. Mayor, &c. 44 L. T. Rep. (N. S.) 517. ' Jacksonville !'. Lambert, 62 111. 519. * Locks & Canals v. Lowell, 7 Gray (Mass.), 223. 5 Merrifield v. Worcester, 110 Mass. 216; Brandt v. Albany, 5 Hun CN. Y.), 591. « Barton v. Syracuse, 36 N. Y. 54; Smith v. N. Y. 66 N. Y. 295. ' Corp. V. Northern Liberties, 35 Penn. St. 324; Smith «. N.Y. 66 N. Y. 295. 8 Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Phinzy v. Au- gusta, 47 Ga. 260. ' Smith on Negligence, 156, citing Scott v. Manchester, 2 H. & N. 204. 412 BUILDING EASEMENTS. duty ; -^ but if it goes farther, and shows that the work was done in a competent manner, and that the injury was caused by an accident, or vis major, it is excused."^ So a corporation is liable for damages resulting to private property from the negligent exercise of its authority to construct sewers.^ A municipal corporation has no right to use a sewer so as to create a nuisance by emptying drains and cesspools into it to the injury of health and naviga- tion.* Nor can it fill up a dock with sand and other refuse,^ or divert streams, whereby large quantities of dirt, etc., are deposited in the harbor, injuring the depth of the channel.^ 1 Grote V. Chester & Holyhead Ry. Co. 2 Ex. 251 ; Francis v. Cockerel!, L. R. 5 Q. B. 501; 39 L. J. Q. B. 291. See Phila. Ry. Co. t/. Anderson, 39 Am. Rep. 787 (defective drainage o£ embankment washed away by flood). ^ Grote V. Chester & Holyhead Ry. supra ; G. W. Ry. of Canada v. Fawcett, 1 Moo. P. C. N. S. 101. 2 Leavenworth v. Casey, McCahan (Kans.), 124 ; Indianapolis v. Hufier, 30 Ind. 235; Roll v. Indianapolis, 52 Ind. 547; McCarthy v. Syracuse, 46 N. Y. 194. * Haskell v. New Bedford, 108 Mass. 208; Brayton v. Fall River, 113 Mass. 218. 5 Franklin Wharf Co. v. Portland, 6 7 Me. 46 ; Haskell v. New Bedford, and Brayton v. Fall River, supra. ^ Per Ch. J. Archer, Barron v. Baltimore, 2 Am. Jur. 103 (1828). PART V. MECHANICS' LIENS. CHAPTER XXVIII. mechanics' liens generally considered. § 232. Not a Common Law Lien. Mechanic's liens are not recognized at common law, but owe their origin entirely to legislative enactments.^ In Great Britain the lien is unknown, and in this country no lien, aris- ing from a mere building contract, can be enforced even in equity, independent of statutory law.^ § 233. Historical View. The people of the United States, soon after they gained their independence, found themselves hampered by many inequitable pro- visions of English statutory law, and the absence of many just and wise provisions consistent with the prin- ciples of the new Republic ; and the law-makers of the several states early enacted many supplementary laws. The justness of the mechanic's lien upon property which he had helped to create was soon recognized, for in the latter part of the year 1791 the General Assembly of Maryland passed " An Act to encourage 1 Sodini v. Winter, 32 Md. 130; Canal Co. «. Gordon, 6 Wall. 531; Truesch v. Shryook, 51 Md. 169; Blake v. Pitclier, 46 Md. 464; Davis et al. V. Farr et al. 13 Pa. 167; McCoy v. Quick, 30 Wis. 521. 2 Ellison V. Jackson Water Co. 12 Cal. 542. 414 mechanics' liens. master builders by establishing a lien for their just claims " on houses upon which they worked, or for which they furnished materials. In 1803 similar laws were enacted in Pennsylvania ; the other original states followed, and, as new states were added, the lien grad- ually extended in territory, so that it is now recog- nized in every state and territory of the Federal Un- ion. The Canadian authorities have also adopted the principle of the lien,^ but take their peculiar provi- sions from the Civil Code of Napoleon. § 234. Similarity of the Lien Statutes. It will be observed, after a careful comparison of the brief stat- utory provisions given in a subsequent chapter of this work, that there is great similarity in the mechanic lien laws of the states, in all the main provisions ; yet there is such great diversity in that which per- tains to time and place of filing the lien, — claim, lim- itations, extent as to contractors and sub-contractors, and innumerable special restrictions, etc., — that it is not considered advisable to enter into a voluminous treatise of this subject, which has been so skilfully handled by Mr. Phillips in his admirable volume. The language of mechanic lien statutes will generally be found to be clear and conclusive. § 235. Does not Bar the Debt. The law, in estab- lishing the lien, does not bar the indebtedness if the claimant fails to file his claim within the statutory period, for the debt survives after the lien dies.^ It is simply a preference given to secure payment of debts incurred in constructing or repairing buildings, and, though its benefits may be waived, an action at law may still be had to recover the value of the same. It 1 Civil Code Lower Can. art. 2013. ^ Hunter v. Lawning, 76 Penn. 25. mechanics' liens, generally CONSrDERED. 415 resembles a mortgage, or judgment npon the property, and under many statutes is enforcible by similar pro- cess.-' It attaches only to the real estate, and not to the rents and profits thereof; ^ and if the building is destroyed by fire or otherwise, the lien (but not the debt) ceases.^ § 236. Non-Residents Entitled. The United States constitutional provision that " the citizens of each state shall be entitled to the privileges and immunities of the citizens of the United States," guarantees that the ben- efit of mechanic lien laws should extend to non-resi- dents furnishing work or materials in the construction of buildings, etc.* § 237. Extent of the Lien. The lien usually ex- tends not only against the building erected, but also to the ground upon which it stands, and in many of the states to the adjacent ground, if belonging to the owner of the building.^ If the work or material is fur- nished to a person or persons other than the owner, as lessee or tenant, the lien only extends to the interest of such person. The courts of the various states cannot extend the lien claim beyond positive enactments, though they will construe the statute according to the intention and purpose of the legislators creating it, in cases where a strict construction would inflict great injustice.'' Yet the letter of the statute is usually fol- lowed, for it is the very essence of the law, without 1 Goodman v. White, 26 Conn. 317; Ritter v. Stevenson, 7 Cal. 388. 2 Kimball v. Sumner, 62 Me. 305. ' Coddington v. Dry Dock Co. 3 N. J. L. 477; Schukraft v. Ruck, 6 Daly, 1; but, contra, see Freeman v- Carson, 27 Minn. 516; McLaughlin v. Green, 48 Miss. 175; Steigleman v. McBride, 17 111. 300. * Greenwood u. Tennessee Man. Co. 2 Swan (Tenn.), 130; Ward v. Maryland, 12 Wall. 418. ' E. g. Md. Rev. Code, § 4 e< seq. art. 67. « Dame's Appeal, 62 Penn. 41 7. 416 mechanics' liens. which the lien has no existence, and courts have no power to encroach upon legislative enactments.^ Nu- merous instances and illustrations of both strict and liberal constructions of the law are given in Phillips' Mech. Liens, §§ 17 et seq. 1 Rafter v. Sullivan, 13 Abb. Pr. 262; Ex parte Schmidt, 52 Ala. 256. CHAPTER XXTX. PRIORITIES OF THE LIENS OP MECHANICS. § 238. As TO Time the Lien Attaches, (a.) The stat- utes usually declare that the lien shall take precedence over all incumbrances, except such as have attached to the property prior to the commencement of the build- ing} It grows, however, pari passu, with the property to which it attaches.^ It seems well settled that the "commencement" or "beginning" of a building means "the first labor done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction." ^ Consequently me- chanics' liens, attaching under such statutes, take pre- cedence over mortgages executed after the building was begun, although the work for which the lien is claimed was not commenced until after the filing of the mortgage.* When the statute declares that " the lien created shall relate to the time when the person furnishing materials began to furnish the same, and shall have priority over all liens suffered or created thereafter," it has been held that the lien relates back 1 Brown V. Smith, 2 Brown, 229; Wells u.'Canton Co. 3 Md. 234 ; e. g. Md. Rev. Code. art. 67, sect. 15; Mason v. Jones, 2 Barb. 229. ^ Nazareth Lit. & Ben. Inst. i-. Lowe, 1 B. Men. 258; Steigleman v. McBride, 17 111. 300. 8 Pennock v. Hoover, 5 Rawle, 308; Brooks v. Lester, 36 Md. 70; Key. stone V. Gallagher, 5 Col. 27. * Nelson v. Iowa Eastern R. R. Co. 44 Ibwa, 71 ; Delaware i;. Daven- port, 46 Iowa, 413; Brooks v. Lester, 36 Md. 70; Denmead ii. Bank of Baltimore, 9 Md. 185. 27 418 mechanics' liens. to the time when the work began, not only as to other liens, but also as to conveyances.^ Liens may exist upon new property independent of filing, but the privilege is lost when the time prescribed by statute expires.^ The fact that the original owner of a build- ing may have subsequently sold or transferred the same does not bar the lien.^ (6.) The statutes of several of the states declare that the lien attaches from the filing of a certain notice or memorandum with some public officer. In such cases a bond fide transfer of the property before the lien is filed will defeat the lien or claim to preference.* It has been generally held that where the law gives the lien only upon filing " notice with the county clerk," etc., no lien is created, or will be recognized to antedate, as a preference, the filing.® (c.) A few statutes fix the period of acquiring the lien at the date of the contract, or the completion of the buildings. Nice questions are apt to arise as to the time when a structure is completed ; for instance, after a house was finished and sold it was held that a paper-hanger, employed by the purchaser, could have no lien for his work, and thereby affect the lien of a mortgagee.® While other cases have tended to show that when a house is substantially finished according to the designs of the architect or builder, and only a few minor details remain to be done, it may be re- garded as completed, and the lien properly attaches 1 Kellenberger v. Boyer, 37 Ind. 188. 2 Welch ». Porter, 63 Ala. 229. ' Pennock v. Hoover, 5 Rawle, 291. * Braokney v. Turrentine, 14 Ark. 416. 6 Green «. Green, 16 Ind. 253; Quimby v. Sloan, 2 Abb. Pr. 93 ; Wil- son V. Hopkins, 51 Ind. 233. ' McCree v. Campion, 5 Phila. 9. PEIOEITIES. 419 from that time. If a strict construction of the word " completed," as used in the statutes, is held, there is nothing to prevent unscrupulous owners from defeat- ing the purpose of the lien law by intentionally leav- ing some trifling part of the work undone. There is a great difference between " erecting " and " completing " a building.-' {d.) When the statute does not specify the period from which the lien shall attach, the courts will hold that it is acquired from the time when the work is performed or the materials furnished.^ § 239. As TO Mortgagees, Purchasers, and other Lienors. In all cases the mechanic lien law must be strictly complied with in every particular to give the lienor precedence over bond fide purchasers or mort^ gagees.^ The policy of the law does not favor pref- erences, but an equal distribution of the assets of an insolvent estate among all the debtors pro rata} The mere fact that the ownership of the building has passed to other hands will not aflfect the validity of the lien ; ^ and this proposition will hold good, although the lien has not been recorded, in those states where it is regarded as an inchoate right during the period allowed for recording.® So, again, where the statute provides that the lien shall commence from the time of furnish- ing the materials or performing the work.'' In contracts specifying that extra work shall be done at the discre- tion of the owner, the contractor has a lien against a 1 Johnston v. Ewing Female Univ. 35 111. 518. See ante, page 144. 2 McLagan v. Brown, 11 111. 519; Williams u. Chapman, 17 111.423; Camp V. Mayer, 47 Ga. 427. 3 The Farmers' Bank v. Winslow, 3 Minn. 86, * Chapin v. Perssee, 30 Conn. 461. 5 Jean v. Wilson, 38 Md. 288. 6 Hahn's Appeal, 39 Penn. 409. ' Dunkle v. Crane, 103 Mass. 470. 420 mechanics' liens. subsequent purchaser or mortgagee, if the extra work was performed with his knowledge or consent.^ In all cases where the sale or mortgage antedates the com- mencement of the building, it will take precedence over the liens.^ Bond fide puixhasers and mortgagees have always an interest in the premises sufficient to attack any fraudulent lien claim.^ § 240. As TO THE Lien of the Vendor. Mechanics' liens are not given precedence over the vendor's lien if they have notice that the purchase-money is not paid.* But if the vendor's lien is lost or suspended, and in the interim the mechanic's lien attaches, the former cannot gain priority.^ § 241. As TO Judgments. Judgment creditors are placed upon the same footing as mortgagees, so far as their lien upon the property of the debtor is con- cerned.'' § 242. As TO Attachments. An attachment lien takes precedence over mechanics' liens incurred after the attachment is laid, and, — § 243. As TO Homestead and Exemption rights the same rule applies. Frequently the statute provides the priority of mechanics' liens to these exemptions. § 244. As TO Co-LiENORS. Generally the statutes declare that there shall be no priority among mechanic lien-holders claiming an incumbrance upon the same 1 Soule V. Dawes, 14 Cal. 247. 2 Jessup V. Stone, 13 Wis. 466; Card v. Quinebaug Bank, 23 Conn. 355. 8 Walker u. Hauss Hijo, 1 Cal. 183; Gere v. Cushing, 5 Bush (Ky.), 304 ; Phillips Mech. Liens, § 241. ■• Hickox y. Greenwood, 94 111. 266; Logan v. Taylor, 20 Iowa, 297; Cochran jj. Wimberly, 44 Miss. 503; Phillips Mech. Liens, § 243 et seq. 6 Kittredge u. Neumann, 26 N. J. Eq. 195; Tanner o. Bell, 61 Ga. 584. * For discussion, see Phillips Mech. Liens, § 248. PEIOKITIES. 421 property, and that all such liens shall be paid fro rata} " Where a statute," says Mr. Phillips, " is silent as to the priority of lien-holders inter se, but gives each lien- holder the right to proceed and issue execution and sell, without making others parties, it follows necessarily that the lien claims take precedence from the time of their tiling." ^ Statutes specifying that the funds shall be distributed pro rata among all the lienors apply only to those of the same class. Contractors who have not paid under-contractors, or for the materials used in the construction of buildings, cannot share in the proceeds thereof as lienors, until the claims of those are paid who actually did the work or furnished the materials.^ > Anshutz V. McClelland, 5 Watts, 487; Moxley v. Sliepard, 3 Cal. 64. 2 Hall V. Hinckley, 32 Wis. 362 ; Dobbs v. Evart, 4 Wis. 451. 8 Crowell V. Gilmore, 18 Cal. 370. CHAPTER XXX. mechanics' liens against lessees, tenants, married WOMEN, and others. § 245. Lessees and Tenants. The owner of a lease- hold is the " owner of the property " within the mean- ing of the mechanics' lien law, and consequently the interest of a lessee is liable to the lien,^ unless the con- trary is prescribed by the statute. So, also, with a tenant for years. In either case the holder of the fee-simple has no more dominion over the land — and this constitutes ownership — than he who is in im- mediate possession. If a lessee were not regarded as an owner, any one holding a lease for " ninety-nine years, renewable forever," would be exempt from me- chanics' liens for the most extensive improvements put upon the land, and the owner of the fee made liable for an outlay of money in buildings of which he had never dreamed, — indeed, he might be forced into bankruptcy by the extravagance of his tenant. It has therefore been held that he who leases property for a term of years is the " owner " within the meaning of the law,^ and that a mechanic's lien extends only to the interest of such owner. In Maryland, and several other states, the statute expressly declares that " where a building shall be erected by a lessee or tenant for life or years, . . . the lien shall only apply to the ex- tent of the interest of such lessee or tenant." ^ It has 1 Choteau v. Thompson, 2 Ohio, 114. ^ Alley V. Lanier, 1 Caldw. 540; Choteau v. Thompson, supra. 8 M(i. Rev. Code, art. 67, § 9. mechanics' liens against lessees. 423 been held that, although the owner of the fee advance money to the lessee thereof for the purpose of build- ing, the lien can only extend to the interest of the latter in the land.^ On the other hand, a few of the states' legislatures have enacted that the lien shall not extend to the in- terest of tenants, but attach solely upon contracts made with the owner.^ In such case the mechanic has no priority of lien upon buildings erected by him at the request of the lessee or tenant, and he will have to seek other legal remedies.^ § 246. Tenant cannot create a Lien on Landlord's Estate. It has been generally held that a lessee or a tenant has no power to create and charge a lien upon the property of his landlord. This is a common-law doctrine founded upon the soundest justice and good sense. The tenant cannot make either improvements or repairs, and charge them to the landlord, without his consent.* Consequently, if he builds upon the prop- erty of his landlord, no lien is thereby created against the latter, and the interest of the tenant or lessee alone can be sold in execution or otherwise.^ And this rule extends to buildings or improvements made by sub- tenants and other apparent owners of property; in which cases neither the owner of the fee or the original lessee is liable unless concurring in said improvements. Although an agreement to make repairs and improve- ments may be one of the covenants of the lease, it does not render him liable.® There must be a contract 1 Stuyvesant v. Browning, 33 N. Y. (Superior Ct.) 203. ^ Lyman v. King, 9 Ind. 3. 8 Haworth v. Wallace, 14 Pa. St. 118. » Post V. Vetter, 2 E. D. Smith, 248. 5 Judson V. Stephen, 75 111. 255. ' Conant i'. Brackett, 112 Mass. 18. 424 mechanics' liens. or other special authority existing between the lienor and the lienee to charge the estate.^ The legal rela- tionship of landlord and tenant confers no authority upon the latter to incumber the estate of the former in any manner v;hatever, nor can a mechanic's lien be laid upon the interest of the reversioner.^ § 247. Building Leases. The law, in following the policy above indicated, will not allow the very object of the lien to be frustrated by schemes whereby an owner might lease land for some short term for building pur- poses? In such cases the builder is in reality the agent — not the tenant — of the owner.* So, where im- provements are stipulated in the lease, or where they are erected by the consent of the lessor, he to share iu the profits of the building or improvements, it has been held that he is the party in possession, notwith- standing the lease, and his interest is jointly or sev- erally liable.^ In all cases where an agency can be established between the lessor and lessee, whereby the former can be shown as principal in a building con- tract, the lien will lie against the interest of both.'' § 248. Married Women. There is great diversity in the laws of the various states respecting the legal status of the property of married women, and naturally enough we find many conflicting decisions as to the liability of the estate of a, feme covert to the legal opera- tions of mechanics' liens. Not a few of the states have statutes regulating the question, while the courts of > Knapp V. Brown, 11 Abb. Pr. N. S. 118. 2 Dutro V. Wilson, 4 Ohio St. 101 ; McCarty v. Carter, 49 111. 53. ^ Savoy V. Jones, 2 Rawle, 350. * Bickel u. James, 7 Watts, 9. 5 Hopper V. Cliilds, 43 Penn. 310; Fisber v. Rush, 71 Penn. 40; Wain- wright V. Barclay, 12 Penn. 221. « Otis V. Dodd, 31 N. Y. Supreme Ct. 538; Moore v. Jackson, 49 Cal. 109. AGAINST MABKIED WOMEN. 425 others have invariably followed the English rule, hold ing that a married woman has power over her property as a feme sole, and consequently may render it liable for all debts and liens especially charged to her sole and separate estate. Independent of statute, it has been held, under a lien law requiring the debt to originate in a contract or agreement, that married women, not being competent to contract, the lien cannot attach.^ In states where married women are allowed to control their estates as if unmarried, the lien attaches if the building or im- provement was authorized by them.^ An opposite view is taken by the courts of South Carolina, Penn- sylvania, Ohio, and Mississippi.^ The policy of the law is, not to allow the estates of married women to escape liability for improvements erected thereon, even if at the instigation of femes covert, and the fiction that their legal existence is merged into that of their husbands should not be up- held to countenance fraud.* " Statutes regulating marital rights, and prescribing in what cases the wife's separate estate may be bound, will control the creation of the lien on her estate." ^ And this independent of special enactments relating to the lien law.^ No improvements can be charged to the separate estate of a married woman unless she expressly or impliedly authorized the same ; '' her husband has no 1 Rogers v. Phillips, 8 Ark. 366 ; Kirby v. Tead, 13 Met. 149 ; Sibley v. Casey, 6 Mo. 164. 2 Yale V. Dederer, 18 N. Y. 265. 3 See, also, Selph v. Howland, 23 Miss. 264. * Greenough v. Wiggington, 2 Greene (Iowa), 435. 6 Warren v. Smith, 44 Texas, 247; Phillips Mech. Liens, § 98 et seq. 6 Tbid. ' Warren v. Smith, supra. 426 mechanics' liens. power to create the lien upon her property.^ She may, however, authorize her husband as her agent, and this agency may be expressed in words, or implied from her conduct ; as where she gave instructions to the work- men? Purchasers of property from married women are en- titled to the legal rights of the vendor.^ § 249. Mortgagees. A mortgagee is not the "owner" of the property upon which he holds a temporary legal title, and his interest is therefore not liable for liens created by acts of the mortgagor.* § 250. Proposed Purchasers in Possession. A person under contract to purchase, if in actual possession of the property, may be regarded as the owner thereof, and his interest in it be rendered liable to the oper- ation of the lien.^ But the law is rather conflicting whether they can charge the estate of the actual owner with building or improvement contracts under- taken by them. If a written contract can be shown, or an agency can be established between the vendor and the proposed purchaser, there can be no doubt that the property can be charged by the latter with the lien. A mere contract to sell the property to the party in possession does not necessarily imply consent of the seller to pay for improvements or alterations.^ § 251. Trespassers. Persons occupying land with- out authority of the owner, cannot charge it with liens or other incumbrances.^ 1 Miller v. HoUingsworth, 33 Iowa, 224; Dearie v. Martin, 78 Penn. 55; Wendt V. Martin, 89 111. 139. 2 McCormick v. Lawton, 3 Neb. 449. 8 Gray v. Pope, 85 Miss. 116. * Cox V. Broderick, 4 E. D. Smith, 721. Contra, Tompkins «. Horton, 25 N. J. Eq. 284. s Stockwell w. Carpenter, 27 Iowa, 119. 8 McGinnis v. Purrington, 43 Conn. 143; Walker v. Burt, 57 Ga. 20. ' Harlan v. Rand, 27 Penn. 511. AGAINST MINOBS, ETC. 427 § 252. Minors and Lunatics. An infant or lunatic is incompetent to contract; he therefore cannot charge his property with hens originating in an agreement upon his part.^ Nor does the fact that the infant, in obtaining the work or materials, represented himself as being of legal age, bar the defence.^ An acceptance of the property erected or improved, collecting the rents thereof, or in any manner receiving the profits of the same, by a minor after arriving at his majority, is not a ratification of the contract. The builder undertook the work at peril for its payment, and he cannot estop the minor from taking whatever he finds upon his free- hold when he arrives of age. " Whatever is afiixed to land becomes part thereof," and this principle applies in this instance, as where one voluntarily erects a struc- ture upon the land of another. Nor can a guardian charge the estate of his ward without special statu- tory authority ; an order of a court will not render it liable.^ 1 Johnson v. Parker, 3 Dutch. (N. J.) 242. * Price V. Jennings, 62 Ind. 111. 3 Payne u. Stone, 15 Miss. 367; Copley v. O'Neil, 39 How. Pr. 41. CHAPTER XXXI. BUILDING CONTRACTS AND MECHAMICS' LIENS. § 253. Necessity of a Contract. To entitle the claimant to the benefit of the mechanics' lien law, a contract express or implied must be shown to have existed between him and the lienee.^ No one can voluntarily work upon a person's land, or involve his estate in expense not by him contemplated, without authority, and hope to incumber such property with a lien for work done or materials furnished.^ The con- tract not only must exist, but must be a valid one in every particular, as consideration, competency of par- ties, legality of design, and not conflicting with restric- tions imposed by the statute of frauds. § 254. Contract by Parol will Suffice. The con- tract need not be in writing, unless specially required by statute, for the law presumes that, where one orders materials, or any commodity, or prescribes work to be done, that he will pay for the same.^ Again, an ac- ceptance of the same will usually be sufficient to imply the existence of a contract, and render the property liable to the lien. So would overseeing the work,* or any facts derived from the nature of the undertaking,^ 1 McLaughlin v. Reinhart, 54 Md. 76 ; Sodina v. Winter, 32 Md. 130. 2 Sodina v. Winter, supra; Choteau v. Thompson, 2 Ohio, 114 ; Rob- erts I'. Gates, 64 111. 374. 3 Hazard Pow. Co. v. Loomis, 2 Disney (Cin.) 544. See ante, § 2. < Wheeler v. Hall, 41 Wis. 447. * Alley V. Lanier, 1 Coldw. 540. BUILDING CONTEACTS AND MECHANICS' LIENS. 429 as where an owner impliedly made himself liable for extras.^ § 255. Liability of Owner for Contracts op Builder. Statutes have been enacted in several states whereby an owner is responsible for work done, or materials furnished, by builders other than the owner, but with his permission. Usually a notice is required to be given, however, to the owner. And, on the other hand, we find in a few states the lien is not enforcible unless the contract be in writing. In any event he is not liable to third persons to a greater extent than the amount of the original contract. § 256. Sub-Contracts. The liability of an owner for work done, or materials furnished, by persons employed by the original contractor, is sometimes prescribed by statute. But such legislative enactments are always strictly construed by the courts, for otherwise there might seemingly be no end to the lienors upon prop- erty, and many payments might be enforced for pre- cisely the same work. It is generally the law that, where the owner has notice of the unpaid claims of laborers and others, the property is liable to liens to the extent' of the balance due upon the original con- tract. To establish the right to the lien, it must be shown that credit was given on the building, and not upon faith in the contractor's paying,^ or to the responsi- bility of the owner,^ although it is not necessary for the contract to specify that the contractor looks to the enforcement of the lien for payment. § 257. Performance of the Contract. In a former 1 Trustees Ger. Luth. Ch. v. Heiser, 44 Md. 454. ' Wetherill v. Ohlendorf, 61 111. 283. * Cotes V. Shorey, 8 Iowa, 416. 430 MECHANICS LIENS chapter^ I have discussed tlie principles of building contracts relating to the performance of the stipula- tions therein usually set forth, the measure of dam- ages, rules of recovery on a quantum meruit and quantum valebat, and it is considered advisable to say in this place that the rules there laid down are equally appli- cable to the enforcement of building debts by mechan- ics' lien claims. There is, however, this distinction : the policy of the law requires that the provisions of the statute creating a lien be strictly complied with ; while contracts sought to be enforced by common law processes, not being dependent upon particular stat- utes, the court considers the intention of the parties, and looks for substantial, rather than strict, perform- ance of their mutual stipulations. § 258. Liability for Materials not Used. An illus- tration of the strictness of construction is found in de- cisions holding, — That the lien will not lie for materials ordered for, but not actually used in, buildings.^ The authorities, however, upon this point are con- flicting, for in many of the states it has been held that, if a debt is contracted for on the credit of the building, and the materials were furnished upon the distinct understanding that they were to be used in its construction, a lien will lie, although the materials were not actually used in the building.^ So where materials were not used in the building as intended, but upon the same job for outside purposes,* or where the mate- 1 Ante,% 24-27. 2 Taggard v. Buckmore, 42 Me. 77; Hunter v. Blanchard, 18 111. 318; Houghton V. Blake, 5 Cal. 240. » Wallace o. Melchoir, 2 Browne, 104; 10 Penn. 413; 24 Penn. 507; Singerly v. Doerr, 62 Penn. 9. * White V. Miller, 18 Penn. 52. AND BUILDING CONTEACTS. 431 rials were not used at all.^ Again, on the other hand, it has been declared incumbent upon the creditor to show that the goods were to be used upon the building ; ^ and that no lien will lie for materials not used because not suitable for the character of the building.^ It has been argued that to allow a lien to attach upon a building for materials, whether used in its construction or not, would admit the preferences, if the merchandise should be burned up or otherwise destroyed in transitu, and that such is not the true intention of the law.* In California and Missouri it has accordingly been held that the materials must be used in the construction of the building to render it liable to the lien.^ 1 Beckel v. Petticrew, 6 Ohio St. 247. 2 Greenway v. Turner, 4 Md. 296; Watts o. Whittington, 48 Md. 357. 3 Odd Fellows' Hall v. Masser, 24 Penn. 607. < Hunter v. Blancliard, 18 111. 318. 5 Holmes v. Richet, 56 Cal. 307; Schulenberg v. Prairie Home Ins. Co. 65 Mo. 295. CHAPTER XXXIT. THE CHAKACTER OF THE WORK AND MATERIALS PROTECTED BY mechanics' lien LAWS. § 259. Labor. The statutes generally authorize a lien for '' all work done and materials furnished for or about the erection, construction, or repair of any build- ing," etc., while in several of the states the character of the work or materials is more fully defined. The law is usually broad enough to cover all the labor done in or about the building, whether for useful or merely ornamental purposes ; there is no distinction shown. The work of painters, glaziers, paper-hangers, and architects has been held to come under the law.^ A lien will lie for digging a foundation and carting away the earth,^ and for teams and labor used for con- veying materials;^ in fact, for all labor necessary to the building. There is considerable conflict of authority whether an aichitect, who merely draws plans for proposed buildings, is entitled to the lien; but where he con- tributes his time and attention to superintending the building, or drafts " working" plans, it is decided that he has a valid claim to the lien.* ^ Freeman •:. Gilpin, 4 Penn. L. J. 411; Marline v. Nelson, 51 III. 422; Kni^lit (.-. NorrK-i, 13 Minn. 473. 2 Uill „. JS'ewmiin, 38 Penn. 151. » Hog.m u. Cubliing, 49 Wis. 169. * Jliiuuil Ben. L. Ins. Go. r. Roweand, 26 N. J. Eq. 389. Contra, Jones V. Shawlian, 4 Walts & S. (Penn.) 257. But see Price u. Kirk, 90 Penn. 47. THE CHARACTER OF THE WORK, ETC. 433 § 260. Materials. The lien protects any materials furnished for building purposes. This protection has been held to extend to lightning-rods,^ to powder and fuses used in blasting for foundations,^ and to articles of every description ordinarily used in buildings. There is, however, — § 261. No Lien for Money Advanced to Purchase Materials.^ Under a statute providing that " all per- sons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills, shall have a lien," it was declared that par- ties furnishing money for this purpose had no lien whatever.* Money advanced is often an important factor in building operations, yet the law does not extend to loans, being designed as a special protection to mechanics and material-men, and persons loaning money must look to mortgage or other security for payment. 1 Quimby v. Sloan, 2 E. D. Smith, 594. Contra, Drew v. Mason, 81 111. 498. 2 Keystone v. Gallagher, 5 Col. 23. ^ Weathersby v. Sleeper, 42 Miss. 741. * Dart V. Mayhew, 60 Ga. 104. 28 CHAPTER XXXIII. PROPERTY SUBJECT TO THE LIEN. § 262. What Property Liable. The stcitiites usually provide that the lien shall attach against the build- ing upon which labor is performed and the land upon which it stands. The word "building" is held to include churches/ school-houses,^ stables,^ ice-houses,* in fact all structures erected by men for sheltering, manu- facturing, and ornamental purposes. Anything attached to the land becomes part of the freehold, and buildings of nearly every description are consequently part of the realty,^ and liable to liens un- der statutes which only provide for enforcing the pref- erence out of the land. So with fixtures,^ or anything necessary or useful connected with the structure. § 263. Public Buildings are exempt from mechanic liens.' This exemption is based upon motives of public policy, and follows the rules of common law exempting the same from execution. It has accordingly been held that public school-houses,^ court-houses, public prisons, state penitentiaries, public offices, town halls, municipal buildings of every description, when designed ' Presbyterian Church v. Allison, 10 Penn. St. 413. 2 Shattel V. Woodward, 5 Ind. 225. 3 Mcllvain v. Hestonville & Mantua R. R. Co. 5 Phila. 13. * Thomas v. Smith, 42 Penn. St. 68. 6 Haeussler v. Mo. Glass Co. 52 Mo. 452. See ante, Chapter xx., and particularly §§ 159, 160. « Ewell on Fixtures, 296; Gray v. Holdship, 17 Serg. & R. 413. ' Foster v. Fowler, 60 Penn. St. 27. » Brinokerhoffi v. Board, &c. 37 How. Pr. 520; Charnock v. Colfax, 51 Iowa, 70; 78 111. 58. Contra, see 17 Ind. 225. PEOPEKTT SUBJECT TO THE LIEN. 435 and iised for public purposes, are not liable to the lien of mechanics. As a general rule, all property which is exempt from execution is exempt from the lien.^ Accordingly, — § 264. Property of Public and Private Corporations have been declared exempt from liabiUty to the lien.* The authorities upon this point are conflicting, but the res g6stcB seems to be the object of the structure, and whether or not the community at large is benefited thereby rather than any particular class.^ Canals, toll- gates, railroad depots, and cars have been also exempted. § 265. Homesteads usually are liable to the lien.* § 266. General Rule. As a rule, the whole interest of the owner of the property is liable to the lien. It mat- ters not whether the maker of a building contract is the holder of the fee, a mere lessee, or simply en- titled to an equitable estate, his entire estate is charge- able for work performed or materials furnished in the construction or repair of a building at his instigation. A life tenant can charge the estate to the extent of his interest ; a party in possession can do the same ; " so, also, tenants in common or joint, and the like, but only to the amount of their interest in the property. § 267. Widow's Title to Dower is not affected by a mechanic's lien.* § 268. Land upon which the Building stands, if owned by the party contracting, is liable to the lien. The statutes of the several states vary as to the area of land 1 Bouton V. McDonough Co. 84 111. 396. 2 Foster v. Fowler, 60 Penn. St. 27. " See discussion of this subject, Phillips Meeh. Liens, § 180. ^ Potshinsky o. Krempkau, 26 Tex. 309; Thompson v. Wickersham, 9 Jere Baxter (Tenn.), 216. ^ Horton v. Carlisle, 2 Disney, 184. Shaeffer v. Weed, 8 111. 511. 43G mechanics' liens. against which the hen attaches, but the usual provi- sion embraces all the land necessary for the purposes of the building. And this is held to mean all the ground reasonably proper and necessary for the enjoy- ment of the structure. In cities and towns, the rule is defined to mean the lot upon which the building stands, but in country districts the lien attaches to all the land used in connection with the building and the proper enjoyment of it. The statutes generally specify definitely the area of land to which the lien attaches, covering the question of curtilages, appurte- nances, etc. Where two or more buildings stand within the area of land covered by the lien, a lien for worl^ or labor, or materials furnished for one, will not attach upon any of the others.^ This rule applies, however, only to those buildings which, though located in close proxim- ity to each other, are separate and distinct ; for a piazza,^ a kitchen, back building, or shed connected with the main structure,^ are generally considered parts thereof, and the lien will attach to each of them. § 269. Amount Claimed not Material. The lien is not restricted to any amount, as a general rule, although in several of the states the debt must be over twenty-five dollars. The contract price is the extent of the lien where the owner or his agent contracts for the build- ing ; but, in cases where the work is not done by his authority, it is competent for him to show that the price agreed upon with the contractor was unreason- ably large,* or that the sub-contractor had been guilty ' Dallas L. & M. Co. r. Wasco Woollen M. Co. 3 Oregon, 527. Contra, Knapp V. St. Louis, &l'. R. R. 74 Mo. 374. 2 Rand v. Mann, 3 Phila. 876; Whitenack v. Noe, 3 Stock. 321. 8 Miller v. Hershey, .59 Penn. St. 64; Pretz's Appeal, 28 Penn. St. 156. * Cattanach v. Ingersoll, 1 Phila. 285. PROPERTY SUBJECT TO THE LIEN. 437 of fraud, or by mistake had furnished inferior ma- terials.^ In New York, California, and several other states the owner cannot be made to pay more than an amount equal to the contract price, and all voluntary or stipulated payments made to the original contractor are deducted from the aggregate to be paid pro rata to the lien-holders.^ The owner is almost universally held responsible, after notice, for claims filed by sub- contractors, to the extent of whatever money he may have in hand due the contractor,^ and sub-contractors can create a lien upon the building for the amount due. Mechanic lien claims are entitled to interest from the date the debt accrues;* in Maryland, from the time of recording the claim.^ The interest is not con- strued as a separate demand and recoverable as such, but is properly considered part of the lien and enforci- ble as such.^ Where a note has been taken, interest will be calculated only from the date the payment of the note falls due.'' 1 Cattanach v. Ingersoll, 1 Phila. 285. " Doughty V. Devlin, 1 E. D. Smith, 625; McAlpin v. Duncan, 16 Cal. 127. 8 Pendleburg v. Meade, 1 E. D. Smith, 728. * Williaraette v. Riley, 1 Oreg. 183. 6 Trustees Ger. Luth. Ch. v. Heise, 44 Md. 454. Smith V. Shaffer, 50 Md. 132. ' Lutz V. Ey, 3 E. D. Smith, 621. CHAPTER XXXIV. EQUITABLE DOCTRINES APPLICABLE TO THE DISTRIBUTION OF FUNDS IN SETTLEMENT OF LIEN CLAIMS. § 270. Marshalling Securities. The doctrine of marshalling of securities, with all its equities, is rec- ognized in the administration of mechanic lien laws.^ The lien is in the nature of a mortgage upon the property, and the same principles govern both incum- brances. So, where a lien creditor has his choice of two funds from which he is entitled to enforce his claim, he is bound to resort to the one which will least injure other creditors ; but if he deprives the others of their rights by exhausting the fund upon which they could alone rely, the courts of equity will place them in his position so far as he has applied their securi- ties to the satisfaction of his claim. But, if the fund to which a creditor should resort is insufficient to satisfy his claim, the above rule does not apply,^ for his right to marshal the assets of the debtor cannot be barred by subsequent creditors.^ Nor can the securities be marshalled to the prejudice of a bond fide purchaser of other property upon which the lien did not operate,* for no creditor can have the right of subrogation to a demand against third . persons simply for the reason that the assets of the debtor had been exhausted in paying their demand. I Rust V. Chisholm, 57 Md. 383; Hamilton v. Schwebr, 34 Md. 107. ^ Ayres i). Husted, 15 Conn. 504. » 2 Lead. Cas. in Eq. 218. < Leib V. StribliiiK, 51 Md. 286. APPORTIONMENT. 439 Sometimes, however, the statutes recognize a priority in liens in the order in which they were filed against the property. § 271. Subrogation. So, also, has the doctrine of subrogation been applied to mechanics' liens, and it is almost universally held that a surety is placed in the position and entitled to all the rights and equities of a debtor whose indebtedness he has been compelled to pay. § 272. Apportionment. "If there are two or more funds, and some creditors have liens on one fund and some on another, and there is one creditor having a general lien on all the funds, equity will not permit this creditor to take his whole claim out of one of the funds, but will apportion his indebtedness among all, and compel him to take pro rata out of all the funds." ^ So, where several houses are built under one contract, and designed for different purchasers, the statutes usually provide that the lien claimant shall designate the amount claimed upon each ; and, without statute regulation of this subject, courts of equity will so apportion lien claims as to give equal payments to all creditors, so far as the law permits.^ If one or more of the buildings have been sold before the Ijen has attached, the creditor is only entitled to pro rata payment from those remaining.^ This does not apply, however, in those states where the lien is held to attach independent of filing for a fixed period. § 273. Extension of Rules. The statutes of several states extend the doctrine of apportionment to the ^ Phillips Mech. Liens, § 261, citing Semmes v. Boykin, 27 Ga. 47. ^ Pennock v. Hoover, 5 Rawle, 319. » McAuley v. Mildrum, 1 Daly, 396. 440 mechanics' liens. land and buildings, so that an incumbrancer by mort- gage may create a lien upon the proceeds of the lot, and the mechanic to the extent of the improvements thereof, for payment of their several claims.-' Such, also, is the French Law,^ but the objection to such a rule is the difficulty of ascertaining the relative value of each.'' ' Vyeathersby v. Sinclair, 43 Miss. 90. 2 Code Napoleon, 2103. * See Phillips Mech. Liens, § 263 et seq., for discussion of this topic. CHAPTER XXXV. LIMITATIONS OF TIME FOR FILING AND ENFORCING THE LIEN. § 274. Continuance of the Lien depends entirely upon statutory provisions.^ A reference to the brief state- ment of the Hen laws of the states, found in a sub- sequent chapter, will show the great variances in this respect. In many of the states, it will be observed, the lien is barred in fixed periods ranging from one to five years, while in others its benefits depend upon prompt legal action to be taken shortly after filing the statement or account. In some states the lien may be renewed by scire facias, as is allowed in the cases of judgments, in which event it remains an in- cumbrance upon the property for a period equal to the one for which it first attaches. Under some stat- utes the liens cease after one year, unless continued by order of the court, in which event the order ex- tending it must be filed and recorded, or such con- tinuance is ineffective and the lien is barred. Where suit is commenced within the period required by stat- ute, the lien continues in force pendente lite, but the party claiming the benefit of a lis pendens must pros- ecute his suit with reasonable diligence.^ The fact that the suit is pending is constructive notice to a sub- sequent purchaser.^ § 275. Prompt Enforcement Encouraged. The policy 1 Eschbaoh v. Pitts, 6 Md. 71. 2 Erhman v. Kendrick, 1 Met. (Ky.) 146. « WicklifFe v. Breckinridge, 1 Bush (Ky.), 427; Ambrose v. Wood- mansee, 27 Ohio, 147. 442 mechanics' liens. of the law is to encourage a prompt enforcement, in order to not only unincumber the property, but to prevent uncertainty of title, and consequent loss to innocent purchasers or mortgagees by allowing these liens to exist for indefinite periods. In Massachusetts, when the lien law did not fix the time of enforcing the preference, a delay of more than two years was held not to bar the remedy.-^ The lien, however, will not survive independent of statute after the debt is barred by the statute of limitations.^ Where a definite time is fixed by the statute for filing the lien, it must be strictly complied with, or the claim to a preference is lost.^ So, also, where the enforcement is required to be commenced within a certain period, and no action,* or an erroneous action,^ is taken. § 276. CoMJiENOEMENT OF LIMITATIONS. The time from which the limitation commences is generally conceded to be when the contract is completely performed. Con- sequently, where a material-man furnished a quantity of materials at divers times, upon the same contract, the running time of limitation is calculated from the delivery of the last item of the order ; ^ but if the ma- terials are furnished upon separate and distinct con- tracts, a lien must be filed for each, and the limitation period will be reckoned from the date of the comple- tion of each.^ So with work performed upon separate contracts, though upon the same building ; only that portion done within the statutory period will be pro- 1 Busfielil V. M^heeler, 14 Allen, 139. 2 Pliillips Mecli. Liens, § 321. - ' Eillian v. Kifjonniann, 57 Ind. 480. » Weston V. Dunlap, 50 Iowa, 183. 5 Bryant v. Warren, 51 N. H. 213. " Bartlett v. Kingan, 19 Penn. 341; Pratt u. Campbell, 24 Penn. 184. ' Livermore v. Wright, 33 Mo. 31. LIMITATIONS OF TIME, ETC. 443 tected.^ A running account, however, has been deemed an entire contract, and it is sufficient if the hen is filed, or the proceedings commenced, within the period of hmitation, calcuhited from the date of the delivery of the last quantity.^ The court cannot determine whether the work performed or materials furnished was under an entire or distinct contract: this is a question of fact, and for the jury to decide.^ There is no lien when the claim is filed too soon.* 1 Sweet V. James, 2 R. I. 270. 2 Stineu. Austin, 9 Mo. 654. 3 HoUen v. Winslow, 18 Penn. 160. ■• Perry v. Conroy, 22 Kan. 716; Phillips Meeh. Liens, § 323 a. CHAPTER XXXVI. DISSOLVING THE LIEN. § 277. General Statement. Mechanic's liens upon property may be discharged by the voluntary act, ex- press or implied, of the lienor; by a failure to comply with the statutory provision ; by uniting with the claim debts which are not lienable ; by giving security ; and by payment. I will briefly consider these modes of discharge seriatim. § 278. Lien Discharged by the Voluntary Act of THE Lien - Holder. If a mechanic or material - man, holding a lien upon property, should order the clerk of the court, or other proper officer, to enter " satis- faction," or a " discharge of the lien," the intention being to waive the benefit of the law, the lien would become eo Instanti dissolved and of no effect ; for, if prompted by a valuable consideration, or afterwards acted upon by the other party or innocent purchaser, the lien can never be revived.^ The debt, however, may survive after the lien has been discharged, for the lienor has the right to a personal action on the con- tract, though his liens claim be outlawed. If the lienor should purchase the property upon which he holds a lien, the lien is thereby dissolved.^ § 279. Lien Discharged by the Failure of the Lienor to comply with the Statutory Provisions. As has been said before, the lien of a mechanic is purely 1 Kennedy v. Jones, 67 Me. 538. ^ Foltz V. Peters, 16 Ind. 244. DISSOLVING THE LIEN. 445 a creature of statute, and therefore not recognized at common law. All the requirements of the law creat- ing it must be strictly compUed with, or there is no preference whatever gained by the claimant. The reports show that discharges effected by improper compliance with statutes are numerous. § 280. Lien Discharged by Uniting with the Claim Debts which are not Lienable. The lien of the me- chanic is a preference given to persons for certain claims against property which they themselves helped, by labor or materials, to create, and it would be a man- ifest injustice to other creditors if these preferred claim- ants should be allowed to include in their claims items which the law does not specially protect. So that it has been held that no advantage shall be gained by creditors seeking to enforce liens for more than is lien- able J indeed, in numerous instances, the intermingling of non-lien with lien claims has discharged the lien as to both.i § 281. Lien Discharge implied from giving Secu- rity. In only a few of the states is the lien allowed to be dissolved upon giving approved security. Such provision is an abridgment of the efl&cacy of the lien, for it forces the lienor to an action at law against the sureties, and recovery is more doubtful than under those statutes which prescribe peremptory means of enforcing the lien out of the property itself. § 282. Lien Discharged by Payment. The lien being a protection afforded for a debt, a payment thereof will discharge the lien.''' Where a party has liens upon more than one piece of property, the debtor, in making pay- 1 Lombard v. Pike, 33 Me. 141; Johnson v. Pike, 35 Me. 291; Morrison V. Minot, 5 Allen, 403 ; Whitney v. Joslin, 108 Mass. 103. 2 Kennedy v. Jones, 67 Me. 538. 446 mechanics' liens. ment, can declare which particular lien he desires it credited to, and an acceptance of the money will bind the lienor to so appropriate it. But if no conditions are named when payment is made, the creditor ac- cepts it unconditionally, and has the right to apply it as he prefers.^ § 283. What does not dissolve the Lien. The lien is NOT discharged by the death, the bankruptcy, or in- solvency of one of the parties, or by the dissolution of partnership. § 284. The Death of the Lienee,'^ or the Lienor,^ will not dissolve the lien.* It has been held, however, that where no notice has been filed, though required by law, and the title of the property has passed to another by deed or devise, no lien can be laid against the lat- ter by persons who had contracted with the former owner.^ The statute under which this decision was rendered provided that the lien should only extend to " the right, title, and interest of the owner at the time of filing the lien." § 285. A Discharge procueed under Bankruptcy or insolvency laws does not extinguish the lien. The preference is for a debt due for erecting or improv- ing the property upon which it is laid ; it is not, in a certain sense, a personal obligation of the debtor, by an incumbrance upon the particular property, and it therefore does not conflict with such acts. According to the statutes of most of the states the lien attaches, independent of filing the notice, immediately upon performing the work, or furnishing the materials. It 1 1 Am. Lead. Cas. 276. 2 Telfer v. Kierstead, 2 Hilt. 577; S. C. 9 Abb. Pr. 418. 3 Brown v. Tress, 59 How. Pr. 345. " Pliillips Mech. Liens, § 298. " Crystal v. Flannelly, 2 E. D. Smith, 583. DISSOLVING THE LIEN. 447 existed, therefore, and will be recognized by the courts as existing, prior to the insolvency or bankruptcy pro- ceedings, or it will not be preferred to other claims. § 286. The Dissolution op Partnership, whether of contractors or owners, does not dissolve the lien.^ 1 Phillipa Meoh. Liens, § 301, citing Busfield v. Wlieeler, 14 Allen (Mass.), 139. 450 mechanics' liens. The decisions are conflicting as to implication of waiver, from the acceptance of negotiable notes and drafts in payment, but the weight of authority seems to indicate that the simple taking such obligatory pay- ments is not waiver of the lien.^ Such at least is the common law rule.^ The bill or note must be produced at the trial, or its absence accounted for.^ Otherwise the holder of the note, if it has been negotiated, and the lienor, might both enforce payment, and the debtor be made twice liable for the same indebtedness. The authorities are even more conflicting in respect to the acceptance of indorsed notes by the lienor, many courts regarding the taking of the security as an ab- solute waiver;* while an equally large number de- clare that the indorsement should be treated as col- lateral, and in no sense payment.^ Many of the states have statutory enactments reg- ulating this subject, and generally declaratory of the principle that the mere acceptance of a note or other obligation does not bar the lien. The acceptance of a mortgage or of a deed of trust, by the holder of a mechanic's lien, constitutes a valid waiver.® Receiving payment on account,^ or the mere giving of credit, does not waive the lien,^ unless, in the latter instance, the credit given by the lienor be so extended that no action could possibly be maintained within 1 McCoy V. Quick, 80 Wis. 521. ^ Laviolette v. Redding, 4 B. Mon. (Ky.) 81 ; Brady t;. Anderson, 24 111. 110. See Phillips Mech. Liens, § 276, and cases cited. 8 Green v. Fox, 7 Allen, 85. * Muir V. Cross, 10 B. Mon. (Ky.) 277. 5 Bashoru. Nordyke, 25 Kan. 222; Mervin v. Sherman, 9 Iowa, 331. ' TruUinger t). Koford, 7 Oreg. 228; Barrows v. Baughman, 9 Mich. 213. ' Phillips Mech. Liens, § 286. « The Highlander, 4 Blatchf. 55. WAIVER. 449 to become incumbered, though in the hands of an in- nocent purchaser.^ A general bond of indemnity is also commonly used, and it is preferable to the method of express waiver, if satisfactory security can be given. § 289. Waiver by Implication. A contract or agree- ment to waive the benefits of the lien can be implied from the actions of the parties.^ The Statute of Frauds does not require privileges to be waived in writing, so that, if one party by verbal assurances leads another to believe that he will not claim the lien, his right thereto is barred.^ So, where a mechanic assures a subsequent purchaser that there is no incumbrance upon the property, he cannot afterwards claim a lien to the detriment of the same.* § 290. Waiver by the Acceptance of Security. " It has been adopted as a general rule," says Mr. Phillips,^ "that the acceptance of a higher security than the creditor had before, is an extinguishment of the first debt ; thus, if a creditor by simple contract accept an obligation, this is an extinguishment of the simple con- tract debt : but the acceptance of a security of an in- ferior nature, or of a security of equal degree, does not extinguish the first debt." . . . Therefore the accept- ance of a bond and warrant of attorney, and entering judgment on the bond, is not a waiver or extinguish- ment of a mechanic's lien.® 1 A Form of Waiver and Bond of Indemnity will be found in the Appendix. 2 Gorman v. Sagner, 22 Mo. 137. 8 Scott V. Orbison, 21 Ark. 202. * Huckley v. Greany, 118 Mass. 595. B Phillips Mech. Liens, § 274. * Ibid., citing case of John Thompson, 2 Brown (Penn.), 297; Schenck V. Arrowsmith, 1 Stockt. (N. J.) 314. 29 450 mechanics' liens. The decisions are conflicting as to implication of waiver, from the acceptance of negotiable notes and drafts in payment, but the weight of authority seems to indicate that the simple taking such obligatory pay- ments is not waiver of the lien.^ Such at least is the common law rule.^ The bill or note must be produced at the trial, or its absence accounted for.^ Otherwise the holder of the note, if it has been negotiated, and the lienor, might both enforce payment, and the debtor be made twice liable for the same indebtedness. The authorities are even more conflicting in respect to the acceptance of indorsed notes by the lienor, many courts regarding the taking of the security as an ab- solute waiver;* while an equally large number de- clare that the indorsement should be treated as col- lateral, and in no sense payment.^ Many of the states have statutory enactments reg- ulating this subject, and generally declaratory of the principle that the mere acceptance of a note or other obligation does not bar the lien. The acceptance of a mortgage or of a deed of trust, by the holder of a mechanic's lien, constitutes a valid waiver.^ Receiving payment on account,^ or the mere giving of credit, does not waive the lien,^ unless, in the latter instance, the credit given by the lienor be so extended that no action could possibly be maintained within ' McCoy V. Quick, 30 Wis. 521. 2 Laviolette v. Redding, 4 B. Mon. (Ky.) 81; Brady v. Anderson, 24 111. 110. See Phillips Mech. Liens, § 276, and cases cited. ' Green v. Fox, 7 Allen, 85. ♦ Muir V. Cross, 10 B. Mon. (Ky.) 277. * Bashoru. Nordyke, 25 Kan. 222; Mervin v. Sherman, 9 Iowa, 331. TruUinger II. Koford, 7 Oreg. 228; Barrows v. Baughman, 9 Mich. 213. ' Phillips Mech. Liens, § 286. ' The Highlander, 4 Blatchf. 55. WAIVER. 451 the statutory period.^ Where the note is accepted as simple collateral security, no waiver is implied, al- though it has been made payable at some future day." There is considerable diversity of judicial opinion upon these questions. So, also, with the acceptance of personal security of the debtor.^ 1 Scudder v. Balkam, 40 Me. 291. '^ Shaw V. 1st Pres. Ch. 39 Penn. 226 ; Ehlers v. Elder, 51 Miss. 499. 8 Compare Hill v. Witmer, 2 Phila. 72, with Whitney v. Joslin, 108 Mas.s. 103. CHAPTER XXXVIII. PRELIMINARIES TO ENFORCING THE LIEN. § 291. Notice of Intention to Claim the Lien. In most of the states the lien exists for a fixed period, in- dependent of any action whatever on the part of the mechanic or material-man, a sort of inchoate privilege which may or may not be claimed. It would be a manifest injustice to subsequent purchasers or mort- gagees, and a positive hindrance to real estate, if this lien were allowed to remain a latent or secret incum- brance upon property for an indefinite time : it is there- fore prescribed by the statutes creating the lien that a notice, account, memorandum, or statement thereof must be filed and recorded with some specified official within a limited time from the time the debt accrued or the building was completed. The fact of the build- ing being new, or that repairs have been recently made, is considered sufficient notice to contemplating purchasers that there may be claims yet to be made for the construction or repairs for a few months, but not for an indefinite time. The positive requirements of the statute as to time of filing notice or memoran- dum must be strictly complied with, or the lien is lost.-^ But where the statute fails to provide for a notice, none need be given.^ § 292. Form of Notice. The nature and form of the notice depend upon particular statutes; so do all its 1 Hoyt V. Glenn, 54 Ga. 571; 1 E. D. Smith, 654. 2 Shoop V. Powles, 13 Md. 304. PKELIMINAEIES TO ENFORCING THE LIEN. 453 other essentials, such as filing of contract with the notice, service, and recording. It must usually contain the name of the owner, the nature of the claim, the fact of the claim being that of a contractor or sub-con- tractor, the name of the alienee if the property has been assigned, the name of the claimant, particulars as to the work done or materials furnished, an itemized account, and the amount claimed. The lien is not lost by claiming a larger sum than was in fact due,^ nor by claiming for erroneous items.* It need not be sworn to unless so required by statute, in which event failure to verify the notice will be fatal on motion to quash, as the defect is not amendable.^ § 293. Claims against more than one House on the SAME Contract. In the absence of statutory regula- tions, one lien claim may be filed against any number of houses where the work is done or materials are fur- nished upon the same contract;* in which case the lien is laid against all the houses jointly, and all are held for its payment. But in Maryland, and nearly every other state, the lien claimant is required to de- signate the amount he intends to claim against each of the several contiguous houses, and this relieves the builder of many inconveniences. If the lienor be com- pelled to apportion his debt among the several houses, the owner thereof has a better opportunity to dispose of them singly, for if all were incumbered he would be compelled to lift the lien as to them all before he could sell at all, and to accomplish this he would probably have to sacrifice them all to a single purchaser or syndicate. 1 Thomas v. Huesman, 10 Ohio, 152. 2 Bank of Charleston v. Curtis, 18 Conn. 342. 8 Hallagan v. Herbert, 2 Daly, 253. * Taylor v. Montgomery, 20 Penn. St. 443. 464 MECHAJ^ICS' LIENS. § 294. Description. The preliminary notice and lien claim must contain a description sufficiently definite to indicate the property intended to be liened upon with- out doubt or obscurity. Without such a description the lien claim will not attach, for there is in reality no actual notice to the owner where property is not de- scribed at all, or so imperfectly that he cannot dis- tinguish which is referred to. Again, the lien extends only to the premises described in the claim filed ; so, where a claim is filed merely against a building and the ground upon which it i§ erected, it does not extend to the ground adjacent thereto, although it would have embraced the same if further description had been given.^ But where the statute does not require a de- scription of the property in the notice, none need be given,'^ yet it is always advisable that there should be no room left for the owner to doubt what particular property is intended. As a general rule, any description will be suflftcient if it recites enough to enable a party familiar with the locality to locate the property with reasonable precision. It is not always necessary, however, for the description to be so precise as this rule indicates, but yet it should identify the property so that it can be distinguished from others and found if necessary. Claims describing the premises as located upon the southwest corner of a certain street,^ or by a certain number such-and-such a street,* or similar designa- tions, have been held sufficient. The description of the property given in the bill of complaint or petition 1 1 McDonald v. Lindall, 3 Rawle, 492. ^ O'Halloran v. Leachey, 39 Ind. 150. « Caldwell V. Asbury, 29 Ind. 451. * Buckley v. Bouteller, 61 111. 293. PEBLIMIKAEIES TO ENPOECING THE LIEN. 455 should correspond substantially with that of the notice.^ It is generally held good if no other property will answer to a similar description.^ So, where property is described as in deeds thereof, and the description is good as to rules applicable to deeds, it will be sufficient for mechanic lien claims. If an erroneous description of the property has been made in the claim, it may be corrected within the time allowed for filing thereof; ' but not afterwards to the detriment of subsequent purchasers or bond fide, in- cumbrancers.* " Objection to the notice or complaint? on the ground of description, should be made either before or at the trial of the cause, and not on appeal."* ^ Bristow ». Evans, 124 Mass. 548. 2 Shaffer y. Hull, 2 Penn. L. J. 93. * Gray u. Stevenson, 50 Iowa, 173. < Knabb's Appeal, 10 Penn. St. 186. « Phillips Mech. Liens, § 391, citing Caldwell v. Asbury, 29 Ind. 451, &c. CHAPTER XXXIX. ENFORCING THE LIEN. § 295. Jurisdiction. The states have exclusive ju- risdiction over the real estate located within their limits, and mechanics' liens are therefore enforcible only in the state where the property is situated. The United States courts have no authority to enforce such liens unless the property is located in territory over which they have exclusive jurisdiction, or under seizure by government process. The statutes usually define the particular court which shall exercise sole jurisdiction over mechanics' liens.^ § 296. Notice of Suit. To give the court jurisdic- tion over the parties, it is but reasonable and just that the defendant should have notice of the action insti- tuted against him ; so it is always provided that he shall either be served ]by summons or other legal pro- cess, or given constructive notice by advertisement or otherwise. Service of notice of the institution of the suit is sometimes required by statute to be preceded by a notice of intention to claim the lien, and such provi- sion must be strictly complied with, or the lien will not attach. If the statute does not provide the method of serving constructive notice upon defendants, such notice will be void.^ In several states an advertise- 1 Phillips Mech. Liens, §§ 313 e« seq. ' " Falconer v. Frazier, 15 Miss. 235 PETITIOK FOR ENFOECING THE LIEN. 457 ment in certain newspapers for a stated period is au- thorized by statute, but frequently the notice is simply required to be posted upon the premises. When a notice is served in a manner not authorized by law, the defendant may make a motion in arrest of judgment.* § 297. Bill of Complaint, or Petition, required by many of the states as the commencement of proceed- ings, should set forth all the facts essential to show the petitioner's right to claim the benefit of the lien.^ If it fails to make out a priTnd facie title to the lien, no issue can be formed, though the defendant file a gen- eral denial of the facts.^ The declaration or petition, when defective, is fatal unless an amendment be al- lowed.* It should strictly follow the statutory require- ments, and the omission of a single averment may render it void.^ In general it should aver that the de- fendant was the owner or reputed owner of the lot or premises upon which the building was erected or re- paired ; that a contract was entered into by the com- plainant and the defendant ; the amount claimed and the value of the work performed (a bill of particulars is required by many of the statutes) ; the time when the work was performed or the materials furnished ; and the fact of having filed a preliminary claim, and compliance with all special requirements of the law. § 298. Form of Petition. There is no particular form of petition prescribed. The statute sought to be enforced should be carefully considered, and its every 1 Falconer v. Frazier, 15 Miss. 235; Schell v. Leland, 45 Mo. 289. 2 Conright v. Thomson, 1 E. D. Smith, 661; Mason v. Heyward, 5 Minn. 74. 3 Doughty V. Devlin, 1 E. D. Smith, 625; DeWey v. Fifield, 2 Wis. 73. * Duffy V. Brady, 4 Abb. 432. 5 Hunter v. Truckee Lodge, 14 Nev. 24; Phillips Mech. Liens, §403; Crowl V. Nagle, 86 111. 437. 458 mechanics' liens. requirement strictly followed in the preparation of the bill. It should show that the complainant has per- formed all the preliminary acts made essential by the law, and that its object is to enforce payment of the lien claim.^ It need not set forth, however, notice of sub-contractor to owner, where such notice is not the foundation of the action.^ If the statute requires that the petition shall be sworn to, this of course must be done ; but where no such requirement is made, no af- fidavit is necessary, and the bill will be sufficient if signed by the attorney of the plaintiff.^ ' § 299. Proceduke. Proceedings to enforce the lien of a mechanic are in rem and not in personam, for the suit is against the property liened upon rather than against the defendant personally.* Yet the action is not wholly in rem ; for, arising as it does upon a con- tract in personam, it applies only to the interest of the party defendant in the property.^ The law does not authorize a personal judgment arising from the lien claim, unless specially prescribed by the statute,^ for the effort to enforce the preference is prima facie proof that the plaintiff looks rather to the property for pay- ment than to the personal responsibility of the debtor. If he fails in his efforts to enforce his lien, he is not en- titled to a judgment on the contract.' The proceedings upon a mechanic's lien, like the lien 1 Foster v. Poillon, 1 Abb. Pr. 321. 2 Cornell v. Matthews, 3 Dutch. 522. " Brown !'. La Crosse City, 21 Wis. 51. * Grant V. Vandercook, 57 Barb. 165 ; Conkright v. Thomson, 4 Abb. Pr. 205; Quitnby ;>. Sloan, 2 Abb. Pr. 93; Gordon v. Torrey, 2 McCart. Ch. (N. J.) 112; Miller v. BarroU, 14 Md. 173; Carson v. White, 6 Gill, 17 ; Delaliay v. Clement, 4 III. 201. ' Redman v. Williamson, 2 Iowa, 488. « Sinclair v. Fitch, 3 E. D. Smith, 67 7. '' Grant v. Vandercook, supra. DEMUEEEES. 459 itself, depend entirely upon legislative enactments. The common law writ of scire facias is the general method authorized by the statutes, although in many of the states the proceedings closely resemble fore- closure of mortgage, and in others it is conducted ac- cording to chancery rules in courts of equity. It should be remembered that the lien claim and action for the debt are independent remedies,^ and the plaintiff may resort to both at the same time, or other- wise, to enforce payment,^ but he can only obtain one satisfaction.^ § 300. Demurrers. The defendant has the usual privilege of demurrer in mechanic lien proceedings, as in other actions at law.* The rules of pleading govern the framing of demurrers, and short pleas cannot be accepted as fulfilling the object of the demurrer.^ As in other cases, questions of law should be thus raised as showing the plaintiff's legal title to the lien, the responsibility of the property thereto, and other issues of law should be disposed of before the trial of issues of facts.* Indeed, this practice is specially recommended, for many strictly formal errors in the pleadings may be taken by the court as waived, and not allowed upon motions in arrest of judgment after pleading to the merits,'^ and special demurrers to matters not raised in argument are not always upheld by the courts.^ The question, as to whether certain property is within the 1 McNiel V. Borland, 23 Cal. 144. 2 Webb V. Van Zandt, 16 Abb. Pr. 190. 8 Corn Ex. Co. v. Babcock, 8 Abb. Pr. N. S. 256. 4 Brien v. Clay, 1 E. D. Smith, 649. 6 Lee v. Burke, 66 Penn. St. 336. « Waldo «. Richter, 17 Ind. 634. f ' Lee V. Burke, supra; Scholl v. Gerhab, 93 Penn. 346. 8 Smith V. Manice, 1 Code, N. S. (N. Y.) 283; Phillips Mech. Liens, §415. 460 MECHAOTCS' LIENS. lien law, must be decided upon evidence at the trial, and therefore cannot be raised upon demurrer ; ^ nor will a general demurrer to the whole complaint be sus- tained.^ Yet many prmd facie defects to the lien claim may be taken in motion to quash the scire facias.^ " The authorities give the rule," says Mr. Phillips, " that a pretended claim should, on motion, be stricken from the record when, by reason of defective and ir- regular statement, it is not brought within the benefit of mechanics' lien legislation." * A motion to quash is proper where advantage is sought to be taken of absence of affidavit when required by law,^ or lack of sufficient description of property.^ In many of the states a demurrer and motion to quash are optional. But the latter method should not be taken to raise questions of constitutionality of the law, or any objec- tions save those tending to show beyond peradventure the absence of any valid claim whatever. § 301. Pleading and Pkactice. In those states where the lien is enforced by chancery proceedings, the usual practice in equity prevails ; ' and in those where the writ of scire facias is resorted to, the com- mon law pleadings, so far as applicable, are observed, subject to local modifications. Generally speaking, the ordinary rules of pleading and practice govern.^ Rules of pleading, usually observed by the courts invoked, will not be violated in the enforcement of lien claims, although the lien is specially declared to ' Coddington i'. Beebe, 5 Dutch. 550. ' Jaques v. Morris, 2 E. D. Smith, 639. 8 Baker v. Winter, 15 Md. 1. ^ Phillips Mech. Liens, § 416. ^ Loring v. Flora, 24 Ark. 151. 8 Bourgette v. Hubinger, 30 Ind. 296. ' Sutherfield v. Ryerson, 24 111. 517. 8 Duffy V. McManus, 3 E. D. Smith, 657. BNFOECING THE LIEN. 461 be remedial.-* For instance, a plea allowed only in equity will not be permitted as a defence where the lien is sought to be enforced in a court of law.^ § 302. Amendments are never allowed unless au- thorized by statute.^ The lien being purely a creation of statutory law, the liberality of common law rules of pleading, allowing amendments during certain stages of the proceedings, do not apply. But in many of the states, in fact in most of them, liberal provisions have been made allowing amendments for all defects which do not change the form of action.* § 303. Costs. Costs are discretional with the court,^ unless otherwise provided for by statute. The lien extends to the costs.* § 304. Appeals. The right of appeal is allowed in mechanic lien judgments, as in other civil suits. The rules of law governing appeals generally are usually applied to this remedy. 1 Brady v. Anderson, 24 111. 110; Kees v. Kerney, 5 Md. 419. ^ Brown v. Morison, 5 Ark. 517. 8 James v. Van Horn, 39 N. J. L. 356; Haviland v. Pratt, 1 PMla. 364. * Bailey v. Johnson, 1 Daly, 61. See discussion, Phillips Mech. Liens, §§ 426 et seq. ^ Kaye v. Bank of Louisville, 9 Dana, 261. « Albers v. Eilers, 18 Mo. 279. CHAPTER XL. mechanics' liens : STATUTORY PROVISIONS OF ALL THE STATES AND TERRITORIES. § 305. Alabama. Mechanics, employees, and ma- terial-men have a lien on any^ building erected, re- paired, or improvement made upon land. Sect. 3440. The lien extends to the interest of the owner (sect. 3441), and is preferred to all other incumbrances. Contractors must file their claims vpithin six months, and sub-contractors, journeymen, etc., vpithin thirty days.^ § 306. Arizona. Artisans, builders, mechanics, and material-men have a lien for constructing, repairing, improving, etc., any building or other edifice, and may hold possession of the property until the lien claim is paid? § 307. Arkansas. Mechanics, builders, -workmen, laborers, and material-men have liens on buildings, etc., erected or improved. Thirty days' notice of in- tention to claim the lien to be given to owner of the property, if he is not the builder. The lien debts are paid pro rata, but that of a sub - contractor is pre- ferred to that of a contractor. Time of filing lien: within ninety days after the work is completed or ma- terials furnished.^ Mechanics' liens are preferred to all other incumbrances.* ^ Sect. 3444 et seq. See title 2, ch. 6, page 779, Code 1876. ^ Act of February 17, 1883. 8 White V. Chaffin, 32 Ark. 59. * Ark. Statutes (1884), §§ 4402 et seq. STATUTORY PEOVISIONS. 463 § 308. California. Mechanics, material-men, arti- sans, architects, and laborers of every class have a lien upon the property on which they worked or for which they furnished materials. The lienors share pro rata. Claim by the original contractor must be filed with county recorder within sixty days, and by sub -con- tractor within thirty days, after completion of the structure. Suit must be brought in the Superior Court within ninety days after filing the lien.^ § 309. Colorado. The usual lien of mechanics and material-men is upheld ; but the claimant must file a sworn statement of his claim in the recorder's oflfice within ninety days, and an action to enforce the lien must be commenced within six months from the time of filing. § 310. Connecticut. Any person having a claim for materials furnished, or work done, exceeding the sum of twenty-five, dollars, on the construction, erection, or repairs of any building or railroad, has a lien on such building and the land. The lien must be filed with the secretary of state within sixty days, and continues in force two years. § 311. Dakota. Every mechanic or other person doing work upon, or furnishing materials for, the con- struction of any building, etc., has a lien ; but no per- son is entitled to a mechanic's lien who takes collat- eral security on the same contract. Notice must be filed by sub-contractor of his intention to claim the lien within sixty days, and by the principal contractor within ninety days.^ § 312. Delaware. Any person whose claim is for $25 or more, for work done or materials furnished in » C. C. P. §§1183 et seq. 2 C. C. P. 654-662. 464 mechanics' liens. the erection or repair of any building, etc., has a lien to the extent of his claim. The contractor must file his lien within ninety days from the completion of the structure. If several liens have been filed, and the proceeds are insufficient to pay in full, all share pro rata. Procedure by scire facias and attachment.^ § 313. District op Columbia. Mechanics, artisans, builders, and material-men have a lien — if sum due for work or materials amounts to over f20 — upon filing due notice in the clerk's office within ninety days after the completion of the building. Liens can be enforced by bill in equity filed within one year after completion of the building or repairs. Sub-con- tractors, laborers, etc., can make the owner of building personally liable to the extent of their liens by giving due written notice.^ § 314. Florida. Mechanics and all other persons performing labor, or furnishing materials, have liens separately or jointly on the lot and land upon which the building to which they contributed was erected or repaired. Sub-contractors, laborers, etc., can make the owner personally liable by giving him notice of their intention to claim the lien.^ § 315. Georgia. Mechanics who have taken no security have lien on property built or repaired by them. The lien attaches without regard to the title to the property. It must be filed within three months after completion of the work ; and suit to recover must be commenced within twelve months after the claim is filed.* § 316. Idaho. Every person performing labor, or » Laws 1879, vol. 16, p. 256. 2 R. S. D. C. §§ 692-710. 8 McClennen's Dig. pp. 720-730. * Code, § 1989. STATTJTbEY PROVISIONS. 465 furnishing materials to be used in constructing, repair- ing, or improving any building, etc., has a lien upon the same for the amount of his claim, whether the ■work was done, or the materials furnished, at the in- stance of the owner or his agent. Sub-contractors, material-men, laborers, etc., may notify the owner any time within the fixed period. Original contractors have sixty days, and sub-con- tractors thirty days, within which to file their claims for record with the recorder of the county. Their statements must be verified by affidavit. Suit must commence within ninety days from the filing of the lien. The lien remains in force only two years. § 317. Illinois. Persons furnishing labor, or ma- terials, or services as architect, etc., under contract with owner of lot, for erecting or repairing any build- ing, etc., are entitled to a lien upon the building and lot for the amount due. Sub-contractors and work- men are entitled to a lien to the extent of any balance that may be due the original contractor. The owner is only responsible to the amount of the contract price. Original contractor must file his lien within six months after last payment is due. Sub-contractor must give notice within forty days after the completion of the sub-contract ; or he may sue the owner and contractor jointly for the amount due him. "Where there are several liens filed, the funds will be distributed pro rata. Suit to enforce payment must be brought within six months from the date of filing the claim.^ § 318. Indiana. Mechanics, laborers, sub-contractors, etc., have a lien for labor or materials furnished on any building erected, repaired, etc., by them, and upon the real estate, by filing notice of intention to hold I Hurd, 695. 30 466 MECHANICS LTENS. such lien in the recorder's office within sixty days after completion of the work. The lien has priority to all subsequent claims against the peoperty.^ § 319. Iowa. Mechanics and material-men are en- titled to a lien upon buildings or improvements made by them, and upon the land belonging to the pro- prietor on which they have been constructed or re- paired. The original contractor must file his claim within sixty days, and the under-contractor within thirty days, after completion of the structure. The liens have priority in order of filing, and are preferred to all subsequent incumbrances, not, however, to prior mortgages. Liens are assignable.^ § 320. Kansas. Mechanics and other persons under contract with owner, or his agent or trustee, perform- ing labor or furnishing materials, and erecting or re- pairing any building, etc., have a lien on the structure and the whole tract of land. And this lien is preferred to all subsequent incumbrances.^ Sixty days given for filing statement, and four months for filing lien, after completion of the work. The owner is liable to sub- contractors only to the extent of the original contract.* He is not liable to an action until after sixty days, when the lien can be enforced by a civil action.^ § 321. Kentucky. Mechanics and material-men have a lien on the building, etc., to which they contributed work or materials. Sub-contractors and laborers have a lien to the amount due the principal contractor by giving the employer written notice of their claim, and that they look to him for pay. Sixty days are allowed 1 R. S. 1881, §§ 5220 et seq. 2 16th Act Gen. Ass. 1884, ch. 100. ' General Statutes, § 4168. * Ibid. §4169. 5 Ibid. § 4171. STATTTTOKT PROVISIONS. 467 after the completion of the claim, within which the lien must be filed. The lien stands for twelve months and can be enforced by a bill in equity.^ §322. Louisiana. Laborers, for price of their labor ; architects, bricklayers, and all classes of workmen, have " liens and privileges " on the building by them con- structed ; and the furnishers of materials used in the construction of edifices and other works have a similar lien. § 323. Maine. A lien is allowed for labor, or ma- terials furnished with the owner's consent, or under contract, if filed within ninety days after work is com- pleted or last materials furnished. If not under con- tract with owner, if the owner gives no notice that he will not be responsible, and a statement of claim is filed in the town clerk's office within thirty days, the owner will be liable.^ § 324. Maryland. Every building erected or re- paired, rebuilt or improved, to the extent of one fourth its value, is subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the same. The lien is not waived by giving credit or taking notes unless expressly agreed. The lien extends to the ground on which the building stands, and the ground immediately adjacent thereto when used for building purposes. It is limited to the interest of the lessee or tenant erecting the building. Where the building belongs to a married woman, or the contract is made with a builder other than the owner of the ground, sixty days' notice must be given her or him after completing the work or furnishing the materials. The lien may be made without regard 1 Gen. Stat. ch. 70. a R. S. ch. 91, §§ 27-32. 468 mechanics' liens. to the amount claimed, and must be filed with the clerks of the circuit courts of the counties, and supe- rior court if in the city of Baltimore, within six months after the completion of the work or furnishing of the materials. The lien continues for five years after filing, and can be renewed. It is preferred to all sub- sequent incumbrances.-^ § 325. Massachusetts. Any person furnishing labor or materials for the erection, alteration, or repair of any building or structure, by contract or consent of owner, has a lien upon the interest of the owner for the amount and costs. Lien for material will not at- tach unless the material-man gives written notice to the owner, if he is not the purchaser thereof, of his intention to claim the lien. The claim must be filed within thirty days after the lienor ceases to labor or furnish materials, and suit must be commenced within ninety days. Liens may be dissolved by giving bond with approved sureties.^ § 326. Michigan. Any person who, having an ex- press or implied contract with the owner, lessee, or holder of a contract, alters, improves, repairs, erects, beautifies, ornaments, or puts in or furnishes any labor or material for any house, building, etc., has a lien on the same, and the ground covered thereby, for the amount of his claim. Sub-contractors and material- men have liens, but the aggregate thereof shall not exceed the sum due on the original contract. The lien claim may be treated as a mortgage and enforced by bill in chancery. The lienor must file his claim, verified by affidavit, in the office of the register of deeds of the county, within thirty days, and pro- ceedings must be taken to enforce the lien within sixty 1 Revised Code, art. 67, eh. vi. §§ 1-53. 2 Public Statutes, ch. 191. STATTJTOEY PROVISIONS. 469 days or it abates. The form of notice and provisions for enforcing the lien will be found in the general statute.^ § 327. Minnesota. Whoever performs labor or fur- nishes materials for constructing, building, or repairing any house, etc., by virtue of a contract with the owner or agent thereof, has a lien, to secure the payment thereof, on the building and the interest in the land (not exceeding forty acres in the country, and one acre in cities, towns, or villages). The lienor must file within one year a verified copy of the contract in the office of the register of deeds, and the lien continues for two years from the completion of the work.^ For repairs or alterations accounts must be filed within sixty days. The lien may be enforced as by foreclosure of mortgage. The owner may avoid liens of sub-contractors, laborers, and material-men, by re- quiring the original contractor to give bond approved by the district judge or justice of the peace, notice of the bond being filed in the registry, and also posted on the premises.^ § 328. Mississippi. Every building, etc., is subject to the lien of mechanic and material-man furnishing work or materials in constructing the same. The lien does not operate against bond fide purchasers or incum- brancers, except from the time when the contract for labor or materials is filed with the chancery clerk of the county for record. When the land is owned by some one other than the builder, the owner is not liable unless he gave written consent for said improvements. Sub-contractors, or employees or furnishing-men of a contractor, have no lien. The lien ceases if suit is not brought within six months. 1 Laws 1879, art. 258. ^ General Statutes 1878, oh. 90, §§ 1-7. 3 General Statutes 1878, ch. 90, p. 72. 470 mechanics' liens. § 329. Missouri. Mechanics, and all others furnish- ing work or materials, are entitled to liens on improve- ments, and on one acre or lot, if in a city, town, or vil- lage. The lien is preferred to all incumbrances cre- ated after the commencement of the work.-' Contrac- tors have six months, laborers and journeymen thirty days, and all other persons four months, within which to file their claims after the debt accrues. Sub-con- tractors, laborers, and journeymen are required to give to the owner ten days' notice of their intention to claim the lien. Jurisdiction is given to justices of the peace up to $250. § 3.30. Montana. Mechanics, laborers, material-men, etc., have a lien on buildings, etc., by them constructed or repaired. The principal contractor must file his account, with description of the property, etc., with county recorder, within ninety days from the last item of work or materials, and the sub-contractor within thirty days. Sub-contractor should notify the owner of the premises or his agent of his intentions, and probable value of the work to be done or materials furnished. All liens share alike excepting those filed after thirty days, and within sixty, from the completion of the work ; the latter form a second class, and share alike after those of the first class are satisfied. Suit by contractors must be commenced within one year, and by sub-contractors within ninety days, or the lien is lost.2 § 331. Nebraska. Mechanics, contractors, and ma- terial-men can secure a lien on property erected or repaired by them, by filing an account in writing within four months after furnishing such materials or work and labor. Sub-contractors cannot lien. * 52 Mo. 363. 2 Laws 1874, p. 84. STATUTORY PROVISIONS. 471 The lien expires after two years/ and is good against homestead exemptions.^ Lien claims are assignable.^ § 332. Nevada. Mechanics, material-men, and others have a lien on the building upon which they work, or furnish materials in constructing or repairing, when their charge amounts to five dollars or over. Lien claim must be filed by contractor within sixty days, and by sub-contractor or laborer within ninety days, from the time the last work was done or mate- rials furnished. Limitation, six months.* § 333. New Hampshire. Laborers and other persons working on buildings, and material-men, have liens thereupon, and upon the lot on which the structure stands, if a contract for the building was made with the owner thereof. The lien exists, independent of filing, only for ninety days after work or materials furnished.* § 334. New Jersey. Every building erected or al- tered (and the lot upon which it stands) is liable to a lien for the payment of any debt contracted and owing to any person for labor performed, or materials fur- nished therefor. The lien for repairs does not operate against honA fide purchasers or mortgagees. The con- tractor has no lien unless he has his contract duly filed at the time of his undertaking. The lien claim must be filed within one year after the work or materials are furnished.® § 335. New Mexico. Mechanics, material-men, etc., have a lien upon the building, and the land upon which it is erected, for the amount of the value of their work, 1 Laws 1881, pp. 259-266. 2 Laws 1879, p 58 ; Civil Statutes, p. 343. ' 4 Neb. 54. * Act of February 23, 1881. * General Laws, 334. ° Revised Laws, p. 668. 472 mechanics' liens. or materials furnished, in constructing or repairing the same. The account, verified by affidavit, must be filed within sixty days after the work is done or materials furnished, and suit to enforce the lien must be com- menced within one year from the time the debt accrued. § 336. New York. Any contractor, laborer, or trader furnishing labor or materials in erecting or improving any building, in compliance with an express or implied contract with the owner or contractor, has a lien on the premises for the value of the work and materials furnished. Notice of lien must be filed within thirty days after work or materials furnished, and proceed- ings commenced within one year after filing thereof The law does not cover all the counties, but the Act of 1880, ch. 486, applies to all cities except Buffalo. § 337. North Carolina. Mechanics' liens are recog- nized on any building built, repaired, or improved by them, and on the lot on which the same stands. Ac- tion must be commenced within twelve months after filing the lien.-'^, Sub-contractors, laborers, and mate- rial-men can take a lien on the building, etc., by noti- fying the owner before he has settled with the con- tractor, and filing notice.^ § 338i Ohio. A person who performs labor or fur- nishes machineiy or material for constructing or alter- ing any house, building, etc., by virtue of a contract with the owner or agent thereof, has a lien to secure payment of the same upon the building, etc., and also upon the interest of the owner in the lot on which it stands.^ An itemized account of the amount and value of > Act 1883, ch. 101. 2 Laws 1880, ch. 44. 8 Revised Statutes, § 3184. STATUTORY PROVISIONS. 473 such labor or materials, a copy of the contract, etc., must be filed with the recorder of the county within four months from performance of labor or furnishing the materials. Limitation, two years from filing. Homestead ex- emptions do not apply against mechanics' liens. Sub- contractors, material-men, and laborers must give no- tice to the owner, etc. The lien has precedence, and is not affected by assignment, subsequent contract, etc.^ § 339. Oregon. Mechanics and matei-ial-men have a lien for work done, or materials furnished, on houses and boats. Limitation, twelve months after filing. § 340. Pennsylvania. The mechanics' lien law does not apply to all the counties of the State ; but in nearly all of them buildings are liable for the labor and ma- terials used in their construction or repair. The lien takes precedence of every other lien or incumbrance, and attaches also to the ground on which the building stands. Claim must be filed in the office of the Court of Common Pleas within six months after the work is furnished or materials supplied. Limitation for enforcing lien, five years, which time may be extended by writ of scire facias? § 341. Ehode Island. The real estate built upon, repaired, or improved at the request of the owner, is pledged for the payment of work done and materials furnished by the contractor. Sub - contractors and others must give the owner written notice of their claim within thirty days after commencing work. The lien claim must be filed within four months after the default, in the performance of a written contract, or 1 Revised Statutes 1886, §§ 3185-3198. 2 See Act of May 22, 1878 ; Sergeant's Mechanics' Liens in Pennsyl- 474 mechanics' liens after notice by a sub - contractor to the owner, and within six months after breach of verbal contract with the owner. Proceedings must be commenced by bill in equity at the next term of the supreme court of the county? § 342. South CAROLmA. Mechanics and material- men have a lien on buildings and lands improved by them. § 343. Tennessee. There is a lien upon any house built or repaired by contract with the owner or his agent, in favor of mechanic, founder, or machinist, for work or furnishing materials. The lien attaches also to the lot of land. Limita- tion, one year. Sub-contractors, journeymen, etc., have the lien if, at the time they began work or furnished materials, they notified the owner of the property of their intention to rely upon the lien. Such notice, made during the progress of the work or after its completion, shall operate as a lien upon any balance then due, or to become due, under the contract. The amount of liabilities of owners shall not exceed that agreed upon in the original contract. The lien is not assignable.^ § 344. Texas. Builders and mechanics contracting to put up buildings of any description have a lien upon the building, and lot of land upon which they are erected, for work and materials, provided the contract is written, or, if verbal, stated on- oath, and copy ren- dered to the debtor. In the latter case it must be re- corded within six months after the contract is made. The owner can retain from the contractor the amount of wages, etc., due laborers and sub-contractors, upon being notified by the claimant, until their claims are settled by the contractor. 1 Public Statutes, ch. 177. 2 CodQ, §§ 1981-1988. STATUTOEY PROVISIONS. 475 § 345. Utah. Mechanics and material-men have a lien on any building or improvement to which they have contributed by virtue of a contract with the owner. A notice of their intention to claim the lien must be filed with the county recorder, within three months after the labor is performed or materials fur- nished. Limitation of lien, one year, unless suit is brought J but if the amount be not due before such year expires, then suit may be brought within three months after it expires. The Hen is preferred to all other incumbrances. Sub-contractors, journeymen, etc., and persons fur- nishing material by virtue of the agreement with the contractor, may hold the owner liable to the extent of the amount heowes the contractor at the time they give notice to him. § 346. Vermont. The lien of mechanics, laborers, and material-men is recognized, provided a memoran- dum of the account is recorded in the town clerk's of- fice, asserting the party's intention to claim the lien ; and this must be done within three months thereafter, if the debt is then due ; if not due when the memo- randum is filed, within three months after it becomes due. The lien partakes of the nature of a mortgage, and may be foreclosed as such. § 346 a. Virginia. Artisans, builders, mechanics, lumber dealers, and others performing labor or furnish- ing materials for the construction, repair, or improve- ment of any building or other property, have a lien on the property and the land on which it is situated.^ Sub^contractors have the usual protection.^ § 347. Washington Tekritoey. Every building, to- 1 Code, 1873, ch. 115, § 3. 2 Acts 1874 and 1875, p. 437. 476 mechanics' liens. gether with the owner's interest in the land on which it is erected, is hable for the payment of any labor per- formed, or materials furnished in its construction or repair.^ § 348. West Virginia. Every mechanic, builder, or artisan, workman, laborer, or other person performing work or furnishing material in the erection, alteration, or repair of any house or other building, by contract with the owner thereof, or his agent or contractor, has a lien upon such building, and the land upon which it is situated. A verified account must be filed in the county clerk's office within sixty days from the time the party ceases to labor or furnish materials. Sub-contractors and others working under the con- tractor have no lien unless they give written notice to the owner of the amount of their demand, and that they claim the benefit of the lien created by Act 1882, ch. 64. The aggregate of such liens shall not exceed the amount due upon the first contract. The lien is enforced by suit in equity, which must be brought within six months after filing the account. § 349. Wisconsin. Every building, etc., together with the interest of the owner of the structure in the land, is subject to mechanics' and material-men's lien for building or repairing. The lien takes priority over any incumbrance created after the commencement of the building. It must be filed within six months after date of last charge or work done, and action to fore- close it must be begun within one year from such date, unless within thirty days next preceding the expira- tion of one year, the person filing the lien annexing to the petition on file an affidavit setting forth his inter- est in the property or effects, in which case the lien ex- 1 Revised Code, §§ 1957-1971. STATTJTOEY PROVISIONS. 477 tends for another year. Enforced by execution. Sub- contractors, to hold the owner liable, must give notice to him within thirty days after the debt accrues to them.^ § 350. Wyoming. Mechanics and material-men have a lien for labor and materials employed or used in the erection or repair of buildings. The claim must be filed within sixty days from the time the work is finished or the last item of material furnished, and pro- ceedings to foreclose the lien must be commenced in one year. CANADA. § 351. Province op Quebec. Builders or other work- men and architects have a preference over creditors, only upon the additional value given to property im- movable by their work, provided an official statement, describing the state of the premises on which the work is to be done, has been previously made by an expert appointed by a judge, and that within six months from their completion such work has been accepted and received by an expert appointed in the same manner.^ § 352. Province of Ontario. Every builder, con- tractor, or other person doing work on, or furnishing materials to be used in constructing, any building, etc , at request of the owner, has a lien for the same on the structure, and the land occupied thereby, to the extent of the owner's interest. The lien must be registered in the county registry office during the progress of the work, or within one month after completion, and ceases to exist xmless proceedings are taken to enforce it within ninety days from completion. 1 Revised Statutes, §§ 3314-3327. 2 q^^^^ g 2013. APPENDIX. GLOSSARY AND FORMS. GLOSSARY OF WORDS AND TERMS FREQUENTLY USED BY BUILDERS, ARCHITECTS, ETC. Abacus, a square or oblong level tablet on the capital of a col- umn, supporting the entablature. The abacus is oblong in Doric and Tuscan architecture, but has concave sides with truncated angles in Ionic, Corinthian, and Roman orders. Abutment, a part of a pier or wall supporting an arch. The abutments of a bridge are the walls adjoining the land which sup- port the ends of the roadway, or the extremities of the arch or arches. It is sometimes called an impost when the arch is a semi- circle. Alcove, a niche or recess in a chamber, where one may recline, or where a bed may be placed. Amphitheatre, a spacious building of an elliptical form. The Roman amphitheatre, unlike modern theatres, having a semicircle of seats fronting a stage, had the seats arranged all around the cen- tre, where the gladiators fought. Aqueduct, an artificial channel by which water is conveyed. Arch, an arrangement of bricks, stones, or other materials over an open space, by which they are made to support a superincumbent weight. Ashlar, a building-stone squared and hewn, as distinguished from rough stones as they come out of the quarry without being specially shaped. The term is usually applied to square stones nine inches in thickness. Astragal, a small, semicircular moulding, sometimes made to represent beads or berries. Back of a Board rafter, slate, or slab, the upper side. Back op a Hip, the upper edge of the hip rafter, between the two sides of a hipped roof, formed to an angle so as to range with the rafters on each side of it. APPENDIX. 479 Backer, security ; in slating, a narrow slate laid on the upper side of a broad slate, where the slates begin to decrease iu width. Balcony, a gallery in front of a window, or a projection from a wall generally, with a balusti-ade around it, and supported by con- soles or brackets or pillars. Balusters, small staffs or pillars set in a line at short distances apart, and supporting a rail cornice or coping. Generally used in building stairs. Balustrade, a connected series of balusters, together with the rail, cornice, or coping, which they support. It is used around bal- conies, altars, stairs, etc., and may be of wood, stone, or metal. Band, any ornament continued horizontally along a wall, or by which a building is encircled. Band of a Shaft, the mouldings by which the pillars and shafts are encircled in Gothic architecture. Several bands placed at equal distances along the body of a lengthy shaft, are sometimes called shaft rings. Bandelet, any narrow, flat moulding. Bar Iron, a lengthy piece of pig-iron prepared in strip, and ren- dered malleable for use of the blacksmith. Base, (1) the foot of a pillar on which a shaft rests; (2) any support ; (3) the foundation of a tower. Basilica, a tower or court hall, a palace or cathedral. Bas-relief, the projection of a figure or ornament from the plane on which it is sculptured. Batten, a species of sawed timber, smaller than what are usually called planks. They generally measure 12 to 14 feet in length, 7 inches in breadth, and 2^ inches in thickness. Cut into two boards, they are sometimes used for flooring. Batter, a verb signifying the position of a wall, piece of timber, tower, etc., sloping inward. Bead, a small, round moulding. (See Astragal.) Beam, (1) a strong, horizontally placed piece of timber used to resist a force or weight; (2) The main timber of the building, ship, or loom. Bed, the surface on which stones or bricks of walls lie in courses. Bed of a Slate, the lower side. Bevel, an instrument for taking angles, and for adjusting sur- faces to the same inclination. One side of a solid body is said to be bevelled with respect to another when the angle contained be- tween the two sides is greater or less than a right angle. Bird's Mouth. The inner notch cut on the end of a piece of timber, so that it may be received on the edge of another piece, as a rafter. 480 APPENDIX. Blocking-Course, the direction of the masonry or brick-work on the top of a cornice. Bond, that connection of bricks and stones formed by lapping them upon one another in carrying up the work, so as to form an inseparable mass of building by preventing the vertical joints falling over each other. Bond Stones, or bricks, are those which run through a wall at right angles to its face, so as to hold or bind it together. Bond Timber is that laid in walls to hold them longitudinally together while the work is setting. Bottom Rail, is the lowest rail of a door, or other panel-work. Boxing or Lining, is the covering of an inner surface ; for in- stance, the boxing of window-shutters is the piece which forms the back of the recesses into which the shutters fold. Brace, an oblique piece of wood, used to bind together the prin- cipal timbers of a roof or other wooden structure. A brace used to support a rafter is sometimes called a strut. Break, any projection from the building's surface. Brick Trimjier, or Trimmer's Arch, a brick arch abutting against the wooden trimmer under the slab or hearth of the fire- place, to prevent the communication of fire. Bridge, a structure of masonry, of one or more arches, raised for passing over a river, roadway, etc. Cabling, the moulding by which the hollow parts in the flutes of columns and pilasters in architecture are partially filled. Caisson, a boarded framework or vessel in which the piers of a bridge are built, gradually sinking as the work advances, till its bot- tom rests on the bed of the river. Capital, the top or head of a column or pilaster. Caryatides, figures of women used as columns or pillars. Casement, a frame upon which windows are hung by hinges to open and shut. Casting or Warping, the bending of the surfaces of a piece of wood from their original position. Centring, the temporary woodwork upon which an arch is built. Clamp, a piece of wood fixed to the end of a board with a mortise and tenon, or with a groove and tongue, so that the fibres of the piece thus fixed traverse those of the board, and thus pre vent it from casting : the piece at the end is called a clamp, and the board is said to be clamped. Coffer, a deep panel in a ceiling, vault, or dome. Coffer-dam, a water-tight structure for excluding water from the foundation of bridges, quay-walls, etc., so as to allow of their being built dry. GLOSSAEY OF BUILDING TEEMS, ETC. 481 Collar-Beam (or Straightening-beam), the horizontal tie connect- ing a pair of rafters. Large roofs usually have several collar-beams. Completed, finished, ready for delivery of the keys; distin- guished from erected, q. v. Conglomeration, a heap or mass of materials heaped promiscu- ously together. Cornice, the projection which crowns the entablature, or any other part to vphich it is attached. Corona, the lovyer member of the cornice. Corridor, a gallery or passage leading to several rooms, each of which has a door opening upon it. Course, a continuous range of stones or bricks of uniform thick- ness. Crown, or King-Post, in carpentry, is the one which in roofs stands vertically in the middle between the two principal rafters. Cupola, or Lantern, a spherical vault, or concave ceiling, on the top of a building, usually forming a window in the roof, but often a small room on the top of a dome. Dado, (1) in architecture, the cubic block which forms the body of a pedestal ; (2) in carpentry or in papering, it may be a surface running around the bottom of the walls of a room, about three feet in height. Discharge, the relief afforded to any part of a building of which a weight is to be borne. Dovetailing, the method of fastening boards or timbers to- gether by letting one piece into another, in form of the expanded tail of a dove. Eaves, the edge of a sloping roof which overhangs the wall, for the purpose of throwing off the water ; when there is no concealed gutter, and the water drops directly to the ground, they are called " dripping eaves." Elbows, the sides of panelled work. Entablature, that part of a design in classic architecture which surmounts the columns and rests upon the capitals. It consists of the architrave, frieze, and cornice. Erected (stood up) ; a building may be " erected " when the walls are up, and materials on the ground to complete it. There is a great difference between erecting and completing a building.^ Eye of a Dome, the aperture at its summit. Facade, the exterior front or face of a building. Facing, the visible part of any work. Festoon, ornamental carved work representing wreaths of flowers, leaves, or fruit. 1 See artte, page 144, for distinction; also Johnston v. Ewing Female Univer- sity, 35 111. 518. 31 482 APPENDIX. Fine Stuff, in plastering, a composition of slacked lime care- fully sifted, with a quantity of hair and a little fine sand. Fine stuff is used in common ceilings and walls set to receive paper or color. First Coating, in plastering, is called " laying " when on lath, and "rendering" when on brick; in tliree-coat work upon lath it is called " picking up," and upon brick " roughing in." Flashings are pieces of tin or other thin sheet metal used to lap over gutters and pipes to hold then firmly to walls. Flatting, a coat of paint which leaves no gloss on the surface. Flue, the open aperture of a chimney from the fireplace to the top of the shaft. Flush, the even surface of two adjoining masses. Flutes or Flutings, the mouldings, in the form of hollows or channels, cut vertically on the surface of columns. Flutes are said to be cabled when they are filled to about one half their height from the base with a convex bead, to strengthen the columns and protect the flutes. Footings, the spreading courses at the foundation of walls. Framing, the rough timber-work of a house, including the floor- ing, roofing, ceilings, and beams. Feet or Frette, a continuous chain of bead-like ornaments run- ning vertically and horizontally at equal distances in both directions. Frieze, the central portion of the entablature. The word is also frequently used to mean any enriched or ornamental band. Frontispiece, the front or principal face of a building, usually referring, however, to the decorated entrance. It is sometimes called " frontis." Furniture, the external brass-work of locks, knobs, etc. Gable, the triangular part of a wall, between the top of the side- walls and the slopes of the roof. The whole wall, of which the gable forms a part, is called a " gable-end." Girder, the main beam in a building, used to support and bind joists, walls, arches, etc. Girders are frequently made of cast iron, but may also be made of wood. Groove, a sunken rectangular channel, usually cut near the edge of a moulding, stile, rail, or timber, into which a tongue correspond- ing to its section is inserted. Ground-Plate, the lowest plate of a wooden building, for sup- porting the upright posts. Sometimes called the " sill." Grounds, pieces of wood, even with the plastering, to which the wooden finishings are attached. Grout, mortar in a half liquid state. Hammer-Beam, part of the open timber roof, forming a truss at the foot of the rafter, acting as a tie. Headers, bricks or stones with the short faces in front. GLOSSARY OF BUILDING TEEMS, ETC. 483 Heading Courses, those in which the stones or bricks are laid with the headers. Hips, the rafters at the angle where two sloping roofs meet. A " hipped roof " is one in which the ends slope so as to form a hip on each side. Holing, piercing slates with holes for nailing. Impages, the rails of a door. Impost, the point upon which the arch rests on a column or wall. Inverted Akches, those in which the keystone is the lowest portion. Jack Timbers, those shorter than the other pieces in the same range. Jamb, the side of an aperture in walls, such as of doors or win- dows. Joggle, a notch or curve in joints, used in fitting stones together to prevent them from slipping. Joinery, the art of joining or framing together the wooden finish- ings of houses or buildings. Joists, the heavy timbers which support a floor or ceiling. Key : (1) in joinery, the piece of wood inserted in the back of another whose grain runs in a different direction, to prevent warp- ing ; (2) a piece of wood inserted between two pieces of timber, and let into both, to prevent their parting lengthways. Keystone, the centre stone of an arch. King-Post, the middle post of a trussed framing, for supporting the tie-beam at the under or lower ends of the struts. Knee, timber bent to receive other timber, to relieve weight or strain. Lantern. See Cupola. Laths, small strips of wood, principally used for making a basis for plastering, slating, and tiling. Ledgers, pieces of timber in scaffolding, placed horizontally, and running parallel with the wall opposite to which they are erected. Lime and Hair, a mixture of lime and hair for first coat, and usually called " rough " or " coarse stuff." Lintel, the horizontal bearer over doors, windows, and over openings in the wall, usually made of stone or wood. Listing, the cutting away of sap from the edge of boards. LuFFERS, the boards placed over others in such a way as to admit air without permitting air to penetrate. Mantel, the cross-piece running horizontally over the jamb of a chimney. Middle Eail, in joinery, the rail of a door which, is level with the hand, and which is generally where the lock is placed. 484 APPENDIX. Mitre, the point or line of union of mouldings meeting an angle. Mortise, a species of joint, wherein a hole or incision of a cer- tain depth is made in the thickness of a piece of wood, for the recep- tion of another piece called the " tenon." The tenon is a projection, generally rectangular in form, cut so as to fit exactly into the mortise. The framing of doors, shutters, and windows is generally fitted together with mortise or tenon joints. Mosaic Work, small square pieces of stone, or glass, or other material, of different colors, so arranged as to give the effect of painting. Mould, the model or pattern from which workmen execute mouldings, ornaments, etc. Mouldings, the curved and plane surfaces used as ornaments in cornices, panels, arches, etc. Naked Flooring, the timber-work for supporting the boarding of a floor or ceiling, or both. Newel Post, the plain or ornamental post placed at the lowest step, which receives the hand-rail. Niche, (1) a recess formed in a wall, to contain a statue or other ornamental figure ; (2) any designed cavity in a wall. Nosing op Steps, the rounded projecting edges of the treads or covers of the steps. Notch Board, the board of a stairway grooved out to receive the ends of the steps. Nut or BuRE, a small piece of iron with a spiral grooved hole in the centre, adapted to an external cylindrical spiral on the end of a bolt. Offset, the upper surface of the lower part of a wall, left by reducing the thickness of the superincumbent part on one or both sides. Party Walls, the walls dividing separate buildings, and used in common between them. Piazza, used as a synonym of " veranda," to mean a sort of balcony, but strictly meaning a square, open space surrounded by buildings. Pier, (1) the block of solid wall between doors, windows, etc.; (2) the solid mass of masonry built to receive the arch of a bridge; (3) used synonymously with " pillar " and " abutment." Pig Iron, short bars of iron as they come from the smelting fur- nace. Piles, large timbers driven into the earth to make a foundation to build upon on marshy ground or water-covered surfaces. Pitch, the sloping of a roof. Plat-Band, a square moulding whose projection is less than its heighth or breadth. GLOSSARY OF BUILDING TEEMS, ETC. 485 Plinth, the square solid under the base of a column or wall. Put-Logs, small timbers which lie between the wall and the poles of the scaffolding, and on which the scaffolding rests. Rafters, the inclined timbers of the sides of a roof. Recess, a part of a surface below the general surface of the work. Ribs, curved timbers whereto the laths are nailed in arched or coved ceilings. Riser, the upright portion of a step. Rustic, masonry in which various stones or courses are marked at the joints by splays or recesses. Sag, the curvature in the centre of a horizontal piece of timber. Sash, the frame-work which holds the glass in a window. Scantling, small timbers, as studding, rafters, etc. Sleepers, timbers on which the ground-floor rests, usually ap- plied in those cases where there is no cellar or a bad foundation underneath. Spars, the common rafters of a roof. Springing, the lower part of an arch. Stretchers, bricks or stones laid lengthwise. Strut, any piece of joist pressed endwise. Sur-Base or Sub-Base, the cornice of the upper base of a room, which is used to finish the dado, and to prevent injury to the plastering. Tender, (1) used synonymously with "bid," an offer to do work for a fixed price ; (2) an offer in satisfaction of a debt. Tongue, the projecting part on the edge of a board which is in- tended to be inserted into a groove of another piece. Trimmers, pieces of mitre framed at right angles ^o the joists against the way of chimneys. Truss, a framework composed of tie-beams, rafters, struts, etc., for roofs. Underpin, to prop up ; underpinning the stones on which a build- ing rests. Valley, the inner angle formed by the two inclined sides of a roof. Vestibule, an outer hall or lobby. Water-Tables, ledges left upon stone or brick walls, at the dis- tance of about eighteen or twenty inches from the ground, at which the thickness of the wall is diminished. Washer, a flat piece of iron with a hole in it, generally placed between the nut of a bolt and the surface of the wood. Weather Boarding, boards nailed upright and lapping over each other. 486 APPENDIX. FORMS OF CONTRACT, ETC. No. 1. — Form of Agreement between Builder and Sub -Contractor for Work. This Agreement, made and entered into this 22(1 diiy of August, 1887, by and between Paul Jones, of the fii>t part, and Samuel Smith, of the second part, both of the city of Bal- timore, in the State of Maryland, WITNESSETH, That the said Samuel Smith agrees, and hereby binds himself, to famish all the materials and labor neces- sary to execute and finish the carpentering work of a row of five two-story dwellings to be erected on the north side of liond Street, commencing from the corner of Strert, according to the drawings and specifications prepared for the said wmk by Thomas Brown, architect [or by the party of the first part if the bnildrr de- signed his own plans], and which are signed by botli parties to this agreement and made part hereof, for and in consideration of the Considera- sum of oue dollar, paid to the said Smith u|)on the sigu- tion. jjjg pf these presents, and of the sum of one hundred dollars, to be paid as hereinafter provided, for the work to be done on each of said buildings. The said Smith further agrees _. , that the work shall be commenced at the time the said Time of com- mencement buildings have progressed sufficiently far to need said ser- and couiple- . , , , , • i ii i • ■ r tion of the vices and work, and that it shall be ni strict contormity to ""' ■ the drawings and specifications ; that he will not in any way hinder or delay the otlier contractors on said buildings ; and that the whole job shall be pushed to completion as rapidly as practicable consistent with its being executed in a workmanlike manner, and shall be completed on or before the first day of March, 1SS8 ; and in case of failure to complete the work at that date he shall damages for be assesscd for each and every day the work is delayed '"'^' through the fault of said Smith the sum of five dollars, to be retained out of any money that may be unpaid on this contract, or to be recovered by law, as liquidated dainaijes and not as a ))enalty. It is further agreed that the work shall be under (he supervision Supervision ^^^d direction of Thocnas Brown, architect [or builder], of architect. ^||q ^\y^\\ have powcr to stop and reject any work or ma- terials not in accordance with the drawings and specifieaiions ; and who shall have power, in case of failure by said Smith, to correct errors or to finish tiie work within the date alinexaid, or to em- ploy other parties to finish the work, at the cost and expense of said Smith. It is further agreed that, if the party of the first part shall, at any Bxtraa. time, desire any changes in either the quantity or quality of FORM OF CONTBACT FOR "WORK. 487 the work, they shall be acceded to and executed by said Smith with- out in any way violating or vitiating this contract ; but the value of all such changes must be agreed upon, and indorsed upon this contract. It is further agreed by the party of the first part that, in consider- ation of the faithful performance of this contract by the party of the other part, he hereby agrees to pay the said p™menta of Smith the aforesaid sum of one hundred dollars for the ^ns'**™- carpentering work on each of said buildings in the follow- ing manner : that is to say, twenty-flve dollars cash as the first tier of joist is laid on each house ; twenty-five dollars cash when the second tier is ready for flooring ; and the balance in cash [or nego- tiable note, or, if the party of the second part agrees to take one of the houses in payment, or a certain percentage in cash, as estimated by the superintendent or arbitrator of the quantity of work per- formed, or any other understanding, it should be set forth fully]. In witness whereof, we have affixed our signatures and seals, this 22d day of August, 1887. Witness, Paul Jones. [Seal.] John Doe. Samuel Smith. [Seal.] [Sometimes security is required that the work will be faithfully performed, in which case the surety may be bound by making him one of the parties of the second part in the above contract, or by a special agreement.] No. 2. — Agreement with a Builder^ for Erecting a House or other Building. This Agreement, made this day of , 188 , by A B, hereinafter styled the owner, and C D, hereinafter styled the contractor, both of the city of Baltimore, in the State of Maryland, — WITNESSETH, That the said C D does hereby covenant, promise, and agree with the said A B that he, the said C D, shall, ■ r -J ^ c Object. for the consideration heremafter mentioned, on or before the day of , 188 , well and sufficiently erect and finish a brick and stone building upon that certain lot at the northeast corner of Market and Penn Streets, in said city of Baltimore, said building to have a frontage of forty feet on Market Street and seventy feet on Penn Street, conformably to the drawings and specifications j^^f.^^^^^^ j„ made by D F and signed by the parties and hereunto an- speciflca- nexed, within the time aforesaid, in a good, workmanlike, 1 Carey's Forms, 293, citing Abbot v. Gatch, 13 Md. 314; Andre v. Bodman, 13 Md. 241 ; Eichelberger v. Miller, 20 Md. 332. 488 APPENDIX. and substantial naanner, to the satisfaction and under the direction of the said D F, to be testified by a writteu certificate under the hand of the said D F ; and also shall and will find and provide such good, proper, and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for completing and finishing all the founda- Considera- tions, walls, Ceilings, floors, roofings, and other works of *'°°" said building mentioned in the plans and specifications, for the sum of seventy-five thousand dollars ($75,000). And the said A B does hereby promise and agree with and to the said C D that he, the said A B, shall and will, in manner of consideration of the covenants and agreements being Sents^^*^' strictly performed and kept by the said C D as specified, well and truly pay or cause to be paid unto the said C D the sum of seventy-five thousand dollars in the following manner: $15,000 when the masons' work is completed; $20,000 when all the plaster-work has been done; $10,000 when all the windows are in; and the balance of $30,000 upon the expiration of thirty days after the completion and acceptance of said building. Provided, that in each of the said cases a certificate be obtained and signed architect by the Said D F, architect, that the work, upon com- MQuisl'^'' pletion of which said payments are respectively to be made as aforesaid, has been done in a good, workmanlike, and substantial manner, and in accordance and compliance with this contract and said drawings and specifications. And it is hereby further agreed by and between the said parties : — First. The specifications and drawings are intended to cooper- Sneciflca ^'■®' ^*' ^^^^ ^^^ work exhibited in the drawings and not tions and mentioned in the specifications, or vice versa, is to be made part of executed the same as if it were mentioned in the specifica- econtrac . j-jg^g^ ^^^ ggj fg^th in the drawings to be the true meaning and intention of the said drawings and specifications. Second. The contractor, at his own proper costs and charges, is to provide all manner of materials and labor, scaffolding, provide ma- implements, moulds, models and cartage of every descrip- tenais, etc. ^.j^^^ jp^^. ^^^ ^^^ performance of the several erections. Third. Should the owner, at any time during the progress of said building, request any alterations, deviations, additions, Extra alter- ■ ■ \ t /k -l I ^ -c .• ations and or omijsions to Or from the said contract, specifications, or additions. pij,us, he shall be at liberty to have such changes made, and the same shall in no way afi^ect or make void the contract, but the costs of such changes will be added to or deducted from the amount of the said contract price, as the case may be, by a fair and reasonable valuation.^ ' It is often well to provide that extras shall not be added unless agreed to in writing. See ante, §§ 47-53. POEM or CONTEACT FOR BUILDING CHUECH. 489' Fourth. Should the contractor, at any time during the progress of said works, refuse or neglect to supply a sufficiency of owner tofln- materials or workmen, the owner shall have power to pro- i'f'conteJto vide materials and workmen (after three days' notice in refuse to pro- • ■• 1 • . \ , n . . , . , ceed after writmg being given), to finish the said works, and the notice, expense will be deducted from the said contract price. Fifth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by R B, also an architect, and his deci- beTttied'by sion shall be final and conclusive ; but, should any dispute '"^''"'■"■''™-' arise respecting the true value of the extra work, or work omitted, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor ; and in case they cannot agree, these two shall have power to name an umpire, whose decision shall be binding on all parties. Sixth. The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may hap- pen to the said works, or any part or parts thereof re- liable (or spectively, or for any of the materials or other things used unrompleted and employed in fluishino; and completing the same (loss ''""'''"e- or damage by fire excepted). In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above conclusion, written. Attest, A B. [Seal.] S. T. C D. [Seal.] No. 3. — Form of Contract between Builders and Committee or Trustees for Building a Church.^ This Agreement, made this day of between A and B, of , builders, hereinafter called the contractors, of one part, and X, Y, and Z, hereinafter called the com- mittee, of the other part, — WITNESSETH, That, for the consideration hereinafter stated, the said A and B, for themselves, their executors, and administrators, cov- enant and agree with the committee, their executors and administra- tors, as follows : — .^ 1. General Provision. The contractors will build and com- plete, within months from the time when tliey are Considera- put in possession of the ground, for the sum of $ , ■, , T7- • 1 ^ I -nr J- ^ ^1 1 Architect to a church at K, in the county ot iVl, according to the plans interpret and specification, and directions from time to time of P, "ilM^te?* 1 See objections noted to arbitration clause, § 10. 2 From Beckett's Building, pp. 37 et seq. 490 APPENDIX. the architect, or such other architect as may from time to time be employed by tlie committee, including all things which, in the opin- ion of the architect, may fairly be inferred from such plans and specification to be intended without being actually specified. 2. As to Alterations and Extras. The contractors shall also execute all such alterations and additional works as shall be ordered by the arcliitect with the consent of the committee or by the com- mittee; but if the contractors shall be of opinion that any such al- Extrstobe deration or addition will cause additional expense, they ordered in shall not be bound to execute the same without an order wn ing. .^ writing from the committee, stating the price which is either agreed on or certified by the architect as the proper sum to be allowed for the same, after giving credit for the value of any ,, . - , omissions which have been ordered ; and such order shall Extension oi time for ex- state also the extension of time, if any, which is to be granted by reason thereof; and neither the contractors, nor any sub-contractor under them, shall be entitled to receive from the committee, or any member thereof, any more than the sum of $ , together with the amount of the sums contained in all such orders Waiver to "^ ^^^^ afo^said ; nor shall this clause be held to have be In writ- been waived in consequence of anything to be done by the committee, except by an express waiver in writing, and then only as to the particular things included therein. The Bills of contractors shall, if required for the valuation of extras, quantities produce the bill of quantities, with the prices thereto at- if required. ^ i-i,- i t tached, on which their tender was based. 3. 77ie Architect's Powers. The contractors shall follow the di- Architect to rections of the architect in all respects, and of the clerk supervise tiie of the works in his absence, subiect to the last preceding work, but not ,.,,„, • t t /■ toactasown- clause ; but neither of them shall be considered tor any ersagen. purpose the agent of the committee, nor have any power to act contrary to their directions. And the whole of tlie work shall be done to the satisfaction of the architect. But the passing Certifving Or Certifying of any work by the clerk of the works, the work. [generally called the superintendent in the United States], or by the architect himself, shall not exempt the contractors from liability to replace the same, if it be afterwards discovered to have been done ill, or not according to the plan and specification, either in execution or materials. 4. Correcting Faulty Work. If anything shall be discovered to Defective h'Ave been done in an inferior way, or contrary to the "°* '"''« specification or plan, and especially (but without preju- dice to any other questions) if any masonry or wood- work shrinks, cracks, or opens in the joints, either before the work is certified to be complete, or witliin a year afterwards, the contrac- rORM OP CONTRACT FOR BUILDING CHURCH. 491 tors shall make good the same, not by patching, but by substituting new work, which shall be subject to the same condition ; p^y^ents and if any payments are still due to the contractors they maybe shall be suspended until such defective work has been made good to the satisfaction of the architect, and subject to this same condition. 5. Payments During Progress of the Work Payment shall be made to the contractors at the rate of $ for every worth of work certified by the architect to have m^ne?of been done, or of materials delivered on the ground ; and Senfson Si all materials shall become the property of the committee "Wtect'a oer- as soon as they are delivered, subject to the right of the contractors to remove all surplus materials when the work is finished. 6. Provision as to Closing Payments. When the amount so kept back has reached the one tenth part of the whole amount of the contract, the contractors shall be paid ninety per cent, on each fur- ther sum certified by the architect to be due. And all such pay- ments of instalments shall be made within three weeks after the architect's certificate has been received, unless the com- pinaipay- mittee dispute the propriety thereof. And half the bal- °"=nts in \ . 1 11 threemontha ance remammg due shall be paid m three months after and six the architect's final certificate that the work has been after final completed according to the contract, and the building has '=e''''fl™te. been delivered to the committee ; and the other half in six months, unless some defect has been meanwhile discovered as aforesaid, or the committee bond fide dispute their liability to pay on some other ground. 7. Penalty for Delaying the Work. The balance due to the contractors shall be diminished by $ for every day that the work is not completed after the time hereinbefore fixed for the comple- tion thereof. But the architect shall have power to ex- tend the time for any good cause, such as strikes of extension o? workmen or bad weather, or additions or alterations or- J"™"":"- ' ^ _ tain CTents. dered by the committee, such extension to be certified by him to the committee at the time when such cause arises, or as soon as it has ceased. 8. As to Insolvency of Contractor. If the contractors, or either of them, become bankrupt, or assign their property for the benefit of creditors, or become otherwise unable to carry on the work, or neglect to do so at any time for a fortnight in the manner required by the architect, or refuse to follow his directions as to the mode of doing the work, the committee may at once terminate the contract; and thereupon all claim of the contractors or contractor so acting, his executors, administrators, and assigns, shall cease, and committee the committee may employ other persons to complete the "hU^ou-'^ work, as they think fit ; and in that case no scaffolding, ''■actor, 492 APPENDIX. or fixed tackle of any kind, belonging to such contractor, shall be removed so long as the same is wanted for the work. But if any balance on the amount of this contract remains after comple- tion, in respect oi work done during the time of the defaulting con- tractors or contractor, the same shall belong to the persons legally representing them or him, but the committee shall not be liable or accountable to them in any way for the manner in which they may have got the work completed. 9. Serving Notices. All notices or orders for the committee or the architect may be either given or sent to or left for the contrac- tors or either of them by post, at the works, or at their usual place of residence or business. And every person employed on the work by the contractors, whether by a sub-contract or otherwise, shall be considered their agent or servant. And any order or notice signed by the secretary or other person on behalf of the committee shall be treated by the contractors as the order or notice of the committee, until the same is revoked or corrected. 10. Conduct of the Workmen, etc., on the Premises. It is to be understood that the contractors and workmen are only admitted to the ground for the purpose of building, and have no tenancy thereof; and any workmen misconducting themselves, or found to be doing their work improperly, may be discharged and removed if necessary, by the committee, or architect, or superintendent. 11. Damages Incurred while Building. The contractors shall be answerable for all damage to the building during construction, and until the same has been certified by the architect as complete, and shall keep it insured to an amount equal to the value of the Committee work doue from time to time [and, in case of additions to not liable for an old building, shall also be answerable for all iniury to damages to . . , . , , . „ , . , . , , uncompleted the existing building rrom any cause which might have ™^' been prevented by them or their employees], and shall deliver up the building to the committee in perfect repair, clean and in good condition, when complete. In witness whereof, the parties hereto have set their Conclusion. t , , i -, -, r. i hands and seals the day and date first above written. No. 4. — Form of a Contract under Seal between a Corporation, or other Public Body, and a, Builder for erecting a Building.^ This Agreemknt, made this day of bet^ween A B, con- tractor and builder, of the one part, and the Cornora- Preamble. , • ^ -i , c^ i. tion, orp;anized under the State of, of the other part, — WITNESSETH, That whereas the said corporation are desirous that Object. a building should be erected on the piece of ground 1 Emden's Precedents of Building Contracts. FOEM OP BUILDING CONTRACT WITH COEPOKATION. 493 situate , etc., and have caused to be prepared plans, draw- ings, elevations, and sections of the said building, etc., and a specification of the work for the erection of the same by C D, their architect, and the said plans, drawings, elevations, sections, and specification have respectively been approved of and signed by him and the contractors, and are annexed by way of schedule to this agreement. And whereas the contractors are willing to undertake the execu- tion of the said works for the sum of $ , and subiect „ ., 4 ii ^11..,. "^ Considera- to trie covenants and conditions herein contained : ''on. Therefore, in consideration of the premises, the contractor agrees with the said corporation, and the said corporation hereby covenant with the contractor, as follows : — 1. The contractor will, at his own proper costs and charges, forth- with begin, and in an expeditious and workmanlike manner erect, build, and finish, the said building for the said sum of $ , ^^^^ j^ ^^ agreeably to the said elevations, plans, drawings, sections, done accord- and specification aforesaid, and under the direction, and to p"fns° and to the satisfaction, of the said C D, or other architect for ofltearohi. the time being of the said corporation, and in accordance '™'- with such explanations and directions as the said architect shall from ti[ne to time give for the purposes of the work on or before the day of 2. The contractor will find, furnish, and provide at his own ex- pense all materials incident or necessary for so building Builder to the same, all the said materials being the best of their ^o™"and°°' several kinds, and to be approved of by the said architect ma.teriaia. of the works for the time being of the said corporation; Approval of and also will provide at the like expense all proper scaf- folding, timber, and plant for the said work, and erect and keep a proper bound or fence round the same, of the height of ^^^^^ feet or more, during the whole progress, and until around the the said buildings and work shall be complete. 3. If the corporation shall at any time or times hereafter think proper to direct any alterations or deviations to be made Extras aiter- in the form, or quantities, or elevation, or plan of the ^"°°?' '^"^ said building, or other the work hereinbefore agreed to be agreed to be done, before the same shall be performed, the corpora- "" "" "'^' tion shall give written instructions under seal for such alterations or deviations, and the same shall not in any wise make void, impeach, or prejudice these presents or the said contract. But then, and so often, and in every such case, the contractors shall attend to and pursue the said directions as they shall in that behalf receive from the corporation, and execute and perform the same in a proper and workmanlike manner ; and in every such case it shall be referred to 494 APPENDIX. the said architect for the time being of the said works to consider, Architect to ^"*^ ^y some Writing under his hand to determine, how ascertoin far such alterations or deviations will, on the whole, be amount due . i t ■ i j for extras, a saving OF adaitional expense to the contractors; and if the same shall appear to be a saving, the amount there- of shall be abated out of the last instalment or payment of the said sum of $ agreed to be paid for the said work as herein provided; but if the same shall occasion an additional expense, then the amount thereof shall be ascertained by the said architect, and be paid to the said contractor by the corporation over and above the said sum, in the same manner and at the same time as hereinafter is expressed for the payment of the ultimate balance of the said sum of $ ; but the contractor shall not be considered to have authority for Architects' ^"^7 ^^'^^ alteration or deviation, or the right to make any powers re- claim for the value or otherwise in respect hereof, with- out such written instructions so under seal as aforesaid. 4. If any of the materials hereinbefore agreed to be provided or employed by the contractor, in or about the works of the said in- tended building, shall be found by the said architect of the said works _ , ,. for the time being to be unsound, defective, or of bad Defective _ p ' ' ^ ^ materials to quality, then, and in every such case, and notwithstanding be removed ^ Jy ^ j ^ ' o by archi- a Certificate may have been previously given by the archi- tects order, j^^j. ^^^ ^-^^ jj^^^ being, all such materials shall be forth- with removed by and at the expense of the contractor, and other materials of a better and good and fit quality and kind in all re- spects, and approved of by the said architect for the time being, shall be immediately provided and made use of in the place and stead of such as shall be deemed bad or defective. 5. If any part of the said building or work shall be found by the said architect to be defective in point of workmanship, disposition of the materials, or otherwise howsoever, during the progress or after the performance of the same, then, and in every such case, and not- withstanding that a certificate may have been previously given by the „ , ,. architect for the time being, such defective work shall be Defective & vforktobo forthwith pulled down and demolished at the expense of the contractors, and immediately thereafter rebuilt in a more complete and a proper and workmanlike manner, in all respects to the satisfaction of the said architect of the said works for the time being. 6. If the contractor shall not, after days' notice given to him , . ^ or his foreman by the said architect of the said works for Architect i . , . r , may have the time being of such unsound material or materials work.'etc, deemed improper, remove the same, it shall be lawful for notlcrto^on- ^^^ ^^'"^ architect to cause the same to be removed to tractor. such place as he may think proper, without any liability on FORM OF BUILDIKG CONTRACT WITH CORPORATION. 495 his part, or on the part of the coi-poration, for any loss or damage which may happen to the said materials so removed as aforesaid, and to cause proper materials to be substituted in lieu of the ma- terials which shall be so objected to as aforesaid ; or, in case of any part of the said works being improperly executed as aforesaid, to cause the same to be demolished and reerected by such workmen as he shall think fit : and in either of the said cases, the contractor shall and will pay all such costs, charges, and expenses as shall be incurred in the removal of such materials as aforesaid, and in the substitution of such materials in lieu thereof, or in the demolition and reerection of all such parts of the said works as aforesaid, or the same shall be deducted from the balance which shall Liquidated remain of the said sum of $ as liquidated damages, ^^^s^s, 7. The contractor shall, upon the completion of the said building and works, remove and carry off all the scaffolding, board. Removal of and fencing erected for performing tlie same, and leave '^"''•''s''- the whole of the said works in a perfect and proper state and con- dition. 8. The contractor will, during the whole time of building, and until the completion of the said intended building and n^^^^^^^^,. works, give due personal attendance in the execution togiveper- thereof, in order that the same be carried on, executed, Hon to the and performed in a proper manner in every respect, and ^'"'^' shall not employ any sub-contractor for the execution of the same, or any part thereof, without the previous authority in writing of the corporation. 9. The whole of the said intended building and works shall be completely finished and fit for use and occupation on or limBoicom- before the said day of now next ensuing ; P'e"°°- and if it shall happen that the said intended building and works shall not be completed and finished fit for use and occupation within the time aforesaid, the contractor shall and will for- leit and pay unto the said corporation the sum ox $ damages for per week, as and for ascertained and liquidated damages '"'"™- and not by way of penalty, for every week from and after the said day of until the same shall be so finished and com- pleted ; which sums shall or may be retained and deducted out of so much of the said sum of $ as for the time being shall re- main unpaid, or be recovered and recoverable from the contractor by the said corporation by action or otherwise. 10. The said corporation shall and will, if the contractor duly execute and perform all and every the covenants and agreements on his part to be observed, done, and per- ni'anner'of formed, according to the true intent and meaning of these "^^j"^ ^*^' presents, pay or cause to be paid to the said contractor the 496 APPENDIX. said sum of $ for completing and building the said intended building and works aforesaid in several instalments, at the times and in the manner following: that is to say, the first instalment or sum, when the brick-work of the said building shall be carried up level with the one-pair floor ; the second instalment when \_state par- ticular period, and other instalmentsl ; the third instal- InstalmentB. -* c c i ■ t , •, t i_ n t- ment or sum when the roof ot the said building snail be completely covered in ; and which said instalments or sums it is hereby agreed shall respectively be of an amount equal to [three fourth] parts of the value of the works which at the said respective times or periods shall have been performed, as certified in writing under the hand of the architect for the time being of the said cor- Finaipay- poratiou ; and the fourth or last instalment or sum (in ™™''- completion of the said sum of $ ), and also such further or other sum as may have been occasioned by any such alter- ations or deviations from the original or present plan of the said buildings or works as aforesaid, within (three) calendar months next after the said buildings and works shall be wholly completed and perfected according to the tenor and true intent and meaning of these presents. But no payments as aforesaid shall be completion made to the contractor except on the certificate in writ- neceeaary. j^^^ ^£ ^-^^ architect for the time being of the said corpo- ration that the said works have been satisfactorily completed at the said respective periods. 11. If damage by storm, tempest, accidental fire, or other inevi- table accident, shall happen to the said works, which it Damages ,,, ,- ^i duriDg pro- shall not be in the power of the said contractor to prevent, grease war . ^.j^^ same shall be made good and repaired at the expense of the said corporation; but if such damages shall have happened or be occasioned by or through any neglect or default of the said contractor in any wise, then the same shall be immediately repaired and made good at his own proper cause and expense. 12. Notwithstanding any certificate that may have been given by the said architect for the time being, if any bad work or defect, contrary to the terms of this agreement, shall be discovered corered after withiu after the completion of the said works, no o°«fe'''wTk further payment, if any due, shall be made to the con- tractor; and the contractor shall make good all such de- fective or bad work, in accordance with the stipulations herein contained, within days after notice in writing from the cor- poration, or in default the corporation may do so, and the cost and expense incurred in either case shall be paid by and be recoverable from the contractor. [Here add, if deemed advisable, conditions as to foreman, authority, general superintendence, delays caused by FOKM OP AGKEEMEKT FOB EEPAIES. 497 strikes, inclement weather, and property in materials, arbitration, etc.] In witness whereof the said A B has hereunto, etc. No. 5. — Form of Agreement for Specified Repairs and Im- provements. This article of Agreement between X Y, of the first part, and A B, of the second part, Witnesseth, That the said X Y, carpenter and builder, does agree to put certain improvements upon house No. Street, viz. : to tear down back building, dig cellar, clear away all rubbish and dirt ; to dig to the depth of main cellar, according t^o plan submitted and specifications signed; underpin wall on the southeast side if requested to, or agreeable to the owner, and necessary for the protection of his wall, and to build a four-inch wall against it with mortar and cement to the proper height. It is fur- ther agreed that said X Y may use all the old materials as far as suitable, and furnish all others required to erect a three-story brick building, embracing a dining-room 16x21 feet; a pantry 7x9 feet ; back stairway 2X6 feet clear, from cellar to third story ; a kitchen of 14X13 feet in the clear, according to plan given and agreed upon ; all the walls to be nine inches to top ; a porch over the kitchen end 6X13 feet, with a railing, and covered with a tin roof ; hot and cold water-pipes and permanent wash-tubs in the kitchen ; also sink for water in pantry, furnished with shelving, drawers, and dumb waiter ; bath-room complete, with a water-closet of approved pattern, hot and cold water-pipes, and tub ; all joist and flooring to be of proper strength and quality for a good job; covering the whole back building with the best quality of tin roofing and spouting com- plete ; plastering every room with two coats of brown and one coat of white stuff in the best manner ; putting centre-pieces in the dining- room and library ; paint all wood-work in a suitable manner, and color and grain the dinitig-room, also parlor doors and shutters ; put up a neat slate mantel in dining-room and library ; continue the front stairway up without platform so as to make level floor without break ; front and back floors to be level with main floors ; slid- ing-doors with ground-glass panels, from parlor to dining-room ; inside shutters in all front windows, the first-story ones panelled, and hung in boxes of ash, second and third stories to casings, painted, and secured by proper fastenings ; all windows, doors, and shutters of proper size and quality; finally, build and com- plete for occupation in the best manner a back building according to plans, in as short a time as possible to make a good job ; repair pavements and fences ; the party of the second part agreeing to make payments as the progress of the work will warrant, leav- 32 498 APPENDIX. ing one fourth not to be paid until completion of the entire job. The consideration of this contract to be sixteen hundred dollars, and no extra charges whatever, unless agreed to in writing and attaclied hereto. Witness the hands and seals of X Y, Builder. A B, Owner. No. 6. — Letting out Contracts. Notice for Bids. — To builders and others : Persons willing to contract for the erection of a at , in the county of , may inspect the drawings and specifications at from the day of until the day of next ensuing. Offers will not be received later than o'clock on the last mentioned date. The advertisers do not bind themselves to take the lowest offer ; nor will any be accepted unless the character, means, and sureties of the per- sons offering be satisfactory, and the amount of the offer within [a certain sum]. All further particulars or explanations will be given by the architect at his office. [Signed,] No. 7. — Forms and Effect of Special Provisions and Conditions frequently used in Building Contracts. 1. Building contracts containing the following provisions have been generally upheld to defeat actions for extra work not agreed upon in writing : ^ — " And it is mutually agreed that, should any alteration be con- Agrepment templated from the present design, it may be done, pro- mideacfn- vided, the parties beforehand agree upon the price and dition prece- jndorse it upon this contract, and unless such agreement dent to ex- " ^ ^ ' & trae. be SO entered it is to be taken for an agreement to make the alteration without any change of price from the original con- tract." 2 " No extra charges to be made unless a written agreement be made and attached to this contract." Held to hold against subse- quent verbal orders for extra work.^ 2. The condition of the bond to be executed by the sureties is generally worded thus : — 1 See Baltimore Cemetery Co. u. Cobnrn, 7 Md. 202 ; Trustees v. Piatt, 5 Brad. 567. s Franklin v. Darke, 3 Foster & Finlason, 65 ; Kussell v. Bandiera, 32 L. J. N. S. C. P. 68; 3 Ellis & Ellis, 306. « Abbot V. Gatch, 13 Md. 314. But see Mowbry v. Starbuck, 4 Cal. 274 ; McFadden v. O'Donald, 18 Cal. 160; Kalkman v. BaylU,'17 Cal. 291 ; Clark v. Pope, 70 HI. 128. FORMS AND EFFECT OP SPECIAL PROVISIONS. 499 « Whereas X and Y have contracted with A, B, and C to build a house for the sum of $ by a contract dated the day of : Now the condition of this obligation is ^""''^' that, if the said X and Y shall duly perform the said contract, this obligation shall be void, but otherwise the same shall be and remain in full force and effect." ^ Other conditions : — 3. The building to be constructed in the best and most work- manlike manner, and in accordance with the true and ^„,^ t„ j,, reasonable intent of the plans, drawings, and speciflca- doneinpro- tions taken together; in case of any discrepancy between ''"'"*"''"• the drawings and specifications, the architect is to decide taterprtt'tta which is to be followed. v^ms, etc. 4. Should any work be, in the opinion of the architect, executed with improper materials or workmanship, the contractor agrees, refecUvo when required by the architect, to pull down and rebuild "eriais"^"?" the same, and to substitute proper materials and work ; and p""** iii"n>. in case of default of the contractor within a reasonable time, the architect is to have full power to employ other persona to rebuild the work, and the cost thereof to be charged against the contractor. 5. Any defects or other faults which may appear within months from the completion of the building are, upon pearing after the direction of the architect, to be amended and made °''™p'"""'°- good by the contractor at his own cost ; and in case of default, any cost incurred by the employer in so making good may be recovered by the employer from the contractor, the amount thereof, in case of dispute, to be settled as provided hereafter. 6. Tlie contractor is to insure the building against loss or damage by fire, in the office of some company approved by all the BuUdor to parties, and the building is to be under the contractor's "S""- charge, the said contractor being responsible for, and shall make good, all damages occasioned by fire or otherwise to the building over which he shall have control. 7. The architect or superintendent is to have access to tbe build- ing at all times, and he is to have control of the work. Access to and may require the contractor to dismiss any workman or ^'^pJip*,' workmen whom he may think incompetent or improper to workmen. be employed. 8. The contractor to complete the whole of the works Time for within months from the commencement, unless the """J"' work be delayed by reason of inclement weather or causes not un- der his control. In case of default, the contractor to pay • T IT Liquiaatea or allow the proprietor, as by way of liquidated damages, damagtsfcr the sum of $ per day for every day the completion of '*°'*^' the building is delayed. 1 See Kelly v Kellogg, 77 111. 477. 600 APPENDIX. 9. All work and materials intended to form part of the building Property in are '<> be considered the property of the proprietor, and materials. ^^g ^ot to be removed without consent of the architect. 10. Any difference that may arise between the proprietor or the Arbitration architect and the contractor as to any additions made, or clause. a^g iQ tjjg meaning of the signed drawing and specification, or any other matter or thing arising out of this contract, except as hereinbefore described, is to be referred to the arbitration and final decision of the architect in charge [or to some other architect, or to certain builders or others, as agreed.]^ 11. If the contractor shall become bankrupt, or make an assign- ment for the benefit of his creditors, or shall die, or shall of contrao- delay the performance of his part of the contract from any '"' cause whatever, the architect or proprietor, or his agent, may give to the contractor, or his assignee or representative, notice requiring the work to be proceeded with ; and in default it shall be lawful for the proprietor or his architect to enter upon and take possession of the building, and to employ any other person or per- sons to carry on and complete the same. The costs and charges incurred in the said completion are to be paid to the proprietor by the contractor, or may be set off against money due or to become due to the contractor. No. 8. — Forms for Special Sub- Contract Stipulations. 1. As to the Work generally. The said C D, sub-contractor, will, within the time stipulated in the original contract made with X Y by A B, faithfully execute the [bricklayers', carpenters', or plumbers' work, as the case may be], and will provide all materials for the same, and will complete the entire job in all respects in accordance with the plans and specifications annexed hereto, and signed by the said C D, sub-contr.actor. 2. As to Damages. The said C. D, sub-contractor, will save harm- less and keep indemnified the said A B, contractor, from all loss, costs, damages, claims, demands, or expenses, of any kind whatsoever which may be sustained by the said A B, contractor, by reason of any delay or default, or any breach of this contract on the part of the said C D, sub-contractor. 3. As to Defaults. If the said C D, sub-contractor, shall not proceed with the said work in accordance with this agreement, and to the satisfaction of the architect or surveyor for the time being of the said [^employer^, of which delay or default the said architect or surveyor is to be the sole judge, it shall be lawful for the said A B, contractor, upon such delay or default, to employ such other con- ' See objections to arbitration clauses, ante, §§ 47-53. FORMS FOE SPECIAL STIPULATIONS. 501 tractor or workmen, and to supply all such materials, as may be necessary in order to complete the said work in accordance with the said original agreement, and to deduct the costs, and all other ex- penses in any way caused by such delay or default from the amount (if any) which shall be payable to the said C D, sub-contractor, by virtue of this agreement; and in the event of that amount being insufficient, the said C D, sub-contractor, will pay to the said A B, contractor, any deficiency, and all costs and expenses attending the recovery of the same by action or otherwise. 4. As to Price. The said A B, contractor, will, in consideration of this agreemetit, pay to the said C D, sub-contractor, the sum of $ when the architect or surveyor for the time being of the said [em- ployer^ shall have certified in writing that the said work has been finished and completed to his satisfaction [or stipulate payment by instalments, if desired^. 5. As to Extras. No extra work shall be charged to or paid for by the said A B, contractor, except such extra work as may be ordered by the said A B, contractor, in writing; but such order shall not operate so as to extend the time beyond the day of to be allowed as aforesaid for the completion of the work. 6. As to Penalty for Delay} The said C D, sub-contractor, shall pay to the said A B, contractor, the sum of $ , as liquidated and ascertained damages, and not by way of penalty, per day, for each day after the day of that the said work shall not be fin- ished or completed, until completion as aforesaid ; and it shall be law- ful for the said A B, contractor, to retain the said sums out of moneys payable to the said C D, sub-contractor. No. 9. — Form of Specification for the Construction of a Church or other Building in conformity to Drawings attached. 1. As to Notices, etc. The said A B agrees to give to the proper local authorities all requisite notices ; to obtain all necessary licenses for temporary obstructions, inclosures, openings into sewers, tappings of gas and water-pipes, etc. ; to pay all proper fees for the same ; to make good any damages occasioned to adjoinings premises ; to have proper notices posted by day and lights at night to prevent acci- dents ; and to construct all inclosures and fences proper for the pro- tection and convenience of the public. 2. As to Old Buildings. The said A B agrees to carefully take down the old buildings, and entirely remove the old mate- rials, rubbish, eti;., to the satisfaction of the owner and all others interested ; that the old materials shall become the property of the 1 It is important to note the legal distinction between penalties and liquidated damages. See §§ 58, 59. 502 APPENDIX. said A B, who shall be allowed to use any portion of the same suitable and proper for the new building, subject to the approval of the architect or superintendent. 3. As to Excavating Cellars, etc. The said A B agrees to clear away all rock, soil, or rubbish necessary to leave the site of the structure unincumbered; and excavate for basement, areas, walls, cesspools, drains, tanks, and vaults, as shown by the drawings ; to properly refill, ram down, and level as required; and remove all superfluous matter excavated, to the satisfaction of all the parties. The cellars to be excavated the depth of feet. 4. As to Underpinning. The said A B agrees to take every necessary precaution; to prevent damages of every character; to carefully underpin all walls, partitions, or buildings surrounding the site of the proposed building in any way endangered by excavations or otherwise. 5. As to Drains, etc. The said A B agrees to bail out, pump away, or remove all water and soil which maiy come into the founda- tions from springs, currents, rains, cesspools, or otherwise ; and effec- tually complete the drainage of the excavations and footings before any masonry or brickwork be done. 6. As to Digging a Well. The said A B agrees to dig a well, in the situation marked on plan, four feet diameter and fifty feet deep below the level of the surface soil, if such depth shall be deemed necessary by the superintendent or architect for the pur- poses of said well. The said well to be bricked up according to most approved methods. 7. As to Trenches for Footings. The said A B agrees to make perfectly level and hard the bed of all trenches for footings ; and consolidate the earth about the same, and against all walls, drains, .pits, etc. The depth of the footings to be contracted for as shown by the drawings. Should a less depth be admissible, or a greater depth be required, the deviation will be made under the written permission of the superintendent or architect. Mauy other stipulations are usually added, referring to the special manner of performing the work called for in the design, such as concreting foundation, piling and planking, artificial ground-making, indents of bricks, hollows, pointing, arches, facings, cutlings, fire- places, chimneys and stacks, tiles, grates, masonry, brick-nogging, yards, clinker pavements, vaultings, cesspools, outlets, drains, water- tanks, ventilation, plumbing, rubble masonry, mortar, footings, cop- ings, steps and stairbuilding, quantities and qualities of materials, window and sash frames, doors, entablature impost, terra-cotta work, balconies, in fact all that concerns the proposed building, and the manner of carrying out the designs agreed upon between the parties. FORM OF NOTICE TO PKOCEBD. 503 No. 10. — Form of Notice to Contractors to proceed with Work} Whkreas, by an agreement dated the day of , 18 , made between (therein and hereinafter designated as the said contractors), of the one part, and the (therein and ^™°''''"- hereinafter designated as the said employer), of the other part, for the consideration therein appearing, the said contractors covenanted and agreed with the ssid employer to execute the works required for constructing and completing, etc. \_descrihe work'], as the same were set forth and described in the specification, bill of quantities, schedule of prices, and plans in the said agreement re- ferred to ; and covenanted and agreed to observe and per- J^jl^puL form all the covenants and provisions set out in such 'io"softhe ./. . T t n contract. specincation, and that all the powers, rights, and privileges mentioned therein, and conferred thereby, iu respect of such work, should and might be exercised according to the true intent and meaning thereof: and whereas, by the said agreement, it was pro- vided that, if the said contractors should not complete the said works within the pesiod limited for that purpose, or if, from any cause whatever (not arising from any act or acts done, or omitted to be done, by the said employer contrary to the true intent of the said agreement), they should be prevented from or delayed in proceeding with the completion of the said works according to the said specifi- cation, it should be lawful for the said employer, without any pre- vious notice being given to the said contractors, to take the said works entirely or in part out of their hands, and to employ any other contractor or contractors, workman or workmen, either by contract or by measure or value, or otherwise, proceed with the said works and complete the same ; and that in such case the said contractors should only be entitled to receive such sums as shall have actually accrued due at the time of the works being taken out of their hands, and all expenses incurred by so doing shall be deducted and retained from the money due to the original contractors, or shall be recoverable as liquidated damages by action at law or otherwise : and whereas, by the said specification, it was also agreed that, should the engineer be at the time dissatisfied with the nature or mode of proceeding with or at the rate of progress or maintenance of the works, or any part thereof, he shall have full power to pro- cure and make use of all the labor and materials which he may deem necessary, deducting the cost of such labor and materials from the money that may be then due, or that may become due, to the contractors ; but it was expressly declared that the possession of this power by the engineer should not in any degree relieve the con- 1 Held suflBcient ia Walker v. London & N. W. Ry. Co. L. R. 1 C. P. D. 528. 604 APPENDIX. tractors from their obligation to proceed in the execution of and to complete the works with the requisite expedition, or to maintain them as thereinafter mentioned, and it was provided that, should the contractors fail to proceed in the execution of the works in the manner and at the rate of progress required by the engineer, or to maintain the said works as thereinafter mentioned to the satisfaction of the engineer, the contract should, at the option of the employer, but not otherwise, be considered void as far as relates to the works remain- ing to be done, and all sums of money that might be due to the contractors, together with all materials and implements in their pos- session, and all sums of money named as penalties for the nonful- filment of the contract, should be forfeited to the employer, and the amount should be considered as ascertained damages for breach of contract : and whereas the said contractors have not completed the said works within the period limited for that purpose, and have not been prevented or delayed from pro- ceeding with the completion of the said works according to the said specification by any act or acts done or omitted to be done by the said employer, but great delay has occurred in the completion of the same : and whereas, the engineer mentioned in the said specification is dissatisfied with the nature or mode of proceeding with and at the rate of progress of the works, and the contractors have failed to proceed in the execution of the works in the manner and at the rate of progress required by the said engineer : Now the said , employer, doth hereby give the said , contractors, and each of you, notice that he will, at the expiration of one week from the date hereof, take the said works entirely out of your hands, and will, if need be, employ other contractors, work- men, etc., to proceed with the works and complete the same, and also that the said engineer on their behalf will procure and make use of such labor and materials as he may deem necessary, deducting the cost thereof as in the agreement provided. And the said em- ployer gives you further notice that the said contract shall be con- sidered void as far as relates to the works remaining to be done, and that the sums of money, materials, implements, and penalties hereinbefore mentioned shall be and hereby are forfeited to the said employer. [Signed,] N. B. — The above form is too lengthy and formal for ordinary practice of giving notice to proceed, unless tlie object be to so con- fuse the contractor, by judicially declared sufficient phraseology, that he will not understand the real object of the notice. I believe the following will be found much more convenient in general practice : — Mr. A B, Builder : Sib, — I hereby notify you to proceed at once, in a workman- POEM OF DECLAEATION. 505 like manner, with the erection and completion of the buildings you have undertaken, and that you diligently and properly execute all the conditions and stipulations of the contract entered into by you with me on the day of , 18 [here describe the location, etc., of the buildings^. I further notify you that, should you neglect or refuse to proceed with the work of construction within days after service of this notice, I will take possession of the uncompleted buildings, and employ other builders or workmen, and purchase such materials as may be deemed advisable to complete the said work at your risk and expense, or dispose of the unfinished work by sale if I am so disposed. You are also notified that I will take whatever legal proceedings I may find advisable to aid the completion of the buildings in accordance with our contract dated the day of , 18 , and that payment of all instalments to you will cease from this day unless you diligently and forthwith proceed with the work. X Y, Owner. No. 11. — Declaration to Recover against a Builder for Defective Work.^ [Titling, etc.] That on the day of , 188 , the plaintiff and defendant signed an agreement [here recite the terms of the agreement'] ; that the plaintiff duly ful tilled all the conditions thereof on hi.s part ; that the defendant constructed said building in so unskilful and negligent a manner (and of so unsuitable materials) that shortly after its completion the foundation settled, the walls cracked, the roof and walls became leaky, a considerable portion of the plastering fell, and the house otherwise was and is entirely untenantable and nearly useless, through the negligent and unskilful manner of its con- struction. And the plaintiff claims $ damages. No. 12. — Declaration to Recover against a Builder for not Com- pleting his Work, with Special Damage for Loss of Rent.^ That on the day of the plaintiff and the defendant signed an agreement whereby the defendant agreed to erect in a substantial manner a two-story frame house in Cambridge, Md., and to have it completed and ready for occupancy on or before the day of 188 , for which the plaintift agreed to pay him $2,000, payable as follows : When the foundations should be laid, $500 ; when the first story should be up and the second tier of beams 1 Carej's Forms, 98. » Ibid. 99. 506 APPENDIX. laid, $300 ; when the second story should be up and the third tier of bsiims laid, $300 ; when the roof should be on, $400 ; and when the house should be entirely finished the balance, or $500. That the plaintiff duly performed all the conditions thereof on his part; that the defendant entered upon the performance of the work under said contract and laid the foundations of the said house, and commenced to erect the first story thereof, but has neglected to finish the said building pursuant to said contract, and has left the same with the foundations laid and the walls of the first story partly up, and, although the time for the completion of the building has expired, he refuses to complete the same; that the plaintiff, on the day of , 188 , made an agreement with J S, whereby he agreed to let, and the said J S agreed to hire, said building for one year from the day of , at the yearly rent of $ , o which the defendant had due notice ; that, by reason of the defend- ant's failure to complete the contract upon his part, the plaintiff ha been unable to complete said house so as to give to J S the occu- pancy thereof, and has been thereby deprived of the profits of said lease, and has been otherwise injured. And the plaintiflf claims $ damages. No. 13. — Contract for Erecting a Public Building.^ These Articles of Agreement, made and entered into this day of 1887, by and between the Board of Police Commissioners for the city of Baltimore, in the State of Maryland, of the first part, and , of the same place, of second part, WITNESSETH : 1. General Object. The said party of the second part, for and in consideration of the sum hereinafter mentioned, does hereby covenant, promise, and agree to and with the said parties of the first part, or with their successors in office, to provide all materials, and to execute and complete for the said parties of the first part, certain works required in and for the erection of the Police Station House, on the corner of and Streets, in the city and State aforesaid, according to the general drawings, specification, and detailed drawings furnished by , architect, and hereinafter called the said architect, and agreeably to the conditions hereinafter written, as well as to sucli other general or detail drawings as may be furnished from time to time during the progress of the works to more fully illustrate the general drawings and specification, and sub- 1 Mr. Frank E. Davis, Hrchitect, of Baltimore, Md., has kindly fnrnistied the writer with this practica and comprehensive form. The spccitication, like that which follows {post, form 14), is intended to be made part of the contiact, and is usually attached to it. FORM OP CONTRACT FOR PUBLIC BUILDING. 607 ject in every particular to the instruction and approval of the said architect. 2. First-Class Work. It is further understood and agreed by the said party of the second part, for himself, his executors, admin- istrators, or assigns, that all the materials shall be in strict accord- ance with the specification, and that the work shall be done in the best and most workmanlike manner. 3. Contract not Assignable. It is further understood and agreed by the said party of the second part, for himself, his execu- tors, administrators, and assigns, that neither he nor they are to sub- let or transfer this contract to any person or persons, but shall carry out its requirements under his own supervision. 4. Access of Parties- to toe Building. The said parties of the first part, the said architect, or any one he or they may depu- tize, shall at all times have access to the premises, the drawings and specification, and, at all reasonable times, to the business premises of the said party of the second part, to inspect the work in the prog- ress of execution. 5. Consideration. In consideration of the said works being executed and completed by the said party of the second part, his executors, administrators, or assigns, in accordance with all the drawings furnished, and with the specification and general conditions therein written, which are in every particular to be regarded as part of this contract, and with the terms and conditions herein con- tained, the said parties of the first part agree to pay, or cause to be paid, to the said party of the second part the sum of $ , lawful money of the United States of America, in the following manner, viz., in instalments, to the amount of ninety per cent, of the contract price, upon certificates, which the said architect will issue at different stages of the work, for the following amounts, viz. : — $ when the walls are ready for the joists of the first floor j. $ when the joists of the second floor are laid ; $ when the joists of the third floor are laid ; $ when ready for the roof ; $ when roofed in ; $ when ready for plasterers ; $ when ready for the painter ; $ when finished ; and the bal- ance, $ , is to be paid to the said party of the second part when the said architect gives a certificate that the works have been completed according to the drawings and specification and to his en- tire satisfaction, and when vouchers are produced showing that all bills have been paid for materials furnished and labor performed upon said station house, or when a release from lien or liens under the laws of the State of Maryland is furnished from all parties hav- ing claims for materials furnished or work done in the said building. 6. Insurance. It is further understood and agreed between the aforesaid parties that when the building is under roof the said 508 APPENDIX. party of the second part shall insure at his own expense, and keep the same insured, against damage by fire until acceptance by the parties of the first part ; the proceeds or avails of said policy or policies of insurance, in the event of damage or destruction, to be ap- plied or devoted to the reconstruction of the works so destroyed or damaged. [7. Time condition if desirable.] ^ In witness whereof the parties hereunto set their hands and seals, the day and year first above written. [Signed,] Signed, sealed, and delivered in presence of [seal.] [seal.] [seal.] No. 14. — Another Form of Specification.^ Specification of the work to be done and the materials to be fur- nished in the erection and completion of the Police Station for the Police Commissioners of Baltimore city, according to the plans and drawings therefor, prepared by , architect. Dated of , 1887. General Conditions. The contractor is to provide all ma- terial (new and of the best quality, unless otherwise specified), and is to execute and complete the various works in the best and most workmanlike manner, as set forth in the following specification and its accompanying drawings ; as also according to the directions, and to the entire satisfaction, of the architect. The contractor is to abide by and comply with the obvious intent and meaning of the drawings and specification, and is not to avail himself of a mani- festly unintentional error or omission, should such exist; nor fail to repeat and make perfect any parts obviously so intended, though singly shown or insufficiently expressed, for the sake of brevity or needless repetition. In all cases of reasonable doubt as to tlie draw- ings he is, unless otherwise advised by the architect, to adopt figured dimensions thereon in preference to the scales or proportions there- of ; but in all cases the intended true dimensions of the grounds and premises in preference to either. Dispute as to Details. Should any dispute arise, or any- thing require explanation or further detail, the contractor is to apply to the architect, allowing him a reasonable time to supply the same ; and is to accept as final his interpretation of the drawings and speci- 1 See form No. 7 for wording of this condition. 2 The author is indebted to Mr. Frank E. Davis, architect, of Baltimo this admirable form. FORM OF SPECIFICATION. 509 fication, and is to comply with any further details given as part of the contract. Examination of Premises before Tender. The contrac- tor shall be held to have examined the premises and site so as to compare them wth the drawings and specification, and to have satis- fied himself of their accuracy, before the delivery of his proposal, as no alterations will be subsequently made in his behalf in the event of any error being discovered. Copies of Contract, etc. The original contract drawings and specification are to remain in possession of the architect for his future reference. The architect will provide the contractor with free copies of all the contract drawings, and the specification re- quired for his own use : these are to be carefully mounted and pre- served, and accessible at all times to the architect, or the owners, during the progress of the work, and when the building is completed they are all to be returned to the architect at the time he, the said architect, issues the certificate stating that the contractor is entitled to his last payment of money ; and if lost, stolen, or destroyed, they are to be replaced at his (the contractor's) own expense ; nor shall any allowance be made him for any delay that may thereby occur. Defective Work. Should any of the work or materials be considered by the architect unsound or defective, the contractor shall, after twenty -four hours' written notice, remedy or remove the same, or in default thereof the architect may thereupon cause the same to be taken down or removed, as the case may require, and replaced by proper material and labor, at the expense of the contractor. Deviation. The architect shall be empowered to deviate from the drawings and specification, or to make such alterations either of omission, deduction, or addition therein as he may think fit, and such alterations shall not invalidate the contract ; but their value shall be decided and agreed upon between the contracting parties before the work is proceeded with, and such value being added to the contract price, or deducted therefrom, as the case may be. The contractor himself, however, shall not be empowered on any pre- tence, save the sanction of the architect, to deviate from the draw- ings and specification, or to claim for extra work, save for such as may have been ordered in writing by the architect. Detail drawings given to the contractor during the progress of the work are not be regarded as extras to, or variations from, the original contract, but are to be considered as simply explanatory of the work already stipulated for in the said contract, unless the contractor shall, within a reasonable time after their delivery, and prior to the execution of the work, make objection in writing to such detailed drawings, and obtain from the architect a written order or memorandum, to ap- 510 APPENDIX. pend to such detailed drawings, recognizing any alleged extra work or material claimable thereon. Architect to Decide. The decision of the architect shall be final and binding on all parties concerned, when given on all ques- tions of doubt as to the tenor and intention of the drawings and speci- fication. Bonds. The contractor is required to execute a sutficient bond with sureties for the due performance of the works and the comple- tion of the same inside of months from the date of the contract, and also a good and sufficient bond to protect the owners against mechanic or other lien or liens under the laws of the State of Tearing Down Old Buildings. The buildings now on the premises are to be taken down in the most careful manner, at the entire risk of the contractor, the material carefully cleaned, sorted, and stacked for re-use in the new building, when not in conflict with the provisions of this specification. The old joists, if perfectly sound and properly re-cambered, may he used for the first story of the new building, or new 3"xl2" of the best heart Georgia yellow pine. Old Cesspool. Clean out any cesspool or pit now on the premises, filling the same with clean earth, well rammed down and then covered with North River bluestone flags cemented in position. Excavations. Dig out to the proper depth for a cellar, 9 feet from floor to floor under the entire building ; for the trenches for drain and other pipes, and for the various foundations to walls, piers, etc., sufficiently wide to receive the footings as shown on the drawings. Regrade the pavement as shown, and remove all su- perfluous rubbish and earth from the premises, scrubbing the floors at the completion of the building. Should it be necessary to exca- vate to a depth greater than required by the drawings to get a solid foundation, then such additional excavation, and consequent greater depth of wall, is to be charged for by the contractor, at prices which must be named in his bid, viz., at so much per cubic yard for ex- cavation, and so much per cubic perch for foundation walls, all materials and labor included. New Cesspool. Dig the cesspool (4' 0" in diameter when completed) where shown, to a full and flowing stream of water in a bed of coarse sand or gravel ; cover it with granite or North River flags, with a man-hole through the centre of it, and cover with 1' 6" X 2' 0" X 3" stone. Soil or other pipes to enter the cesspool directly under the slab covering. Foundation Walls or Footing Stones. Put in bottom course of large flat stones (bedded 16" below cellar floor), for foot- ings to all walls, etc., projecting in all cases 8 inches on each side of the wall or pier built on them ; at least one third of these footing stones are to extend in one piece entirely across the trench, and POEM OF SPECIFICATION. 511 under the corners and piers between the windows. [Here to follow other particulars.] MoRTAE. Bed the footing stones in mortar, composed of one part cement to two parts coarse, sharp sand, used when fresh. Granite Work. [Particulars as to stone trimmings.] Front Steps. Provide steps to front doorways as shown. All granite to be fine bush hammer dressed, jointed and set in the best manner, and firmly anchored and clamped where requisite with strong galvanized wrought iron anchors or clamps, properly set in with lend, or built into the walls. Cdkbing Alleys and Streets. [Particulars.] Brick-Work. Carry up all the walls, piers, stack, flues, etc., to the requisite heights, and of the thickness shown or figured on the drawings. All angles and reveals must be carried up true and plumb. Face the inside walls of the second, third, and fourth stories with well-burned bricks, snd the south and east walls with the best quality of hard dark-red bricks of uniform color ; face the north wall with the best sand bricks. Face the front, etc., wall with the best quality of dust-pressed bricks. Sample to be left with the owner when the bid or tender is submitted. No salmon or soft bricks are to be used in any part of the work below the first story window- sills, etc. Cesspool to be walled up with hard-burned or black bricks. All pressed bricks to be laid with a thin and perfectly cut joint, cleaned down, oiled and pencilled ; lay all other face bricks with thin struck joints. Arches on the front to be formed with long arch-brick. All bricks to be hand-made. Flues. [Here follow full and definite particulars as to flues for hot-air pipes, ventilation, foul air, and smoke. MoETAK. [Here particulars as to the ingredients and quality of mortar to be used for various portions of the work.] Paving. [Particulars as to paving yard, alley, and street.] Ventilation ; ^ Joists, Bridges, Girders ; Counter Ceil- ing, KooF ; Sheathing ; Window Frames and Sashes, Door Frames ; Flooring, Baseboards, Staircases ; Step-Ladder to Loft ; Doors, Fencing, Cornices ; Iron Work ; Vaults, Water-Spouts ; Mantels ; Elevator ; Water-Closet ; Ceil- ing ; Lumber ; Tin- Work, Plasterers' Work and Materials ; Painting and Glazing ; Plumbing ; Waste-Pipes and Drains ; Gas-Pipes ; Bath Tub and Sundries ; Slate ; Valleys ; Con- creting Cellar ; Cement ; Anchors, Clamps ; Casting and Hardware generally ; Stirrups and Beams ; Eoof-Casting, ' Several items of the specification have been set forth above in order to give an idea of the atteniion paid to the minutest detail. Other parts of the pro- posed building are merely mentioned above, but it is customary in specifications to describe the requirements as to each fully and definitely. 512 APPENDIX. Fiee-Casting ; Lime op Teil ; Asphaltum ; Seweeage ; Heat- ing Apparatus ; Wood Ceilings ; Dumb Waitees, Speaking Tubes, etc. No. 15. — Stipulations for Agreement with, Architect.^ 1. [architect'] will prepare sketch plans, elevations, and sections of the intended building, having regard to the proposed cost, so that a contract may be made for it, including fixtures and fittings, warm- ing, ventilating, lighting, boundary fences, lodges, and every other work necessary to render the building fit for occupation, except fur- niture, for the proposed amount. 2. If [employer'] abandon the intention of executing the building the said [architect'] shall be entitled to a sum to be fixed before- hand, and to the return of his sketches [but see 6 and 12]. 3. If the sketches are approved, with or without modification, and the [employer] desires to proceed, the said [architect] shall, by a day named, prepare working drawings and specifications for competition by builders. 4. The drawings and specifications shall be full and complete, so as to enable the said [employer] to enter into a contract with a responsible builder. 6. If the most approved tender exceeds the amount proposed, the said [architect] shall, if required by the said [employer], revise his plans so as to bring the expenditure within the prescribed limit. 6. The plans and documents relating to the works shall be the property of the said [employer'] (i. e. at once, not merely after the work is done), and the said [architect] shall make, at his own ex- pense, all copies of them necessary for the conduct of the works. [Provisions 7 and 8 are as to certificates and clerks.] 9. The said [architect] will be at liberty to vary architectural details, provided such variations do not involve extra cost, but shall on no account incur increased expenditure without sanction of the said [employer] in writing. 10. If any additional or substituted works become necessary dur- ing the execution, the said [architect] shall furnish the plans, etc., as soon as possible. 11. The said [architect's] remuneration shall be a fixed sum to be agreed on beforehand : the one third of it shall be paid to him on the execution of the contract ; another third when half the contract price has been paid to the builder, and the rest when the last pay- ment has been made to the builder. 12. If, after the working drawings have been made, the said ^ Beckett on Bnilding, 26 et seq. FORM OF BOND. 513 [emploi/er'] does not proceed, the said [^architect'] shall be entitled to a fixed sum, to be agreed beforehand, and the plans, etc., shall belong to the said [employer^. Or, if the said [empfoyer] proceeds only with a part of the works, the said [^architect'] shall be entitled to a proportionate part of the i-emuneration mentioned in [11], in addi- tion to a proportionate part of the sum mentioned in this article in respect to the works abandoned. 13. The said [^archilecQ shall be entitled to nothing more except for alterations and additions made by the written authority of the said [employer^- 14. If the said \_architect] dies, or becomes incapacitated, he or his representatives shall hand over to the said [^employer^ all plans and papers relating to the works, and shall be entitled to such equitable proportion of the unpaid part of said remuneration as may be agreed upon. It may also be stipulated that " no rules of architectural societies shall be binding upon the said [emploi/er^." No. 16. — Joint and Several Bond from a Builder and Surety. Know all Men by these Presents, That we, A B, of, etc., [builder'j, and C D, of, etc. [surety'], are held and firmly bound to E F, etc, in the penal sum of $ , to be paid to the said E F, or to his executors, administrators, or assigns, for which payment to be well and truly made we bind ourselves and each of us, our and each of our heirs, executors, and administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of 188 . Whereas, by certain articles of agreement, bearing even date with the above-written bond or obligation, and made, or expressed to be made, between the above-bounden A B of the one part, and the aboved-named E F of the other part, he, the said A B, for the considerations therein expressed, hath contracted and agreed with the said E F to erect and build on a piece of ground situated at , certain houses, etc. [describe the huildings^i in such manner and form, and at or within such time, as in the said articles of agree- ment and in a specification thereto annexed, and certain plans, elevar- tions, and sections in the said specifications and articles referred' to, are particularly mentioned and set forth ; and whereas on the treaty for the said contract it was agreed that the said A B [builder'] and C D [surety'] should enter into the above-written bond or obliga- tion, as an additional security to the said E F for the due perform- ance of the said articles of agreement, and of all and every covenant, matter, and thing therein contained, on the part and behalf of the 33 614 APPENDIX. said A B, his executors or administrators, to be done and per- formed : Now the condition of the above-written bond or obligation is such that, if the above-bounden A B, his executors and adminis- trators, do and shall erect and build, complete, and finish the said [^describe building'], in and by the said articles of agreement con- tracted to be erected and built, at and within the time therein expressed for completing the same, and also do and shall well and truly observe, perform, fulfil, and keep all and every the covenants, contracts, clauses, articles, and agreements contained in the said articles of agreement, and which, by or on the part of the said A B, his executors or administrators, are or ought to be observed, per- formed, fulfilled, and kept, within such time and in such manner, in all respects, as in the said articles of agreement are mentioned or required, according to the true intent and meaning of the said articles of agreement, and according to the aforesaid specification, plans, ele- vation, sections, and drawings therein referred to, then the above- written bond or obligation shall be void and of no effect, but other- wise shall be and remain in full force and virtue. [seal.] [seal.] FOEMS RELATING TO BUILDING LEASES. No. 17. — Agreement to Execute a Lease after the Erection of Buildings} This Agreement, made this day of , in the year one thousand eight hundred and , between A B and C D, both of the city of Baltimore and State of Maryland, — WiTNESSKTH, That the said A B has agreed, so soon after the said C D shall have erected the building hereinafter described^ upon a lot of ground owned by the said A B in fee simple in said city, also hereinafter described, to execute and deliver to the said C D a sufiicient lease for ninety-nine years, renewable forever, reserving a rent of $ , payable in equal semi-annual payments of $ each, accounting from the day of in the year eighteen hun- dred and , with covenants and conditions in common use in leases for ninety-nine years, renewable forever, in said city,^ of all that lot of ground situated and lying in said city of Baltimore and thus described ; that is to say [full description of the property agreed to be leased^- ' See Howard v. Carpenter, 11 Md. 259. * Leases can no longer be made irredeemable in Maryland. Act 1884, ch. 485. POKM OF AGREEMENT KOR A LEASE. 515 And this agreement further witnesseth that, in consideration of the premises, the said C D hereby agrees to erect on the said lot, in a good, substantial, and workmanlike manner, a story brick building, feet front and feet deep, with a mansard roof and back building (etc.), to be completed on or before the day of in the year eighteen hundred and Witness our hands and seals, the day and year first above written. A B. [Seal.] C D. [Seal.] No. 18. — Another Form of Agreement for a Lease. This Agreement, made this day of in the year one thousand eight hundred and , between A B, of the city of B , of the first part, and C D, of the same place, of the second part, — WITNESSETH, That the said A B agrees to grant, and the said C D to take, a lease, by indenture of all that messuage \tenement,, lot, premises, piece or parcel of land, as best describes the property intended'^, with the appurtenances in any wise appertaining thereto, for the term of years, to commence and be computed from the day of , 18 , at the yearly rent of $ , to be paid in. half-yearly instalments of $ each on the day of and of each year during the term, without any deduction or abatement on any account whatsoever ; the first half-yearly payment to be made day of next. And it is hereby declared and agreed that in such lease, when made, shall be contained the following cov- enants : — [Here fully describe the provisions intended to be included in the lease.^ Some covenants, such as to pay rent or taxes, repair or insure, may be briefly mentioned, while covenants to build and com- plete dwelling, etc., by a time specified, to furnish security for said completion, are set forth in full. It is generally advisable to avoid leaving for implication certain covenants by using the uncertaitt terms, " all the usual covenants," and such like.] No. 19. — Conditions for Leasing Lots? Conditions for leasing lots of ground on the north side of and , etc., in the city of , etc., shown on the accompa- nying plan. 1 For form of covenants, eee those given post,.form 24. _ 2 Lot-owners may offer their lots for sale under any condition they desire, pro- vided there are no conHicting statutory regulations. The terms for which lease* may be made are subject to statute law in many of the states. 5l6 APPENDIX. 1. The builders are to erect good and substantial brick or stone messuages or tenements, in strict accordance with block and other plans and elevations, figured in detail, and specifications, to be sub- mitted to and approved by the land-owner, or his surveyor or agent - for the time being, in writing, before any of the buildings are commenced. 2. Every block plan shall show the exact site of every house, and the walls or fences separating the plot on which each house is to be erected. 3. Each of the messuages or tenements is to be erected and cov- ered in within calendar months from the commencement of the building of each such messuage, and finished and completed within calendar months next thereafter, and the whole of the houses to be erected upon the said ground are to be completed within years from the commencement of the term. 4. The builders are to make and construct such drainage and other works connected with the public sewer or otherwise as may be directed by the land-owner or his agent. 5. The builders are to form and construct the foot-path in front of the said house as soon as each house is completed, as directed and approved by said owner or his agent. 6. All boundary walls or fences ^re to be approved by the land- owner, or his surveyor or agent. 7. The following rents are to be reserved by the land-owner out of each of the lots; that is to say [jgive full particulars^. 8. The terms of the leases are to be for ninety-nine years, renew- able forever \or as the case may 6e]. 9. The land-owner reserves to himself and his agents the right to enter upon the land, and use so much of any of the plots as may be necessary for making roads and sewers [or other privilege^. 10. The builders are to contribute towards the cost of making roads and sewers at the rate of $ per foot frontage for all land abutting upon said roads. 11. The builders shall maintain and keep in repair the road and foot-paths, or, at the option of the land-owner, pay such sum of money in lieu thereof, from time to time, as the said land-owner or his surveyor may direct, unless and until such roads be, with the con- gent of the land-owner, dedicated to the public. 12. The builders shall pay the laud and all other taxes, rates, duties, and assessments of every description, now or hereafter to be imposed on the premises, or on the landlord or tenant thereof. 13. The builders will be required to furnish security approved by the land-owner for the due performance of their contract. 14. Separate leases will be granted to the builders or their nom- inees, at such apportioned rents as the land-owner or his agent may deem reasonable, or otherwise be agreed upon. POEM OF NINETY-NINE YEAK LEASE. 517 15. The builders will be required to give all the necessary notices, and procure such permits as may be exacted by the public authorities. 16. The land-owner does not bind himself to accept the highest or any offer which may be received. To Mr. , owner of lots above described: I hereby offer to take a lease of the plot of ground shown on the plan aforesaid, for the term of years, and subject to the coveuHiits and conditions, and in accordance with the form of lease mentioned, at the yearly rent of $ Dated this day of , 18 . [Signed,] No. 20. — Renewable Lease for Ninety-nine Teat-s.^ This Lease, made this day of , in the year eighteen hundred and , between A B, of the city of Baltimore and State of Maryland, of the first part, and C D, of the same place, of the second part, — WITNESSETH, That the said A B, in consideration of the pay- ment of the rent hereinafter expressed to be paid, does hereby demise and lease unto the said C D, his personal representatives and assigns, all that piece or parcel of ground situate ami lying in Baltimore city and thus described, that is to say, beginning, for the same [full description of the property^. Together with the improvements thereon, and the rights and ap- purtenances thereto belonging or in anywise appertaining. To have and to hold the above demised property unto the said C D, his personal representatives and assigns, for the term of nine- ty-nine years, beginning on tiie day of the date of these presents, he, the said C D, his personal representatives or assigns yielding and paying therefor, in each and every year during the continuance of this demise, unto the said A B, his heirs or assigns, the rent or yearly sum of dollars, payable in equal half-yearly instalments accounting from the day of , eighteen hundred and , over and above all deductions for taxes and assessments of every kind levied or assessed on said demised property, or the rent issuing therefrom. Provided, that, if the said rent shall be in arrear, in whole or in part, at any time, then it shall be lawful for the said A B, his heirs or assigns, to make distress therefor. And provided, also, that if the said rent shall be in arrear in whole or in part for sixty days, then it shall be lawful for the said A B, his heirs or assigns, to reenter upon the hereby demised prop- erty, and hold the same until all arrearages of rent thereon, and all expenses incurred by reason of such non-payment, shall be fully paid. 1 Particularly common in Maryland. 518 APPENDIX. And provided, further, that if the said rent shall be in arrear for six months, then the said A B, his heirs or assigns, may reenter upon the property hereby demised and hold the same, as if this lease had never been made. And the said C D, for himself, his personal representatives and assigns, hereby covenants with the said A B, his heirs and assigns, to pay the aforesaid rent, taxes, and assessments when legally de- mandable. And the said A B, for himself, his heirs and assigns, hereby covenants with the said C D, his personal representatives and assigns, that on payment by the said lessee, his personal representa- tives and assigns, of said rent, and the performance of all covenants herein on his or their part to be performed, he, the said A B, will warrant specially the property hereby demised, and that he will execute such other and further assurances as may be requisite ; also, that, at any time during this demise, the said A B, or his heirs or assigns, will, on payment to him or them of the sum of ten dollars as renewal fee, execute and deliver, or cause to be executed and delivered, to the said C D, his personal representatives and assigns, at his or their request, a new lease of the above demised property for another term of ninety-nine years, to commence on the expiration of this lease, subject to the same rent and containing the same covenants, so that the demise hereby created may be renew- able and renewed from time to time forever ; also, that at any time after the expiration of fifteen years, accounting from the day of the date of these premises, during the continuance of this demise, on the payment of the sum of money equal to the capitalization of the rent hereby reserved, at the rate of four per cent, per annum, to wit, the sum of $ dollars, in gold coin of the United States, or its equivalent, with all rents accrued and unpaid, and with a pro rata part of the accruing six months' rent, at the cost of the said C D, the aforesaid property shall be released and discharged from the payment of the aforesaid rent and all the covenants herein contained, by a deed sufficient for that purpose.^ Witness their hands and seals, the day and date first above writ- ten. A B. [Seal.] C D. [Seal.] ' Bv Act 1884, ch. 485 (Md. Stat.), covenants of redemption have to be in- serted in all leases, giving lessee right to redeem at a capitalization of not less than four per cent. FORM OP BUILDING LEASE. 519 No. 21. — A Lease for a Term of Tears: Maryland Statute ForrA.^ This Lease, made this day of , in the yfear eighteen hun- dred and , between A B and C D, Witnesseth : That the said A B doth lease unto the said C D, his personal representatives and assigns, all that, etc. [describing property], for the term of years, beginning on the day of , in the year eighteen hundred and , and ending on the day of , in the year eighteen hundred and , the said C D paying therefor the sum of dollars on the day of in each and every year. Witness their hands and seals. A B. [Seal.] C D. [Seal.] No. 22. — Building Lease :'^ A General Form. This Indenture, made, etc., betvreen A B, etc., of the one part, and C D, of the other part, Witnesseth, — That the said A B, for and in consideration of the rents, cov- enants, and agreements hereafter reserved and contained, by and on the part and behalf of the said C D, his executors, administrators, and assigns, to be paid, done, and performed, hath demised, leased, set, and to farm let, and bj' these presents doth demise, lease, set, and to farm let, unto the said C D, his executors, administrators, and assigns, all that piece or parcel of ground situate, lying, and being on, etc., in said , containing in breadth on the north side thereof , and in depth on the east side thereof , be the same more or less, and on the west side thereof , east and from thence south , and thence east, be the same more or less ; together with the messuages or tenements, and other the erections and build- ings thereon, which the said C D shall have full liberty to pull down, and take to and for his own use ; which said piece or parcel of ground abuts north on aforesaid, south on gardens to some houses on the north side of , belonging to the said A B, now on lease to , east on buildings, etc., and west, etc., is more fully delineated and described in the plan or ground-plat thereof, in the margin of these presents ; together with all erections and buildings to be erected and built thereon, and all ways, paths, passages, drains, water, water-courses, easements, profits, commodities, and appurte- nances whatsoever, belonging and which shall belong to the said hereby demised premises, or any part or parcel thereof: to have and to hold the said piece or parcel of ground, messuages, or ten- ements, erections, buildings, and premises hereby demised, or intended 1 Maryland Rev. Code, art. 44, § 66. 2 2 Taylor L. and T. 461. 620 APPENDIX. 80 to be, with their and every of their appurtenances, unto the said C D, his executors, administrators, and assigns, from the day of last past, before ttie date thereof, for and during and unto the full end and term of years from thence next ensuing, and fully to be complete and ended (with right of renewal if desired) : yielding and paying therefor, for the first year of the said term hereby demised, the rent of a peppercorn on the last day thereof, if demanded, and yielding and paying therefor yearly and every year, for aud during the remaining years of the term hereby demised, unto the said A B, his heirs and assigns, ihe yearly rent or sum of $ of lawful money of the United States, by half-yearly payments on the and in each year, by even and equal portions, the first payments thereof to begin and be made on , in the year of our Lord , the said several rents to be paid and payable from time to time on the several days aforesaid during the said term, free and clear of all rates, taxes charges, assessments, and payments what- soever, taxed, charged, assessed, or imposed upon the said hereby demised premises, or any part thereof, by any lawful authority how- soever, during the term hereby granted. [Here may follow covenants by lessee to pay rent, to pay taxes, to erect houses, to keep the same in repair, and not to use for pur- poses of offensive trades, to surrender at the end of the term, to keep the premises insured, to rebuild in case of fire, to permit the lessor to examine the premises ; proviso for reentry for a breach of any covenant on the part of the lessee, and by the lessor for quiet enjoy- ment of each of these covenants. Forms will be given later on.^] No. 23. — Deed of Assignment of a Leasehold Estate. This Deed, made this day of , in the year eighteen hun- dred and , by A B, of the city of Baltimore and State of Mary- land, WITNESSETH, That, in consideration of the sum of dollars, the receipt whereof is hereby acknowledged, the said A B does hereby grant and assign unto C D, of , his personal representatives and as- signs, all that piece or parcel of ground situate and lying in said city of Baltimore and described as follows, that is to say: Begin- ning, for the same [fully describing the property^, being the same piece or parcel of ground whicli, by lease dated the day of and recorded in , was demised and leased unto the said A B by E F for the term and at the rental therein expressed. Togetlier with the improvements thereon, and the rights and ap- purtenances thereto belonging or in anywise appertaining. 1 Post, No. 24. FOEM OP COVENANTS. 521 To have and to hold the ahove-granted property unto the said C D, his personal representatives and assigns, during all the residue of the term of years yet to come and unexpired therein, with the right and benefit of renewal of said term forever ; subject, however, to the payment of the annual rent of $ reserved in the aforesaid lease, to whomsoever the same may be payable, in equal serai- annual instalments on the first days of and in each and every year. And the said A B hereby covenants that he will warrant spe- cially the property hereby conveyed, and that he will execute such further assurances of said land as may be requisite. Witness the hand and seal of the said grantor the day and date first above written. Attest : A B. [Seal.] No. 24. — Covenants which may he used in Leases} 1. And the said lessee doth hereby, for himself, his heirs, execu- tors, administrators, and assigns, covenant with the said lessor that he, the said lessee, his executors, administrators, and assigns, will, during the said term, pay unto the said lessor the rent hereby reserved, in manner hereinbefore mentioned, with- ° ''"^''™ ' out any deduction whatsoever. 2. And also will pay all taxes, rates, duties, and assessments whatsoever, whether parochial, parliamentary, or other- wise, now charged, or hereafter to be charged, upon the said demised premises, or upon the said lessor on account thereof (excepting the land-tax, and all such other taxes, rates, duties, and assessments, or any portion thereof, which the lessee is or may be by law exempted from). 3. And also will, during the said term, well and sufHciently repair, maintain, pave, empty, cleanse, amend, and keep the said demised premises, with the appurtenances, in good and substantial repair, together with all chimney-piece!", windows, doors, fastenings, water-closets, cisterns, partitions, fixed presses, shelves, pipes, pumps, pales, rails, locks and keys, and all other fixtures and things which at any time during the said term shall be erected and made, when, where, and so often as the same may need be. 4. And also that the said lessee, his executors, administrators, and assio-ns, will, in every year in the said term, paint all the outside wood-work and iron-work belonging to the said sUe every premises with two coats of proper oil colors, in a work- '"""'■ manlike manner. 5. And also that the said [lessee'], his executors, administrators, 1 2 Flatten Leases, 580 ; 2 Taylor L. and T. 428. 522 APPENDIX. and assigns, will every year paint the inside wood, iron, and other work now or usually painted, with two coats of paper inside proper Oil colors, in a workmanlike manner; and also repa- erery year. ^^^^ ^-^^^ paper of a quality as at present, such parts of the prenaises as are now papered ; and also wash, stop, whiten, or color such parts of said premises as are now plastered. 6. And also that the said lessee, his executors, administrators, and assigns, will forthwith insure the said premises hereby demised to the full value thereof, in some respectable insurance office, in the joint names of the said lessor, his executors, administrators, and assigns, and the said lessee, his executors, admin- istrators, and assigns, shall keep the same so insured during the said term, and will, upon the request of the said lessor or his agent, show the receipts for the last premium paid for such insurance for every Torcbaiidin Current year; and as often as the said premises hereby case of Are. demised shall be burnt down or damaged by fire, all and every the sum or sums of money which shall be recovered or re- ceived by tha said lessee, his executors, administrators, or assigns, for or in respect of such insurance, shall be laid out and expended by him in building or repairing the said demised premises, or such parts thereof as shall be burnt or damaged by fire as aforesaid. 7. And it is hereby agreed, that it shall be lawful for the said Lessor to en- lessor, Or his agents, at all reasonable times during the said ter to repair, term, to enter the said demised premises to take a sched- ule of the fixtures and things made and erected thereupon, and to examine the condition of the premises ; and fuither, that all wants of reparation which upon such view shall be found, and for the amend- ment of which notice in writing shall be left at the premises, the said lessee, his executors, administrators, and assigns, will, within three calendar months next after every such notice, well and suffi- ciently repair and make good accordingly. 8. And also that the said lessee, his executors, administrators, and assigns, will not convert, use, or occupy the said premises, to be used as or any part thereof, into or as a shop, warehouse, or other ** "''■ place for carrying on any trade or business whatsoever, or suffer the said premises to be used otherwise than as a private dwelling-house, without the consent of the lessor. 9. And also that the said lessee shall not nor will during the said Not to as- term assign, transfer, or set over, or otherwise by any act sign. or deed procure the said premises or any of them to be assigned, transferred, or set over, unto any person or persons whom- soever, without the consent in writing of the said lessor, his execu- tors, administrators, or assigns, first had and obtained. 10. And further, that the said lessee will, at the expiration or other sooner determination of ?aid term, peaceably surrender and FORM OF COVENANTS. 523 yield up unto the said lessor the said premises hereby demised, with the appurtenances, together with all buildings, erec- tions, and fixtures thereon, in good and substantial repair preSsta and condition ia all respects, reasonable wear and tear e^o* ">?»'"■■ and damage by fire only excepted. 11. Provided always, and it is expressly agreed, that if the rent hereby reserved, or any part thereof, shall be unpaid for „ . , « . , fl 1 Froviflo for titteen days alter any of the days on which the same «entry.' ought to have been paid (although no formal demand shall have been made thereof), or in case of the breach or non-performance of any of the covenants and agreements herein contained on the part of the said lessee, his executors, administrators, and assigns, then, and in either of such cases, it shall be lawful for the said lessor, at any time thereafter, into and upon the said demised premises, or any part thereof in the name of the whole, to reenter, and the same to have again, repossess, and enjoy, as of his or their former estate, any- thing hereinafter contained to the contrary not excepting. 12. And the lessor doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said lessee, covenant for his executors, administrators, and assigns, that he and they, «ui«' enjoy- paying the rent hereby reserved, and performing the cov- enants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or disturbance from the said lessor, his executors, administrators, or assigns, or any other per- son or persons lawfully claiming by, from, or under him or them or any of them. 13. And that he, the said lessee, his executors, administrators, or assigns, shall and will, at his or their own expense, from Toin,„„ time to time insure, or cause to be insured, and during pe™ buiw- . . . . . Ings.* the said term keep insured, every additional building which may hereafter, with such approbation as is hereinafter mentioned, be built on the said ground hereby demised, or any part thereof, and effect the same within six days after each such building shall be built or covered in, or within six days after such earlier period at which the said [lessee], his executors, administrators, or assigns, shall be required by lawful authority ; and will increase the amount of such insurance, respectively, when and as each such building shall be completed, so as to make the sum insured thereon equal to three fourth parts, at least, of the then value thereof. 14. That he, the said lessee, his executors, administrators, or as- siffns. will, within the first three years of the said term Toexoends &',, ., jxu t tl> t tatiii sum in hereby granted, lay out and expend the sum oi * , at repairs. 1 See, also, proviso for non-payment of rent, ninety-nine-year leases, ante, form No. 20. ' 2 2 Piatt, 6U. 524 APPENDIX. least, in and upon the substantial repair of the said demised prem- ises, and every part thereof ; the application of the said sum, and the paid reparation of the said premises as aforesaid, to be from time to time surveyed, inspected, and approved by such proper person or persons as the said lessor, his heirs, or assigns, shall appoint and direct to survey and inspect the same : and also that he, the said lessee, his executors, administrators, and assigns, vpill, when required, produce and deliver to the said lessor, his heirs or assigns, the bills and receipts of the different tradesmen employed in doing such re- pairs as aferesaid for the respective sums to be paid them for that purpose, or duplicates thereof 15. And also that he, the said lessee, his executors, administra- tors, and assigns, shall and will from time to time, during pense^of re- ^^^ sald term, pay a reasonable share of the charges of pairing, Bew- making, repairing, and cleansing all party walls, fences, sewers, drains, gutters, and other easements belonging, or which shall belong, to the said premises hereby demised, in common with the owners or occupiers of any adjoining premises. 16. And that he, the said lessee, his executors, administrators, and assigns, sliall not, by building or otherwise, stop or ob- struct any light or lights belonging to any messuage or tenement, the estate or interest whereof in possession or in reversion is in 17. And also that the said lessee, his executors, administrators, and No thorough- assigns, wiU not, at any time or times during the said fare. term, permit any way or thoroughfare over or through any part of the said premises hereby demised. 18. That in case the said premises hereby demised, or any part Torebuiidor thereof, shall at any time or times during the continuance repairiacase of this demise happen to be damaged or destroyed by fire, he, the said lessor, his heirs or assigns, will, with all con- venient speed, repair or rebuild the same premises which shall or may happen to be damaged or destroyed by fire as aforesaid, and make the same fit for the habitation of the said lessee, his executors, administrators, or assigns. Forms of other covenants are given by Mr. Platt,i i. e. to pro- cure supply of water from a particular company, for lessee to pur- chase his porter from the lessor, that lessor sliall have a watercourse through tlie demised premises, not to assign or underlet, to keep lawn and garden in order, not to make hedges, to provide reed for thatching, to find timber for repairs, etc. The following stipulations, covenants, etc., may also be used in building leases, or agreements for such : — 1 2 Piatt on Leases, 613 e( seq. rOEM OP COVENANTS. 525 1. Power of Entry to intended Lessee. During the period of from the date hereof, the said , lessee, for the purpose only of building or constructing the houses, etc., in the manner and to the extent hereinafter described, may enter upon the plots or pieces of land situate at , fronting on the [description], which are shown on the plan hereunto annexed, etc. 2. Time for Building. The lessee will, within months from the date hereof, at his own expense, erect, cover in, and fit for occu- pation, on the lot or parcel of ground described in tiiis lease [or agreement] thirteen dwelling-houses, with pressed-brick fronts, three stories high, with back buildings, two stories high, etc., with suitable drains, areas, gardens, sewers, walls, fences, pathways, curbs, and pavings, as shown on accompanying plans, and marked, etc. 3. Work to he approved hy the Land-Owner. The lessee will construct or build, cover in, and complete fit for habitation and use, the said houses, with out-buildings, vaults, areas, gardens, sewers, drains, walls, fences, footways, pavings, etc., upon the Siiid plots or pieces of land,-in a good, substantial, and workmanlike manner, with fit and proper materials, and in all respects in conformity with the specification hereunder written, and to the satisfaction of the land- owner, his architect, or surveyor, and under his direction and inspec- tion, and according to plans, sections, elevations, and detail drawings thereof, which have been signed by the parties hereto, and a copy whereof has been deposited with the architect or surveyor of the land-owner. 4 Lessee Restricted in the Use of the Land. The lessee shall not, during the continuance of this demise [or agreement], carry on, or permit to be carried on or committed, on any part of the premises comprised in this agreement, or in any of the buildings or erections thereon, whether affixed to the land or not, the business of making bricks, or any trade, business, or manufacture or occupation whatso- ever, or any nuisance ; nor use or allow the premises described in this instrument of writing, or the buildings thereon erected, to be used for any purpose of public amusement, or for any other pur- pose whatsoever than strictly for the purpose of this agreement [or lease], and as private dwelling-houses. 5. As to Excavations. The lessee shall not dig or allow to be dug out, deeper than required for the several buildings and drains, any part of the several lots or parcels of land, nor for the road hereinafter to be mentioned ; and no earth, clay, sand, loam, or gravel dug out shall be sold or disposed of, nor shall any be removed from the premises, excepting such as is necessary to remove for the proper performance of the work. 6. As to Insurance.^ The lessee will, as soon as the house is 1 See ante, pp. 522, 523, Covenants, Nos. 6 and 13. 526 APPENDIX. covered in as aforesaid, insure, in some reputable insurance com- pany to be approved of by the land-owner, for at least [two thirds^ of the value of such house, and shall keep the same so insured dur- ing the term for which the property is hereby [or shall be] demised. 7. Separate Lease to be given if desired. The )aud-owner will, from time to time, at the expense of the lessee, as hereinafter men- tioned, when and as often as any of the houses so to be built upon the pieces or lots of land shown on the plan shall have been erected and covered in as aforesaid, and the drains and sewers therefrom shall have been formed, in the manner and to the satisfaction of the lessor, his architect or surveyor, and in all respects according to this agreement [or lease], grant, or cause to be granted, to the lessee or his nominee, a lease of such house or houses, and of the site thereof, and of the intended yards, gardens, etc., such lease to be for the term of years, and to contain the several exceptions, reserva- tions, covenants, conditions, and provisions hereinafter specified. 8. Where an Agreement to Lease only is intended. These pres- ents are intended to operate as an agreement only, and not as an actual demise of the premises herein described, and shall not give the lessee any legal interest in any part of the said premises until the lease of such part shall be executed, except so far as to create a strict tenancy at will on the part of the lessee upon the terms afore- said, and to entitle the lessor to the like power and remedy by dis- tress or otherwise for the recovery of the rent or respective rents to become due under these presents, as if the lease or leases had actually been granted. 9. To Build a Row of Houses. And that he, the lessee, his executors, administrators, or assigns, shall and will, under the direc- tion and inspection of the said lessor, his architect or agent, and at his and their own costs and charges, well and substantially build dwelling-houses in one continued line or row upon the part or par- cel of the land herein described [description], according to the plan, elevations, and sections ; and that each of the said houses shall be built in a uniform manner, so as to be in a line with the other dwelling-houses or shops respectively built or intended to be built on the pieces or parcels of ground as shown in the plan, so that the windows of every story of the said dwelling-houses shall be in a line with the windows of the several dwelling-houses or shops, etc. 10. To Make the Walls of a Certain Thickness. And the said lessee will build the fore and rear fronts to the said dwelling- houses and shops, to the top of the cellar floor, with stone of inches thickness, the first and second stories with [state number] bricks in thickness, the third story of bricks in thickness, and the garret with bricks in thickness, and the partition walls be- FORM OP LICENSE TO ENJOY LIGHT. 527 twecD the houses with bricks in thickness, at least to the top of the cellar-story, and from thence to the, etc.; and will, in the brick-work of the front, use hard-pressed brick, etc. ; and all other bricks used shall be [descrihing them] good and sufficient, well- burnt bricks, and the mortar well wrought and tempered, and made of good fresh lime, mixed, etc. No. 25. — License to Enjoy Light} Whereas, I, , of , in the county of , have lately opened windows or lights from my shop or premises in aforesaid, which face into or overlook the back yard or grounds of a dwelling-house and premises of of , now I do hereby de- clare that the windows or lights above mentioned are and remain open and unblocked upon the leave and indulgence of the said , and that I will, upon the request of him or his executors, adminis- trators, or assigns, to be made at any time hereafter, wall or block up the same ; and in the mean time, until such request is made as aforesaid, I hereby promise, in consideration of such indulgence, to pay unto the said , his heirs, executors, administrators, or assigns, the sum of % yearly and every year, to commence and take effect from the day and date hereof. [Signed,] Dated the day of 188 . Witness, No. 26. — Reservation of Passage of Water.^ Except and always reserved unto the said [lessor], his heirs, executors, administrators, or assigns, and the lessees and occupiers for the time being of any other building, lands, or grounds held of or belonging to the said [lessor], the free passage of water and soil coming or to come off from any other buildings, lands, or grounds of the said [lessor] through the channels, sewers, drains, and water- courses now belonging to, or which shall hereafter belong to, or which shall hereafter be made in, upon, through, or under the said premises hereby demised; such lessees and occupiers for the time being, on reasonable request, paying their respective proportions of cleansing and repairing the said channels, sewers, drains, and water- courses, as often as need shall require. 1 Emden on Buildings, 659 ; see Bewley v. Atkinson, L. B. 13 Ch. D. 283. 2 2 Piatt on Leases, 595. 528 APPENDIX. No. 27. — Conditions for Architectural Competition.^ 1. Architects willing to compete may send in plans and specifica- tious before to , from whom any further information may be obtained. 2. All except the working drawings of details ou a larger scale are to be on the scale of J in. to a foot, and the longest vertical lines in the perspective drawings are to be on that scale also. The drawings are to be made from as distant a point of view as possible (which distorts them less), and there are to be no figures or other imaginary objects in the foreground ; and they are either all to be or all not to be colored. All depths of windows, and other shadow- casting parts, and all thicknesses, are to be accurately represented in the perspective drawings, and figured legibly on the plans and sec- tions, and all inscriptions on the drawings are to be written in plain letters without lines. 3. No part of the work that can be defined by drawings or speci- fication is to be provided for by a sum of money named in the speci- fication. 4. The plans and specifications are to include [according to local circumstances^ all the necessary drainage, heating [there are generally special tenders for heating apparatus,] bells, grates, chimney-pieces, closets and shelves, provision for gas-pipes, boundary walls and pave- ments, and everything, except furniture, that will be requisite to fit the building for its purposes. 5. The estimate for the whole work is not to exceed $ , but any architect who considers this insufficient for the proper execution of the work required may say so, and send in his own estimate either before or with his plans. 6. Tlie committee will not be bound to accept any plan, nor to proceed with any one which they do accept, unless they find that a contractor with sureties in one third of the amount of the estimate to be approved by them will undertake it for that sum. If no such contract can be made to their satisfaction, the whole proceeding is to be void, and the architect is to have no claim upon them. [7%e conditions of payment, either for drawings or employment, may, of course, be anything the employer pleases to announce.] 1 Beckett on Building, 14. roBM OF A mechanic's lien. 629 FORMS RELATING TO MECHANICS' LIENS. No. 28. — Maryland: Form of a Mechanic's Lien. John Doe \ vs. \ In the Superior Court of Baltimore City. RiCHABD Roe. ) John Doe, of the city of Baltimore, a brick-maker, claims the sum of two huiifli-ed dollars, with interest thereoa from the second day of July, 1887, to be due him against all those four buildings situated iu said city, each of them two stories in height, and having a front on Street of about feet and six inches, witli a depth of about ninety feet to an alley [and any other fuels to further identify the property], and against the ground covered by the said buildings, and so much other ground immediately adjacent thereto,- and belonging in like manner to the owner of such buildings, as may be necessary for the ordinary and useful purposes of said build- ings, the whole of which ground is described as follows, viz. : — Beginning for the same at the corner of Street and Avenue, and running thence southerly, bounding on the west side of Street fifty-eight feet to the centre of the partition wall there being; thence westerly through the centre of said parti- tion wall to the end thereof, and continuing the same course, in all ninety feet, to the east side of an alley ten feet wide there heing; thence northei-Iy, bounding on the east side of said alley fifty-eight feet, to the south side of Avenue, and thence bounding on the south side of Avenue ninety feet to the place of bejU'injiing (being the firstly, secondly, thirdly, and fourthly described lets described in a lease from John Black to said Richard Roe, recorded in Liber J. B., No. , folio , of the land records of Baltimore city), of which said ground, and buildings thereon, the said Richard Roe, at the time of furnishing the work and materials hereinafter mentioned, was the owner or reputed owner. The said claim being for work done and materials furnished by the lienor for, or about the erec-tion and construction of, the said buildings at the instance and request of the said owner or reputed owner, at the particular time, and of the nature or kind and amount, and for the prices, set forth in the Bill of Particulars hereto annexed ; and which work has been finished and materials furnished within less than six months before the filing of this claim. And the said lienor designates the sum of fifty dol- lars as the amount he claitns to be due him on each of said buildings. Whei-efoi-e the said John Doe directs the clerk of the Superior Court to file and record th's claim as a lien as well against the said ground and buildings thereon as against the said Richard Roe, as 34 530 APPENDIX. the owner or reputed owner thereof, agreeably to the provisions of the Code of Public General Laws. John Doe. A. P. L., Attorney for Lienor. [To this Form must be appended a bill of particulars.] No. 29. — Form of Notice to Owner} Baltimoke, July 5, 1887. Mr. Jno. White : Dear Sir, — - I desire to notify you that I intend to lay a lien, as allowed by the provisions of the law relating to mechanics' liens, against all those four three-story brick dwellings, with two-story back buildings, located on the west side of Street, beginning at the corner of Street, and having an even depth of feet, and against the ground upon which said buildings have been erected, and so much adjacent thereto and used in connection there- with as necessary for building purposes, and of which you are the owner or reputed owner. I intend to claim the sum of two hun- dred dollars, and designate ihe sum of fifty dollars against each of 6aid houses and lots for bricks furnished by me within the last sixty days to John Black, the builder or contractor, for use in construct- ing said buildings. The property I herein refer to is more fully described in a deed to you from James Brown recorded in Liber J. B., No. , Folio No. etc., Baltimore City Land Record. I inclose herewith an itemized stalement of my claim, containing the dates the materials were furnishetl to John Black, the builder. Very respectfully, John Dob. A. P. *L., Attorney. No. 30. — New York : Contractor's Notice to Owner. James Brown, Contractor, ' vs. Richard Roe, Owner, y and John Doe, Lienor. Notice of Contractor to foreclose or enforce the Lien. Notice of the above-named James Brown, contractor, to Richard Roe, owner of the hereinafter described building and appurte- nances and lot on which the same stand; and to John Doe, who has filed a lien thereupon. 1 In cases where the work is done or materials furnished to a person other than the owner of the buildings or h's agent, written notice must be given to the owner of the intention of the claimant to lay the lien. See §§ 11, 12, Md. Code, Public General Laws, art. 67. FORM OF NOTICE OP LIEN. 531 This is to give notice that I, James Brown, residing at No. 109th Sireet, in the city of New York, within three months after the hereinafter described work was done, to wit, on the 22d day of August, 1887, filed with the clerk of the city and county of New York the notice required by Act of May 5, 1863, section 6, claiming a lien upon that building and appurtenances situate on 91st Street, and known as No. of said street, and upon the lot on which the said building and appurtenances stand, which said lot and premises are situate on said 91st Street, and are known and described on the maps open to the public as [^describing lot'], for the sum of dollars, for labor performed towards the erection of the building aforesaid, in pursuance of the terms of the contract made between you, the said Richard Roe, and myself, the said James Brown, and which said lien is hereby claimed as aforesaid. You, and each of you, will therefore take notice that you are re- quired to appear and join in the said proceedings before tliis court, at o'clock, on the day of , 1887 ; and in default thereof the said James Brown will move the court to enter judgment against you for the sum of dollars, and interest thereon, from the day of , 1887, with costs on account of the claim aforesaid, and said judgment may be enforced by execution on the said building and appurtenances, and the lot on which they stand. Witness my hand, this 29th day of August, 1887. James Brown. Petek Gilltn, Atty.for Claimant. No. 31. — New Torh: Lien of Contractor under Chapter 500, Laws o/" 1863. To , Clerk of the City and County of New York : Sir, — This is to give notice that I, James Brown, residing at No. 109th Street, in the city of New York, do claim a lien upon that building and appurtenances situate on 91st Street, in said city and known as No. on said street, and upon the lot on which the said building and appurtenances stand, which said lots and premises are known and described on the maps open to the public as Idescrib- ing hi], for the sum of dollars, now due for laying the brick and masonry of said building, towards the erection of the said build- ino', in pursuance of the terms of a contract made between Richard Roe, who is the owner of said building and appurtenances, and the lot upon which the same stands, and the claimant hereof, the said sum bein" due from the said Richard Roe, as owner aforesaid, to me, 532 APPENDIX. the said James Brown, as contractor ; that three months have not jet elapsed since tlie said work was done. Witness my hand, this 22d day of August, 1887. James Bkown, Glaimant. Petee Gij,lyn, Attorney for Claimant. [To be sworn to by the contractor, and jurat affixed.] No. 32. — Pennsylvania, Act of June 16, 1836: Lien Claim of Sub- Contractor. John Doe vs. Richard Roe, Owner, and James Beown, Contractor. In the District Court of the City of Philadelphia. Tills is to give notice that the said John Doe hereby files his claim, or statement of his demand, in the office of the prothonotary of the District Court of the city of Pliiliidelphia, State of Pennsyl- vania, to secnre the payment of the debt hereinafter mentioned, con- tracted for work done [or materials furnished^ for and about the erection and construction of the building liereiiialter described, which said debt is claimed to be a lien against the said huilding and the ground covered by the same, and against so much other ground im- mediately adjacent thereto, and belonging to Richard Roe, owner of said building, as may be necessary for the ordinary and useful pur- poses of the same; and sets forth, — 1. That John Doe is the name of the party claimant, and that Richard Roe is the name of the owner, or reputed owner, of the building; and that James Brown is the name of the contractor of the said building, with whom the said John Doe contracted to perform the hereinafter mentioned work. 2. That the amount claimed to be due is ninety-seven dollars ; the nature of the work done was the general carpentering work for and about the erection and construction of said building, within six months past, the paiticular items, amounts, and time when said work was done being set forth in a bill of particulars hereto annexed as a part of this claim. 3. That the said building is known as No. Girard Avenue, and is located on that lot of ground described as follows, that is to say : {^full and definite description.] The said building is about fifteen feet front, with an even depth of fii'ty-five feet ; consists of a FORM OP BOND AGAINST LIENS. 538 three-story front with a two-story back building ; and is constructed of brick, and designed as a store. Witness my hand, this 10th day of August, 1887. John Doe, Claimant. Peter Gillyn, Attorney/ for Claimant. [To this Form must be appended bill of particulars.] No. 33. — Pennsylvania : Petition of Contractor to have Bound- aries designated. To the Honorable the Judges of the District Court of the City of Philadelphia : < ^ The petition of James Brown respectfully shows, — That Richard Roe, of the city of Philadelphia, being the owner of a certain lot of ground situate in said city, and thus described, that is to say \_fuU and definite description^ commenced the erec- tion of a brick dwelling-house thereon, without, previously to the commencement of the same, defining in writing the boundaries of th« lot appurtenant to said building ; that your petitioner is entitled to a lien thereon, by virtue of the provisions of the Act of June 16, 1836, for work done for and about the erection and construction of said building, for the sum of four hundred dollars. Wherefore your petitioner prays the court to appoint competent and skilful persons as commissioners to designate the boundaries aforesaid, in conformity to the said act. Witness my hand, this 10th day of September, 1887. James Brown. Wm. Squose, Attorney for Petitioner. [Here follows jurat of magistrate, for the petition must be sworn to.] No. 34. — Bond against Liens. Know all Men by these Presents, That we, X Y and W Z, of the city of Baltimore, in the State of Maryland, are held and firmly bound unto A B, of the same place, in the sum of three thou- sand dollars, lawful money of the United States, to be paid to the said A B or to his certain attorney, executors, administrators, or assigns ; to the payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this day of in the year one thousand eight hundred and eighty-seven. Whereas, K H, by indenture lieaiing even date with these pres- ents and recorded among the Land Records of Baltimore City, con- 634 APPENDIX. veyed and assigned to the said A B the piece or parcel of ground eituate and lying on Avenue, in ihe city of Baltimore aforesaid, in thiit indenture particularly described, with the improvements and appurtenances, as hy reference thereto will fully appear : And whereas, for the purpose of securing, protecting, and in- demnifying the said A B, his executors, administrators, and assigns, from and against all manner of damape, loss, or injury, he or they or any of them may suffer, sustain, or incur for or on account of any lien or liens now exi-ting, or which may be brought, exhibited, or filed against the said premises in said indenture described, under the lien laws of this State, within twelve months from the date of these presents, either for work or labor done or materials furnished in and about the erection of the house to be known as No. , and to be erected upon the fifth lot, reckoning fiom and to front about feet on Street, erected on the said ground, the said obligors have agreed to execute this bond : Now, the condition of the foregoing obligation is such. That if the above-bounden obligors do and shall from time to time, and at all times hereafter, well and sufficiently protect, save harmless, and indemnify the said A B, his executors, administrators, and assigns, from and against all liens now exhibited or filed, or that may be exhibited or filed, within twelve months from the date hereof, against the said property and premises, or any part thereof, under the lien laws of Maryland, and from and against all loss, injury, damage, costs, charges, and expenses which the obligees, or any of them, may suffer, incur, or be put to, or pay for or on account, or by reason or in consequence of, any such lien or liens, or the enforce- ment or prosecution thereof, then the above obligation to be void and of noue effect ; otherwise to remain in full force and virtue in law. Signed, sealed, and delivered in presence of [seal.] [SKAL.] [seal.] [seal.] No. 35. — Bond to Finish Buildings, to Indemnify against Liens, and to Pay Ground-Rents?- [Formal heading, etc.] Whereas, for value received, the said A B has bargained and sold, by indenture bearing even date with these presents, and to be duly recorded among the Land Records of Baltimore City aforesaid, I Carey's Forms, 342. "WAIVER OR RELEASE OF MECHANIC'S LIEN. 535 has granted and conveyed, to the said E F, his heirs and assigns, in fee simple, all that piece or parcel of ground situated and lying in the city of Baltimore aforesaid, in that indenture particularly de- scribed, with the improvements and appurtenances, and tlie yearly rent reserved thereout, under the lease thereof from the said A B to G H, as by reference thereto will fully appear: And whereas, it was a condition precedent to the purchasing o£ said property by the said E F that he should be saved and pro- tected against loss in the premises by the execution of this bond of indemnity, — Now, therefore, the condition of the foregoing obligation is such that if G H, the lessee of said lots of ground, do aud shall fully complete and finish the buildings and improvemKuts now in the course of erection on said respective lots of ground, fence in said lots, lay the pavements, and put the grounds and premises iu complete order for occupancy by tenants, oa or before the day of next; aud also that if the said A B, his heirs or assigns, shall promptly pay, or cause to be paid, any and every instalment of ground-rent \_and taxes if desired^ which shall fall due on said lots respectively under the said lease tliereof, until sucli time as the said improvements shall be completed, and the premises made ready for occupancy as aforesaid ; And also if the said A B, his heirs and assigns, do and shall indemnify the said E F, his heirs and assigns, from and against any and every lien or liens now exhibited or filed, or that may be ex- hibited or filed within six months \_consult lien law limitation of the particular state^ from the completion of said improvements, against said property and premises under the lieu laws of Maryland \or other stats'], either for work and labor done or materials furnished, and from and against all loss, injury, damage, costs,« charges, and expenses which the said E F, his heirs, personal representatives, and assigns, may suffer, incur, be put to, or pay for on account or by reason of, or in consequence of, any such lien or liens, or tho enforce- ment tliereof, — then the above obligation to be void; otherwise to remain in full force and operation of the law. No. 36. — Waiver or Release of Mechanic's Lien. This Release of Mechanic's iien, made this day of , in the year eighieen hundred and , witnesseth that, for the purpose of enabling A B to mortgage, sell, or otherwise dispose of all that prop- erty situate in the city of Baltimore on the side of Street, between aud streets, being the house accounting from the side of Street, and about feet from Street, having 636 APPENDIX. a front on Street of about feet, and a depth of about feet, improved by building , with story back building , and for tLe further consideration of dollars, we, the undersigned, severally do waive and release all claims and liens which we now Lave or may hereafter acquire by virtue of the Code of Public Gen- eral Laws of , amendments and additions thereto, against the said property, and our right to file a lien or liens on said property for work done and materials furnished by us in, on, or about the erection and construction of the buildings on the aforesaid property: it being understood, however, that we reserve our several rights, claims, and demands in the premises as against the said X Y, con- tractor and builder, personally. Witness our hands and seals : For Bricks, Plastering, [Seal.] [Seal.] Bricklaying, Plumbing, [Seal.] [Seal.] Carpenters' work. Sand, [Seal.] [Seal.] Factory work. Tin and Tinners, [Seal.] [Seal.] Gasfitting, [Seal.] [Seal.] Hardware, [Seal.] [Seal.] Lime and Hair, [Seal.] [Seal.] Painting, [Seal.] [Seal.] Paint, Oil, and Glass, [Seal.] [Seal.] Lumber, [Seal.] [Seal.] No. 37. — Indemnity Bond. Know all. Men by these Presents, That we, X Y and W Z, of the city of Baltimore, in the State of Maryland, are held and firmly bound unto A B of the same place, in the sura of dollars, lawful money of the United States, to be paid to the said A. B., or to his certain attorney, executors, administrators, or t\ssigns ; to the payment whereof we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this day of in the 3'e;ir one thousand eight hundred and Whereas, X Y hnth this day contracted and agreed to and with said A B to furnish all necessary materials for, and to erect and con- struct in a good imd substantial and workmanlike manner, a three- story double back building, in accordance with plans and specification CHAEGES OF ARCHITECTS. 537 by all the parties hereto subscribed, in the rear of house No. 175 Avenue, in said city, and lo deliver the same according to con- tract, free from mechanics' liens, and from all injury and damage to adjoining property holders, and the obligors have agreed to execute this bond of indemnity in the premises, — Now, the condition of the foregoing obligation is such, that if the above-bounden X Y and W Z do and shall keep harmless from all manner of damage, injury, suits, actions, costs, charges, and ex- penses which he or his representatives may suffer, sustain, or be put to, or pay for on account of, or by reason of, process or of liens attaching ; and if the said X Y shall well and truly perform his contract in a substantial and workmanlike manner, and do and shall also well and sufficiently protect, save harmless, and indemnify the said A B, his executors, administrators, and assigns, from and against all loss, injury, damage, cost, charges, and expenses in the premises, then the above obligation to be void and of none effect ; otherwise to remain in full force and virtue in law. Signed, sealed, and delivered in presence of X Y. [Seal,] W Z. [Seal.] A B. [Seal.] Schedule of Charges and Professional Practice of Architects, in- dorsed by the American Institute of Architects?- For full professional services (including supervision), five per cent, upon the whole cost of the work. For preliminary studies, one per cent. For preliminary studies, general drawings and specifications, two and one half per cent. For preliminary studies, general drawings, details and specifica- tions, three and one half per cent. For warehouses and factories, three and one half per cent, upon the cost, divided in the above ratio. For works that cost less than $10,000, or for monumental and decorative work, and designs for furniture, a special rate in excess of the above. For alterations and additions, an additional charge to be made for surveys and measurements. An additional charge to be made for alterations or additions in 1 Copy of official circular, signed by Thomas U. "Walter, LL. D., president, and Georfre C. Mason, secretary. Special contracts are usually made wiih archi- tects in this country. The law, in eases where there has been no such contract made, will e.xact reasonable compensation rather than enforce the rules of any society or association. 538 APPENDIX. contracts or plans, which will be valued in proportion to the addi- tional time and services employed. Necessary travelling expenses to be paid by the client. Time spent by the architect in visiting for professional cnnsulta- tion, and in the accompanying travel, wlietlier by day or night, will be charged for, whether or not any commission, for office work or supervising work, is given. The architect's payments are successively due as his work is com- pleted, in the order of the above classification. Until an actual estimate is received, the charges are based upon the actual cost. The architect bases his professional charge upon the entire cost to the owner of the building when completed, including all ihe fixtures necessary to render it fit for occupation, and is entitled to a fair additional compensation for furniture or other articles designed or purchased by the arcliitect. If any material or work used in the construction of the building be already \ipon the ground, or come into possession of the owner without expense to him, the value of said material or work is to be added to the sum actually expended upon the building before the architect's commission is computed. Drawings, as instruments of service, are the property of the architect.^ 1 "It is the opinion of the Board cf Trustees of the American Institute of Architects that the supervision or superintendence of tin aichitror, as dis- tinguished from the superiaiendence of the cleric of the woil;s, mi all^ such occa- sionjil inspection of a building in process of erection, or of otiier work, as the architect, pcrsonallv or hy deputy, findd necessary to insure its beiuL; executed in couformitj' with his designs and specifications oi' directions, and to enable him to decide when the successive instalments provided for in the a'jreermnts are due and payable. It includes, among his other duties, the exercise of authority to stop the progress of work condemned under it, to decide in constructive emergen- cies, and to order necessary changes." AUTHORITIES UPON THE ART OF BUILDING. In the cross-examination of witnesses, lawyers frequently find it advisable to tiioroughly post themselves upon matters pertaining to the practical arts. In the trial of cases originating from Building Contracts, the testimony of mechanical experts can often be im- peached by reference to standard authorities upon such matters. Therefore a brief reference to some of the works throwing light upon the art of building may be of value. For copious tables showing weight and strength of materials, wrought and cast iron columns, iron beams and girders, rivets, nails, spikes, nuts and washers, bolts, tubes and pipes for steam, gas, and water, boilers, strength of building-stones from various sections of the country, lime, cement, and concretes, window glass, gas service for lamps, weight of doors, valuation of carpenter's work, and general infor- . mation, see Vogde's Architects' and Builders' Pocket Companion. Mr. F. E. Kidder, of Boston, lias also published an admirable hand- book giving similar tables and valuable data. An English work by Dr. Anderson, published by D. Appleton & Co., Philadelphia, on the Strength of Materials, contains a treatise on the physical prop- erties of materials, descriptions of testing machines, with numerous tables as to strength and weight of cast and wrought iron beams and girders, timber, screws, roofs, and cranes. Other books may be mentioned : W. Allan on Theory of Arches ; Aveling on Carpentry and Joinery ; Barbon on Use of Steel ; Beaton on Quantities ; Buchan on Plumbing ; Burgoyne on Blasting and Quarrying ; Burn on Building Construction, 4 vols. ; Burnham on Marbles ; Campin on Iron Roofs, Materials, and Construction ; Cristy on Joints ; Col- lings on Hand-railing ; Cunningham's Earthwork Tables ; Davies on Slate ; Dabson on Art of Building, Bricks and Tile Masonry ; Eassie on Wood and its Uses ; Faija on Portland Cement, Fryer on Architectural Iron Work ; Gillmore on Limes and Cements ; Gould on Carpentry ; Grandy's Timber Importers' Guide ; Grant on Strength of Cement; Hammond on Bricklaying; Haskin on Clerk of Works ; Horton's Complete Measurer ; Hurst's Architec- tural Surveyors' Handbook ; Joynson on Metals used in Construc- tion ; Laxton's Builders' and Contractors' Tables (Bricklayers and Excavators) ; Merriman on the Mechanics of Materials ; Miller's 540 ATJTHOEITIES tTPOK THE ART OF BUILDIKG. Builder's Price Book ; Stock on Slioring and Underpinning ; Tarn on Roofs; Tredgold on Carpentry; Walker on Brick-Work; Walsh on Brickmaking in Western India ; De V. Wood on Resistance of Materials. The above, with innunierable works on Architectural and House Decorations, are usually found in the public libraries. It is proper to note that these books tre.it their respective subjects from a scientific stand-point, and are not legal treatises. INDEX. References are to Pages. ABANDONMENT. See Easement. of work by builder, 35. See Forfeiture. of contract must be for good cause to warrant payment, 40. of contract not implied from ordering extras, 85, 86. of contract not justified by extension of time, (Mo.) 181. of an entire contract forfeits contractor's q. m. claim, (Cal.) 136. of contract by act of the other party, (111.) 141. of easements. See Building Easements. ABATEMENT, of building nuisances, 117, 118. See Nuisances. a remedy rarely justified, 118. preventive only, 118. of building erected in public street without authority, 118, 119. negligence from failure to abate nuisance, 119. of injuries to right of light and air, 335. of obstructions to higliways, 398. ABSTRACT. See Plan. ACCEPTANCE, of work by corporation may ratify informal contract, 7, 8. of drawings and plans renders party liable for the price thereof, 12, 51. sometimes implies request, 13, 53, (Ind.) 153. plans of architect rejected after acceptance, 13, (111.) 141. of different class of work by architect will not bind owner, 20, (N. y.) 186. of part of work may render acceptor liable ^ro tanto, 40, (111.) 150. of work which it would be impracticable to leave unfinished, 43, (Ark.) 135, (111) 150. of work does not bar acceptor from showing defects, 30, 49, (111.) 141, 144, (Pa.) 199, (Iowa) 155. of defective work generally, 49-61, (Ga.) 140, (N. Y.) 186, (Wis.) 207. new contract implied from, 31, 78, (Ark.) 135. effect of, 51-53, (Ga.) 140, (111.) 144, (Mo.) 178. 642 IKDEX. ACCEPTANCE — Continued. of building not a waiver of objections as to location or time of com- pletion, 52, 59. of building voluntarily erected upon one's land by another, 53, 113, (Conn.) 138. of work not completed by time specified, 59-62, 66. See Time. of tender may defeat claim for extras, 80-82. See Extras ; Tender. of extras ordered, implies promise of payment independent of con- tract, 82, 83. of extras impliedly authorized, 84, 85. of builder's tender, 93, 94. tender becomes a contract after, 93, 94. notice of acceptance not necessary when promise of guarantor is absolute, 106. See Surety. notice of acceptance otherwise a condition precedent, 106. of work not amounting to completion, (Ala.) 134, (Ga.) 140, (Ind.) 152, 153, (Miss.) 177, (Pa.) 198, (Vt.) 203. See Building Contract. of designated portions of work may imply waiver of objections, (Ohio) 194. of detective work executed without objection, (Vt.) 203. of highway after dedication, 387. See Dedication. of security operating as waiver of mechanic's lien, 449-451. ACCESS, to building prevented by obstructions, 115, 117. See Nuisance. ACCIDENT, inevitable, 66. See Impossibility of Performance. loss falls upon builder when building destroyed by, 44, (Conn.) 139, (N. J.) 185. not when materials not yet placed on premises, (111.) 149. preventing performance of contract, 43-46, (Mo.) 181. lightning, 44 (Conn.), 139. where the contract is entire and where it is severable, 48, (N. J.) 185. liability of builder for accidental injuries from negligence of his workmen, 125. to building after completion, (111.) 144. affecting sub-contractor's right of recovery, (111.) 151. building blown down not quite completed, loss on owner, (Iowa) 155. liability of tenant for waste caused by inevitable, 261, 262. neither lessor nor lessee bound to rebuild in case of destruction by, 274. to reservoirs causing injuries, 369. ACCOUNTS. See Payment. INDEX. 543 ACQUIESCENCE. See Acceptance; Assent. in deviations causing defects, 55. ACT OF GOD. See Accident ; Impossibility of Performance. completion of work prevented by, 35, 47, 48. not a defence unless rendering performance absolutely impossible, 47. ADDITIONS. See Alterations ; Deviations; Extras. implied promise independent of contract to pay for, 82. thougli ordered, not a waiver of original contract, 86. left discretional with architect, not governed by rules of arbitration, 22. ADJOINING, owner must be notified of removal of support, 119-121. owners agreeing as to use of party wall creates an easement, (Mo.) 179. owner's right to light and air, 321-325. owners hold party wall as tenants in common, 348. See Party Wall. ADMINISTRATORS AND EXECUTORS, capacity to execute leases, 237, 238. leases of, how regarded in equity, 238. joint, 238. ADMISSIONS. See Evidence. ADVANCES. See Payment. obtained by builder, 86, n. prematurely paid by owner may release surety, 105, 106. no lien for money, 433. See Money. ADVERTISEMENT, asking for tenders, 80, 82, 94. may reserve right of rejecting all bids, 94. of auction sale " without reserve," 95. of auction sale not a warranty that it will take place, 95. AGE, old age does not imply incapacity to make leases, 235. AGENT, architect as agent of his employer, 13-16. cannot use his fiduciary authority to his own benefit, 14. cannot purchase a debt he was employed to settle, 14. builder as agent of employer, liability for nuisance, 121-125. capacity to execute leases, 248, 249. how authorized to control real estate, 249. authority must be in writing, when, 249. AGREEMENT. See Building Contract ; Contract. with architect, 10-12. need not be in writing, 12. for submission to arbitration specifically enforced, 21. for illegal or immoral purpose will not be upheld, 48. 544 INDEX. AGREEMENT — Continued. though voidable, may rescind valid contract, 57. undei* seal may be vterbally changed as to price, (111.) 148. as to use of party wall creates an easement therein, (Mo.) 179. concerning party walls, 34.5-348. See Party Wall. AGREEMENT FOR BUILDING LEASE. See Building Lease. Generally, 210-217. if executory, required to be in writing, 210, 211. if after the lease, or partly executed, may be verbally given, 210. distinguished from a lease, 212, 213. Sur/genlions concerning, 213, 214. should contain all the intended covenants, 213, 214. should be full and explicit upon all points, 213, 214. to provide for separate leases, 214, 216. as to power of entry and reservations, 215. proviso for "usual covenants" objectionable, 215. holding possession under an, 215, 216. making lease dependent upon contingencies, 216, 217. Specific enforcement of, 218-229. part performance of verbal. '.'18, 219, 222-226. not when uncertain or indefinite, 225, 226. not when plans, etc., are subject to approval, 227. in case of repairs, 227. illu.-tralions, 225-229. when necessary, 227, 228. AIR. See Light ; Light and Air. easements as to air regulated by the Prescription Act, 320. running a windmill may be acquired as an easement, 328, 329. ALABAM.A, digest of decisions in, 133, 134. as lo building on another's land, 133. See Acckptance ; Building. as to payment as work progresses, 134. See Payment. as lo time of perform:ince, 133, 134. See Time. as to acceptance of iinfini>liid work, 134. See Acceptance. as to entirety of contracts, 134. See Building Contract. as to loss for work destroyed by fire, 134. See Destruction OF Buildings. statutory provisions concerning mechanics' liens, 462. ALLEYS. See Highways. ALTERATIONS. See Additions; Deviations; Extras. should be declared to be subject to new agreement, 11, 54. lelt discretional with architect, nut governed by rules of arbitration, 22. when immaterial in character do not bar recovery, 53. provided for in original contract, o3. INDEX. 646 ALTERATIONS— Continued. allowed by subsequent agreement, 54. valuing, 54, 55. may operate as extension of time of perfopmanee, 63-65. price of alterations may offset amount of penalty, 64. specially considered. Chapter vii. 77-86. guarded against in accepting tenders, 80-82. impliedly authorized, 83-85. j though ordered, not a waiver of original contract, 85, (Ind.) 153. ordered by architect, (N. J.) 183. AMENDMENTS. See Deviations ; Pleading. not allowed in mechanic lien proceedings unless authorized by statute, 461. ANCIENT LIGHTS. See Light; Light and Air. liability for darkening, 128, (111.) 146, 147. doctrines concerning, 320. action may lie for obstructing, 321, 328. APPEALS, in mechanic lien cases, 461. APPORTIONMENT. See Rent. creditor having more than one fund to resort to, 439. of claim of mechanic to various buildings, 489. rules of apportionment extended, 439, 440. APPROVAL OF MATERIALS. See Approval ok Work. right of, (111.) 141, (Mo.) 178. APPROVAL OF WORK. See Architect ; Certificate ; Em- ployer; Owner. by architects and others generally, 18-31, (N. J.) 183, 184. / by third person made a condition precedent to payment, 19, (N. J.) 183. right of approval must be exercised in good faith, 29. to be exercised after completion, (Mo.) 178. not an arbitrary right, 30. implies opportunity given to inspect work, 30. ARBITRATION, clause of arbitration objectionable in building contract, 3, *. matters of arbitration should be referred to architect, 4, 22-25. See Architect. not inferred where settlement of price is left to third person, fr. and award, a supplemental contract, 21. submission to arbitration binding, 21. courts of e(Juity will not specifically enforce agreement for, 21. distinguished from certificates stipulated for in the contract, 21, 22. additions and alterations left discretional with the architect not governed by rules of arbitration, 22. by architect, 4, 22-25. 35 546 INDEX. ARBITRATION— Cofiiinued. can be avoided by neither party to detriment of other, 24, (111.) 143. form of arbitration clause, Appendix, 489. ARBITRATOR. See Arbitration; Architect. not liable for negligence, want of care, or skill, 21. ARCH, liability of builder for injury to his workman while shoring defective arch, 127. ARCHITECT, Duties of, the natural and proper arbitrator in cases of dispute, 4, 22-25, (III.) 143. the recognized head of the building trade, 9. powers and responsibilities, 9-17. makes plans and specifications, 9, 87. furnishes drawings, 9. superintends the work of construction, 9. explains obscurity in plans, specifications, etc., 10, 89, (111.) 143. Competency of, may be shown in evidence by comparison, 9. person acting as architect presumed to be such, 9. Agreement with, as to payment for services, 10-12. that no extra compensation shall be paid, 11. need not be in writing, 11, 12. formerly stipulated commission on price of building, 10. Fees of, dependent upon agreement, 10-12. regulated by architectural societies, 10, 11 ; Appendix, 537. for plans accepted but not used, 12, 13. for recommending impracticable building, 13. paid by employer, not by mechanic using his plans, etc., 13. must be reasonable and not augmented by profits from his fiduciary powers, 14. Selection and appniniment of. See Akchitectural Competition. by architectural competition, 12, 13. by the builder or owner, 12. a condition precedent to performance of contract, 11. need not be in writing, 11, 12. Authority of may order extras in England; contra in this country, 10, 80. contract should define, 11, 15, (Mo.) 178. as agent of the employer or building owner, 13-15. to transcend authority conferred by the contract, 15. not to delegate his authority, 15, 16. INDEX. 547 ARCHITECT, Authority of- Continued. to bind his employer, when, 16. to give certificates of approval, Chapter in. 18-31, (111.) 142, (N. J.) 183. See Ceistificate. to give part performance or "progress certificates," 19. not to give certificates waiving substantial performance, 20, 23. to adjust performance certificates upon completion, 21. when acting as arbitrator, need not give grounds for opinion, 21. to give certificate for his firm, 25, (111.) 142. to certify extras and alterations, 25, (111.) 143, (N. J.) 183. to determine what work shall be considered "extra," 77, n., 80, 84. not to change specifications, etc., 23, 87, 89, (111.) 143. to engage a quantity surveyor, 91. » in taking out quantities. See Bill of Quantities. to bind owner by acceptance of work or materials, 30. not to accept diflferent class of work, (N. Y.) 186. Liability of, with employer for negligence, 15, 28. personally for negligence, 16, 28. jointly and severally, 16, 17, 28, (N. J.) 184. as arbitrator not liable for refusing to reconsider his certificate, 21. to suit for fraudulently or arbitrarily refusing certificates, 27. Frauds of, 12. by entering into a secret engagement to detriment of builder, 14. in rendering decision (which may be impeached for fraud or mis- take), 19, (111.) 142. by concealing defects, 29. As arbitrator, 22-25. See Arbitration. proper in cases of dispute, 4, 22-25. certificate of architect is not an award, 22. decision conclusive, 22, 23, 25, (111.) 142, (N. J.) 183, 184. decision not conclusive in certain cases, 24, 25. parties refusing to submit to decision of, 23. decision once given cannot be altered, 25. form of certificate of completion by, 24. Representative of, cannot recover for part performance of contract, 12, 107-109. contract with, does not survive to, 12. protected by mechanic lien law, how, 432. ARCHITECTURAL COMPETITION, the usual plan of selecting architects for large buildings, 12, 13. drawings for architectural competition should be subject to ap- proval, 12. ARCHITECTURAL TERMS. See Glossary in Appendix. AREA OF LAND SUBJECT TO LIEN OF MECHANIC. See Property Subject to the Lien. 548 INDEX. ARIZONA, statutory pi-ovisions concerning mechanics' liens, 462. ARKANSAS, digest of decisions in, 135. relating to payment as work progresses, 135. See Payment. as to definiteness of building contract, 135. See Boilding Contract. as to right of recovery on a quantum meruit, 135. as to special case stated, 135. statutory provisions concerning mechanics' liens, 462. ASSENT. See Acceptance. building contract not inferred from mere, 3. ASSIGNEE, As to building contracts. See Bankruptcy. entitled to same rights and privileges as assignor, 29. " sureties, representatives, and assignees," 105-110. takes all property of assigning bankrupt, 109. liabilities and duties, 109. entitled to contract of builder when it does not depend upon skill, 109. can renounce executory contracts not advantageous to the creditors' fund, 110. As to building leases, capacity to execute powers, 253. See Powers. of first donor may have power of leasing, 256. bound to same extent as assignor for taxes, etc., 301. See Taxes. ASSIGNMENT. See Assignee. by builder of future receipts in contemplation of bankruptcy, 110. See Bankhuptcy. of contract by builder, 107-109. See Builder. distinguished from an under-letting, 211, 244, 245. See Building Lease. of leasehold before actual entry, 231. ASSIGNS, use of tlie word " assigns " not necessary to make covenant run with the land, 347. ASSUMPSIT. See Quantum Meruit. cannot be maintained until entire contract baa been fully executed, 31. right to sue upon a q. m. dependent upon an action in, 38, (Tex.) 202. a remedy where one of the parties fails to proceed, 38. a remedy where the contractor has been relieved by consent, 40. not the proper action (in Missouri) when completion of the work is prevented by the owner, 41, 179. a remedy where extras are ordered and accepted independent of the original contract, 82, 83. INDEX. 549 AUCTION SALE, resembles offering and acceptance of tenders, 94, 93. See Ten- ders. advertisement of auction is not a warranty that sale will take place, 95. " of goods sold without reserve," 95. AWARD. See Arbitration. does not avoid original contract, 55. of damages, the only remedy at law for breach of contract, 68. BAD "WORK. See Defective Work. BANKRUPTCY, generally. See Chapter x. " Sureties, Representatives, and As- signees," 105-110. regulated by local statutes, 109. measure of damages in case of builder's, 43. all property of bankrupt passes into hands of his trustee or assignee subject to existing liens, 109. builder cannot assign future receipts in contemplation of, 110. rights and privileges of assignee or trustee as to executory con- tracts, 110. ownership of materials on premises at employer's, 112, 113. of builder, affecting decree of specific performance, 222. of builder, does not violate condition in lease not to alien, 265. does not dissolve lien of mechanic, 446. BAY WINDOW, projecting over another's land, a nuisance, 116. See Nuisance. may be objected to when projecting beyond the line, (N. J.) 184. may be violation of covenant not to build beyond the line, 284. erected in place of flat window defeats easement of light, 333. BILL OF COMPLAINT. See Petition. BILL OF QUANTITIES. See Quantities. BOATS, are buildings, 1. BOND. See Surety. BOND OF INDEMNITY, form of. See Appendix, 536. BOSS OF CONSTRUCTION. See Architect; Superintendent. corresponds to clerk of the works, 30. duties of, 30, 31. BREACH OF CONTRACT. See Building Contract; Perform- ance OF Contract. by employer, 5. by builder, 6, 42, 43. measure of damages for, 6. See Measure of Damages. 650 INDEX. BRICKS, salmon brick used instead of hard, well-burnt, (Iowa) 159. BRIDGE, destroyed by fire, liability of contractor to rebuild, 46, (Mo.) 179. washed away by flood, 47. BUILD, covenant to build not a continuing covenant, 286. BUILDER, Duties of, generally, 5, 6, 86, 88. presumed to understand provisions of contract, 4, (111.) 148. not excused for lack of skill, (Mo.) 182, (Ohio) 195. to execute his work wilh diligence, 5, 49. to apply to architect to explain drawings, plans, etc., 10, 89, (111.) 143. superintendent, boss of construction, or foreman generally, 31. rarely excused from complete performance of contract, 45, 46, 48. to strictly follow the plans and specifications furnished him, 89. in removing old buildings, 119-121. in making excavations, 119, 121, 125. in selecting workmen, 125. to see that liia employees take due care, 127, 128. to comply with local enactments, 132. Rights and liahililies of, responsible for work of sub-contractors, 5. may sue on contract for breach, or on q. m., 6. entitled to pro rata share of contract price, when, 6. damages for breach of contract, 6. released by failure of owner to appoint architect, 11. for frauds perpetrated by architect, 14. to hold architect personally liable, 16. not to sue without complying with conditions of contract, 19, 26. to sue on contract if " progress" certificate fraudulently withheld, 19, 27, 28. to sue for performance in specie or award of damages, 27, 28. to sue on contract if certificate arbitrarily refused, 27. to recover when complete performance prevented by other party, 38, (Mo.) 178, 180. to fue for part performance when excused from completing work, 39. measure of damages against builder for preventing performance, 42, 43. measure of damages in case of bankruptcy of, 43. sustains loss of building destroyed by fire, 44, 45, 48, (N. Y.) 193, 194. See Dkstruction of Buii.dixg. rules as to liability in case of destruction of premises, 48. excuses for non-performance, 45, 46, 48, 89, 90, (111.) 141. INDEX. 551 BUILDER, RigJUs and liabilities of — Continued. bound by price of building named in tbe contract, 80-82. . restricted to amount of his tender, 80-82. to recover on q. m. for extras and alterations ordered and accepted independent of contract, 83. to execute contract accordin;; to plana and specifications, 88. sufficiency of plans and specifications not warranted to, 89. '; not to recover on q. m. where he grossly deviates from plans and specifications, 90. to recover where he executes work in good faith, 90. undertakes work according to bill of quantities at his own risk, 92, 93. in making tenders, 93, 94. damages where employer takes possession wrongfully, 102. effect of penalties, forfeitures, and liquidated damages, 96-101. injunction allowed when he refuses to complete or allow employer to complete building, 102. relieved from penalties and forfeitures occasioned by act of owner, 103. given notice to proceed with work, 104. See Notice. required to give security, 105. See Surety. releasing surety, 105, 107. in the ownership of materials. Chapter xr. 111-114. See Owneb- SHIP OF MaTKUIALS. owns materials not placed upon premises, 112. voluntarily erecting improvements on land of another, 113, 114. owns old materials, 114. can sue for work not delivered on account of burning of building, (111.) 149. for building nuisances, Chapter xii. See Nuisances. in making excavations, 119, 121, 125. as agent of owner, liability of the latter for nuisances, 121-125. jointly liable with owner for nuisances, 121. of independent contractor, 121, 122. for negligence of his workmen, 125-127. for falling debris, 125. is the master of his workmen, 125-127. instances of his liability for negligence of his workmen, 127-129. falling of defective scaffolding, 127. falling of badly hung gates, 127. putting workmen on defective scaffold, 127. shoring defective arch, 127. leavincf pole in dangerous position, 127. for trespass by sub-contractors, 128. using defective ladder, 127. for improper danger signals, 1 28. 552 INDEX. BUILDER, Rights and liabilities of — Continued. where workman knew of the danger, 127. to his workmen generally, 128. for his own negligence, 129-131. instances of, 131, 132. fcot bound by covenants involving breach of law, 282. Defective work of, generally, 48-51. See Defectivk Work. may be ordered to be rebuilt, 49. of former contractor, 50, (N. J.) 184, (Pa.) 199. corrected by owner or employer (builder not responsible for), 50. caused by defective plans, etc. (builder not responsible for), 51, 89, (Pa.) 198. caused by defects fraudulently concealed by architect, 29. caused by deviations consented to, 55. fcorrected by owner, (N. Y.) 188. caused by interference of owner, (Pa.) 199. Deviations hy, when immaterial in character do not affect claim of, 53. in reduction of prices by special stipulations, 53. acquiescence in, 55, (Cal.) 136. not to recover for gross deviations from plans and specifications, 90. cannot change plans and specifications, 90. Time stipulations of. See Time. damages resulting from delays of builder deducted from award after suit on contract, 58. recovery on q. m. or q. b., though he fail to complete work on time, 69, 62, (N. y.) 189, 190. no recovery where he has bound himself to complete work by a time stipulated, 60, 62, 65. when time a condition precedent, builder not excused by perform- ance becoming impossible, 60, 62, (Conn.) 139. time penalties liberally construed, 61, 62. extensions verbally given, 62. extensions will not justify an abandonment of contract, 62. extension for extras and alterations, 63-65. delays occasioned by fault of builder, 66, 67. relieved from penalty and forfeiture clauses for delays caused by owner of building, 103. Bankruptcy of. See Bankruptcy. effect of, 109-110, 222. contract passes to assignee, 109. See Assignee. contract does not pass to assignee if dependent on skill, 109, 110. cannot assign future receipts, 110. affecting decree of specific performance, 222. does not dissolve lien of mechanic, 446. INDEX. 553 BUILDER— Confmued. Death of, effect of, 107-109. See DEAtH ; REtEESBNTATlf E. contract passes to representative, 107. executor or administrator bound to complete contract, 108. Under building leases, given power of entry for purpose of building, 215. may render owner's property liable to liens, when, 429. BUILDING, what constitutes a, 1. churches, school-houses, shops, stables, sheds, mills, boats, wharves, 1. price of building named in contract, 80-82. becoming impossible, 45-48, 60, 65. See ImposSibilWY of Per- formance. ownership of materials of unfinished building, 111-115. Bee Own- ership OF Materials. acceptance of unfinished building, 53. See Acceptance. erected upon land of another, 53, 113, 114, (Ala.) 133, (Ark.) 135, (Conn.) 138, (111.) 149. blown down, (Iowa) 155, (Pa.) 198. See Accident ; Destbuc- TioN OF Building. nuisances. Chapter xil. 115. erected so as to obstruct neighbor's outlook is not a nuisance, 284. may become a nuisance, 117. See Nuisance. destroyed to abate nuisances, 117-119. removal of old, 119-121. liability of owner for nuisances, 121-125. See Owner. liability of builder for nuisances, 121, 125-129. See BuiLDer. construction of, 132, Chapter xii. 115. when personal property, (Conn.) 138, 303, 304, 307-311. negligently constructed, falls, (Conn.) 189, (III.) 144, (N. J.) 185. " finished," (111.) 147. distinction between the erection and the completion of a, (111.) 144. when considered inclosed, (111.) 152. waste in pulling down, 259-261. See Waste. covenant to repair new buildings, 269, 270. See KepaiK. covenant not to erect buildings, runs with the land, 276. enforcing uniformity in, 282-284. use of buildings restricted by covenants, 287-290. See Rkstbic- TivE Covenants. removal of, 307-311. meaning of the " commencement " or " beginning " of a, 417. BUILDING CONTRACT, Nature of, defined, 1. may be verbal and informal, when, 1-3. 554 INDEX. BUILDING CONTRACT, Nature of— Cmiinued. need not necessarily be in writing, 1-3. not inferred from mere assent, 3. inferred from acceptance of unfinished building, 53, (Ala.) 133. almost invariably in writing, 3. difEcullies in drafting, 3. care exercised in preparation of, 3. arbitration clause objectionable, 3, 4. See Arbitration. for illegal purpose cannot be enforced, 48, (Iowa) 160, (Ohio) 197. See Illkgal. for useless work, not null or void, 51. not waived by ordering extras, etc., 85, 86. See Extras. notice to builder required by, 104. See Notice. material changes in, releases surety, 105. See Surety. consideration necessary to support, (111.) 148. See Consider- ation. binding after deviations as far as practicable, (Ind.) 153, (Iowa) 155. vague and indefinite agreement, (Iowa) 157. Inierprelalion of. See Constrdotion. intention of parties considered, 4. parol explanation of technical words, 4. when terms so indefinite as to be incapable of performance, (Ark.) 135. deviations from original not a waiver, 53-55, (Cal.) 136, (Ind.) 153. See Deviations. when so deviated from as to be obscured, 54, (Vt.) 205. deviations by builder from plans and specifications, 9. special to govern as far as practicable, 54, (111.) 146. provisions concerning extras, Chapter vii. 77-86. See Extras. extras made subject to supplemental agreement, 77, (Cal.) 136. tenders, 80-82, 93. See Tenders. extras independent of, 82, 83. auction sales, 94, 95. See Auction Sales. penalties, forfeitures, and liquidated damages, q. v., Chapter ix. 96-104. Stipulations of, may be verbally rescinded, (Cal.) 136. should define architect's powers, 11. should provide for alteration, extras, etc., 11. See Alterations ; Extras. should apjily for approval of work by architect or owner, 18, (Cal.) 136. should provide for deviations, 63. for certificates, made condition precedent, 19, 25, 26. for arbitration after architect's decision, 24, (111.) 143. for certificates in writing, 24, 25. See Certificate. INDEX. 555 BUILDING CONTRACT, Stipulations of— Continued. arbitrary /irouiso for approval of owner, 29. for materials to be approved before used, 30. as to time of performance, 58-66. time penalties, 61, 63. See Penalties. generally require security for faithful performance, 105. See Surety. as to sureties, representatives, and assignees, q. v., Chapter x. 105- 110. as to ownership of materials, 111-114. special, (Cal.) 137, (III.) 152. Obligations arising from, party undertakini; building contract presumed to understand all its provisions, 4, (111.) 148. builder's duties and, 5, 6. with corporations, 6, 8. See Corporations. not waived because the work is useless, (Tenn.) 202. Certificates required by. See Certificate. of approval by architects and others, Chapter iii. 18-31, (111.) 142, (N.J.) 182, 183. of part performance or " progress," 19. of completion, 23-25, (111.) 142. and made a condition precedent, 19, 25, 26, (111.) 142. See Con- dition Precedent. cannot waive substantial performance, 20, 23, (N. J.) 182, 183. arbitrarily or fraudulently refused by architect, 27. to be in writing, 24, 25. may be waived by owner of building, (Cal.) 137. When entire (i. e. not severable'), no recovery can be had until completion, 20, 31-33, 37, (Ala.) 134, (Cal.) 136, (Miss.) 177, (N.J.) 184, (Ohio) 195, (Vt.) 206. instances, 33, (Ala.) 134, (N. J.) 184, 185. ship to be put in "thorough repair," 33. work to be paid for on completion, 33. work to be performed by a day certain, 33-35, (Ala.) 133. specific work for a specific sum, 34, 37. to bore a well-hole a certain depth, 34, (Ala.) 134. to spend a fixed sum of money on land, 34. to furnish iron-work complete, (111.) 146. completion prevented by act of God, 35, (N. J.) 185. and work destroyed by fire, (Ala.) 134, (111.) 148. See Fire. When severable, recovery may be had after part performance pro tanto, 40. payment not a waiver of exact performance, 41. effect of acceptance, 51-53. severance of entire contract, (Ga.) 140. 556 INDEX. BUILDING CONTRACT, When severable— Continued. price named in contract, payment in instalments, (111.) 142. completions of designated portions may determine, (Ohio) 195. Performance of, generally. Chapter iv. 32-57. See Performance of Contracts. rarely becomes impossible, 46, 65. prevented by act of God, 35, 47, 48, 65. See Impossibility of Performance. prevented by inevitable accident, 43-46, 48, 66. See Accident. prevented by strikes, 58. prevented by employer or owner, 40-43, (Ind.) 154, (Mo.) 178. See Employer. prevented by destruction of premises, 43-45, (Conn.) 139. See Destruction of Premises. prevented by non-existence of subject-matter, 46, prevented by builder or contractor, 43. prevented by one of the parties, 38-43, (111.) 141. liability for non-performance, 40. security required for faithful, 105. See Surety. injuries resulting from negligent, 121-125. See Negligence ; Nuisances. to warrant lien of mechanic, 429, 430. Substantial performance of, generally sufficient, 36, 37, 53, (N. Y.) 191, (Ohio) 195, 196. of contract to erect a house by day certain, 35. omission of unimportant details not a bar to recovery, 36. " to build a, mill as good as the one burned down," 36. by builder in good faith, 90, (Ohio) 196, 197. not waived by extension of time, 63-65. a condition precedent to mechanic's lien, 36. not waived by part payment, 41. Part performance of, generally, 37-39. See Part Performance; Quantum Meruit. not recoverable for when contract is entire, 37. where the work is severable, recovery pro tanto, 40. effected by acceptance^ 51-53, (Ga.) 140, (111.) 141, 142, (Pa.) 198. and complete performance prevented by one of the parties, 38-43. action of assumpsit for, 38. by time specified, 62. See Time. Time of performance of . See Delay; Penalties; Time. generally, 58-67, Chapter v. not generally of substance as to bar recovery, (Neb.) 182. reasonable time presumed, 5, 60, (111.) 152. meaning of " reasonable," 60, (Ala.) 133. See Time. set-off allowed for failure in, 58, 61, 62. made a condition precedent to payment, 59, 61, (111.) 152. IKDBX. 667 BUILDING CONTRACT, Time of performance of —Continued. may be a question of law or of fact, 60. meaning of particular words as to time, 60, 61. failure of, may operate as forfeiture of contract, 61, 101. penalties covering, 61, 63. extensions of, 63-65, (Cal.) 137, 138, (N. Y.) 191. affected by extras and alterations, 63-65. affected by other excuses, 65-67. substantial performance not waived by extension of, 64. Specific performance of. See Specific Performance. generally. Chapter vi. 68-76. origin of, 68. seldom decreed, 68-70. distinguished from contract for repairs, 70. early instances of, 71. other instances of, 71-73. contracts not to biiild, 71, 72. Merger of. See Merger ; Specification. with specification, bill of quantities and tenders, 4, 55,56,87,90- 93, 95, (111.) 148. award does not merge original, 50. Rescission of. See Rescission. when written, may be verbally rescinded, 4, (III.) 148. voidable agreement may rescind valid contract, 67. by agreement of parties, 56, 57, (Cal.) 136. implied from deviations, 56. for fraud or misrepresentations, 56, 57. verbal agreement as to change of price does not operate as, 101, (111.) 148. by repudiation of both parties, 140. for breaches, (111.) 149. Effect of acceptance of defective work under, 48-51, (111.) 144. See Ac- ceptance. death of one of the parties, 107-109. See Death; Representa- tive. bankruptcy of one of the parties, 109, 110. See Assignee; Bank- ruptcy. upon ownership of building materials. See Chapter xi. Ill ; Ownership of Materials. sio-ned and sealed by one contractor binds both, (111.) 147. Damages for breach of, measure of, 5, 6. See Breach of Contract; Measure of Damages. where employer prevents performance, 40-43. where builder prevents performance, 43. 558 INDEX. BUILDING CONTRACT, Damages for breach of— Continued. where destruction of subject-matter prevents performance, 43-45. for delays of builder, 66, 67. See Delays. Void, as against public policy, (Iowa) 160. formed for illegal purpose, 48. As essential to mechanic's lien claim, 428-431. may be either parol or in writing, 428, 429. as to sub-contracts, 429. as to performance of the contract, 429, 430. BUILDING EASEMENTS, Principles of law relating to, 312-319. defined, 312. in what they consist, 312, 314. How acquired, 313, 314. when gained by prescription, (III.) 147. See Prescription. How destroyed or lost, 315, 316. by actual or constructive release, 315. by merger, 315. by becoming unnecessary, 316. by non-user, 316. by executed license, 316. distinguished from a license, 316, 317. See License. How enforced, 317, 318. How conceyed, 319. as to right to light and air, 320-337. See Light and Air. as to privacy, 334. as to prospect, 334, 335. as to party walls, 338-362. See Party Wall. as to right of support, 355-362. See Support. in use of water, 363-369. See Water. use of street by gas company may gain an easement thereon, 374. See Gas. as to highways, 380-400. See Highways. in drains, cesspools, and privies, 400-412. Decisions relating to, as to right to overflow lands acquired by adverse enjoyment, (111.) 146. acquired in use of entries, stairways, and skylights, (111.) 146. twenty years' uninterrupted user of lights, (111.) 146. as to excavations on adjoining lands and right of support, (111.) 147. as to right to obstruct light by building, (Iowa) 156. not lost by destruction of building, (Iowa) 156. created by an agreement for use of party wall, (Mo.) 179. BUILDING LEASES, sought to be avoided by building on other land, 69. preliminary agreement for, 210-217. See Agreement for Build- ing Lease. INDEX. 559 BUILDING LEASES —Continued. defined, 211. ■when termed an under-lease, 211. distinguished from an agreement to lease, 212, 213. character of building lease stipulated in the agreement, 213, 214. form of the lease sometimes annexed to the agreement, 215. dependent upon contingencies, 216, 217. usually required to be under seal, 218. for each house of a row as completed, 216, 217. appointment of a nominee made condition precedent to, 217. Specific performance of. See Specific Perfokmance. generally, 218-229. •when there has been part performance, 218. what constitutes sufficient part performance, 218, 219. operating as a forfeiture, 222. affected by bankruptcy of builder, 222. not when indefinite or uncertain, 225-227. rules applicable to, 223-226. Capacity of parlies to, generally, 230-250. lessor must be in possession at time of leasing, 230, 231. of infants, 231-233. of lunatics, 234, 235. of drunkards, 235. of married women, 235, 236. of guardians and committees, 235, 236. of lessees generally, 237. of administrators and executors, 237, 238. of corporations, 239, 240. of trustees, 240, 241. of mortgagors and mortgagees, 241-243. of tenants for years, 243-245. of tenants at will, 245, 246. of joint tenants, 246, 247. of tenants in common, 247, 248. of copartners, 248. of agents, 248, 249. of tenants in fee simple, 250. Terms of, usual terms for, 249, 250. Under powers, 253-256. See Powers. instances of leases under powers, 254-256. form and efif'ect of powers in, 256-268. Covenants of, ' containing covenants as to impeachment for waste, 263, 264. See Waste. 560 INBEX. BUILDING LEASES, Covenants of— Continued. usual, 265-301. See Covenant. peculiar, 279-281. generally, relation of landlord and tenant exists, no matter how long the term of the lease, 278. containing penalties, 278, 290, 291. See Liquidated Damages ; Penalties. not signed by lessee does not bind him to express covenants, 278. founded upon unlawful considerations, 285. the lessor's title, 291, 292. description of premises demised, 293-296. See Description. may be void for lack of proper description, 293. may describe land by reference to plans and drawings, 293-296. with covenant giving privilege of purchasing, 296, 297. with covenant to pay for improvements, 297-299. ownership of fixtures. See Fixtdres. tenant operating under building lease may render landlord's estate liable for mechanic's lien, 424. BUILDING LINE. injunction allowed restraining one from building beyond the, 104, 284. contract to build certain distance from, (N. T.) 191. bay window beyond the, 284. BUILDING MATERIALS. See Materials ; Ownership of Ma- terials, destroyed by fire or accident, 44, 45. See Accident. BUILDING NUISANCES. See Nuisances. BURDEN ON PROOF. See Evidence. upon party setting up informal contract, 3. CALIFORNIA, architect's testimony not always conclusive in, 23. . special contract governs deviations as far as practicable, 51. digest of dtcisionsin, 136-138. as to abandonment of entire contract by builder, 136. See Building Contract. as to deviations from contract, 136. See Deviations. as to extras, 136, 137. See Extras. as to responsibility of co-contractor, 137. See Contractor. as to special stipulations, 137. as to penalties (5. v.) and time (g. «.) of performance, 137, 138. statutory provisions concerning mechanics' liens, 463. CAPACITY, of parties to leases, 230-250. See Building Leases ; Infants ; Lunatics, etc. INDEX. 561 CARE, AMOUNT OF. See Negligknce. not an excuse for failing to understand provisions of written con- tract, 4. person making an award as arbitrator not liable for lack of sufiEl- cient, -21. in using streets and highways for building purposes, 115, 116. in removing old buildings, 119, 120. in making excavations, 120, 121. of builder in employing and superintending workmen, 125-129. of builder generally, 130, 131. of owner in selecting workmen, (Conn.) 139. CARRIAGE WAY-. See Way, Right of. CERTIFICATE. See Architect; Building Contract. of approval by architects and others. Chapter in. 18-31, (N.J.) 183, 184. of part performance given by architects or superintendents, 19. payment upon " progress," 19. See Payment. made a condition precedent to payment, 19, 25, 26, (III.) 142, (N. Y.) 187, (Pa.) 199. cannot dispense with substantial performance, 20, 23, (N.J.) 183,184. in absence of fraud or mistake is conclusive, 21, 23, (111.) 142. of part performance subject to adjustment, 21. not always reconsidered in making an award, 21. distinguished from an award by arbitrator, 22. of an architect, not an award, 22. of an architect, not always final, 23, 24, (111.) 142, (N. Y.) 187. of architect unnecessary after breach of contract, (N. Y.) 187. of completion, 24, 25. no particular form required, 24. of architect once given cannot be altered, 25. of one architect of a firm is sufficient, 25, (111-) 142. not always necessary to mention amount due, 25. of architect to authorize alterations, etc., 25. refusal of, 27-30, (III.) 142, (N. Y.) 191. architect liable for fraudulently or capriciously refusing, 27. when arbitrarily refused, justifies suit on contract, 27, (111.) 143. excused by failure of owner to perform, 28. may be waived by owner of building, (Cal.) 137. as to extras made condition precedent, (111.) 143. See Extras. CESSPOOLS. See Privy. generally, 401-412. meaning of, 403. prima faiie nuisances, 403. a necessity, 403. liabiliry of owners of, 403, 404. percolations from, 404. 36 662 INDEX. CHANCERY. See Equity. CHIMNEY, liability of builder to rebuild defective chimney, (Ohio) 195. CHURCH, is a building, 1. contract to erect a church similar to another, (111.) 144. form of contract to build a, 489. CLERK OF THE WORKS. See Architect; Superintendent. CO-LIENORS, distribution of mechanics' lien fund among, 420, 421. COLLUSION. See Fraud. equity courts may decree performance in specie for, 28. COLORADO, statutory provisions concerning mechanics' liens, 4G3. COMMENCEMENT OF BUILDING, means first labor done on the ground, 417. COMMENCEMENT OF LIMITATIONS. See Limitations. COMMISSION. See Architect. COMPENSATION, of architect. See Architect. of builder. See Builder. in damages. See Award ; Measure op Damages. for extra work, (111.) 145. See Extras. COMPETITION. See Architectural Competition. COMPLETION OF BUILDING, condition precedent of an entire contract, 19, 21, 32, 33, (Ala.) 133, (Miss.) 177. prevented by destruction of subject-matter, 20. See Accident. certificate of, 24. See Certificate. premises destroyed pending, 43—15, (Ala.) 134. •within a given time, 59, 102, (Ala.) 133. See Time. compelled by injunction, 102. delayed, not excused by delays of others, (111.) 144. has broader meaning than "erection" of building, (111.) 144, 419. when mechanic's lien claim made dependent upon, 418, 419. COMPUTATION OF TIME. See Lien ; Time. CONDITION. See Building Lease; Condition Precedent. in contract as to time of performance, 58-67. See Time. of time not waived by order for extras, 65. See Extras. in leases generally, 265. defined, 265. tending to defeat estate for years favored, 265. operating as forfeitures, 265. how created and construed, 266. covenants preferred to, 266. INDEX. 563 CONDITION PRECEDENT, settlement of price, 5. appointment of architect, 11. procurement of certificate, 19, 24, (111.) 142, (Iowa) 159. completion of building, 19, 20, 24-27, (Ala.) 133, (111.) 152, (Mo.) 181, (Neb.) 181. checking off builder's charges not sufficient when certificate re- quired as a, 30. owner allowed to inspect work when his approval is a, 33, 34, (N. Y.) 191, 192, (Ohio) 196. substantial performance, 36, (Mo.) 181. See Performance of Contract. extension does not waive time, 63. written order for extras, 78, (111.) 143, 145. See Extras. order of engineer, 79. penalties, forfeitures, and liquidated damages, q. v., 96-104. giving security, 106. See Surety. acceptance by promisee, 106. See Acceptance. payment of instalments, (111.) 149. superintendence of work, (Ohio) 194. completion of designated portions of building made, (Ohio) 195. furnishing materials, (Vt.) 204. to granting building lease, 216, 217. appointment of a nominee for building lease made, 217. CONDITIONS OF COMPETITION. See Architectural Com- petition. advertisement of. See Advertisement. CONFORMITY IN BUILDINGS. See Building Line. specifically enforced, 72, 76. CONNECTICUT, claim for extras defeated by price named in contract in, 82. digest of decisions in, 138-140. as to building upon another's land, 138. See Acceptance. as to use of cheaper materials than agreed upon, 139. See Deviations. as to loss by destruction of building, 139. See Destruction of Building. as to extra work, 139. See Extras. as to liability for falling building, 139. See Negligence. as to time of performance, 139, 140. See Performance of Contract ; Time. statutory provisions concerning mechanics' liens, 463. CONSIDERATION. See Building Contract; Payment. work must be done in workmanlike manner though consideration be inadequate, 49. extension of time of performance needs no extraneous consideration to support it, 63. 664 IKDEX. CONSIDERATION — Continued. one promise sufficient consideration to support another, (III.) 148, (N. Y.) 187, (Vt.) 205. Bubseription for building church is founded upon a valid, (N. Y.) 187, 188. voluntary promise to pay for building destroyed is without suffi- cient consideration, (Pa.) 198. promise to pay extra compensation is not binding for want of, (Pa.) 198. leases founded upon illegal or immoral, 285. CONSTRUCTION. See Building Contract. of building contract depends upon intention of the parties, 4, 32, 33. where the contract is grorssly indefinite, (Ark.) 135. right of approval given a liberal, 30. whether condition a penalty, or liquidated damages, is a question of, 102. provincialisms, technical words, etc., explained by parol, 4. of buildings generally, 132. of contract determined by architect, (111) 143. See Architect. of agreements and leases depends upon intention of the parties, 212. CONTINUANCE OF LIEN, depends upon statutory provisions, 441. may be renewed by scire facias, 441. prompt enforcement encouraged, 441, 442. CONTRACT. See Building Contract. defined, 1. verbal and informal binding, when, 1-3. See Statute of Frauds. must be in writing, when, 1-3. when written may be verbally rescinded, 4. with corporations, 6-8. See Cokpohation. with architect, 10-12. See Architect. rule as to impossibility of performance, 46. cannot be enforced for illegal purpose, 18. merger of, 55, 56. See Mergeii. rescission of, 56, 57. See Rescission. time of performance of, 58-67. See Time. so framed as to make completion by certain day essential, 59. nature of; inlerprelation of; stipulations of; obligations arising from; certificates required by; when entire; when severable; substantial; part and specific performance of; effect of damages for breach of, etc. See Building Contract. CONTRACTOR. See Builder ; Building Contract. sued for breach of contract, 6. when entitled to pro rata share of contract price, 6. should apply to architect to explain plans, 10, 89. INDEX. 665 CONTRACTOR - Coniinued. to build for price agreed upon, 10. to sue on contract if certificate fraudulently refused, 1,9. entitled to damages wliere performance prevented hy employer, 41. measure of damages wliere performance prevented by employer, 42, liable for defective work, 50, 51. not responsible for work of a former, 50. not liable for defectiveness of plans, etc., 89. responsibility of co-coa'ractors, (Cal.) 137. flulies of; rights and liahililies of; defective work of; deviations ly; time stipulations of; banJa-uptci/ of; death of, etc. See Builder. rights of property in materials. Chapter xi. Ill, 114. See OwNEn-^ SHIP OP Materials. liability of for constructing nuisances, 121, 125-129. See Nni- SAXCES. bound by contract of partner under seal, (111.) 147. CONTRIBUTION, of co-sureties, 107. See Surety. principles of contribution recognized in law and equity, 107. CONVEYANCE, of an easiiment, 319. See Easement. CORPORATIONS, ordinarily contract as individuals, 6. restricted to contracts within scope of regular business, 6. Chief Justice Taney on the restriction of contract by, 6. may contract though not specially authorized, 6, 7. control and management of, how vested, 7. may contract without the use of seal, 7, 239. rules to be observed in contracting with, 7. informal contract, how ratified, 7, 8. capacity of to execute leases, 239, 240. when exempt from liens of mechanics, 435. COSTS, discretional with the court in mechanic lien proceedings, 461. CO-TEN AN'I'S. See -Joint Tenants ; Tenants. COURTS OF EQUrry. See Equity ; Specific Performance. decree of specific performance discretional with, 68. rarely exercise discretion in decreeing performance of building con- trarts in specie, 68-70. See Building Co.ntract. COVENANTS, to repair may amount to covenants to rebuild, 47. may be shown to have been varied by extrinsic evidence in agree- ments to lease, 211. agreements to lease should contain all the intended, 213. meaning of " usual covenants" vague and doubtful, 215, 2G7. providing impeachment for waste, 263, 264. See Waste. 566 INDEX. COVENANTS — Continued. generally, 265-301. express and implied, 266, 267. dependent and independent, 267. those usual and implied, 267, 268. those not implied, 268. indefinite, 281. to repair, 268-^73. See Repairs. to insure, 273, 274. See Inscrb. to rebuild, 274, 275. See Rebuild. running with the land, 275, 276, 279, 280. lessee not bound by express covenants until he has signed the lease, 278. for renewal, 276-278. under penalties, 278, 290. how discharged, 278, 279. peculiar to building leases, 279, 281. to build in a particular manner, 281, 282. as to uniformity of building, 282-284. , as to outlook, 284, 285. / as to time, 286. restrictive purposes of building, 287-290. as to lessor's title, 291, 292. giving privilege to purchase, 296, 297. to pay for improvements, 297, 299. as to taxes and assessments, 299, 301. concerning party walls, 345-348. to lay out streets, alleys, and ways by reference to plans, 284. CREATION OF LIEN. See Lien. CROSS-SUIT. See Set-off. not necessarj', to recover damages for defective work, 49, 50. may be brought against builder failing to complete on time, 58. See Measure of Damages. DAKOTA, statutory provisions concerning mechanics' liens, 463. DAMAGES. See Delay ; Liquidated Damages ; Mkasuee of Dam- ages. whi're employer fails to perform, 5, 6, (Ind.) 154, (Mo.) 178. See Employer. where builder fails to perform, 6. See Builder. he who is in default is liable for, (La.) 160. for delays, 58, 65, 66, (Mo.) 178, 179. See Delays. the only remedy at law for breach of contract is award of, 68. actual, only allowed in cases of penalty, 102, 103. sum stipulated in cases of liquidated, 103. INDEX. 567 DAMAGES — Continued. action for, 103. on q. m. claim restricted to price named in contract, (Iowa) 156. as offset for defective work, (X. Y.) 188. See Set-Off. caused by water-pipes and reservoirs, 368, 369. DANGEROUS STRUCTURES. See Nuisances. liability of owner for erecting, 121-125. liability of builder for, 125-129. DAifGER SIGNALS, failure to put up, 116, 128. See Negligence. DEATH OF ONE OF THE PARTIES, general rule of law appertaining to, 107. contracts not personal pass to representative, 107. See Building CONTliACT. contracts dependent upon skill, contra, 107. contract of builder passes to his representative, 107, 108. contract of architect does not pass to his representative, 12, 108. does not dissolve lien of mechanic, 446. DEBRIS. liability of builder for falling, 125. DEBT. See Bankruptcy. DEGREE. See Specific Performance. DEDICATION, presumed from long-continued user, 385. defined, 386. considered generally, 385-394. can only be for a public use, 386. does not change title in the fee, 386. by an overt act, 386. by implication, 386. need not be made in writing, 387. to unincorporated town, 387. capacity of parties to make a, 387. effected by acceptance, 387. of strips of land bordering on highway, 387. need not be absolute, 388. when implied, 389-391. from continued user and from single act, 389. statutory regulations, 390. rebutting presumptions of, 391-394. by notice, 392. by gates anil bars, 392. DEFECTIVE WORK, liability of avchitect for, 17, (N. J.) 184. See Architect. liability of contractor for, 17, 48-51, (111.) 141, 144, (N. J.) 184. See Builder. 568 INDEX. DEFECTIVE W OUK — Continued. may be objected to after acceptance, 30, 41, 49, (Cal.) 136, (111.) 141, 150, (Pa.) 199, (Iowa) 155, (N. Y.) 188. employer may recoup for, after substantial performance, 36, 41, (N. Y.) 188. consequences of, 48-51, (111.) 144. party ordering building not bound to accept, 49. remedy for, 49, 50. remedied by employer, bars recovery for, 50, (N. Y.) 188. of a former contractor, (N. J.) 184. caused by defuciive plans and specifications, 51, 89, (Pa.) 198. liability of land-o-wner for injuries resulting from, 121-125. See Ndi.sance. DELAWARE, statutory provisions concerning mecbanics' liens, 463. DELAY. See Pknalties ; Time. reasonable allowance for, 58. contract so framed as to waive allowance for, 59, GO. occasioned by extras and alterations, 63-65. otber excuses for, 65, 66, (111.) 144. occasioned by inevitable accident, 66. See Accident. court will not apportion fault of, 66. occasioned by act of the owner, (Conn.) 140, (Mo.) 178. plaintiff suing on special contract barred from damages for delays, (Iowa) 156. in seeking specific performance, 221. DELIVERY, of materials must be within reasonable time, 60, (Til.) 149. of materials passes right of property to purchaser. 111. of an unfinished boat, (La.) 160. DEMURRER, in mechanic lien proceedings as in other actions, 459. short pleas not accepted as fulfilling the object of the, 459. for raii~ing questions of law, 459. special demurrers not always upheld, 459. questions as to whether property is within lien law cannot be raised on, 460. prima facie, defects taken advantage of on, 460. optional with motion to quash, 460. DESCRIPTION, of city lots in agreements to lease, 215. importance of prrfect, 292. nothing not de.^crilicd [)nsses, 292. what ordinarily passes with demise of land, 29P. lease may lie avoided for insulliciency of, 293. by metes and bounds, 293. INDEX. 569 DESCRIPTION— Ccnhnwrf. by references, 293. by schedules and plans, 293, 296. in lease cannot be varied by parol evidence, 293. references to plans may be explained by parol, 293, 296. plans made essential part of tlie, 294. citations from decisions as to the suflicieney of descriptions, 295, 296. matter of description not a covenant, 296. preliminary notice of lien claim must contain sufficient description, 454. must enable party to locate property, 454. what held sufficient, 464. where no other property will answer same description, 455. may be correct, 455. DESTRUCTION OF BUILDING. See Accident. performance of contract prevented by, 43-46, (Ala.) 134, (111.) 144, 149. by lightning, 44, and other inevitable accident, 66, (Conn.) 139, (111.) 144, (Wis.) 209. where the contract is severable and entire distinguished, 48, (Iowa) 155, (N. J.) 185, (N. Y.) 193. no recovery for work done when contract is entire, (Ala.) 134, (Mo.) 181, (N.Y.) 193. suit on the contract when the workman not in default, (111.) 142, (Mo.) 181. affecting sub-contractor's right of recovery, (111) 151. by reason of defective soil, (N. J.) 185. by wind, (Pa.) 198. after acceptance by employer, (Wis.) 209. does not relieve tenant from his obligation to pay rent, 273, 286. liability of landlord and tenant to rebuild after, 273, 274. See Rebuild. tenant cannot recover proportion of taxes paid upon, 298. liability of joint owners of party wall to rebuild after, 341. DEVIATIONS. See Alteratioxs; Extras. from original contract, 53-55, 85, (111.) 46, (Ind.) 153, (Iowa) 155, (N.Y.) 190. by consent, (Cal.) 136. when immaterial in character do not bar recovery, 53, (Ohio) 197. acquiesced in by employer, (N. H.) 182. provided for in the contract, 53. See Building Contract. sometimes obscure the original contract, 54, 83, (Vt.) 205. allowed by subsequent parol agreement, 55. from the tender after acceptance invalidates the contract, 93. "DIRECTLY," meaning of, 60. 570 INDEX. DISABILITY, PERMANKNT, performance of contract excused for, 108. DISCHARGE OF LIEN. See Waiver. generally, 444-447. (1) by voluntary act of the lien-holder, 444. debt may nevertheless survive, 444. by merger, 444. (2) by failure of lienor to comply with statutory provisions, 444. (.S) by uniting wirh the claim debts which are not lienable, 445. (4) implied from giving security, 445. (5) by payment, 445. not by, (1) death of the lienee or lienor, 446. (2) bankruptcy of either, 446. (3) dissolution of partnership, 447. DISTRESS. See Rknt. right of, how reserved in agreement to lease, 215. DISTRICT OF COLUMBIA, statutory provisions concerning mechanics' liens, 464. DITCH. See Drains. DIVISION WALL, may become a party wall, 338. DOWER, not affected by mechanic's lien, 435. DRAINS. See Sewers. generally, 401-412. systems of sewerage and drainage, 401, 402. liability of towns in selecting systems of, 402. as easements, 406, 407. may be acquired by grant or prescription and of necessity, 406. private riglit to drain not lost by construction of public drain, 406. construction and repairs of, 407, 408. owner of land cannot be compelled to drain his land in its natural state, 407. duties of owners of improved land to construct and repair, 407. capacity of, 408. liability of municipal corporations for, 409, 412. DRAWINGS. See Plans. presumed to be understood by builder, 4, (111.) 148. usually furnished by architect, 9. See Architi'XT. procured by architectural competition subject to approval, 12. paid for by employer, and not by mechanic using them, 13 (Pa.), 198. explained by an architect, 23, 90, (111.) 143. description of demised premises by reference to, 293. DRUNKARDS, capacity to execute leases, 235. as lessees, 237. INDEX. 571 DURESS, lease obtained from person under, 234. EASEMENT. See Building Easement. not lost by destruction oE building, (Iowa) 156. distinguished from a license, 316, 317. See License. how enforced, 317, 318. how conveyed, 319. as to right oE light and air, 320-337. See Light and Aik. as to privacy, 334. as to prospect, 334, 335. as to party walls, 338-362. See Party Wall. as to right of support, 355-362. See Support. in use of water, 363-369. See Water. in use of street by gas company, 374. See Gas. as to highways, 380-400. See Highways. in drains, cesspools, and privies, 400-412. EAVES-DRIP, may be a nuisance, 116, 366. See Nuisance. building so constructed as to cause nuisance by, 366. collecting water in gutters, 367. EJECTMENT, where lessee has not completed building by time agreed upon, 286. cannot be maintained against one claiming an easement, 317. maintained by one of the owners oE party walls where there has been actual ouster, 354. EMPLOYER. See Landlord; Lessor; Owner. Duties of, when performing part of contract to act diligently, 5. must not interfere with architect during progress of the work, 9, 16, (Pa.) 199. to assist builder by furnishing materials promptly, 66, (111.) 149. Rights and liabilities of, in case of failure of performance, 6. entitled to damages when progress of building delayed, 6. liable for price of plans and drawings, 13. when conspiring with architect to defraud builder, 14. liable for the acts of his architect, 15, 16. when jointly liable with architect, 17. may reserve right of approval, 28. not responsible for negligence oE architect in refusing certificate, 18. liable to contractor for damages in preventing completion of work, 39-41, (Ind.) 154, (Mo.) 178. measure of damages against, 40-43, (Ind.) 154. for loss from delays sustained by, 66. may maintain suit for damages where builder fails to complete his work, 43. 672 INDEX. EMPLOYER, lUglits and liahilllies of — Continued. not bound to accept defective work, 49, 60. upon accepting defective work becomes liable for its value, 49, 51-53. acqniesuing in deviations liable on q.m., (N. H.) 182. See Devi- ations. may order builder to rebuild defective work, 49. need not resort to cross-suits to show defects, 49, 50. not bound to pay for useless work, 60, 51. correcting defects cannot recover of builder, 60. liability of after acceptance, 52, 53. See Acckptancb. must pay for materials on delivery, 60. may set off penalty against contract price, 64. may allow extension of time by ordering extras, 63-65. for delays occasioned by himself, 65, 66. may restrict builder to price named in contract, 80. liable for extras impliedly contracted for independent of original contract, 82, 83. liable for cost of taking out qunntities, 02. See Quantities. does not warrant sufficiency of bill of quantities or specification, 92. entitled to injunction when builder refuses to conipli'te work, 102. causing delay, cannot enforce penalty or forfeiture clause, 103. may be required to give notice to proceed with the work, 104. See Notice. form of notice by, 104. for building nuisances, 121-125. See NniSANCES. may release surety, 105-107. See Suhkty. ' liability of several, (N. J.) 183, (N. Y.) 188. Effect nf death of , 107-109. See Dkath; Uicprf.sf.ntatto:^. Effect