TA 
 
 I80 
 
Class _lA-lil^ 
 Book Wj^_ 
 
 (k)pyright]^''_ 
 
 COEVRICHT DEPOSIT. 
 
NET 'BOOK NOTICE 
 
 It is intended that this book be sold to the public 
 at the advertised price, and is supplied to the 
 trade on terms that will not allow of discount 
 
 The Engineering NeWs 'Book Dept. 
 
SPECIFICATIONS 
 
 AND 
 
 CONTRACTS 
 
 A SERIES OF LECTURES DELIVERED 
 BY 
 
 J. A. L. WADDELL, C.E., D.Sc, LL.D., 
 
 Author of "De Pontibus," Etc. 
 
 INCLUDING EXAMPLES FOR PRACTICE IN 
 
 SPECIFICATION AND CONTRACT 
 
 WRITING, TOGETHER WITH 
 
 NOTES ON THE LAW 
 OF CONTRACTS 
 
 By JOHN C. WAIT, M.C.E., LL.B., 
 
 Author of "Engineering and Architectural Jurisprudence," Etc. 
 
 NEW YORK 
 
 THE ENGINEERING NEWS PUBLISHING COMPANY 
 
 1908 
 
^^ 
 
 <?, 
 
 xT^ 
 
 y 
 
 V 
 
 I LIBRARY of CONSRESSi 
 Two Copies Received 1 
 
 DEC 24 i 90? 
 
 Copyrignt tntry | 
 
 CLASS 4 XXc. NO 
 I COPY B 
 
 LJ 
 
 Copyright, 1907, 
 
 BY 
 
 THE ENGINEERING NEWS PUBLISHING CO. 
 
PUBLISHER'S PREFACE. 
 
 Soon after Dr. Waddell's lecture on "Engineering Contracts" 
 appeared in The Polytechnic a large portion of it was copied by 
 Engineering News, and at the same time one of the editorial staff 
 of the latter paper wrote him offering to bring out the lecture in 
 pamphlet or book form. Dr. Waddell replied that he had already 
 made arrangements for publishing the lecture in pamphlet form for 
 complimentary distribution; but suggested that a book containing 
 not only the lecture referred to, but also his previous one on 
 "Specifications," supplemented by data for numerous examples for 
 specification, and contract writing by students, and supplemented 
 perhaps also by notes by his friend, Mr. John Cassan Wait, the well- 
 known attorney and author, might prove useful in engineering 
 schools. 
 
 In view of Dr. Waddell's peculiar and characteristic method of 
 treating both subjects, in that he deals with the theory or science of 
 preparing these technical documents rather than by following the 
 ordinary method of making numerous and copious quotations from 
 similar documents actually prepared and used, the editors of 
 Engineering News adopted immediately his suggestion and arranged 
 with both Dr. Waddell and Mr. Wait for the preparation of the 
 necessary manuscript. 
 
 The publishers believe that this little book, if generally used as a 
 text-book in engineering schools, and if each student thereof is 
 required to prepare by its means a complete specification and an 
 exhaustive contract based on the "Examples" given, would do more 
 than any other text-book or combination of text-books to perfect 
 young engineers in the writing of technical documents. 
 
 Dr. Waddell stipulated that the price of the book should be kept 
 as low as possible, so as to make its purchase no hardship for the 
 students; and this has been done. 
 
 It is sincerely hoped by all concerned that the work will 
 effectively accomplish the sole object of its writers and publishers — 
 viz., the advancement of the engineering profession in one of its 
 most important lines. 
 
 The Engineering News Publishing Company. 
 
 220 Broadway, New York. 
 December 1, 1907. 
 
CONTENTS. 
 
 Specifications ......... 1 
 
 ^Examples for Practice in Specification Writing ... 48 
 
 Engineering Contracts ^. . . . . . .60 
 
 Examples for Practice in Contract Writing . . . . 110 
 
 Notes on the Law of Contracts ...... 130 
 
 Index 169 
 
Specifications. 
 
 A Lecture Delivered to the Senior Class of the Kensselaer 
 Polytechnic Institute on April 30, 1903. 
 
 Thus far, in addressing you, young gentlemen, I flatter myself Introduction 
 that I have interested you and held your attention fairly well; but 
 now I am going to risk losing the prestige that I think I have 
 gained among you, by giving you a long, tedious talk on the dryest 
 of all dry, technical subjects — specifications. 
 
 Dry, however, as the subject may be, there is no other of greater 
 importance in engineering practice; hence I feel that I would not be 
 doing either my duty by you or justice to myself were I to spare 
 you the infliction of this last lecture, merely for the sake of trying 
 to leave on your minds the impression that I am an interesting 
 speaker. It will therefore be necessary for you to take your medi- 
 cine philosophically, and I am going to ask you to give me your 
 closest attention and to endeavor to interest yourselves in all that 
 I say, notwithstanding its extreme dryness. 
 
 The substance of this discourse was blocked out a month ago 
 by Mr. Ash, one of the assistant engineers of my flrm, and by myself 
 working jointly; it was then partly written and delivered by him 
 to the engineering students of the Missouri State University. Since 
 then I have revised and enlarged the lecture considerably for your 
 special benefit. 
 
 Between the individual or corporation desiring the work done Status of Engineer 
 and the contractor who performs it, stands the engineer who has 
 designed it and who usually superintends its execution. He is in 
 the employ of the persons promoting the enterprise, and it devolves 
 upon him to make sure that those who retain him receive an honest 
 and fair return for their money. While it is true that he is 
 employed by only one of the parties to the contract, he should not 
 be partisan, but should strive to see that fairness to both is secured. 
 The engineer should not be an enemy to the contractor, but should 
 work in harmony with him, and should do all he can to further 
 the rapid and harmonious completion of the work, being careful, of 
 
2 SPECIFICATIONS AND CONTRACTS. 
 
 course, to see that nothing is done which will in any way result in 
 an inferior construction. As the engineer's decisions are final (unless 
 it can be shown that actual fraud exists)/ it behooves him to be 
 careful that no injustice is done to any one. 
 
 Specifications De- In order that the contractor may understand the scope of the 
 
 work to be performed and the details of its construction, a written 
 description and plans more or less complete, defining the methods 
 of construction, material, etc., to be used, are prepared by the 
 engineer for the approval of the company having the work done 
 and for the guidance of the contractor. These written documents 
 are the specifications, and together with the contract, of which they 
 form a part,^ they fix definitely the relations that shall subsist 
 between the company or corporation and the contractor. 
 
 Plans, Utility of To build a structure, no matter how simple, there must be a 
 
 plan, if it is to be constructed intelligently and efficiently. As the 
 size and importance of the structure increase, the plan grows more 
 and more complex, and hence the greater necessity for putting it in 
 some fixed and definite form which shall convey the exact idea 
 existing in the mind of the engineer. To secure the proper execu- 
 tion of a work of any magnitude, specifications are absolutely 
 necessary, and they should be prepared with great care and exact- 
 ness. For convenience of reference and for clearness, they are 
 
 Specifications, Prep- usually divided into clauses, which may be classed as general and 
 aration 
 
 specific. General clauses refer to the business relations that shall 
 
 exist between the parties to the contract. In them is found the 
 
 general description of the work as a whole without any particular 
 
 reference to details. Times and methods of making payments, 
 
 adherence to specifications, inspection, and other analogous headings 
 
 make up their subject matter. They should be comprehensive in 
 
 their scope, and should not contradict one another. It is well to 
 
 avoid a double description of any particular thing. Contradictory 
 
 clauses are sure to be a stumbling block that will create friction and 
 
 cause delay. At first glance one would say that such clauses are easily 
 
 eliminated, but care is necessary to accomplish this. For instance, 
 
 a certain result may be desired in the substructure of a bridge that 
 
 will not fit in with the kind of superstructure wanted.' 
 
 Specific clauses have to do with the details of construction and 
 
 the description of particular features of design. They embody the 
 
 * Wtien it is expressly so provided, as is usually the case. 
 
 * They should be declared to be so. 
 
 ' These general conditions, describing the general relations of the parties, 
 their duties, and general obligations are best embodied in the contract. 
 
SPECIFICATIONS AND CONTRACTS. 3 
 
 special ideas that the engineer wishes to incorporate in the work, 
 and they should be just as minute in detail as is requisite to set 
 forth the exact plan desired. Detailed drawings may be necessary Detail Drawings 
 to indicate clearly just what is to be done, and these drawings 
 either should be prepared before the specifications are written, or at 
 least should be sufficiently matured in the mind of the engineer to 
 enable him to write his specifications in accordance with them. It 
 must be remembered that the specifications and plans constitute a 
 guide-book for the contractor and for the resident engineer. They 
 should tell what must be done, but should not necessarily state just 
 how it should be done. Specifications should look to the accom- Speciacations, Pur- 
 plishment of an end rather than to the means of its attainment. Of 
 course, there are exceptions to this, as when the engineer believes 
 that for the best results certain work must be performed in some par- 
 ticular way, in which case it is necessary to incorporate the method 
 in the specifications. It must be remembered that under these Guaranty of Results 
 circumstances the contractor cannot be held responsible for the 
 mistakes of the engineer. When an engineer specifies that a thing 
 shall be done in a certain way, he must assume the responsibility of 
 the outcome, because the contractor is not free to adopt the method 
 lie thinks best suited to the case in hand.^ For this reason specifica- 
 tions should leave the method, as far as can be done consistently, to 
 the contractor, and instead should dwell upon the end to be attained. 
 A good contractor who is active and progressive may frequently 
 wish to introduce methods of construction better than those con- 
 ceived by the engineer, and it were a poor set of specifications which 
 would prevent his doing so. A specification can readily be very 
 strict concerning the finished work and at the same time very 
 liberal as to the methods to be employed in its accomplishment. 
 
 It frequently happens that specifications are written without pians Prepared by 
 
 ,, -r , ... , , . Contractor 
 
 any accompanying plans at all. In such cases it is usual to require 
 
 hidders to submit with their tenders plans more or less detailed of 
 
 wrhat they propose to do. In this way the engineer may make a 
 
 choice from various plans presented and thus obtain what he 
 
 considers the best of a number of ideas. Specifications of this kind 
 
 will have, of course, very little or nothing at all to do with the 
 
 details involved, but will be concerned almost entirely with the final Specifications of Re- 
 
 suits 
 desired outcome. In other words, such a specification will consist 
 
 Tery largely of general clauses, those of a specific nature being either 
 
 ^ The engineer may not specify in detail and tlien exact a warranty as 
 to results. The law will not imply a warranty. 
 
SPECIFICATIONS AND CONTRACTS. 
 
 Specialists 
 
 Good Specifications 
 
 Specifications 
 elusive 
 
 Con- 
 
 entirely eliminated or reduced to a minimum. This method of 
 letting contracts without any accompanying plans is by no means 
 to be commended.^ A good engineer does not want other people 
 to tell him what to use or what to do. If he is thorough and well 
 posted in ' his profession, he is not going to let his own ideas be 
 superseded by those of a contractor who furnishes plans with his bid. 
 In such a case the engineer becomes only an inspector, who simply 
 passes upon the work and determines whether or not it fulfils 
 requirements, when perhaps much of the work is entirely at variance 
 with his own ideas. It is reasonable to suppose that an engineer 
 who devotes his entire time to designing structures of a particular 
 kind (and no one man will attempt to cover the entire field), i& 
 more capable of arriving at the best design for a given case than a 
 contractor who is engaged in work of a varied nature, and whO' 
 perhaps has given little or no thought to the designing of the 
 particular kind of structure upon which he desires to tender. It is- 
 undoubtedly a fact that the best results are accomplished when the 
 plans and specifications are prepared by a competent engineer, and 
 when the bidder is governed by their requirements.^ 
 
 Let us consider some of the salient features of good specifica- 
 tions. Primarily, they should give a clear and concise description 
 of the work, first when considered as a whole, and then in detail, no' 
 part being slighted in this description. It will not answer for the 
 engineer to suppose that the contractor will do things as a matter 
 of course, but he must produce a specification that will insure their 
 being done. A contractor, if he be thoughtful and careful, will pay 
 close attention to every detail set forth in the specifications, and he 
 should make his bid, expecting to fulfil just the requirements 
 enumerated in them, no more and no less. If he be wise, he will 
 not bid with the expectation of having them changed to conform 
 to his convenience or his notions of what is best. The engineer is' 
 supposed to have stated in his specifications just what he wants, and 
 no prudent contractor will tender, expecting his own ideas to prevail. 
 If, then, upon the engineer devolves the responsibility of determining 
 the work to be done, it will be readily seen that it behooves him to 
 cover the entire ground in his specifications. He should give special 
 attention to the points he intends to require absolutely without 
 
 ^ It may be prohibited by statutes, charters, and ordinances which require 
 a standard of comparison and public competition. 
 
 - Such a practice is sometimes adopted to meet statutes requiring public 
 competition, where the structure or machine is the subject of a monopoly — 
 as of letters patent. 
 
SPECIFICATIONS AND CONTRACTS. 5 
 
 alteration and should leave no possibility for doubt in the mind of 
 
 the contractor as to what will be expected concerning them. He 
 
 should be careful to set forth clearly the units of measure to be 
 
 employed and what is to be considered a part of the finished work, 
 
 as distinguished from what is merely accessory.^ If extra work is Extra Work Defined 
 
 to be performed, the amount of which it is impossible to determine 
 
 in advance, the greatest care should be exercised in defining clearly 
 
 just what shall constitute such extra work and in fixing the 
 
 compensation for it. Failure to do this is frequently a source of 
 
 trouble and annoyance that might be avoided by careful wording. 
 
 Specifications should be designed to secure the best results When Results are 
 
 Wanted 
 consistent with what is considered good practice. It is possible 
 
 to make requirements of such a nature that to fulfil them would 
 
 mean an enormous outlay of money not at all proportionate to the 
 
 result. Such clauses in a specification make a bidder uneasy and 
 
 will cause him to add to his bid a sufficient amount in addition to 
 
 his profit to insure him against loss. A bidder should make his 
 
 tender expecting to comply with the conditions of the specifications, 
 
 and expecting that his fellow bidders will do the same, and a clause 
 
 that involves an unduly strict condition is liable to cause him either 
 
 to tender high or to bid hoping that its fulfilment to the letter will 
 
 not be demanded. In nine cases out of ten such a clause will bo 
 
 dearly paid for. 
 
 Absolute perfection is not to be expected, but the very best that Advantages of La- 
 
 cality and Market 
 the most approved practice will afford should govern the require- 
 ments. An engineer must lose prestige if he specify things which 
 cannot consistently be done, and by inserting such requirements he 
 works injury to all parties concerned. In the matter of materials 
 to be used he must be governed by the locality and by what the 
 market has to offer. He may be unable to get just what he would 
 like; therefore he must use the best that can be obtained. These 
 remarks do not imply that the engineer should be satisfied with 
 any makeshift that is offered. He can rest assured that he will not 
 receive anjihing better than he demands, and he is fortunate if he 
 succeeds in getting everything as good as he specifies. As he is a 
 large factor in determining what shall be considered good practice, 
 he should not be content to put up with shoddy stuff when better 
 can be obtained. As in all business relations, moderation with 
 firmness should govern. 
 
 ^ False works should not usually be made the subject of public letting, 
 as for public Improvements. 
 
.6 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Language of Specifi- 
 cations 
 
 Sevei-al Contractors 
 
 Favoritism 
 
 Again, specifications should be written in simple, plain language 
 without any attempt at rhetoric. All verbs should be complete, and 
 no words should be omitted on the assumption that they are under- 
 stood. Of course, the law will interpret a contract or a specification 
 in accordance with what the court decides is its spirit,^ but an 
 engineer should not rely upon this to guard against omission. If 
 the specifications are properly prepared, there should be no 
 occasion for appealing to the courts to decide what is or is not the 
 spirit intended. While such documents should be comprehensive, 
 they should not be verbose, and, above all things, they must not be 
 ambiguous. Short sentences and simple words are preferred. 
 Punctuation and grammar, while usually and erroneously considered 
 of minor importance in an engineer's practice, certainly play an 
 important part in this particular kind of literature. The meaning 
 of a sentence can easily be distorted, or even entirely changed, by 
 the placing of a comma. Do not fear to repeat the same words or 
 phrases over and over again in your specifications, if you find they 
 best convey the idea you have in mind. This may involve occasion- 
 ally some lack of euphony, but that can very readily be dispensed 
 with in writings of such a prosaic nature. 
 
 Should more than one contractor be employed upon a piece of 
 work, great care must be exercised to define clearly the duties of 
 each. Just where one is to finish and the other is to begin should 
 be set forth so as to. leave no possibility of doubt. When practicable 
 in such cases, separate and distinct specifications for the different 
 parts of the work should be prepared. Care should be taken that the 
 same thing is not required of both contractors, and that one con- 
 tractor is to leave his part of the work in such shape as to involve 
 no hardship or inconvenience for the one who is to follow. As an 
 illustration of cases of this kind, in bridge work it frequently 
 happens that one contractor will do the substructure work while 
 another will build the superstructure. It is then necessary to 
 specify who is to set the anchor bolts and anchorages. 
 
 The engineer must be careful about putting anything into his 
 specifications that has even the appearance of favoritism. He must 
 be constantly on his guard to avoid this, for his position is such that 
 his reputation is liable to suffer if he deviate in the least from 
 Strict fairness to all. It is bad policy, generally speaking, to require 
 a particular brand of material or the product of a given firm 
 without stating that other material will be accepted, if, upon testing. 
 
 1 The intention of the parties. 
 
SPECIFICATIONS AND CONTRACTS. 7 
 
 it be found of equal quality. When a given brand is well-known 
 and has an established reputation, it is sometimes proper to specify 
 that it shall be used to the exclusion of other makes, but usually 
 it is best to set a standard which is commensurate with the best 
 product to be had, and then to accept any brand which meets the ' 
 
 requirements.^ An exception to this rule is permissible when speci- Commercialism 
 fying paint for metal-work, because, unless the particular brand 
 be stated, the contractor is liable to give endless trouble by offering 
 for test inferior brands, and the result is very likely to be the 
 adoption of a paint that is not really satisfactory. Unscrupulous 
 parties are ever ready to give the engineer a bonus in case he use 
 their product, and that engineer is fortunate who has an extensive 
 practice and is yet entirely free from all charges of peccability. 
 Where one man's product is rejected and another's used, there is a 
 great temptation on the part of the disappointed person to question 
 the fairness of the proceeding. An engineer once guilty of crooked- 
 ness is badly handicapped, and justly so, for no man wishes to 
 entrust the expenditure of his capital to one who is not absolutely 
 above suspicion.^ 
 
 To insure all the conditions that have been enumerated, it is Engineer's Prepara- 
 tion 
 
 evident that the engineer must familiarize himself with every detail 
 
 of the work in hand. If he does not understand it himself, it is ' 
 
 certain that he will not succeed in getting a clear idea of what he 
 
 wants into the mind of another. Even when the scheme is perfected 
 
 in the engineer's mind, it is difficult sometimes to make it plain to 
 
 the contractor. 
 
 It will not do to jump at hasty conclusions, for very often Changed Conditions 
 one finds that an idea, which at first seemed to be just what was 
 wanted, proves utterly untenable when considered in connection 
 with other ideas that must be incorporated in order to produce a 
 finished construction. No idea for a specification has any value 
 until it has been fitted into the proposed structure, and is found to 
 harmonize with all the other requirements. 
 
 It is usual and proper in specifications to insert a clause allowing Alterations 
 the engineer the privilege of changing them or the plans as the 
 work progresses, but it is desirable for all concerned that the 
 number of these changes be reduced to a minimum. A perfect set 
 of specifications would render such a clause useless, but since we 
 
 ^ If materials are specified by name and not by tests or results, the con- 
 tractor can be held only to deliver the brand or kind named. 
 
 "^ Commercialism in engineering practice is pretty certain to arouse sus- 
 picion. 
 
8 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Precision 
 
 Prior Negotiations 
 not Pertinent 
 
 Concealment of 
 Facts 
 
 have not yet attained to perfection, we must have some means of 
 recourse, bearing in mind, however, that the more such a clause 
 as the one referred to is brought into use, the farther we are from 
 the ideal/ 
 
 The question of precision is one which should never be lost 
 from sight. If the engineer is to maintain his prestige, he must be 
 precise. It will not do for him to say "about this" or "about that," 
 for the "about" is very liable to assume proportions which were 
 never dreamed of when the term was used. Of course, there are 
 times when it is neither necessary nor desirable to be absolutely 
 exact in requirements, but generally speaking the word 'about" 
 has very little place in a set of specifications. What is put into 
 them is placed there with the idea that it is to be operative and 
 binding in the construction of the work, and it is the duty of the 
 engineer first of all to impose no impossible or unwise conditions,^ 
 and next to see that what he has required is fulfilled to the letter. 
 
 The specifications form a part of the contract,^ and when the 
 latter is signed, the contractor agrees to ail the conditions they set 
 forth. It is proper to assume that he has read the specifications 
 and is familiar with their requirements, and that he signs the con- 
 tract and makes his bond with the full knowledge of what is before 
 him.* A specification should never hide from the contractor difficul- 
 ties that are likely to be encountered. On the contrary, when such 
 difficulties are known to the engineer, they should be specially called 
 to the contractor's notice, so that he may bid more intelligently. 
 His attention, however, should not be drawn to them in such a way 
 as to frighten him and to cause him to make a bid abnormally high, 
 but the facts as they exist and are known to the engineer should 
 be stated. As in all relations in life, straightforward, fair-and-square 
 dealing is by far the best policy. No railroad company or other 
 corporation is benefitted by letting a contract for a sum below the 
 actual cost, plus a reasonable percentage for profit, since the delays 
 incident to the contractor's failure, and the litigation that is likely 
 to arise will more than counterbalance the supposed saving. No 
 contractor who is losing money is going to make the same exertion 
 to accomplish his task properly as one who realizes that he is 
 earning a fair profit. 
 
 1 Powers of an engineer to make changes should be limited to the details 
 of construction and of materials. 
 
 2 And as few ir the alternative as possible. 
 
 3 They should be made so by the text. 
 
 * He may be held to the terms, if he has not read them. 
 
SPECIFICATIONS AND CONTRACTS. 9 
 
 In spite of every precaution that may be taken, it is almost Engineer's Mistakes 
 impossible to avoid mistakes entirely. A given proposition may 
 appear to the engineer in his office, before work has commenced, very » 
 -different from what he finds it in the field after the construction has 
 begun. When an engineer discovers that he has made a mistake, he 
 should not hesitate to acknowledge it, and to set about, as best he 
 may, to correct the error. He should lose no opportunity to check 
 against errors, and should be thankful when they are discovered in 
 time to prevent harm. To reduce mistakes to a minimum, the 
 engineer must be thoroughly conversant with all contingencies likely 
 to arise in the execution of the work. He should familiarize him- 
 self with the appliances ordinarily employed, and should so design 
 his work that their use will not be prohibited. In writing his specifica- 
 tions and in making the plans, he should have a clear and complete 
 mental picture of just what he is striving to attain. It must be 
 remembered that if the specifications are lived up to, they will 
 entirely determine the result, and that it is the plans and specifica- 
 tions wherein the creative power of the engineer asserts itself. 
 
 Finally, when all is said and done, common sense must govern ultimate Object 
 the interpretation and execution of any set of specifications. All 
 should have but one object in view — the production of a structure 
 that will be a credit to every one concerned. 
 
 Up to this point I have been dealing mainly with generalities. General and Special 
 ^ ^ o ^ Provisions 
 
 but now I shall go more into detail, taking up first general clauses 
 and later specific ones. These general clauses will be ample for all 
 engineering specifications, and can therefore be used for all kinds 
 of engineering construction; but it would be impossible to cover 
 the entire ground of specific clauses, consequently I shall simply 
 ■quote some characteristic ones from specifications for different kinds 
 of construction, and point out some of their peculiar features and 
 raisons cVetre. Naturally, in offering you examples of specifications, 
 I shall utilize some of those prepared by my firm, and shall trust 
 that you will pardon me for so doing, because I am responsible for 
 them, while, of course, I could not be accountable for the correctness 
 of everything in case I were to quote from the specifications of .other 
 engineers. In order to present to you a wide range of specific Subjects for Study 
 clauses, I shall make extracts from specifications for bridge super- 
 structures, bridge substructures, steel lighthouses, an ocean pier, and 
 a steel pipe-line. From a study of these you will be aided materially 
 in the preparation of specific clauses for any class of construction 
 lOn which you may be engaged. 
 
10 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Ground Covered by 
 Thorougia Bridge 
 Specifications 
 
 Titles 
 
 Specifications to be 
 Followed 
 
 But first, in order to give you an idea of the ground which a 
 thorough set of specifications must cover, let me read to you the 
 alphabetical list of headings in our "Specifications for the Rebuilding 
 of Ten Bridges on the International and Great Northern Railroad": 
 
 Accompanying Drawings; Adherence to Specifications; Altera- 
 tion of Plans; Anchor-Bolts; Annealing; Approximate Quantities; 
 of Materials, etc.; Back Filling; Bank Protection; Bending Tests; 
 Bond; Built Members; Caissons Sunk by Pneumatic Process; Cast 
 Iron; Cast Steel; Cement; Closing Thoroughfares; Coffer-Dam 
 Work; Company; Composition of Rolled Steel; Concrete; Concrete 
 Piers and Abutments; Construction; Contract; Damages; Defective 
 Work; Depths of Foundations; Directions to Contractor; Drawings; 
 Drifting Tests; Dry Surfaces in Concrete; Elastic Limits; Elonga- 
 tion; Encountering Obstacles; Engineer; Excavation; Extras; Eye- 
 Bars; Falsework; Field Riveting; Filling Column Feet; Final 
 Inspection; Floors; Fracture; General Description; General Pro- 
 visions on Methods of Testing; Granitoid; Hauling over Company's 
 Lines; Identification; Inspection; Interference with Traffic; Liqui- 
 dated Damages; Location; Loss of Metal; Metal; Modus Operandi 
 of Construction; Name-Plates; Number of Test Pieces; Paint; 
 Painting; Payments; Pile Foundations; Piles; pin-Holes; Pin 
 Metal; Pins; Position of Piers, Pedestals, and Abutments; Prices 
 of Materials; Punching and Reaming; Reduction of Area; 
 Re-Entrant Corners; Removal of Old Piers; Responsibility for 
 Accidents; Return of Papers; Rivet-Holes; Rivets; Rolled Steel; 
 Rollers; Routing of Materials; Scope of Contract; Sheared Edges; 
 Shipping; Spirit of the Specifications; Steel Cutting Edges; 
 Strictness of Inspection; Tenders; Tensile Strength; Tests of Full- 
 Sized Eye-Bars; Tests of Full-Sized Members or Details; Timber; 
 Time of Completion; Turn-Buckles, Nuts, Threads, and Washers; 
 Turned Bolts; Use of Old Rails; Variation in Weight; Workmanship; 
 Wrought Iron. 
 
 Although I have omitted ten headings that simply enumerate 
 the various crossings, the list contains nearly one hundred clauses, 
 only seventeen of which may properly be termed general. The latter 
 I shall now proceed to read and discuss in the order in which they 
 appear in this particular set of specifications. 
 
 ADHERENCE TO SPECIFICATIONS. 
 "All the work herein outlined is to be done in strict accordance 
 with the specifications, the accompanying plans, and such instruc- 
 tions as may be given from time to time by the Company's engineers. 
 
SPECIFICATIONS AND CONTRACTS. 11 
 
 Bidders are hereby warned that they will be held strictly to the 
 spirit of these specifications, and that it will be bad policy for 
 any one to bid with the expectation that concessions will be made 
 after the contract is closed, in order that the work may be cheapened; 
 for while the Company's engineers desire to aid the Contractors 
 in every legitimate manner to do their work expeditiously and 
 economically, at the same time they have given these plans and 
 specifications the most thorough consideration, and know exactly 
 what they need in respect both to design and to quality of materials 
 and workmanship. On this account, bidders are respectfully 
 requested not to complicate their tenders by putting in alternative 
 bids based upon proposed changes in either plans or specifications, 
 because such alternative bids will not be considered." 
 
 This clause, which is common to all of our specifications, was Alterations to be 
 
 Avoided 
 originated by me some ten years ago, in order to prevent bidders 
 
 from trying to modify our plans and specifications by offering some 
 of their own for the purpose either of cheapening the work or of 
 giving the bidder an advantage over his competitors. Promoters of 
 enterprises are too prone to listen to the specious arguments of 
 bidders when they contend that they are better posted upon what is 
 needed than are the engineers. Whenever the promoters permit 
 themselves to be influenced by such arguments they are certain to 
 come to grief. Contractors work for their own interests, and it is 
 right that they should do so; but they ought not to claim that their 
 advice is unprejudiced and is offered for the sole purpose of improv- 
 ing the construction; when they do, they are not speaking the 
 truth. For many years I have had to struggle constantly and vigor- Effect of Changes 
 ously against such attempts of bidders and contractors to change 
 my plans and specifications, and on more than one occasion I have 
 had to take the stand that either the promoter must refuse to enter- 
 tain the bidders' suggestions or that I must resign my position. In 
 one of these instances there were involved some two million dollars' 
 worth of work; and I came within an ace of losing the engineering 
 on it by my absolute refusal to consider the fundamental changes 
 in my plans and specifications that were proposed by the bidders. 
 By adopting the preceding clause and by adhering strictly to its 
 context, I have, after many years, succeeded in preventing any more 
 such attempts to upset my work. Of course, in minor matters when 
 a contractor offers politely any reasonable suggestion tending toward 
 the modification of my requirements, I am always ready to consider 
 it, and I never refuse to accede to such a request, if it be proved 
 
12 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Detail Drawings 
 
 Drawings to be Vei-i- 
 fied 
 
 Contractor's Details. 
 
 Engineer's Details 
 
 Eesponsibility for 
 Errors 
 
 that tlie change is either beneficial or at least not detrimental to the 
 construction.^ 
 
 DRAWINGS. 
 
 "As soon as practicable after the signing of the contract for 
 rebuilding the structures, complete detail drawings will be furnished 
 by the Engineer, and from these the Contractor is to prepare his 
 working drawings, complying carefully therewith, and making no 
 changes without the written consent of the Engineer. The working 
 drawings are to be sent in triplicate for the approval of the 
 Engineer, who will retain two sets and return the third after 
 checking same and marking thereon any changes or corrections 
 desired; after which a corrected set of working drawings shall be 
 sent without delay by the Contractor to the Engineer. The approval 
 of the said working drawings by the Engineer will not relieve the 
 Contractor from the responsibility of any errors thereon. 
 
 The drawings furnished by the Engineer shall be checked 
 carefully by the Contractor before beginning work. Should any 
 errors be discovered, the Engineer's attention shall be called to same, 
 and corrections will be made, after which the Contractor shall be 
 responsible for all errors which may occur or which may have 
 occurred. The Engineer shall have the right to alter as he may see 
 fit the preliminary plans, if further investigation of the conditions 
 affecting the proposed structure so warrant; and he shall be at 
 liberty to make minor changes in all plans during construction 
 without any charge being made for same by the Contractor, unless, 
 in the opinion of the Engineer, the Contractor be really entitled to 
 extra compensation on account of such changes. 
 
 The Contractor shall furnish without charge as many sets of 
 working drawings as the Engineer and other officers of the Com- 
 pany may deem necessary for their use during construction or for 
 record. 
 
 Should the Engineer prepare any working drawings, they shall 
 be checked carefully by the Contractor; and, if any errors be discov- 
 ered, the Engineer's attention shall be called thereto. After the 
 proper corrections of these are made, the Contractor shall be 
 responsible for all errors which may occur or which may have 
 occurred."^ 
 
 It may at first thought appear a little arbitrary to hold the 
 
 1 Material changes often affect the rights and liabilities of the parties, 
 and lead to complications, in case of litiscation. 
 
 - This would doubtless apply only to errors in working drawings. 
 
SPECIFICATIONS AND CONTRACTS. 13 
 
 Contractor responsible for any errors that there may be in the 
 Engineer's plans, but a little consideration will show that, if there 
 are any such errors, they ought to be discovered before work is 
 started, and that, as the Contractor is to attend to the construction, 
 he ought to make sure in advance that the entire scheme is correct 
 in every particular; who is there, then, so suitable as he to do the 
 checking and to correct the mistakes?^ 
 
 It is not a good plan for the Engineer to prepare shop-drawings Shop-Drawings 
 for metal-work, because no two shops have exactly the same method 
 of making working drawings; those suitable for one manufacturing 
 company would not be acceptable to another. It is therefore much 
 better for the Engineer to draft complete detail plans, then submit 
 them to the Contractor as a guide for the preparation of the shop- 
 drawings. 
 
 INSPECTION. 
 
 "The inspection and tests of metal will be made promptly on its Inspection, Facilities 
 
 for 
 being rolled or cast, and the quality will be determined before it 
 
 leaves the rolling-mill or foundry. The inspection of workmanship 
 
 will be made as the manufacture of the material progresses, and at 
 
 as early a period as the nature of the work will permit. 
 
 All facilities for inspection of metal and workmanship shall be 
 furnished by the Contractor; and the Engineer and his inspectors 
 ;shall have free access to all parts of the plant in which any portion 
 of the metal is being made. 
 
 The Contractor shall give the Inspector due notice when any Notice of, and Delay 
 metal is ready for inspection. Any delay on the part of the 
 Inspector shall be reported to the Engineer, but no material will be 
 accepted which has not been passed upon by the authorized repre- 
 sentative of the Engineer. 
 
 All other materials than metal used on the work shall be Field Inspection 
 
 inspected after delivery at site, unless the Contractor shall elect to 
 
 have any materials inspected elsewhere, in which case the said 
 
 materials shall be inspected by the Engineer at the places designated 
 
 by the Contractor; but all expenses connected with such inspection 
 
 shall be borne by the Contractor, and shall be paid promptly from 
 
 time to time upon presentation of bills for same." 
 
 The reason for stipulating that all materials excepting metal Expense of Inspec- 
 tion 
 
 shall be inspected at site, unless the Contractor elect to have the 
 inspection done elsewhere at his own cost, is that without this 
 
 ^ This may be true in steelworli, but it will not hold in all classes of 
 construction worli. 
 
14 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Final Inspection 
 
 Defects to be Made 
 Good 
 
 Inspection and Ac- 
 ceptance 
 
 Foreman in Charge 
 
 restriction there would be no end to the expense to which an. 
 Engineer would be put in sending inspectors all over the country 
 to stone quarries, cement manufactories, sand pits, lumber mills, and: 
 forests. 
 
 FINAL INSPECTION. 
 
 "Before the completed work on each bridge is accepted and paid: 
 for in full, the Contractor shall notify the Engineer in writing that, 
 it is ready for final inspection. Upon receipt of this notification,, 
 the Engineer will arrange to give the entire work on the said bridge- 
 a minute and thorough inspection, either in person or through a. 
 competent representative who has not been employed regularly on 
 this special work. Any defects or omissions noted during this 
 inspection must be made good by the Contractor, without extra, 
 charge, before the work will be accepted and paid for in full." 
 
 The reason for specifying that the final inspection shall not 
 be made by the resident engineer is that no man can well check or 
 inspect his own work, because he will be almost certain to overlook 
 any errors or omissions that had previously escaped his notice. 
 
 DEFECTIVE WORK. 
 
 "The Contractor, upon being so directed by the Engineer, shall 
 remove, rebuild, or make good, without charge, any work which 
 the said Engineer may consider to be executed defectively. The fact 
 that any defective material in the structure had been accepted pre- 
 viously by the oversight of the Company's Engineers or Inspectors, 
 shall not be considered a valid reason for the Contractor's refusing^ 
 to remove it or to make it good. And until such defective work is. 
 removed and made good, the Engineer shall deduct from the partial 
 payments or the final payment, as the case may be, whatever sum 
 for such defective work as may, in his opinion, appear just and 
 equitable." 
 
 Many contractors object strenuously to the clause which forces 
 them to remove and replace any defective work, claiming that any- 
 thing which is once passed is accepted finally, and that if it has to be 
 rebuilt, the extra work involved should be paid for by the Company.. 
 But if such an arrangement as this were to rule, it would act as an 
 incentive for contractors to attempt to bribe the inspectors, and 
 would leave the Company without recourse from the results of the 
 latter's dishonesty. 
 
 DIRECTIONS TO CONTRACTOR. 
 "In case the Contractor shall not be present upon the work at 
 any time when it may be necessary for the Engineer to give instruc- 
 
SPECIFICATIONS AND CONTRACTS. 15 
 
 tions, the foreman in charge for the time being shall receive and 
 obey any orders that the Engineer may give. 
 
 The Contractor shall commence work at such points as the Progress 
 Engineer may direct, and shall conform to his directions as to the 
 order and time in which the different parts of the work shall be 
 done, as well as to the force required to complete the work at the 
 date specified. 
 
 CLOSING THOROUGHFARES. 
 The Contractor and his employees shall so conduct their opera- Thoroughfares 
 tions as not to close any thoroughfare by land or water without the 
 written consent of the proper authorities of such thoroughfare. 
 
 RESPONSIBILITY FOR ACCIDENTS. 
 The Contractor shall assume all responsibility for accidents to Accidents 
 men, animals, materials, and trains before the acceptance of the 
 .structure; and must remove at his own expense all false-work, 
 rubbish, or other debris caused by his operations; and such 
 work shall be included as a part of the work to be performed. 
 'The Contractor shall place sufficient and proper guards for the 
 prevention of accidents, and shall put up and maintain at night 
 suitable and sufficient lights. 
 
 DAMAGES. 
 The Contractor shall indemnify and save harmless the Company indemnity 
 against all claims and demands of all parties whatsoever for 
 damages or compensation for injuries arising from any obstructions 
 erected by the Contractor or his employees, or from any neglect or 
 omission to provide proper lights and signals during the construc- 
 tion of the work. 
 
 ALTERATION OF PLANS. 
 
 The Engineer shall have the power to vary, extend, increase, or Alterations and 
 
 Compensation 
 diminish the quantity of the work or to dispense with a portion 
 
 thereof during its progress without impairing the contract, and no 
 
 allowance will be made the Contractor except for the work actually 
 
 done. In case any change involve the execution of work of a class 
 
 not herein provided for, the Contractor shall perform the same, and 
 
 shall be paid the actual cost thereof plus the percentage for profit 
 
 agreed upon in the contract. In this case the Contractor must 
 
 furnish the Engineer with satisfactory vouchers for all labor and 
 
 material expended on the work. 
 
16 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Inspection 
 
 Intent 
 
 Progress Payments 
 
 Liens Discharged 
 
 STRICTNESS OF INSPECTION. 
 
 All materials and workmanship will be inspected thoroughly 
 and carefully, and the Contractor will be held at all times to the 
 spirit of the specifications; but nothing will be done by the Com- 
 pany's engineers or inspectors to give the Contractor needless worry 
 or annoyance, the intent of both specifications and inspection being 
 simply to obtain for the Company work that will be first-class in 
 every particular and a credit to every one connected with its 
 designing and construction." 
 
 This clause contains in a nutshell the entire code of ethics 
 which should govern the Engineer in his dealings with the Con- 
 tractor. 
 
 SPIRIT OF THE SPECIFICATIONS. 
 
 "The nature and spirit of these specifications are to provide for 
 the work herein enumerated to be fully completed in every detail for 
 the purpose designed; and it is hereby understood that the Con- 
 tractor, in accepting the contract, agrees to furnish any and every- 
 thing necessary for such construction, notwithstanding any omission 
 in the drawings or specifications." 
 
 It may seem unfair to bind the Contractor to furnish things not 
 called for in the specifications; but the clause is intended to cover 
 only such things as are absolutely necessary for the work and which 
 were evidently overlooked when the bidding papers were prepared. 
 
 PAYMENTS. 
 "Payments for work shall be made as follows:^ 
 On or about the first day of the month the Engineer will estimate 
 the value of the work done and materials furnished; and within 
 twenty-five (25) days thereafter, eighty-fivg (85) per cent, of the 
 value thus determined, less previous payments, shall be paid to the 
 Contractor in cash. Upon the completion of each bridge involved in 
 the contract, and upon acceptance of same in writing by the Com- 
 pany, the balance due the Contractor for the said bridge shall be 
 paid to the said Contractor in cash. 
 
 Before, however, the final payment on any bridge is made, the 
 Contractor shall show to the Company satisfactory evidence that all 
 just liens, claims, and demands of his employees, or of parties from 
 whom materials used in the construction of the work may have been 
 purchased or procured, are fully satisfied; and that the materials 
 furnished and work done on the structure are released fully from 
 all such liens, claims, and demands. 
 
 1 These clauses are more frequently made a part of the contract. 
 
SPECIFICATIONS AND CONTRACTS. 
 
 17 
 
 If, too, during the progress of the work, it appear that the Bills to be Paid 
 Contractor's bills for labor and materials are not being paid, the 
 Company shall have the right to withhold from the Contractor's 
 monthly payments a sufficient sum or sums to guarantee itself 
 against all losses from mechanics' and other possible liens, and to 
 apply the said sum or sums to the payment of such debts. 
 
 Or, if during construction it appear to the Engineer that the Abandonment 
 Contractor is not making proper progress, the Company shall have 
 the right, after giving the Contractor ten days' notice in writing, to 
 undertake itself, either by administration or by letting a contract to 
 other parties, the completion of the said work which is being thus 
 neglected. Should the Company's work cost less than what the 
 Contractor would have been paid, the difference shall be paid to the 
 Contractor; but on the other hand, should it cost more, the difference 
 shall be charged to the Contractor, and shall be taken out of the 
 reserved fifteen (15) per cent, or out of the bond. 
 
 Under these circumstances the Company shall have the right q^^™^^®*^^" ^^ 
 to enter upon and take temporary possession of the plant, tools, 
 materials, and supplies of the said Contractor or any part thereof. 
 In case that the percentage of earnings withheld by the Company 
 be insufficient to make good the deficit, the Company shall have the 
 right to reimburse itself by the sale of the Contractor's plant; but 
 otherwise the said plant shall be returned to the Contractor after the 
 completion of the work." 
 
 The number of days that may elapse between the time of Monthly Estimates 
 preparing the monthly estimates and the date of payment varies 
 generally from ten to thirty, according to the attendant conditions, 
 it being necessary to allow time for the compilation of statistics, 
 mailing of papers, distribution of estimates, and forwarding of 
 checks. 
 
 The amount retained from each estimate by the Company until Percentage Retained 
 the completion of the entire contract is generally ten per cent, and 
 never more than fifteen per cent. 
 
 It is one of the most important duties of the Engineer to make 
 sure that his clients are protected against mechanics' and other 
 liens upon the work, and he will have to be ever on the alert to 
 insure this when dealing with irresponsible or tricky contractors. 
 
 The handling of work by administration is generally rather 
 expensive for the Company and burdensome to the Engineer; hence 
 it is to be avoided whenever possible. 
 
18 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Extras 
 
 Surety- 
 
 Contract 
 
 -Return of Papers 
 
 Example, a "Bridge 
 
 EXTRAS.^ 
 
 "No extras will be allowed or paid for unless they be ordered in 
 writing by tbe Engineer. For extras so allowed the Contractor will 
 be paid the actual cost to him plus ten (10) per cent, for profit. 
 Satisfactory vouchers will be required from the Contractor for all 
 extra labor and materials." 
 
 The question of extras is always likely to be a bone of conten- 
 tion between the Contractor and the Engineer; consequently the 
 more fully it is covered in the specifications the better for both 
 parties. 
 
 BOND. 
 
 "The successful bidder will be required to give the Company a 
 
 satisfactory Surety Company Bond, in the sum of dollars, 
 
 for the faithful performance of the contract and specifications and 
 all the terms and conditions therein contained, and for the prompt 
 payment for all material and labor used in the manufacture and 
 construction of the structures, and to protect and save harmless the 
 Company from all damages to persons or property, caused by the 
 negligence or claim of negligence by the Contractor, his agents, 
 servants, or employees in doing the work, or in connection therewith. 
 Each bidder must state in his tender the name of the Surety 
 Company that he offers for furnishing this bond. 
 
 CONTRACT. 
 
 As soon as possible after the award of the contract is made, a 
 contract similar to that outlined on the accompanying form will be 
 presented in duplicate to the successful bidder for his signature, 
 after which both copies will be signed by the Company, and one of 
 them will be given to the said successful bidder. 
 
 RETURN OF PAPERS. 
 
 All papers submitted to bidders, excepting only those of the 
 successful bidder, are to be returned to the Consulting Engineers 
 upon demand." 
 
 The reason why the unsuccessful bidders are required to return 
 the papers submitted to them for tendering is that several copies 
 of the plans and specifications will be required later for those 
 prosecuting the work, and this return of papers will effect an 
 economy in copying. 
 
 Before leaving the subject of general clauses, I shall quote a 
 few found in the contract (of which the specifications form a part). 
 
 1 This is more often made a part of the contract. 
 
SPECIFICATIONS AND CONTRACTS. 19 
 
 The division of the entire list of general clauses between the specifi- 
 cations and the contract is purely arbitrary. My firm has a certain 
 form of contract of its own, which will apply to any and all of our 
 specifications by simply filling in the blank spaces. It is from this 
 form that I am about to quote certain paragraphs in order to com- 
 plete my list of general clauses that will apply to all engineering 
 specifications. 
 
 CARE OF DELIVERED MATERIAL. 
 
 "All material paid for by the party of the first part shall be Ownership of Ma- 
 terials 
 deemed to have been delivered to, and to have become the property 
 
 of the said first party, but the party of the second part hereby 
 
 agrees to store it and to become responsible therefor during the 
 
 •continuance of this agreement." 
 
 The object of this clause is to make the Contractor responsible 
 
 for the care and insurance of all materials delivered and partially 
 
 paid for. Without some such provision the Company would have to 
 
 stand all losses from flood, fire, and theft before the completion and 
 
 acceptance of the structure. 
 
 EXTENSION OF TIME. 
 
 "In case the party of the first part, notwithstanding the failure Time Limit not 
 
 Waived 
 ■of the party of the second part to complete its work within the time 
 
 specified, shall permit the said second party to proceed and continue 
 and complete the same as if such time had not lapsed, such permis- 
 sion shall not be deemed a waiver in any respect, by the first party, 
 of any forfeiture or liability for damages or expense thereby 
 Incurred, arising from such non-completion of said work within the 
 time specified, and covered by the "Liquidated Damages" clause of 
 the specifications; but such liability shall continue in full force 
 against the said second party, as if such permission had not been 
 granted." 
 
 Without some such clause as this the Contractor when allowed 
 to exceed his contract time might claim immunity from liquidated 
 damages, and thus render that clause of the specifications null and 
 void. 
 
 CHANGE OF PLAN OR OF CONTRACT. 
 
 "No change or alteration shall be made in the terms or conditions Written Order for 
 of this agreement without the consent of both parties hereto in 
 writing; and no claim shall be made or considered for any extra 
 work, unless the same shall be authorized and directed in writing 
 by the Engineer, as herein provided. 
 
20 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 No Damages 
 Delay 
 
 for 
 
 Assignment For- 
 bidden 
 
 Engineer's Decision 
 
 Arbitration 
 
 EXTRA COMPENSATION. 
 In the event of any delay in completing the work embraced in 
 this contract, the party of the second part shall be entitled to no 
 extra compensation on account of such delay; as it is hereby 
 assumed that in submitting its tender it took its chances for the 
 occurrence of such delay." 
 
 This is an unusual clause in engineering contracts, having been 
 originated by me some years ago. The usual objection to it is that 
 it is entirely one-sided, which cannot be denied. It is certainly 
 likely to be of great advantage to the Company, as the latter is often 
 tied up by litigation and sometimes from want of sufficient funds 
 to prosecute the construction continuously or as rapidly as desired. 
 Of course, the Engineer in applying this clause must use his judg- 
 ment and sense of equity to make sure that it does not involve any 
 real hardship for the Contractor. Its main object is to prevent the 
 latter from claiming exemption from all liquidated damages or 
 from demanding extra compensation on account of trifling delays 
 caused either by the Company or by circumstances beyond the 
 Company's control. 
 
 SUBCONTRACTING. 
 "The party of the second part hereby agrees that it will not 
 assign or sublet the work covered in this contract, or any portion of 
 it, without the written consent of the party of the first part, but will 
 keep the same within its control. 
 
 ARBITRATION OP DISPUTES. 
 
 The decision of the Engineer shall control as to the interpreta- 
 tion of drawings and specifications during the execution of the work 
 thereunder; but if either party shall consider itself aggrieved by 
 any decision, it may require the dispute to be finally and conclusively 
 settled by the decision of three arbitrators, the first to be appointed 
 by the party of the first part, the second by the party of the second 
 part, and the third by the two arbitrators thus chosen. By the 
 decision of these three arbitrators, or by that of a majority of them, 
 both parties to this agreement shall be finally bound." 
 
 It is seldom that this arbitration clause is resorted to, for the 
 Engineer's decisions are almost invariably just and reasonable. 
 Only once in nay entire career has it been put in force on my work, 
 and, as in this instance there was too good an understanding between 
 the promoter of the enterprise and the dealer who furnished the 
 rejected materials, I lost the case. 
 
SPECIFICATIONS AND CONTRACTS. 21 
 
 NOTIFICATION OF IMPENDING SUITS. 
 
 "As, according to the terms of the accompanying specifications, Indemnity 
 which form a part of this contract, the party of the second part is 
 to indemnify the party of the first part against all liability or 
 damages on account of accidents occasioned by the omission or 
 negligence of itself, or its agents, or its workmen during the con- 
 tinuance of this agreement, and is to pay all judgments recovered 
 by reason of such accidents in any suit or suits against the party 
 of the first part, including legal costs, court and other expenses; it Litigation 
 is hereby agreed that the party of the second part shall be promptly 
 and duly notified in writing by the party of the first part of the 
 bringing of any such suit or suits, and shall be given the option 
 of assuming the sole defense thereof." 
 
 This provision is entirely in the Contractor's favor, but the point 
 involved is one of simple equity; for if he is to pay all 
 damages he certainly ought to be allowed to handle the legal fight in 
 his own way. 
 
 And now I shall quote some specific clauses merely to illustrate Specific Clauses 
 their general style and character; for it is obvious that it would be 
 impracticable in a lecture like this to attempt to cover all the 
 specific clauses for even one class of construction — much less for all 
 classes. 
 
 The following clauses are taken from the same set of specifica- 
 tions as before: 
 
 SCOPE OF CONTRACT. 
 
 "The contract will cover the following: Removal of Old 
 
 1st. Removal of old spans, marking properly all the pieces of 
 same, and piling these near the site as per the instructions of the 
 Engineer. 
 
 2d. Removal of old piers and portions of old piers, and dis- 
 tributing the removed masonry as rip-rap around the piers of the 
 same bridges from which the said masonry was taken, all in accord- 
 ance with the instructions of the Engineer. 
 
 3d. The furnishing of all materials (excepting old rails) for Old Materials 
 and the rebuilding of the tops of old piers that are to be repaired. 
 
 4th. The furnishing of all materials (excepting old rails) for 
 and the building of all new piers and abutments. 
 
 5th. The furnishing of all the materials (excepting track rails New Materials 
 and their fastenings) for and the building complete of all the new 
 spans required, including the timber fioor. 
 
Rights of Way 
 
 Statement of Quan- 
 tities 
 
 Temporary Works 
 
 22 SPECIFICATIONS AND CONTRACTS. 
 
 6th. Providing all materials for and building all falsework to 
 carry the old fixed spans which are to he left in, while the support- 
 ing piers are being repaired, and removing the said falsework as 
 soon as the Engineer gives directions for such removal. 
 
 7th. Laying of tracks on all new spans and connecting same 
 properly to the approaches." 
 
 Let me call your attention to the clearness and conciseness with 
 which the various items in this clause are stated, and caution you 
 when preparing specifications of your own to be just as clear in 
 everything relating to "Scope of Contract," for this is one of the 
 most important clauses of any set of specifications. 
 
 HAULING OVER COMPANY'S LINES. 
 "There will be no charge for hauling over the Company's lines 
 any of the Contractor's men, materials, or plant." 
 
 APPROXIMATE QUANTITIES OF MATERIALS, ETC. 
 "The following are the approximate quantities of materials, etc., 
 
 in the ten (10) structures. They will be used in comparing tenders 
 
 for awarding of contract, but are not to be considered in any way 
 
 binding upon the Company or upon its Engineers: 
 
 Structural steel in new pin-span, erected 
 and painted 1,313,000 lbs. 
 
 Structural steel in new plate girder spans, 
 erected and painted 6,586,000 lbs. 
 
 Timber in railway floors 400 M. feet, B. M. 
 
 Length of single track to be laid 4,300 lineal feet. 
 
 Old spans to be removed 3,311 lineal feet. 
 
 Old masonry to be removed 1,612 cubic yards. 
 
 Mass in caisson and crib of pneumatic pier. . 1,360 cubic yards. 
 
 Mass in cribs or bases of all other piers... 2,800 cubic yards. 
 
 Concrete in bases of all abutments (no 
 allowance being made for cost of excava- 
 tion, coffer-dams, pumping, bailing, etc.) . 2,100 cubic yards. 
 
 Concrete in shafts of piers and abutments. . 13,200 cubic yards. 
 
 Piles in place, below bottoms of cribs 16,200 lineal feet. 
 
 Length of old spans to be supported on 
 
 falsework 473 lineal feet. 
 
 There will be no allowance for excavation or for back filling, as 
 
 the cost of these items must be covered by the schedule prices for 
 
 mass of foundations and piles in place. 
 
 Neither will there be any allowance made for cost of removing 
 
SPECIFICATIONS AND CONTRACTS. 23 
 
 old wooden trestle, as the Contractor will utilize the same for false- 
 work to support the new girders. 
 
 Neither will there be any allowance made for the placing as 
 rip-rap around the piers the masonry stones removed from the 
 existing piers, as this must be covered by the schedule price for the 
 removal of masonry." 
 
 Although the quantities given under this heading are generally Quantities, Approxi- 
 mate 
 approximate, it is very important, nevertheless, that they be filled 
 
 out; because, in the first place, they give bidders a proper concep- 
 tion of the magnitude of the work, and, in the second place, they 
 afford a means of comparing bids on a basis that is perfectly fair 
 to all competitors. 
 
 INTERFERENCE WITH TRAFFIC. 
 "The Contractor must so conduct all of his operations as not to Traffic interference 
 Interfere at all with the passage of the Company's trains; and he 
 must take every precaution against accidents to the said trains 
 caused by his operations. Should any accidents occur by reason of 
 such operations, either directly or indirectly, the Contractor will be 
 held responsible both pecuniarily and morally for the results of such 
 accidents." 
 
 The importance of this clause to the railroad company cannot 
 be overestimated. Wherever bridges are to be constructed on lines 
 in operation, this clause should under no circumstances whatsoever 
 be omitted, 
 
 REMOVAL OF OLD PIERS. 
 
 "In taking down existing piers which are not to be rebuilt. Blasting 
 small charges of explosives may, with the consent of the Engineer, 
 be used; but none may be employed for removing the tops of piers 
 that are to be rebuilt. In the latter the greatest of care must be 
 taken not to injure any of the masonry that is to be preserved. 
 
 All masonry that is removed from the old piers and abutments 
 must be disposed of as rip-rap for piers, or otherwise as directed 
 by the Engineer. 
 
 METAL. 
 
 Unless otherwise specified, all metal shall be medium steel, Steel and iron 
 excepting only that rivets and bolts are to be of soft steel and adjust- 
 able members of either soft steel or wrought iron. 
 
 Except for the washers for floor bolts, cast iron will not be 
 allowed to be used in the superstructure, cast steel being employed 
 wherever important castings are necessary. 
 
24 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Holled Steel 
 
 Testing 
 
 itetestlng 
 
 Materials. Re- 
 wrouglit 
 
 ROLLED STEEL. 
 
 All steel shall be manufactured by either the acid or the basic 
 open-hearth process, and must be uniform in character for each 
 specified kind. Any attempt to substitute Bessemer or any other 
 steel for the open-hearth product will be considered a violation of the 
 contract and a good and sufficient reason for cancelling the same. 
 
 All plates shall be rolled from slabs. These slabs shall be made 
 by a separate operation, by rolling an ingot and cutting off the scrap. 
 The original ingot shall have at least twice the cross-sectional area 
 of the slab, and the latter shall be at least six (6) times as thick as 
 the plate. 
 
 All finished material coming from the mills must be free from 
 seams, flaws, or cracks; and must have a clean, smooth finish. 
 
 GENERAL PROVISIONS ON METHODS OP TESTING. 
 
 Rivet rods and other rounds are to be tested in the form in 
 which they leave the rolls, without machining. 
 
 Test pieces from angles, plates, shapes, etc., shall be rectangular 
 in shape, with a cross-sectional area of preferably about one-half 
 (%) of a square inch, but not less, and shall be taken so that only 
 two sides are machine finished, the other two having the surface 
 which was left by the rolls. 
 
 Should fracture occur outside of the middle third of the gauge 
 length, the test is to be discarded as worthless, if it falls below the 
 standard. 
 
 If any test piece have a manifest flaw, its test shall not be con- 
 sidered. 
 
 In case that one piece fall slightly belov/ the requirements in 
 any particular, the Inspector may allow the retesting of the lot or 
 heat by taking four (4) additional tests from the said lot or heat; 
 and if the average of the five shall show that the steel is within the 
 requirements, the metal may be accepted; otherwise it shall be 
 rejected. 
 
 Drillings for chemical analysis may be taken either from the 
 preliminary test piece or from the finished material. 
 
 The speed of the machine for breaking test pieces shall not be 
 less than one-quarter (%) inch per minute nor more than three (3) 
 inches per minute. 
 
 Material which is to be used without annealing or further treat- 
 ment is to be tested in the condition in which it comes from the 
 rolls. When the material is to be annealed or otherwise treated 
 
SPECIFICATIONS AND CONTRACTS. 25 
 
 before being used, the specimens representing such material may be 
 similarly treated before testing; but they shall also give standard 
 •elongation, reduction, and fracture before annealing. 
 
 BENDING TESTS. 
 "Speciments of soft steel shall be capable of bending to one Bending Tests 
 hundred and eighty (180) degrees and closing down flat upon them- 
 selves, without cracking, when either hot, cold, or quenched. 
 
 . Specimens of medium steel when heated to a dark orange and 
 cooled in water at seventy (70) degrees Fahrenheit, or when cold or 
 hot, shall be capable of bending one hundred and eighty (180) 
 degrees around a circle whose diameter is equal to the thickness 
 of the test-piece, without showing signs of cracking on the convex 
 side of the bend. 
 
 DRIFTING TESTS. 
 Punched rivet holes in medium steel, pitched two (2) diameters Drifting Tests 
 from a sheared edge, must stand drifting until their diameters are 
 fifty (50) per cent, greater than those of the original holes, and 
 must show no signs of cracking the metal. 
 
 FRACTURE. 
 
 All broken test pieces for both classes of steel must show a silky 
 fracture of uniform color. 
 
 WORKMANSHIP. 
 
 All metal shall be straightened carefully before being turned Worlsmansbip 
 over to the shops. 
 
 All workmanship shall be first-class in every particular, and all. 
 portions of metal-work exposed to view shall be neatly finished. 
 
 All idle corners of plates and angles, such, for instance, as 
 the ends of unconnected legs of angle lacing, shall be neatly cham- 
 fered off at an angle of about forty-five (45) degrees, so as to give 
 a sightly finish to the work and to avoid bending of said corners 
 during shipment and erection. 
 
 As far as practicable, all parts shall be so constructed as to be 
 accessible for inspection and painting. 
 
 All punched work shall be so accurately done that, after the Punching 
 various component pieces are assembled and before the reaming is 
 commenced, forty (40) per cent, of the holes can be entered easily 
 by a rod of a diameter of one-sixteenth (1-16) of an inch less than 
 that of the punched hole; eighty (80) per cent, by a rod of a diameter 
 of one-eighth (%) of an inch less than same; and one hundred (100) 
 
26 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 per cent, by a rod of a diameter one-quarter .(i/4) of an inch less 
 than same. Any shopwork not coming up to this requirement will 
 be subject to rejection by the Inspector." 
 
 These requirements for accuracy in punching were formulated 
 some six years ago by Mr. Frank C. Osborn, C. E., of the Osborn 
 Engineering Co., and by me working jointly. They are by no means 
 too severe, and yet are rigid enough to insure truly first-class shop- 
 work. It is only the good shops, though, that can comply with such 
 requirements. 
 
 FIELD RIVETING. 
 Field Riveting "All field riveting shall be done by pneumatic riveters of a type' 
 
 to be approved by the Engineer, except in places where it is imprac- 
 ticable to use the apparatus, in which case hand riveting will be 
 permitted." 
 
 The quality of pneumatic riveting is far superior to that of 
 hand riveting and but little inferior to that of the machine riveting 
 done in the shops. The use of the pneumatic riveters for field 
 work has permitted the adoption of much longer riveted spans than 
 were built when all field riveting was done by hand. Not only are 
 the rivets driven by the pneumatic machine much tighter, but more 
 than twice as many can be driven- per day with the same force of 
 men as compared with hand-driven rivets. 
 
 Punching and 
 Reaming 
 
 PUNCHING AND REAMING. 
 
 "All rivet-holes in steelwork, if punched, shall be made with a 
 punch one-eighth (%) inch in diameter less than the diameter of 
 the rivet intended to be used, and shall be reamed to a diameter 
 one-sixteenth (1-16) inch greater than that of the said rivet. 
 
 Before this reaming takes place, all the pieces to be riveted 
 together shall be assembled and bolted into position, then the 
 reaming shall be done; for one of the principal objects of this clause 
 in relation to sub-punching is to insure the correct matching of 
 rivet-holes and the avoidance of holes of excessive diameter. The 
 said clause also insures the removal of most, if not all, incipient 
 cracks started by the process of punching. 
 
 All reaming is to be done by means of rigid twist-drills, the use 
 of tapered reamers being prohibited, except where rigid twist- 
 reamers cannot be employed. All holes must be at right angles to 
 surface of member, and all sharp or raised edges of holes under 
 heads must be slightly rounded off before the rivets are driven 
 
 All holes for field rivets, excepting those for lateral or sway 
 
SPECIFICATIONS AND CONTRACTS. 27 
 
 bracing, when not drilled to an Iron template, shall be reamed while 
 the connecting parts are temporarily assembled. 
 
 Punching shall not be permitted in any piece in which the 
 thickness of the metal exceeds the diameter of the cold rivet that is 
 to be used; but all such pieces shall be drilled solid." 
 
 For the last ten years I have been fighting hard to have all 
 important metal sub-punched and reamed, and have succeeded as 
 far as my own work is concerned; for the Contractors have at last 
 ceased telling our clients how much money could be saved on the 
 work by omitting the sub-punching and reaming. If any one has 
 any doubts about the necessity for this treatment of the metal, he 
 can set them finally at rest in one of two ways— by reading my 
 resume of the discussions on my paper upon "Elevated Railroads," 
 published in the "Transactions of the American Society of Civil 
 Engineers," or by inspecting in the shops before the reaming is 
 done a lot of assembled metal, running his finger into a number of 
 the holes, and noting the great irregularities that the rivets will 
 have to fill, if the holes be punched full size. 
 
 SHIPPING. 
 "All parts shall be loaded carefully so as to avoid injury in Transportation 
 transportation and shall be at the Contractor's risk until erected 
 and accepted. 
 
 In shipping long plate-girders, great care is to be taken to 
 distribute the weight properly over the two cars that support them 
 and to provide means for permitting the cars to pass around curves 
 without disturbing the loading. In both the handling and the ship- 
 ment of metalwork every care is to be taken to avoid bending or 
 straining the pieces or damaging the paint. All pieces bent or 
 otherwise injured will be rejected." 
 
 The preceding clauses have all related to the superstructure of 
 bridges; those immediately following will relate to the substructure. 
 
 POSITION OF PIERS, PEDESTALS, AND ABUTMENTS. 
 
 "All piers, pedestals, and abutments, when finished, must be in Lines and Levels 
 exact position and to exact elevation; and all anchor-bolts therein 
 must be located with the greatest exactness in respect to both 
 horizontal position and elevation. 
 
 The Contractor must provide all guide-piles, anchors, cables, 
 frames, and forms that may be required to insure the result." 
 
 The placing in exact position of all piers is one of the most 
 difficult feats that the substructure contractor has to accomplish; 
 
28 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Foundation Depths 
 
 Borings 
 
 Unforeseen Obstruc- 
 tions 
 
 ^Eisks 
 
 consequently it is evident that this requirement is an absolute 
 necessity. 
 
 DEPTHS OF FOUNDATIONS. 
 
 "All cribs, footings, and caissons are to be sunk to the depths 
 shown on the Engineer's plans or to such other depths as the 
 Engineer may deem necessary as the work progresses. 
 
 The data furnished to bidders by the Engineer regarding depths 
 of foundations or of bed rock are to be considered as merely approxi- 
 mate; and bidders must assume the risk of having to go a greater 
 or less depth without altering in any way their schedule prices. 
 If, however, the Engineer consider that the Contractor is really 
 entitled to extra compensation on account of material variation 
 from the data furnished, such extra compensation will be allowed, 
 but the amount thereof shall be determined solely by the Engineer. 
 
 If, too, during the progress of the work, the Engineer deem that 
 further investigations concerning the elevations of bed rock or 
 quality of materials for foundations are necessary, the Contractor 
 shall make at his own expense, under the direction of the Engineer, 
 all the borings or similar investigations which the latter may con- 
 sider to be requisite.^ 
 
 ENCOUNTERING OBSTACLES. 
 
 Bidders must figure on taking their chances of encountering 
 logs, boulders, and other obstacles under the river bed at the pier 
 sites; and the Contractor must provide himself with all the neces- 
 sary tackle and apparatus for handling the same. There will be 
 no extra price allowed because of the difficulty in sinking, or in 
 driving through, or in removing said obstacles." 
 
 Some contractors complain that this clause is too severe, in that 
 it places upon them the entire responsibility and risk involved in 
 case of meeting with unexpected obstacles; nevertheless, it is both 
 fair and necessary. If the Contractor were paid extra on account 
 -of obstacles, there would be no end to his claims for increased com- 
 pensation, and the amounts of these claims might be excessive, 
 because he would probably fail to make at the outset proper pro- 
 vision for removing all obstructions, while, if the onus were on him, 
 he would undoubtedly provide everything necessary." 
 
 1 Tlie obligations of the Contractor should be definite in amount and 
 character. 
 
 2 This depends upon who is to bear the risks of the undertaking ; the 
 Owner or the Contractor. Contractors are not generally in the insurance busi- 
 ness, and their investigation is not usually as extended as is that by the 
 Owner and its or his Engineers. The Engineer is best qualified to make a 
 contract of indemnity or of insurance. 
 
SPECIFICATIONS AND CONTRACTS. 29 
 
 PILE FOUNDATIONS. 
 "Where piers and abutments are to rest on piles, the earth is to riling 
 be excavated to the depth required, the boxing timber is to be put in, 
 if any be called for on the plans or by the Engineer, then the piles 
 are to be driven to the satisfaction of the Engineer, and cut off at 
 the proper elevation, then the earth that has risen between the piles 
 is to be removed, and the bed is to be rammed, if the Engineer so 
 direct. The length and penetration of all piles are to be determined 
 by the Engineer/ 
 
 If it be practicable to pump out the water in the pit and keep Tumping 
 the latter clear of same without injury to the unset concrete, this 
 is to be done while the concrete is being tamped around the piles 
 to within two (2) feet of the tops thereof, and until the concrete 
 has set; otherwise, concrete of the same kind as hereinafter specified 
 for the tops of concrete piers is to be placed between and around the 
 piles by means of a tremie, being carried up to the height just 
 specified; and after the same has set the water is to be pumped 
 out, and the remainder of the footing is to be built of ordinary 
 concrete laid in the dry. 
 
 CONCRETE PIERS AND ABUTMENTS. 
 All piers and abutments are to be built of broken stone concrete; Concrete 
 but the Contractor will be permitted to mix therewith a portion of 
 clean gravel in order to reduce the percentage of voids in the broken 
 stone. 
 
 The proportions for concrete without gravel for all interiors 
 and footings of piers and abutments shall be as follows: 
 
 1 part of Portland cement. 
 
 3 parts of clean, coarse, sharp sand. 
 
 5 parts of broken stone to pass a two and one-half (2i^) inch 
 iron ring. 
 
 Where gravel is mixed with the stone, the proportions for the 
 said concrete are to be as follows: 
 
 3 parts of sand as above. 
 
 5 parts of mixed broken stone and gravel, with enough cement 
 to more than fill all voids in the mixture by ten (10) per cent., and in 
 no case less than one barrel (380 lbs. net) of cement per cubic yard 
 of concrete. The determination of the volume of voids shall be left 
 to the Engineer. 
 
 1 Amount and character of work should be specified If possible. 
 
30 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Forms 
 
 Tamping 
 
 Clean Surfaces 
 
 Cement 
 
 For exterior concrete work and for all concrete to be deposited, 
 before setting, in water, the proportions are to be as follows: 
 
 1 part of Portland cement. 
 
 2 parts of sand. 
 
 3 parts of fine broken stone, to pass through a three-quarter ( % > 
 inch iron ring. 
 
 The exterior six (G) inches of all faces of piers and abutments 
 that are exposed to the atmosphere or to water, are to be built of 
 the rich small-stone concrete just described; and this is to be mixed 
 and placed simultaneously with the other concrete, so that there 
 shall be no division whatever, but a perfect bond between the two 
 classes of concrete. 
 
 Suitable forms of timber properly lined with oiled sheet iron 
 must be provided to give the constructions the exact dimensions and 
 the finish shown on the drawings. Care must be taken to make all 
 forms strong enough to resist the ramming of the concrete without 
 bulging out or in any way changing their position. 
 
 No forms are to be removed until after the concrete deposited 
 therein has stood thirty-six (36) hours, or as much longer as the 
 Engineer may deem necessary. 
 
 The exterior concrete is to be tamped solidly against the sheet- 
 iron forms, so that there will be no voids on the exterior surface, 
 which is to be left permanently as it comes from the moulds, unless 
 the Engineer deem that the surface is too rough, in which case the 
 Contractor must put on a smooth, two-to-one mortar finish to the 
 satisfaction and acceptance of the Engineer. 
 
 All interior and footing concrete is to be deposited in layers not 
 exceeding nine (9) inches in thickness, and each layer is to be 
 thoroughly rammed. 
 
 DRY SURFACES IN CONCRETE. 
 
 Should, during construction, any surfaces of the concrete be 
 allowed to harden or dry before other concrete is placed thereon, 
 they shall be swept perfectly clean with brooms, then wetted 
 thoroughly with clean water, so as to make a perfect contact between, 
 the old and the new work, a,nd thus insure that the concrete shall 
 be truly monolithic. The forming of such dry surfaces shall, how- 
 ever, always be prevented, if practicable. 
 
 CEMENT. 
 All cement used on the work must be Portland cement of the 
 very best quality obtainable, equal in every respect to the best 
 
SPECIFICATIONS AND CONTRACTS. 31 
 
 brands of American and European manufacture, and delivered at 
 site in strong, close barrels, well lined with paper so as to be reason- 
 ably secure from air and moisture, unless the Engineer give the 
 Contractor written permission to deliver it in bags. 
 
 Each barrel shall be labeled with the name of the brand, place 
 made, and name of manufacturer. 
 
 The cement shall be ground so fine that at least ninety-seven Fineness 
 (97) per cent, in weight will pass a standard sieve of five thousand 
 (5,000) meshes to the square inch, and so that at least ninety (90) 
 per cent, will pass a standard sieve of ten thousand (10,000) meshes 
 per square inch. 
 
 When moulded neat into briquettes and exposed three (3) hours, cement Tests 
 or until set, in air and the remainder of twenty-four (24) hours in 
 water, it shall develop a tensile strength of from one hundred (100) 
 to two hundred and fifty (250) pounds per square inch. When 
 moulded neat into briquettes, after exposure of one (1) day in air 
 and six (6) days In water, it shall develop a tensile strength of from 
 two hundred and fifty (250) to five hundred (500) pounds per square 
 inch; and after exposure of one (1) day in air and twenty-seven (27) 
 days in water, it shall develop a tensile strength of from four 
 hundred (400) to six hundred (GOO) pounds per square inch. It 
 shall be an eminently slow setting cement, must develop its strength 
 gradually, and must show no drop therein. When moulded neat 
 into pats with thin edges and left to set in either air or water, 
 whether on glass or not, the said edges must show no signs of 
 checking. The cement shall withstand properly the standard twenty- 
 four (24) hour boiling test for Portland cement. 
 
 The cement, when mixed neat with twenty-two (22) per cent, of 
 water to form a stiff paste, shall, after thirty (30) minutes, be 
 indented perceptibly by the end of a wire one-twelfth (1-12) inch 
 in diameter, loaded to weigh one-quarter (^) pound. 
 
 The hard set, determined similarly with a wire one twenty- 
 fourth (1-24) inch in diameter and loaded so as to weigh one 
 pound, shall not occur in less than three (3) hours. 
 
 Briquettes mixed in the proportion, by weight, of one part of Briquettes 
 cement to three (3) parts of sand, and kept one day in air and the 
 remaining time in water, shall show a tensile strength of from 
 one hundred (100) to one hundred and fifty (150) pounds per square 
 inch after twenty-eight (28) days. 
 
 Briquettes left in moulds and placed in water immediately after 
 mixing must harden to the satisfaction of the Engineer, so as to 
 
32 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Cement Storage 
 
 Back-filling 
 
 prove the fitness of the cement for setting under water. This test 
 may be made a comparative one by pitting the cement tested against 
 brands of established reputation. Any cement not hardening under 
 water to the satisfaction of the Engineer will be rejected. Cement 
 must work well under the trowel; otherwise it will not be accepted. 
 
 In any case, the cement adopted must first be approved by the 
 Engineer. 
 
 The Contractor shall provide a suitable building for storing the 
 cement, in which the same must be placed before being tested. The 
 Engineer shall be notified of the receipt of cement for testing at least 
 two (2) weeks before it is required for use, and the Inspector may 
 take a sample from each package for the said testing. 
 
 Any cement that has caked so as, in the opinion of the Engineer^ 
 to be injured shall be rejected, and shall be removed immediately 
 by the Contractor from the neighborhood of the site, in order to 
 avoid all possibility of its being used on the work. 
 
 BACK-FILLING. 
 As soon as the masonry cr concrete work thereon is completed, 
 the space around each shore pier and abutment shall be filled with 
 earth, preferably clay, thoroughly dampened, and well rammed in 
 layers not exceeding six (6) inches in thickness. There will be no 
 direct payment for this back-filling, as the cost is to be covered by 
 the price for concrete. 
 
 LIQUIDATED DAMAGES. 
 Liquidated Damages . por each day of delay beyond the date set in the contract for 
 completing the Big Brazos River and Brushy Creek No. 1 bridges, all 
 in accordance with the plans, specifications, and directions of the 
 Engineer, the Company shall withhold permanently from the 
 Contractor's total compensation the sum of one hundred dollars 
 ($100.00). 
 
 For each day of delay beyond the date set in the contract for 
 completing the remaining eight (8) bridges, all in accordance with 
 the plans, specifications, and directions of the Engineer, the Com- 
 pany shall withhold permanently from the Contractor's total com- 
 pensation the sum of one hundred dollars ($100.00). 
 
 The amounts thus withheld shall not be considered as a penalty, 
 but as liquidated damages fixed and agreed to by the contracting 
 parties." 
 
 Let me call your attention to the term "Liquidated Damages," 
 which is now employed instead of the older term "Penalty." If the 
 
 Penalties 
 
SPECIFICATIONS AND CONTRACTS. 33 
 
 latter were used it would be illegal, as the courts hold that no 
 individual or corporation has the right to enforce a penalty, such 
 enforcement being within the jurisdiction of the law only, but 
 liquidated damages fixed beforehand can be collected. 
 
 TENDERS. 
 
 "Each bidder shall tender as follows: Proposals 
 
 1st. For removal of old spans, marking all the pieces of same, 
 
 and piling these as per instructions of the Engineer, 
 
 dollars per lineal foot of span removed. 
 
 2d. For removal of old masonry and distributing same, 
 dollars per cubic yard. 
 
 3d. For concrete in shafts of new piers and rebuilt portions of 
 Did piers, dollars per cubic yard. 
 
 4th. For mass in place of pneumatic pier, including excava- 
 tion, dollars per cubic yard. 
 
 5th. For mass in place of foundations fot all piers and abut- 
 ments, including those portions of piles imbedded in the concrete, 
 and including the excavation, dollars per cubic yard. 
 
 6th. For those portions of piles in place below the concrete of 
 the foundations, cents per lineal foot of pile. 
 
 7th. For all structural metal in superstructure of pin-connected 
 span, erected and painted, cents per pound. 
 
 8th. For all structural metal in all other spans, erected and 
 painted, cents per pound. 
 
 9th. For floor timber in place, excluding dressing and all other 
 wasted timber, dollars per M. feet, B. M. 
 
 10th. For laying rails, cents per lineal foot of 
 
 track. 
 
 11th. For falsework under the existing spans that are to be left 
 
 in the reconstructed bridges, dollars per lineal foot 
 
 of span. 
 
 For all other items not covered in this list the Contractor is to 
 be paid the actual cost to him thereof plus ten (10) per cent, for 
 his profit. He must, however, in such cases furnish vouchers satis- 
 factory to the Engineer for all materials and labor involved in such 
 extra work or construction. 
 
 Tenders are to be sent in sealed envelopes to the undersigned renders 
 Consulting Engineers, New Nelson Building, Kansas City, Mo. They 
 will be received up to noon of Thursday, July 17, 1902. 
 
 The Company reserves the right to reject any or all bids." 
 
34 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Unit Prices 
 
 Example, Lighthouse 
 
 General Location 
 
 Investigation 
 
 Description 
 
 It will be noticed that all items of work are to be paid for at 
 schedule rates, and that lump-sum payments are avoided. This is 
 by far the better and more equitable method of compensation- 
 because, if the final quantities vary from those bid upon, no harm 
 will be involved, the Contractor being paid only for what he actually 
 does. If the lump-sum basis of payment be employed, the Contractor 
 will be constantly tempted to cut down the quantities of materials 
 furnished, but when these are paid for by schedule prices no such 
 temptation can exist.^ 
 
 The following are a few specific clauses from our "Specifications 
 for Lighthouses at Jutias Cay and Punta Gobernadora, on Colorados 
 Reef, Island of Cuba." I have chosen only such items as are charac- 
 teristic of lighthouse construction. 
 
 GENERAL DESCRIPTION. 
 
 LIGHTHOUSE AT JUTIAS CAY. 
 
 "This Lighthouse will be located on the Northeast extremity of 
 Jutias Cay, at a distance of about eighty-seven (87) meters from the 
 water's edge. The location is well protected from the action 6f the 
 waves by a reef in front and by the growth of mangroves. The 
 height of the ground at the site is about nine-tenths (0.9) of a meter 
 above the sea-level. 
 
 The soundings made at the site show that the ground is com- 
 posed of fine sand for a depth of from four (4) to five (5) meters 
 then of sand, shells, and coral rock for a depth of about eight-tenths 
 (0.8) of a meter, and this is underlaid with sand and shells, in which 
 are imbedded pieces of coral rock that become more abundant as 
 the depth increases. It is intended that the screw-piles shall rest 
 on this layer. These piles are of steel shafting fitted with cast-iron 
 screw points as shown on the drawings. 
 
 The light for this structure will be a fixed one. The tower will 
 be constructed of eight (8) steel columns arranged in the form of an 
 octagonal pyramid, the long diameter of which will be fifty-six (56) 
 feet at the base and fifteen (15) feet at the top. These columns are 
 to be thoroughly braced in all directions with steel struts and 
 diagonal rods as shown on the drawings. 
 
 There will be a house located at the base of the tower, and a 
 watch-room loca ted in the top of same. There will also be a stairway 
 
 1 Limitations and restrictions imposed by municipal charters, legislatures 
 and constitutions must be considered, which frequently require that the total 
 expenditure authorized by the contract shall be determined and shall not 
 exceed a fixed sum or the appropriation. 
 
SPECIFICATIONS AND CONTRACTS. 35 
 
 extending from the base to the watch-room floor enclosed by a mantel. 
 These enclosures are to be constructed of steel plates, and the interior 
 walls are to be plastered on expanded metal lath. 
 
 LIGHTHOUSE AT PUNTA GOBEBNADORA. 
 
 This structure will be placed on the mainland at a point known Substructure 
 as Punta Gobernadora, about six (6) miles west of Bahia Honda. 
 The distance from this tower to the edge of the water will be about 
 one hundred and fifty (150) meters. The site is protected from the 
 action of the waves by reefs on the outside. The formation here 
 is an extensive bed of limestone-coral rock, and the surface is 
 practically level. 
 
 The light for this structure will be movable. 
 In all other respects the superstructure will be the same as 
 described previously for the lighthouse at Jutias Cay. 
 
 FOUNDATIONS 
 
 FOR LIGHTHOUSE AT JUTIAS CAY. 
 
 The foundation for this structure will consist of nine (9) screw Foundation 
 piles, as shown on Sheet No. 2, eight (8) of which are placed in the 
 form of an octagon around the axis of the ninth (9th) or central 
 pile. The long diameter of the octagonal base is to be fifty-six (56) 
 feet, and each of the sides twenty-one (21) feet and five and one- 
 eighth (5%) inches. 
 
 These piles are to be formed of solid steel shafts eight (8) inches 
 in diameter, at the lower end of each of which is to be fitted a cast- 
 iron screw, the blades thereof to be four (4) feet in diameter. The 
 lower end of the screw is to finish in a point. 
 
 The exact depth to which these piles must go has not been Pile Driving 
 determined, but it will be from eighteen (18) feet to twenty-five (25) 
 feet below the surface of the ground. The Contractor must provide 
 twenty-five (25) feet of shaft and a pile cutter and screw cutter, so 
 as to cut off the piles and thread them at the proper height after 
 screwing them down as far as they will go. 
 
 After the piles are in place and the tops are cut to the proper 
 elevation, concrete pedestals, as shown on Sheet No. 2, are to be 
 placed around them; and on these pedestals, screwed to the tops of 
 the piles, will rest the shoes for the steel columns of the tower. 
 
 The elevations and dimensions for these foundations are given 
 on Sheet No. 2. 
 
36 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Cylinder Shafts 
 
 Stairways 
 
 Steps 
 
 STEEL STAIR MANTEL. 
 
 The spiral stairs will be enclosed in a steel cylinder, the axis of 
 which is coincident with the axis of the tower. The diameter of this 
 steel cylinder will be seven (7) feet. It is to be formed of steel 
 plates one-quarter (%) of an inch in thickness, the larger dimen- 
 sions of which are to be arranged vertically with the edges abutting 
 and the joints spliced with four (4) inch by one-quarter (^4) inch 
 plates placed on the inside. 
 
 The lower end of this cylinder is to rest on the center pile and 
 its concrete pedestal. All rivets in the stairway cylinder are to be 
 one-half (i^) inch in diameter. In the lower section of the cylinder 
 a door is to be placed, and at a height of three (8) feet above each 
 stairway landing there is to be fitted a cast iron window frame. All 
 windows are to be arranged as nearly as practicable at points ninety 
 (90) degrees apart around the cylinder, and they must come about 
 midway between the two columns on that side of the pyramid. 
 
 The inside of the stairway cylinder is to be provided with angles 
 for attaching three-quarter (%) inch channels and expanded metal 
 lath, as the entire inside of the cylinder is to be finished with plaster. 
 
 SPIRAL STAIRS. 
 
 The spiral stairs will consist of one hundred and forty-eight 
 (148) risers, including eight (8) quarter (%) circle landings, which 
 divide the ascent into nine (9) fiights, eight (8) of which are twelve 
 (12) feet nine (9) inches each in height, and containing seventeen 
 (17) risers of nine (9) inches each, and one flight of nine (9) feet, 
 containing twelve (12) risers of nine (9) inches each. 
 
 The steps are to be of cast iron, the extreme radius of each 
 being three (3) feet. Each step comprises a tread of twenty-two and 
 one-half (22i/^) degrees of the circle, between the centers of the 
 one-half (%) inch bolts which will secure the steps to each other. 
 
 The inner end of each step is provided with a hub six and five- 
 eighths (6%) inches outside diameter, which must be faced on its 
 upper and lower ends to exactly nine (9) inches deep, and must be 
 bored out to five and one-half (5%) inches in diameter so as to fit 
 snugly over the newel pipe. 
 
 The treads are one-half (%) inch thick and are perforated with 
 lozenge-shaped openings one (1) inch wide. The gratings are one- 
 half ( % > inch wide, and at their inner sections the steps are studded 
 with lozenge-shaped projections to prevent slipping; and for the same 
 reason a half-round bead one-eighth (Vs) inch high is raised along 
 the front edge 6t each step. 
 
SPECIFICATIONS AND CONTRACTS. 37 
 
 The bolt sleeves at the front of each step are to be nine (9) 
 inches high and deeply counter-sunk on the upper side for the heads 
 of the stair-bolts. 
 
 All surfaces of contact between the sleeves of the adjoining steps 
 must be planed. 
 
 NEWEL POST. 
 
 The newel post will be made of double-strength, wrought-iron Newel Posts 
 water-pipe, five (5) inches inside diameter, and turned on the out- 
 side to a diameter of five and one-half (Si^) inches. At each joint 
 the ends must be faced so as to give perfect contact, and the joints 
 must be so arranged as to bring them midway of the length of the 
 hubs of the steps. On the inside the pipe must be spliced with a 
 threaded coupling. 
 
 The newel pipe should be made in seven (7) lengths of about 
 sixteen (16) feet each, as nearly as may be, to bring the joints as 
 stated above. 
 
 The base of the newel pipe will be provided with a steel flange, 
 which will be tap-bolted to the cast-iron base at center. 
 
 Throughout the whole height of tower the newel must stand 
 perfectly plumb. 
 
 In the case of the Punta Gobernadora Lighthouse the cord of 
 the revolving apparatus will be run through the center of the newel 
 pipe, and pulleys near the upper and lower ends of the pipe must be 
 provided. 
 
 The upper end of the top section of the newel pipe will extend 
 a short distance into the hub of the watch-room floor. 
 
 DWELLING HOUSE. 
 
 The entire space included between the columns at the base of Dwelling Houses 
 the tower is to be enclosed with steel walls so as to form a dwelling. 
 This space is to be divided into nine (9) outside rooms and an inner 
 court. The walls and roof of this building are to be of one-quarter 
 ( 1^ ) inch steel plates of the style and dimensions indicated on Sheet 
 No. 5. All rivets are to be one-half (%) inch in diameter unless 
 otherwise noted on the drawings. 
 
 The floor will be of concrete, supported on No. 16 expanded Floors 
 metal and steel I-beams. There will be three and one-half (3l^) 
 inches of broken stone or cinder concrete, mixed in the proportion 
 of one (1) part of Portland cement, three (3) parts of clean, sharp 
 sand, and flve (5) parts of broken stone or cinders to pass a one and 
 one-half (1%) inch iron ring. On this concrete base there is to be 
 
38 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Partitions 
 
 eoof 
 
 laid one (1) inch of cement finish, mixed in the proportion of one 
 (1) part of Portland cement and one (1) part of clean, sharp sand. 
 The entire surface is to be floated to a smooth, even finish. 
 
 All partitions are to be constructed of three-quarter (%) inch 
 channels, set vertically and spaced eighteen (18) inches centers, on 
 which is to be wired No. 20 expanded metal lath; and the two sur- 
 faces are then to be plastered with two coats each of hard wall- 
 plaster. The interior of outside walls and the ceilings are to be 
 finished in the same manner as the partitions. The rooms are to 
 be ventilated by registers in the ceiling, and openings are to be -left 
 in the walls of the stairway mantel to conduct the air from the space 
 between the ceiling and the roof and from the open court to the top 
 of the mantel, all as shown on the drawings. Doors and windows 
 are to be provided in the house, as shown in the plans. 
 
 Around the edge of the roof an eight (8) inch gutter of cast 
 iron is to be placed. This gutter is to be three-eighths (%) of an 
 inch thick, and is to be cast in lengths of about ten (10) feet. It 
 will be supported at the corners and at the center of each side with 
 brackets constructed of two (2) inch by three-eighth (%) inch flat 
 steel bars. Bell joints are to be provided, and they are to be 
 thoroughly caulked with lead. The gutter is to have a slope of one 
 (1) inch in twenty (20) feet. Two (2) conductors of six (6) inch 
 wrought-iron pipe are to be provided with the necessary elbows and 
 other fittings to carry the water from the gutter to the cast-iron tank 
 in the yard. The pipe is to have a flange resting on the cover of 
 tank and is to extend six (6) inches into same. 
 
 Concrete steps are to be provided at the two entrances of the 
 building. 
 
 Holes are to be provided in the roof for the stove-pipe ventilators 
 mentioned under "Hardware." 
 
 For details of dwelling see Sheet No. 5. 
 
 Carpentry 
 
 WOODWORK. 
 The woodwork for these buildings will consist of the windows 
 and doors, their frames and casings, and the closets and cupboards. 
 All woodwork will be of clear white pine, thoroughly seasoned, free 
 from all shakes, sap, and other defects. All workmanship is to be 
 first-class. All doors and sash are to be one and three-fourths (1%) 
 inches thick, and are to have rain channels plowed as shown on 
 drawings. Casement windows and double doors are to have moulded 
 oak joint-strips inside and out. 
 
SPECIFICATIONS AND CONTRACTS. 39 
 
 All outside doors leading to the central court of dwelling, doors 
 in stairway and watch-room, and the two doors from office to bed- 
 rooms, are to have upper panels of glass, as called for on drawings. 
 All doors and sash are to be neatly moulded and well pinned and 
 glued. 
 
 All junctions of plaster and woodwork will be covered by one 
 and one-quarter by one and three quarter (1^/4 x 1%) inch moulding. 
 This moulding will form the casing of all doors and windows. A 
 closet is to be provided in one corner of each bedroom, two (2) of 
 them in the office, and a cupboard in each kitchen. 
 
 The cupboards are to be eight (8) feet six (6) inches in height, Cabinets 
 and are to be divided into two (2) compartments. The lower 
 compartments are to be three (3) feet six (6) inches high, and are 
 to have only a bottom shelf, each upper compartment having four 
 shelves besides the division shelves. 
 
 Drain boards two (2) feet long are to be provided for each sink. 
 
 The lower compartments of closets are to be (2) feet six (6) 
 inches high, and they are each to have three (3) shelves; the upper 
 compartments are to have only one shelf at top. For details see 
 Sheet No. 5. 
 
 All woodwork is to be surfaced, sand-papered, and primed on Woodwork 
 both sides before leaving the shop. It must be kept dry and must be 
 securely boxed for shipment. 
 
 All woodwork is to be treated by some process, to be approved 
 by the Engineer, so as to render it non-combustible." 
 
 The following are some characteristic specific clauses from our Example, Steel Tier 
 "Specifications for a Steel Pier to be built in the Harbor of Vera 
 Cruz, Mexico, for the Vera Cruz and Pacific Railway Company": 
 
 GENERAL DESCRIPTION. 
 
 "The structure will consist of a platform of creosoted timber, four Description 
 hundred and ninety-two (492) feet long by seventy-four (74) feet 
 wide, resting on steel joists, spaced about four and one-half (41,4) 
 feet centers, which in turn rest on double I-beam girders that are 
 supported at intervals of fourteen (14) feet six (6) inches by screw 
 piles. 
 
 These piles are thoroughly braced so as to form independent 
 towers with four (4) piles to each tower, the bracing extending from 
 the top down to, and in some cases even into, the sand. 
 
 At the middle of the platform and extending over its entire 
 length is a double-track railway, the rails for same resting on and 
 
40 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Piles 
 
 spiking to the six (6) inch timber floor, of which the platform is 
 composed. Between the rails is laid four (4) inch planking, and 
 beyond the outer rails are beveled planks, all to facilitate the passage 
 of trucks and vehicles over the rails. 
 
 Around the entire periphery of the two sides and the outer end 
 of the pier runs a twelve (12) inch by twelve (12) inch timber 
 fender, bolted firmly to the metal work; and on each side of the pier 
 there are located at intervals five (5) cast-iron mooring posts. 
 
 Each railway track is supported by four (4) runs of steel 
 I-beams, braced together in pairs by diaphragms of steel channels. 
 
 The deck is swayed in a horizontal plane by adjustable diagonal 
 rods that attach by clevises to the cast-iron caps over the piles. 
 
 The tower bracing consists of horizontal struts, each composed 
 of two (2) six (6) inch by four (4) inch T's and diagonal rods 
 adjusted by turnbuckles. The bracing is connected to the piles by 
 forged steel clamps. 
 
 The piles, which are of seven (7) inch solid cylinders, are to be 
 preferably in one length; but splices will be permitted, and, in fact, 
 are provided for on the drawings. 
 
 The screws are to be of cast iron, four (4) feet nine (9) inches 
 in diameter, and are to have sockets for receiving the ends of the 
 steel piles. The shoes are held in place by means of steel pins 
 passing through both the pile and the shoe. 
 
 The cross girders are to be bolted to the pile caps; the joists 
 are to be riveted to the cross girders; the flooring is to be attached 
 to the joists by lag screws and beveled washers; and the planking 
 at railroad tracks is to be spiked to the flooring by eight (8) inch by 
 one-half (^2) inch square spikes, two (2) spikes being used for 
 each running foot of plank. 
 
 Conduct of Work 
 
 MODUS OPERANDI OF CONSTRUCTION. 
 
 All piles are to be placed in as nearly exact position as it is 
 practicable to get them. As no adjustment has been provided for in 
 the bracing struts, the four (4) piles forming a tower must be sunk 
 within an eighth (%) of an inch of true position. In order to 
 secure such an accurate location with reference to each other, some 
 form of portable, convenient, and rigid template must be used to set 
 and hold the four (4) piles of each tower to exact position during 
 sinking. The Contractor, before proceeding with the work, shall 
 submit to the Engineer for approval a complete description and 
 plans, explaining fully the method he proposes to adopt. 
 
SPECIFICATIONS AND CONTRACTS. 41 
 
 The power applied for screwing the piles in place shall not be 
 great enough to strain them in torsion beyond the elastic limit of 
 the material. 
 
 Great care must be exercised to get the piles down to exact 
 elevation. 
 
 All bracing must be put in under water by divers. All clamps 
 must grip the piles so tightly that they will develop the full strength 
 of the diagonal rods attaching to them, without slipping. All 
 diagonal rods must be tightened and adjusted to the satisfaction of 
 the Engineer. 
 
 After the bracing is adjusted all towers must stand plumb, and 
 the plan of each tower must be a perfect square. 
 
 Before the timber floor is put on, the upper lateral diagonals 
 must be carefully adjusted so as to bring the platform to perfect 
 alignment. 
 
 All sand and silt that would interfere with the placing of the 
 bracing, as shown on the plans, must be removed; and there will be 
 no direct payment for this removal, as its cost must be covered by 
 the pound-price bid for the erected metal. 
 
 BORINGS. 
 
 Very thorough borings have been made by the Company's Borings 
 engineers and the results thereof are shown on Sheet No. 1 of the 
 accompanying plans. Although the said borings indicate that no 
 unusual difliculty will be encountered in sinking the piles because 
 of obstacles in the sand, it is possible that such obstacles do exist, 
 and the Contractor must take the risk of encountering them, as there 
 will be no extra compensation allowed therefor. 
 
 PILES. 
 
 All piles shall be sunk to exact position by means of adequate ^i^^ Driving 
 machinery, power, and guide frames, all of which, before being used, 
 must be approved by the Engineer. Such approval, though, shall not 
 be interpreted as giving the Contractor any claim whatsoever for 
 avoidance of responsibility in respect to correctness of final position 
 of piles. 
 
 All piles are to be screwed down to the elevations shown on 
 Sheet No. 1; but if there be any slight inequality in elevations of 
 tops of piles, the same shall be adjusted by means of thin, cylindrical 
 shimming plates, seven (7) inches in diameter, to be placed between 
 the heads of the piles and the cast-iron caps. Should any pile be 
 left too high, its top shall be sawed off to exact level; but, as this 
 
42 SPECIFICATIONS AND CONTRACTS. 
 
 would be expensive, the Contractor should endeavor to sink all piles 
 a trifle low, so as to shim upon each a small amount. He should 
 also provide an ample number of shimming plates of various thick- 
 nesses. The greatest variation of height of column to be taken up 
 by shimming plates shall in no case exceed one and one-half (ll^) 
 inches. 
 
 No variation in elevation of tops of pile castings exceeding one- 
 sixteenth (1-16 )of an inch will be permitted. The spaces between 
 the pile heads and sockets of castings shall be filled completely with 
 hot, thick asphaltum, by putting an excess thereof in the casting 
 just as the latter is about to be placed, and the said asphaltum must 
 be held permanently in the annular space by caulking tightly with 
 sheet lead from below. 
 
 This work must all be done to the satisfaction and acceptance of 
 the Engineer, and there will be no direct payment made for either 
 lead, asphaltum, or labor involved in putting these in place, as the 
 pound-price for the metal-work must cover the cost of these materials 
 and labor. 
 
 PAINTING. 
 
 Tainting All metal-work before leaving the shop shall be thoroughly 
 
 cleansed from all loose scale, rust, and dirt, and shall then be given 
 one coat of paint, which coat shall be thoroughly dried before the 
 metal-work is loaded for shipment. It is absolutely essential that 
 the entire surface of the metal-work be thoroughly cleansed by the 
 most effective known methods, such as the use of wire brushes, then 
 the painter's torch, and in certain cases the application of a strong 
 caustic solution, followed by scraping, washing with clean water, 
 and drying. ( 
 
 In riveted work all surfaces coming in contact shall be extra 
 well painted before being riveted together. Bottoms of bed-plates, 
 bearing-plates, and any other parts which are not accessible for 
 painting after erection shall have three (3) coats of paint, one at 
 the shop, and the other two in the field before erection. Pins, bored 
 pin-holes, and all other polished surfaces shall be coated with white 
 lead and tallow before shipment from the shop. 
 
 Oil should be used as the lubricant for reaming, but, should soap- 
 suds be employed, all parts of the metal affected thereby must be 
 washed thoroughly and dried before any painting is done thereon. 
 
 After the structure is erected, the metal-work shall be thoroughly 
 cleansed from mud, grease, or any other objectionable material that 
 
Paints 
 
 SPECIFICATIONS AND CONTRACTS. 43 
 
 may be found thereon, then thoroughly and evenly painted with 
 two (2) coats of paint. 
 
 The paint to be used on the metal-work is known as Lsiter's 
 Air-Drying Paint, sold by the L. Z. Leiter Co., 81 South Clark street, 
 Chicago, 111., and costing there one dohar and twenty-five cents 
 ($1.25) per gallon. The Engineer reserves the right to substitute 
 any other paint, which, in his opinion, is equally good or better for 
 resisting the corrosive effects of salt water. 
 
 All three coats of paint given to the metal-work are to be of 
 distinctly different shades or colors, and the second coat must be 
 allowed to dry thoroughly before the third coat is applied, 
 
 No thinning of paint with turpentine, benzine, or other thinner 
 will be allowed without special written permission from the 
 Engineer. 
 
 No painting is to be done in wet weather. 
 
 All painting is to be done in a thorough and workmanlike 
 manner, to the satisfaction of the Engineer, and no paint whatever 
 is to be used on the structure without first being approved by the 
 Engineer. 
 
 All materials for painting shall be subject at all times to the 
 closest inspection and chemical analysis, and the detection of any 
 inferior quality of such material, in either shop or field, shall involve 
 the rejection of all suspected material at hand and the scraping 
 and repainting of those portions of the work that, in the opinion of 
 the Engineer, were defectively painted on account of such inferior 
 material. 
 
 All recesses that would retain water or through which water 
 could enter must be filled with thick paint or some waterproof 
 cement before receiving final painting. All surfaces so close 
 together as to prevent the insertion of paint-brushes must be painted . 
 thoroughly by using a piece of cloth instead of the brush. 
 
 LOADING METAL-WORK ON VESSEL AND PREPARING SAME 
 
 THEREFOR. 
 
 Pains must be taken to mark clearly every piece, bundle, or shipping 
 package with the shipping address and destination, with the names 
 and numbers of pieces, and with any other such mark of identifica- 
 tion as may be necessary to insure the correct disposition of the 
 material. 
 
 All small parts, such as rivets, bolts, nuts, washers, pins, fillers. 
 
44 SPECIFICATIONS AND CONTRACTS. ' 
 
 small connection-plates, etc., shall be boxed strongly, and the con- 
 tents shall be marked plainly on each box, in addition to the shipping 
 address mentioned above. 
 
 All lateral angles shall be bolted together in pairs ; and as many 
 of such pairs shall be bundled together with clamps or wires as will 
 be convenient for handling without injury in loading and unloading. 
 
 All pieces with open- ends, such as truss-members with forked 
 . ends, or laterals with unsupported plates or angles, or any other 
 parts liable to injury in handling, shall have the ends packed with 
 heavy blocks of timber, bolted thoroughly between the projections 
 or to the body of the member in such a manner as to prevent any 
 bending or other injury in handling or on shipboard. 
 
 All nuts on any rods or bolts shipped loose shall be screwed 
 tightly in place, and the threads thereof shall be wound closely with 
 twine, so that the nuts cannot come loose and be lost off in 
 handling. 
 
 The shipping invoices or lists are to be made to correspond to 
 the bundles, boxes, and packages, so that each item on the list can 
 be identified readily. 
 Loading During both the loading on steamer and the unloading from 
 
 same, special care shall be taken to avoid injuring any of the metal- 
 work, and the loading shall be so done as not to overstrain unduly 
 any part and so as to prevent any shifting during the voyage. If, in 
 spite of all precautions, some of the metal-work be injured, the entire 
 expense to which the Company is put because of such injury shall be 
 borne by the Contractor. 
 
 All the expense involved by these special shipping and loading 
 directions shall be borne by the Contractor, as no extra payment 
 will be allowed therefor." 
 
 I desire to call your attention to the importance of including 
 in specifications for metal-work that is to be transported by water 
 full instructions for loading the material in such a manner as to 
 reduce to a minimum the danger of injury in transit. Unless this 
 matter receive due consideration in the specifications, and unless 
 the latter be strictly lived up to in this particular, the metal is 
 liable to be so damaged during transportation as to necessitate the 
 rejection and replacement of some important parts, thus involving 
 for the construction long and often serious delays.^ 
 
 1 Provide for bill of lading and secure control of materials as against 
 creditors and others, if possible. 
 
SPECIFICATIONS AND CONTRACTS. 45 
 
 • The following characteristic clauses are taken from our "Specifi- Example, Pipe Line 
 cations for Steel Pipe Line for the City of Kansas City, Mo.": 
 
 GENERAL DESCRIPTION. 
 
 "The work is to consist of a buried pipe line, covered to a depth Description 
 of at least three (3) feet above the top thereof. 
 
 The pipe shall be forty-eight (48) inches internal diameter ripe 
 (irrespective of the rivet heads), and shall be made of soft steel 
 one-half C^/j) inch thick. 
 
 Bidders, however, shall tender also on a pipe of thirty-six (36) 
 inches minimum internal diameter (irrespective of the rivet heads), 
 made of soft steel three-eighths (%) of an inch thick. 
 
 All joints are to be lap-joints, the longitudinal ones being Manufacture 
 double-riveted, and the transverse ones single-riveted. 
 
 The length of the over-lap for the longitudinal joints shall be 
 five and one-half (5i4) inches, and that for the transverse joints 
 threa (3) inches. 
 
 There shall be but one longitudinal joint in any section of pipe. 
 
 All rivets are to be of soft steel, three-quarters (%) of an inch 
 in diameter and spaced two and one-half (2^4) inches centers, as 
 shown on the accompanying drawings. 
 
 The pipe is to be built in sections telescoping into each other, 
 each section being seven (7) feet long, and there being four (4) 
 sections riveted together in the shops, thus making the total length 
 of pipe for shipment twenty-seven (27) feet three (3) inches from 
 out to out, four (4) of such forty-eight (48) inch pipes making a 
 carload. 
 
 The distance from center line of rivets to edge of plate is to be 
 one and one-half (II/2) inches. 
 
 The larger sections shall be of such internal diameter that the 
 smaller sections will fit tightly inside them after the lap-joints have 
 heen drawn out to thin edges. 
 
 All joints are to be caulked so as to be absolutely water-tight 
 under a three hundred (300) foot head. 
 
 The longitudinal joints are to be so located that, when the 
 pipe is laid, they shall lie on top thereof alternately to right and 
 left of the vertical axial plane, and so that the nearer row of longi- 
 tudinal rivets shall be six (6) inches therefrom. 
 
 All pipe shall be formed to correct cylindrical shape, and any 
 lengths discovered to be out of true will be rejected. 
 
46 SPECIFICATIONS AND CONTRACTS. 
 
 Where the pipe passes beneath any railroad track, it shall be 
 stiffened as follows: 
 
 Six (6) longitudinal angle-irons 3 inches x 3 inches x ^-inch shall 
 be spaced, as nearly as possible, equi-distant around the periphery 
 of the pipe and riveted thereto, fillers being placed beneath them 
 to afford a flush bearing. These angle-irons are to be twenty-seven 
 (27) feet long, as they must run without splicing the full length of 
 the four (4) continuous seven-foot sections. 
 
 At the middle of each seven-foot section there is to be a ring 
 of 3-inch x 3-inch x %-inch angles in six (6) pieces (so as to lie 
 between the longitudinal stiff eners) riveted to the pipe. 
 
 Finally, there is to be a single 6-inch x 3 1/^ -inch x % -inch angle- 
 iron bent to a true circle with the long leg vertical, the said leg 
 riveting to the vertical legs of the previously mentioned ring angles. 
 
 It will be necessary to notch the six-inch leg so as to straddle 
 the radial legs of the longitudinal stiffeners. 
 
 The joint in this outer ring is to be placed opposite the middle 
 of one of the six pieces of circular angle-iron, and the said joint is 
 to be spliced with a piece of plate ten (10) inches wide, bent to fit 
 outside of the 6-inch x 3i/^-inch angle. 
 
 The details of the stiffening are shown clearly on one of the 
 accompanying drawings. 
 
 Where two of these stiffened pipes come together in the field, 
 each opposing pair of longitudinal stiffeners is to be spliced by 
 attaching to the vertical leg thereof a piece of 3-inch x 3-inch x 
 %-inch angle, two (2) feet long, riveted through one leg to the 
 stiffeners and through the other to the pipe, there being four (4) 
 rivets to each leg on each side of the joint. 
 
 FORMATION OF ANGLES AND CURVES. 
 
 Angles and Curves Where angles or curves occur in the alignment or grade of the 
 
 pipe line, the plates are to be cut and punched to the required bevel 
 so as to produce an oblique angle at the circular seam, carrying this 
 style of construction over a sufficient length of pipe to secure the 
 total deflection required. It may in some cases be necessary to 
 enlarge slightly the exterior lengths of pipe; but extra care will have 
 to be taken to caulk all such oblique joints. 
 
 PROTECTION OF METAL. 
 
 Trotection The pipe shall be dipped vertically in a bath of Assyrian 
 
 Asphalt, Smith's Durable Metal Coating, Mineral Rubber Coating, 
 
SPECIFICATIONS AND CONTRACTS. 47 
 
 or some other paint which, in the opinion of the Engineer, is equally 
 as good as any of those just named. 
 
 The coating shall be heated to a temperature of four hundred 
 (400) degrees F. or more, and all pipes shall receive a uniform 
 coating of not less than one-thirty-second (1-32) of an inch in 
 thickness. 
 
 After the sections have been removed from the dipping tank, 
 they shall be set vertically to dry. All joints shall receive three 
 (3) coats of paint before they are riveted up. All spots on which 
 the coating has been injured in handling must be thoroughly 
 recoated. 
 
 The particular kind of coating to be used will be decided later 
 by the Engineer." 
 
 And now, although I have read many of these specific clauses Conclusion 
 simply by title, intending to let you study them thoroughly later on 
 if you so desire, it appears to me that you have had about enough 
 of this ultra-technical discourse, and that, if I don't cease talking 
 pretty soon, you will be tempted to nickname me "Dr. Dryasdust"; 
 consequently, I shall say no more about specifications, except that I 
 advise every one of you to make a special study of the subject; first, 
 by collecting and perusing carefully a number of truly first-class 
 specifications written by engineers of wide experience; and, second, 
 by attempting to write for yourselves specifications for various 
 types of engineering construction. Remember that you cannot hope 
 to learn to write even approximately complete and correct specifica- 
 tions until after you have had many years of practical experience 
 in engineering work; therefore, do not be discouraged, if at first 
 you find the task too great for your unavoidably limited experience. 
 
 In concluding this series of lectures, I beg to thank you, young 
 gentlemen, for the attention and courtesy you have shown me and 
 for the appreciation of my efforts that you have manifested. 
 
Examples for Practice in Specification 
 
 Writing. 
 
 Writing Specifica- 
 tions 
 
 Adopting Others' 
 Work 
 
 Drawings 
 
 Topics 
 
 Before the student attempts to write one of the specifications 
 outlined in the following list, he should obtain and study one or 
 more actual specifications for similar work. To this end the pro- 
 fessor should make and retain for the use of his classes a large 
 collection of good, sound specifications, dealing with the various 
 types of construction covered in the list. 
 
 The student is warned against copying blindly from these 
 documents, for they should be employed merely as guides to indi- 
 cate the ground that ought to be covered in the specification that 
 is about to be prepared. In case it is desirable to shorten the 
 student's work, it will be proper for him to give merely the 
 headings for various paragraphs that are of a standard nature, 
 and to refer concerning them to certain well-known general specifi- 
 cations, such, for instance, as those of the author's De Pontibus; but 
 it would not be right so to refer to any special specifications that 
 are not available to the public. For example, it would be eminently 
 correct to refer to Cooper's Bridge Specifications, but not to those 
 of the Pennsylvania Railroad Company. 
 
 If the student's specifications are assumed to have drawings 
 attached, the first thing for him to do is to determine in his mind 
 exactly of what these drawings should consist, how many sheets they 
 should occupy, and what each sheet should contain; then he should 
 prepare a descriptive list of them for insertion in the proper place 
 in the specifications, which, by the way, is near the beginning. 
 
 The next step to take is to make a complete list of headings 
 and then arrange these in proper order. On page 10 will be found 
 an alphabetically arranged list of headings for certain specifications 
 that can be used as a guide in determining the ground that 
 the student should cover; and he is likely to obtain considerable 
 assistance on this point by a perusal of actual specifications of a 
 like character. The list of headings should be made in some logical 
 order — i. e., the various items should not be inserted at haphazard. 
 
SPECIFICATIONS AND CONTRACTS. 49 
 
 The best arrangement is perhaps chronological in respect to the 
 building of the structure under consideration; but it is not prac- 
 ticable to follow this order rigidly throughout the entire document, 
 for there are many items that are absolutely independent of any 
 chronological sequence. Failing the latter, a good rule to go by is 
 that one item ought naturally to suggest the succeeding one. If 
 these two ideas be kept in mind and be allowed to govern, the result 
 of the student's effort at technical writing will not be open to severe 
 criticism because of want of proper continuity. 
 
 After the student has finished writing a set of specifications, 
 and has numbered the pages thereof, he should prepare an alpha- 
 betical index of headings with the page numbers alongside. 
 
 The following forty examples are of a diverse character, con- Remarks 
 sequently the student can have a choice of subjects; and, moreover, 
 he can choose also as to the comparative difficulty or complexity 
 of the specifications he is to write, because some of the examples are 
 simple while others are not. None, however, are extremely 
 difllcult, but few of them being as complex as the average specifi- 
 cations of most engineers' every-day practice. 
 
 If the student find that the . data given for any of these 
 "Examples" are insufficient for his purpose, he will be at liberty 
 to supply the omissions or deficiencies according to his best judg- 
 ment. 
 
 All the specifications should be drawn with the idea in view of 
 calling for tenders on the work. 
 
 EXAMPLE NO. 1. 
 
 Prepare complete specifications for a concrete retaining wall. Retaining Wall 
 from twelve (12) to twenty-one (21) feet high above base of footing 
 course and twelve hundred and fifty (1,250) feet long, to hold back 
 a sloping bank of earth, the foundations to be at least five (5) feet 
 below the surface of the ground. Joints, to prevent cracking, are to 
 be placed at intervals of not more than forty (40) feet. The work, 
 which is located in New Westminster, British Columbia, is to be 
 built by the Government of that Province. Payments are to be 
 made monthly on the Engineer's estimates with the usual retention 
 of ten (10) per cent, thereof until the completion of the contract. 
 
 Portland cement is to be used exclusively for the concrete. The 
 wall is to be strictly first-class in every particular. 
 
 EXAMPLE NO. 2. 
 Prepare complete specifications for a concrete arch culvert ten ^^^^ Culvert 
 (10) feet in diameter and one hundred and twenty-eight (128) feet 
 
50 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Grading 
 
 Bock Tunnel 
 
 Tunnel in Clay 
 
 long, to be covered later by an earth embankment about forty (40) 
 feet high. Location, near Buda, Texas, on the I. & G. N. Ry. Con- 
 struction first-class throughout. The opening at present is main- 
 tained by a wooden trestle. Provide for non-interference with 
 railroad traflBc. The work must be done in the dry season when 
 there is very little water passing. 
 
 EXAMPLE NO. 3. 
 
 Prepare complete specifications for doing all the grading (solid 
 rock, loose rock, and earth) for a railroad fifty-four (54) miles long, 
 starting at Palestine, Texas, and running northward. 
 
 EXAMPLE NO. 4. 
 
 Prepare complete specifications for building a tunnel eight 
 hundred and fifty-five (855) feet long through rock for a single-track 
 railway that is not yet in operation, although the track reaches near 
 both ends of the hill through which the tunnel is to pass. The roof 
 may or may not need lining, for the character of the rock is as yet 
 undetermined, except on the surface where it gives promise of being 
 hard within. 
 
 Bids are to be called for per lineal foot of tunnel both unlincd 
 and lined. 
 
 EXAMPLE NO. 5. 
 
 The Metropolitan Street Railway Company had a tunnel along 
 Eighth street in Kansas City, Mo., in which the grade was nine 
 and one-half (9.5) per cent., and desired by starting at the west 
 end to lower the bottom so as to change the grade to four and one- 
 half (4.5) per cent. The material was stratified rock of a very 
 variable character, full of faults and clay seams. On this account 
 special care had to be taken to prevent caving in and bulging of 
 sides, also undermining of roof. Small blasts were, therefore, 
 necessitated. 
 
 No attempt was made to maintain traffic during the reconstruc- 
 tion. 
 
 Wherever soft material was found under the side walls it had 
 to be removed and replaced with first-class Portland cement concrete. 
 
 From the east end of the tunnel to Broadway there was to be 
 an open cut, mostly through earth, with substantial side walls of 
 concrete. In doing this part of the excavation there was great 
 danger of undermining the foundations of some adjacent high build- 
 ings. Assume that complete detail plans for the reconstruction were 
 
SPECIFICATIONS AND CONTRACTS. 51 
 
 on file at the Engineer's oflSce of the Metropolitan Street Railway- 
 Company, and prepare a proper set of specifications on which to 
 call for bids. 
 
 EXAMPLE NO. 6. 
 
 Prepare complete specifications for the manufacture and putting Pipe Line 
 in place of a forty-eight (48) inch steel riveted pipe-line made of 
 half-inch metal, about four and a half (4.5) miles long, with man- 
 holes every five hundred (500) feet. General depth of top of pipe 
 below surface of ground to be four (4) feet. There are six (6) 
 under-crossings of railroad tracks requiring the pipe there to be 
 properly stiffened so as to carry the weight of passing trains. 
 
 Pipe to be lap-jointed; rivets % inch in diameter, staggered. 
 Shop riveting to be done by power, and all field riveting by pneu- 
 matic hammers. 
 
 About fifteen (15) per cent, of the line is to be on curves, as 
 shown by plans and profiles on file in the City Engineer's office at 
 Des Moines, Iowa, near which city the line is to be built to convey 
 the main water supply for the said city. 
 
 The pipe is to be tested in sections under a static pressure of 
 one hundred and thirty (130) pounds per square inch. 
 
 Time limit for completion of work is to be eight (8) months. 
 
 Bids are to be per pound of pipe in place, and per cubic yard 
 of earth and rock excavated, including backfilling. 
 
 Special attention must be given in the specifications to the 
 painting of pipe and to making it perfectly tight. 
 
 The student will be at liberty in this "Example" to refer to 
 certain clauses in the specifications of De Pontibus, or other standard 
 specifications for steelwork, so as to shorten his labor as much as 
 possible. 
 
 EXAMPLE NO. 7. 
 
 Prepare the specifications for the concrete piers and abutments Abutments and 
 of a single-track railway bridge about fifteen hundred (1,500) feet 
 long, consisting of fifteen (15) deck, plate-girder spans. Bed of 
 stream is solid rock that will not have to be cut into more than a 
 foot to obtain a satisfactory foundation. 
 
 The stream is practically dry for six (6) consecutive months of 
 the year, and the construction is to be done during the dry season. 
 The surface of the bed-rock is almost horizontal over the entire 
 crossing. Distance from grade to bed-rock is about sixty (60) feet. 
 No ice-breaks on piers will be required. 
 
52 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 The structure is for a new line, hence it will not be necessary 
 to figure on maintaining traffic. 
 
 There is a quarry of good rock for broken stone quite near 
 the bridge site, and satisfactory sand can be had for the digging 
 within three (3) miles. The nearest railroad station is about two 
 (2) miles from the site. The location of the work is in western 
 Texas. Bids are to be called for at schedule rates. 
 
 Masonry Piers 
 
 Railroad Bridge 
 
 EXAMPLE NO. 8. 
 
 Prepare complete specifications for stone masonry piers with 
 concrete backing for the same crossing, taking the stone from the 
 same quarry as before. Masonry to be first class. Foundation pits 
 to be leveled off with concrete. Bids are to be called for at schedule 
 rates. 
 
 EXAMPLE NO. 9. 
 
 Prepare complete specifications for the substructure of a single- 
 track railroad bridge across the Papaloapam River in Mexico, con- 
 sisting of two (2) concrete abutments resting on pile foundations 
 (the tops of the piles being encased in the concrete), five (5) ordi- 
 nary piers, and one pivot pier. The concrete shafts of the piers 
 rest on timber cribs and caissons sunk by open dredging about fifty 
 (50) feet below the bed of the river, which is about forty (40) feet 
 below the grade line of structure. Width of river about eleven 
 hundred (1,100) feet. A satisfactory mixture of clean sand and 
 gravel can be dug from the river bed near the site and used for 
 concrete as it is found, but the proper amount of cement for filling 
 the voids must be determined often by measuring the latter. 
 
 The timber for the cribs and caissons must be imported from 
 Louisiana or Texas. All materials will be delivered at bridge site 
 free of charge for hauling over the railroad company's lines. 
 
 Seven (7) months from the date of signing the contract will be 
 allowed for completing the work. Liquidated damages are to be 
 one hundred dollars ($100) gold per day. Bids are to be called 
 for in American money as follows: Per cubic yard of mass of cribs 
 and caissons in place. Per cubic yard of shafts of piers and of 
 portions of abutments above low-water level as the latter is shown on 
 the accompanying plans. Per cubic yard of those parts of the abut- 
 ments below low-water level, including portions of piles encased in 
 the concrete. Per lineal foot of piles in place projecting below the 
 concrete in the abutment foundations. 
 
SPECIFICATIONS AND CONTRACTS. 53 
 
 EXAMPLE NO. 10. 
 
 Prepare the specifications for a reinforceJ-concrete arch high- Reinfoi-cod-Concrete 
 
 Arch Bridge 
 way bridge of one hundred and five (105) feet clear span and 
 
 twenty (20) feet rise, resting on a solid rock foundation and spring- 
 ing from the rocky sides of a gorge above high-water mark, the clear 
 width of roadway between parapet walls being thirty-four (34) fest. 
 Assume that there is no special risk from floods during erection. 
 
 Bids are to be per cubic j^ard of concrete and per pound of the 
 reinforcing metal, also per cubic yard for excavation in both rock 
 and earth, 
 
 EXAMPLE NO, 11. 
 
 Prepare the specifications for a main sewer of concrete, two Main Server 
 and a half (2i/^) miles long and six (6) feet in diameter, for the 
 city of Rochester, N, Y., and provide for the connections for lateral 
 sewers, ventilators, man-holes, and all other details. Excavation is 
 partly through earth and partly through rock. In one stretch of a 
 quarter of a mile the foundation is so soft and wet as to require 
 piling. Call for bids per lineal foot of finished sewer in accord with 
 the plans and specifications which are on file in the City Engineer's 
 Office, 
 
 EXAMPLE NO, 12. 
 
 Prepare complete specifications for the manufacture and ship- ^^- ^- Bridge 
 ment of the metal-work for four (4) single-track, through, riveted- 
 truss spans, each two hundred (200) feet long, measured between 
 centers of pedestal pins, designed according to Class R, of Waddell's 
 "Specifications for Steel Bridges," and weighing about 2,650 pounds 
 per lineal foot of span. Point of delivery of metal is Beaumont, 
 Texas, 
 
 Time allowed for manufacture and delivery is four (4) months. 
 Metal is medium steel. Four (4) sheets of drawings will be 
 required. 
 
 EXAMPLE NO. 13, 
 
 Prepare complete specifications for the manufacture of a '^^'^^ ^^ ater-Tank 
 cylindrical steel water-tank, twenty (20) feet in diameter and sixteen 
 (16) feet high, carried by a braced steel tower fifty (50) feet high, 
 resting on concrete pedestals that are supported on earth founda- 
 tions capable of withstanding a vertical load of four thousand 
 (4,000) pounds per square foot. 
 
 Location alongside of a railroad in a small Missouri city. 
 
54 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Call for bids per pound of metal erected and painted and per 
 cubic yard of concrete in place, no direct payment being made for 
 excavation. 
 
 EXAMPLE NO. 14. 
 
 R. R. Trestle Prepare complete specifications for a single-track railroad trestle 
 
 to be built of long-leaf yellow pine timber, resting on cypress piles 
 
 of best quality. Length of trestle about two thousand (2,000) feet, 
 
 and average height from ground to grade about thirty-five (35) feet. 
 
 Piles to be creosoted and timber to be painted with Carbolineum. 
 
 Call for bids for timber in place, painted, per M. ft. B. M., 
 creosoted piles left in place per lineal foot of pile, cut-off ends of 
 same per lineal foot, iron in place per pound, and laying rails per 
 lineal foot of track, the rails being furnished by the railroad 
 company. 
 
 EXAMPLE NO. 15. 
 Concrete Dam Prepare complete specifications for a curved concrete dam sixty 
 
 (60) feet high and seven hundred and twenty (720) feet long, 
 located at a narrow part of a rocky gorge, near Boulder, Colo. 
 Bottom and sides of the canon are of solid rock. Large quantities 
 of water pass in the wet season, but there is practically none passing 
 in the dry season, which is usually of seven (7) months' duration. 
 Plenty of good stone and sand for concrete are to be found near the 
 site, but the cement will have to be transported by wagon thirty- 
 five (35) miles from the nearest railroad station. Provide for a 
 temporary dam of timber and clay to hold back the small amount of 
 water passing in the dry season, in order that the footing of the 
 concrete dam may be built in the dry. 
 
 Railroad 
 
 EXAMPLE NO. 16. 
 Prepare specificatiors for the building of a railway, complete in 
 every particular (excepting only the bridges, buildings, and rolling- 
 stock), one hundred and twenty (120) miles long, located in the 
 State of "Washington. The contract is to be let at schedule prices 
 for everything, and the entire work is to be completed and turned 
 over to the Company within twelve (12) months. 
 
 Timber Pier 
 
 EXAMPLE NO. 17. 
 Prepare complete specifications for a pier to be built of creosoted 
 timber and piles in Galveston Bay. Length, six hundred and forty 
 (640) feet, width sixty-four (64) feet, and height eighteen (18) feet 
 above extreme low-water level. 
 
SPECIFICATIONS AND CONTRACTS. 55 
 
 The construction to be of the most substantial character, and 
 the piling to be thoroughly sway-braced. Deck to be built of six- 
 (6) inch planks. Structure to carry two railway tracks at middle 
 over its whole length. 
 
 Live load 350 pounds per square foot of floor. 
 
 EXAMPLE NO. 18. 
 
 Prepare complete specifications for a deck, plate-girder turn- Turntable 
 table on a concrete foundation and having the pit-wall also of con- 
 crete. Capacity must be great enough to take care of the longest 
 and heaviest locomotives ever built. To be operated by electricity. 
 
 N. B. — The specifications need not cover the operating machin- 
 ery, except in a merely descriptive manner. 
 
 EXAMPLE NO. 19. 
 
 The metal-work for two (2) through, riveted spans of one hun Cleaning and Re- 
 painting 
 dred and twenty (120) feet each and for three (3) deck, plate- 
 girder spans of forty (40) feet each was dropped overboard by the 
 capsizing of a barge in the harbor of Vera Cruz, Mexico, and was 
 afterward raised, taken ashore, and piled. The result was that it 
 rusted very badly and had to be thoroughly cleaned by sand-blast, 
 etc., and repainted before being shipped to bridge site. 
 
 Prepare the specifications for cleaning and repainting the said 
 metal-work. 
 
 EXAMPLE NO. 20. 
 
 Prepare complete specifications for building a brick chimney two Brick Chimney 
 hundred and fifty (250) feet high for the Orford Copper Company 
 on Staten Island, N. Y. 
 
 The contract to be let for a lump sum. Foundation is hard 
 clay. 
 
 EXAMPLE NO. 21. 
 
 Prepare complete specifications for building a brick well fifty Well 
 (50) feet in diameter and forty (40) feet deep, resting on a steel 
 curb and sunk through sand to obtain a water-supply. Contract to 
 be let for a lump sum. 
 
 EXAMPLE NO. 22. 
 Prepare complete specifications for building two parallel rock- Rock Jetties 
 jetties, each about half a mile long, at Brazos de Santiago, 
 Texas, so as to obtain a channel having a minimum depth of 
 fourteen (14) feet, the distance apart of the jetties being about five 
 hundred (500) feet. The work is to be done by contract with the 
 United States Government. 
 
56 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Dyke 
 
 Settling Basins 
 
 Asphalt Paving 
 
 Wood-Block Paving 
 
 Excavation 
 
 Bids are to be made per lineal foot of jetty for heights measured 
 from base to top, varying by one foot, from a minimum of six 
 (6) feet, to a maximum of twenty-four (24) feet. 
 
 EXAMPLE NO. 23. 
 
 Prepare the specifications for a trailing, wattled-pile dyke, three- 
 quarters of a mile long, with wattled cross-dykes at intervals of 
 about three hundred (300) feet, to be built along the bank of the 
 Missouri River at East Omaha, Neb., mainly for the purpose of 
 stopping the river's encroachment, but incidentally also for making 
 land so as to increase the holdings of the East Omaha Land Com- 
 pany. The front of the trailing dyke is to be protected against 
 scour by a woven willow mattress sixty (60) feet wide and as long 
 as the dyke, the piles of the latter being driven through the mat- 
 tress near the shore edge. 
 
 Bids are to be made per lineal foot of pile in place, per M. ft. 
 B. M. of timber in place, per pound of iron in place, and per square 
 foot of mattress complete in place, including the anchorage stones. 
 
 EXAMPLE NO. 24. 
 
 Prepare complete specifications for four (4) settling basins to 
 be constructed for the purpose of purifying the water supply of 
 Richmond, Va., and to provide for the needs of a city of 125,000 
 inhabitants. 
 
 Bid to be called for by a lump sum. 
 
 EXAMPLE NO. 25. 
 Prepare complete specifications for paving with asphalt a street 
 in Baltimore four thousand eight hundred and fifty (4,850) feet 
 long and forty-four (44) feet wide between curb lines. Entire con- 
 struction to be of the very best. Tenders to be made per square 
 yard of finished pavement. 
 
 EXAMPLE NO. 26. 
 Prepare similar specifications for the same contract, but using 
 creosoted yellow pine blocks instead of asphalt. 
 
 EXAMPLE NO. 27. 
 
 The earth has been excavated to the full depth of the founda- 
 tions for a large building in Chicago, and the bearing capacity of 
 the soil is to be tested at a number of points distributed with some 
 uniformity over the whole area. A special apparatus is to be 
 designed for loading with pig-iron. 
 
 The work is to be paid for at actual cash cost, plus a percentage 
 thereof for profit to be named by each bidder tendering, the one 
 
SPECIFICATIONS AND CONTRACTS. 57 
 
 naming the lowest percentage to receive the award of the contract, 
 only responsible parties being permitted to compete. Prepare the 
 necessary specifications. 
 
 EXAMPLE NO. 28. 
 
 Prepare complete specifications for building three and one- Electric Railway 
 
 Track 
 quarter (31/4) miles of double track for an electric railway on the 
 
 paved streets of the city of Chicago, including the furnishing and 
 
 placing of stone-block pavement on the space between the two outer 
 
 rail'; and on two (2) feet outside thereof. Rails to weigh ninety 
 
 (90) pounds per yard, and ties to be of creosoted, long-leaf, yellow 
 
 pine. 
 
 Bids are to be made per lineal foot of double track. Describe 
 
 carefully in detail the style of track and pavement. 
 
 EXAMPLE NO. 29. 
 
 Prepare specifications for the metal-work of a large, steel-skeleton steel Building 
 building to be erected in New York City. It will be permissible 
 when treating of character of metal and metal-work to refer clause 
 by clause to well-known standard specifications for manufacture 
 of steel and of steel structures. 
 
 Assume the various leading dimensions of the building and 
 describe in detail the design of the metal-work. 
 
 Bids are to be by the pound of metal erected and painted. 
 
 EXAMPLE NO. 30. 
 
 The new five hundred and twenty (520)-foot swing span of the Swingbridge 
 East Omaha bridge over the Missouri River has located in its tower 
 a small power-house, absolutely fireproof, to contain a portion of the 
 electrical machinery. The construction is of steel and concrete. 
 
 Draft the specifications for such a house. 
 
 EXAMPLE NO. 31. 
 Prepare complete specifications for a through train-shed to be Train-Shed 
 built on the reclaimed lands at the north end of Kansas City, Mo., 
 the length being nine hundred (900) feet and the width two hundred 
 and eighty (280) feet. Use tin roof of best quality, wooden louvres, 
 skylights of wired glass, copper gutters and down-spouts, and all 
 other details of the very best kinds employed in similar structures. 
 The trusses are to be of the cantilever type, each resting on two 
 columns that must act also as beams to resist the wind pressure. 
 There are to be no side walls, excepting that at the south side of 
 the shed the north wall of the depot building will serve as such; 
 The foundations are to be large concrete pedestals resting on piles 
 
58 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Roundhouse 
 
 Sea Buoy 
 
 Floating Foundation 
 
 Bridges 
 
 Ocean Pier 
 
 Steel Lighthouse 
 
 of concrete or creosoted timber driven to whatever depths may he 
 found necessary. 
 
 EXAMPLE NO. 32. 
 Prepare complete specifications for a brick roundhouse to accom- 
 modate twelve (12) locomotives. Foundations to be of concrete 
 resting on hard clay. 
 
 EXAMPLE NO. 33. 
 Prepare complete specifications for a large sea-buoy to be built 
 of steel, including the necessary cable and anchor or anchors. In 
 respect to character and quality of materials and workmanship it 
 will be permissible to refer to standard clauses of well-known specifi- 
 cations for steel construction. The item of water-tightness should 
 receive special consideration. 
 
 EXAMPLE NO. 34. 
 
 Prepare complete specifications for a fioating foundation of steel 
 and concrete for a large eight (8)-story hotel building for the city 
 of New Orleans, designed according to the author's method as given 
 in his paper upon "Foundations for Important Buildings in the City 
 of Mexico," which paper is included in Mr. John Lyle Harrington's 
 book, entitled "The Principal Professional Papers of Dr. J. A. L- 
 Waddell, Civil Engineer." 
 
 As in other cases it will be permissible to refer to certain stand- 
 ard clauses concerning materials and workmanship for the steel 
 as given in well-known specifications. 
 
 EXAMPLE NO. 35. 
 
 Referring to Case No. 3 in the appended examples for contract 
 writing, prepare the specifications therein mentioned for the erection 
 of the four spans. 
 
 EXAMPLE NO. 36. 
 
 Referring to Cases Nos. 8 and 9 in the appended examples for 
 contract writing, prepare the specifications therein mentioned for 
 building the Ocean Pier. 
 
 EXAMPLE NO. 37. 
 
 Prepare complete specifications for a steel lighthouse supported 
 on screw-piles to be erected on the coast of Texas, the total height 
 being one hundred and five (105) feet above low water, and the 
 floor of the living rooms being placed at an elevation of twenty-five 
 feet above same. The specifications for the lantern itself may be 
 omitted, excepting that its size and character should be described. 
 The foundations for the structure are solely sand. Bids are to be- 
 by lump sum. 
 
SPECIFICATIONS AND CONTRACTS. 59 
 
 EXAMPLE NO. 38. 
 
 Prepare complete specifications for the erection by flotation at Bridge 
 Boca del Rio (which is some fifteen (15) miles south of Vera Cruz, 
 Mexico) of eight single-track railroad, deck, plate-girder spans, the 
 piers and abutments for which are in place. As the rise and fall of 
 tide there are small and slow, it will be necessary to figure on letting 
 water into the barges in order quickly to bring the spans to rest 
 on the bridge seats. 
 
 Bids are to be per pound of steel erected (the metal being 
 furnished by the railroad company), per M. ft. B. M. of timber 
 furnished and put in place by the contractor, and per lineal foot 
 of track for laying the rails, which are to be provided by the 
 company. 
 
 EXAMPLE NO. 39. 
 
 Prepare complete specifications for a steel tower somewhat Tower 
 similar to the Eiffel Tower in Paris, a quarter of a mile high and 
 having a base four hundred and forty (440) feet square between 
 centers of main pedestals, to be constructed in the city of 
 Chicago. 111. 
 
 Foundations of the concrete pedestals to be piling of concrete 
 or creosoted timber. Buildings of various kinds are to be placed at 
 different heights in the tower, and near the top there is to be a 
 dancing pavilion. 
 
 The Author once made a design for such a tower, but prepared 
 no specifications. He would be pleased to furnish copies of the 
 drawings to any student who desires to undertake the drafting of 
 specifications for this "Example." However, he does not advise 
 many of them to try it, as the said specifications would have to be 
 long and complex, although portions of them, such as those for the 
 elevators and buildings might be omitted. 
 
 EXAMPLE NO. 40. 
 
 Prepare complete specifications for the viaduct referred to In Viaduct 
 Cases Nos. 1 and 2 of the appended examples for contract writing. 
 The total length of the structure is about twenty-five hundred and 
 fifty (2,550) feet, its greatest height about ninety-five (95) feet, the 
 width of main roadway thirty-four (34) feet, and that of each of the 
 two sidewalks four and one-half (4.5) feet. The structure is to 
 occupy city property only, being located entirely on Marshall street. 
 
 The student will have to assume the quantities of the various 
 materials on which he is to call for bids, as these have not yet been 
 computed. 
 
Engineering Contracts. 
 
 A Lecture to Civil Engineering Students, 
 Delivered ia 1905. 
 
 Introduction 
 
 Sequel to 
 tions 
 
 Specifica- 
 
 Contracts and Speci- 
 fications Distin- 
 guished 
 
 Young Gentlemen — Some two years ago I delivered to the Senior 
 Class of the Rensselaer Polytechnic Institute a lecture on the subject 
 of "Specifications," and in it I touched but lightly on that of "Con- 
 tracts," merely quoting from the standard form of contract of my 
 firm certain clauses that were needed to make my discourse com- 
 plete. Engineering contracts, however, are of such importance to 
 the profession as to be worthy of a special lecture devoted to their 
 discussion, and this I purpose giving you to-day. The fact that the 
 subject is treated very thoroughly in several standard works might 
 at first thought lead one to believe that a lecture on it is superfluous, 
 but such is not the case, because what I have to say is in a sense 
 supplementary to that which is found in the books. Moreover, by 
 discussing it from the strictly practical point of view, and thus 
 making it more interesting than a study of law-books, which, as 
 you all know, are notoriously dry reading, I hope so to present the 
 matter that it will appeal directly to engineering students. 
 
 In one sense this lecture is a sequel to that on "Specifications," 
 and will be appreciated better by those who have read the latter; 
 nevertheless, I shall endeavor to make the treatment of the new sub- 
 ject complete in itself and independent of the preceding lecture. 
 The general plan, however, is the same for both — viz., a dissertation 
 concerning the theory or science of writing, followed by illustrations 
 taken from actual practice. 
 
 The dividing line between specifications and contracts is most 
 difficult to draw, for in any particular case two engineers will rarely 
 agree as to what clauses pertain properly to the specifications and 
 what to the contract, of which the specifications form a part. Some 
 engineers prefer to throw nearly everything into the specifications 
 and thus keep the size of the contract proper as small as possible.^ 
 
 1 Not so much to make the contract small, as to make it general and 
 applicable to many cases or structures. 
 
SPECIFICATIONS AND CONTRACTS. ^ 61 
 
 while others make the latter very extensive by including in it many 
 clauses that are ordinarily found in the specifications. Again, 
 others make a practice of repeating in the contract certain clauses 
 that have already been covered in the specifications. In my opinion, 
 the last-mentioned nlethod is open to criticism in that it is liable to 
 result in conflicting clauses; nevertheless, it is quite possible that 
 my practice has not invariably been entirely free from this objec- 
 tionable feature — it is so hard to be always consistent; and again, 
 one's methods are a matter of development and are not created per- 
 fect at one essay. 
 
 Before proceeding to the direct treatment of my subject I shall Dividing Line 
 endeavor to make clear to you the method that I have adopted for 
 locating the dividing line between specifications and contracts. I 
 say "endeavor" advisedly, for I am not sure that I can always give 
 a, satisfactory rule or reason for any particular division; because 
 absolute consistency is an attribute that, strive as one will to attain 
 it, lies ever just beyond reach.^ 
 
 My preference is to throw as much of the matter as possible into Scope of Specifica- 
 the specifications and reduce the size of the contract proper to a 
 minimum, avoiding repetition of statement in the two parts of the 
 work, but of necessity treating certain subjects in both parts, though 
 from different points of view. There is no doubt about the proper 
 place for most of the topics or headings, but in certain cases there 
 are plausible reasons for locating them in either division. All 
 •clauses that relate to methods of construction, qualities of materials, 
 character of the work, rules limiting the functions and powers 
 of the Contractor and defining the authority of the Engineer, 
 directions to bidders, and transportation of men and materials 
 unquestionably belong to the specifications; but such clauses 
 as those relative to adherence to specifications, alteration of plans, 
 damages, extras, payments, responsibility for accidents, the spirit of 
 the specifications, strictness of inspection, liquidated damages, scope 
 of the contract, and time of completion might perhaps be properly 
 inserted in either division. My custom, however, is to include all 
 of these clauses and others of like character and scope in the 
 specifications. 
 
 Nine out of ten of the contracts that an engineer has to prepare ^^°P® °^ Contract 
 are in connection with construction, and an intelligent specialist 
 
 ^ It is considered excellent practice to limit the general covenants and 
 obligations to the contract and to include in the specifications matters which 
 are special to the particular structure in hand, and which are matters of 
 ■engineering and architectural construction. 
 
62 SPECIFICATIONS AND CONTRACTS. 
 
 soon learns how to prepare satisfactory specifications and contracts 
 for all ordinary kinds of work; but this style of contract is by no 
 means the only type with which an engineer is concerned, for he is 
 sometimes, called upon to draft agreements between promoters of 
 enterprises and capitalists, between himself and promoters of enter- 
 prises, between two engineers, between two contractors, or between 
 a surety company and a contractor. Some of these unusual types 
 are exceedingly difficult to draft properly, as, owing to their varying 
 conditions, they cannot be systematized. It is mainly with them, 
 therefore, that this lecture on contract writing is concerned, because, 
 for construction in general it is practicable to evolve a form which,, 
 when correctly filled out, will apply to any ordinary case. 
 
 Contract Writing a The importance of drafting contracts properly cannot well be 
 
 overestimated. An incorrectly drawn agreement is almost certain 
 to involve serious trouble and often pecuniary loss to an innocent 
 party; hence it behooves engineers to study thoroughly and funda- 
 mentally the science or art of contract writing. 
 
 Whether it be really a science or an art is a mooted point; but, 
 in my opinion, the writing of proper specifications and contracts is 
 certainly worthy to be termed a science. 
 
 Desiderata Before one can draft a contract, he must have clearly in mind a 
 
 full and well-defined idea of all the conditions and desiderata, and 
 he should epitomize these systematically before beginning to write. 
 It is advisable to keep constantly in view the possibility that each 
 party to the contract may be unscrupulous and willing to take every 
 possible advantage of every weakness which the contract may con- 
 tain and which will tend to his own profit — honor and integrity to 
 the contrary notwithstanding. Failure to do this will often result, 
 in some ambiguity that will cause rank injustice to one of the par- 
 ties to the agreement. It is difficult for an engineer to recognize this 
 weakness of human nature and to bear it steadily in mind when 
 writing contracts, because the training and the work of engineers 
 tend to develop in them to an eminent degree the principles of abso- 
 lute honesty; consequently, it comes hard for them to be forced to 
 make a practice of doubting the integrity of their business associates. 
 To mistrust the motives of one's fellow-men is disagreeable but 
 essential, if the writer of specifications and contracts is to protect 
 himself or his clients from loss and fraud. 
 
 Misplaced Confidence Concerning this matter I speak from sad experience, for in my 
 
 business career I have at times suffered severely from the ill-effects 
 of a too-trusting reliance upon the honorable intentions of those with 
 
SPECIFICATIONS AND CONTRACTS. 63 
 
 whom I have done business; and, while this unfortunate experience, 
 I am happy to say, has not caused me to mistrust the goodness of 
 human nature in general, it has taught me the necessity for exercis- 
 ing the utmost caution in drawing contracts, so as not to put tempta- 
 tion in the way of either party by inserting a single clause of which 
 he could take advantage by compelling the other party to do some- 
 thing that was not contemplated when the agreement was made. 
 Occasionally it happens that after a contract is executed, one of the 
 parties finds a flaw that will give him an improper advantage; 
 and it is only a strictly just and upright man who will refuse to 
 avail himself of such a weakness in the document. 
 
 The essential elements of any contract, according to Mr. John Essential Elements 
 Cassan Wait, the noted authority on "Engineering and Architectural 
 Jurisprudence," are as follows: 
 
 "1st. Two parties with capacity to contract. 
 
 "2d. A lawful consideration — a something in exchange for its 
 legal equivalent, a quid pro quo. 
 
 "3d. A lawful subject-matter, whether it be a promise, an act, 
 or a material object. 
 
 "4 th. Mutuality — a mutual assent, a mutual understanding, a 
 meeting of the minds of the parties." 
 
 Without these four elements no contract is binding in law. 
 
 The essentials of a well-drawn contract that comes within the Engineering Essen- 
 tials 
 province of the engineer, however, are as follows: 
 
 1st. A proper and customary form. 
 
 2d. A full and correct description of all parties to the agree- 
 ment. 
 
 3d. A thorough and complete preamble. 
 
 4th. A statement of when and under what conditions the con- 
 tract is to become operative. 
 
 5th. The limit, if any, for duration of contract. 
 
 6th. An exhaustive statement of what each party to the con- 
 tract binds himself, his executors, administrators, successors, or 
 assigns to do or to refrain from doing. 
 
 7th. A clearly defined enunciation of the consideration which 
 «ach party is to receive; this is the essential raison d'etre of the 
 instrunient. 
 
 8th. The forecasting of all possible eventualities that would 
 materially affect the agreement, and a full statement of everything 
 that is to be done in case of each eventuality. 
 
64 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Contract Forms 
 
 Introduction 
 
 9th. Penalties for failure to comply with the various terms of 
 the agreement. 
 
 10th. Provision for possible cancellation of contract. 
 
 11th. Provision for settlement of all business relations covered 
 by the contract or resulting therefrom in case of cancellation, taking: 
 into account all possible important eventualities. 
 
 12th. Mention of the place where the agreement is drawn or of 
 the place where it is to be put in force, so as to show the state under 
 the laws of which the validity of the contract is to be determined^ 
 should suit be necessary to enforce it. 
 
 13th. Methods of payments, if any are to be made. 
 
 14th. Provision for extra compensation and the limitations 
 connected therewith. 
 
 15th. Provision for possible changes in contract. 
 
 16th. Provision for transfer of the contract or for subletting. 
 
 17th. Provision for settlement of disputes. 
 
 18th. Provision for satisfactory and sufficient bond, if any" 
 be needed. 
 
 19th. Provision for defense of lawsuits, if such provision be 
 necessary. 
 
 20th. Definition of names used in contract, such as "Engineer," 
 "Company," "Contractor," or "Trustee." 
 
 21st. Dating of contract. 
 
 22d. Proper signatures with the necessary seals, if the latter be 
 required. 
 
 23d. Witnesses to the signatures, or execution before a notary 
 public. 
 
 I shall now take up and discuss in the order of their enumera- 
 tion each of these essentials to a properly drawn contract. 
 
 1st. The styles of opening clause for contracts are both numer- 
 ous and varied, and it is difficult to say which is the best. Each, 
 writer naturally will have one favorite style and will adhere to it 
 whenever possible. Mine for many years has been as follows: (In 
 order to make it more readable I shall fill out the spaces with some 
 assumed names and a date.) 
 
 "MEMORANDUM OF AGREEMENT, made and signed this 
 eleventh day of February, 1905, by and between the Kansas Citjr 
 Bridge and Terminal Railway Company, a corporation of the State 
 of Missouri, the party of the first part, and sometimes termed in this- 
 agreement and in the specifications the "Company," and The Western 
 Contracting Company, a corporation of the State of Kansas, the 
 
SPECIFICATIONS AND CONTRACTS. 65 
 
 party of the second part, and sometimes termed in this agreement 
 and in the specifications the 'Contractor.' " 
 
 Wait recommends the two following forms of introduction: 
 
 "This agreement, made and entered into this eleventh day of 
 February, in the year of 1905, by and between, etc., etc." 
 
 "Articles of Agreement, made and entered into between The 
 Kansas City Bridge and Terminal Railway Company, a corporation, 
 etc., etc., and The Western Contracting Company, a corporation, 
 etc., etc., on this eleventh day of February, 1905." 
 
 After the introductory clause comes the preamble, and imme- Attestation 
 diately after it I insert in capital letters "NOW THIS AGREEMENT 
 WITNESSETH," and follow with consecutively numbered clauses 
 that embody all the terms and conditions of the contract, then close 
 with provision for the signatures and seals of the contracting parties 
 and witnesses to these signatures. 
 
 2d. In describing the various parties to an agreement care Pai-ties Described 
 should be taken to make the description full and convincing in 
 order that there shall be no possible mistake concerning the identity 
 of each party. This is effected in the case of an Individual by 
 stating his occupation and place of residence, in the case of a firm 
 by naming it fully, mentioning its place of business, and describing 
 the kind of partnership, and in case of a company by giving its 
 legal title and the name of the state or country where it was incor- 
 porated. In case of a partnership it is sometimes well to specify 
 whether it is general or special in respect to the work covered in 
 the contract. 
 
 While most contracts are drawn between but two parties, it Number of Parties 
 sometimes occurs that an agreement will involve three or even more. 
 Such a contract is much more complicated and difficult to draft than 
 one between two parties only. 
 
 Each party should be designated in the instrument by his special Persona Descriptio 
 number, as the party of the first part or the party of the second part; 
 and in addition it is well to give each another designation, such as 
 "Contractor," "Company," "Owner," "Engineer," "Promoter," 
 "Board," "City," "Incorporator," or "Trustee" in order to avoid the 
 use of too many words throughout the document, as would be the 
 case were he always referred to as the party of the first or second 
 part. In order to make assurance doubly sure it is well in some 
 cases to define the terms "Contractor," "Company," "Engineer," 
 "Promoter," etc., at the end as well as at the beginning of the docu- 
 ment. In any case these explanatory clauses should be placed at 
 
66 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Precedence 
 
 Authority 
 
 Ultra Vires 
 
 Membership Organi- 
 zation 
 
 the beginning or the end of the specifications, because the latter are 
 often used without the contract being attached. 
 
 There is no strict rule as to the order in which the several 
 parties shall be placed, but it is customary to make the one who 
 pays the money the party of the first part. In case of employer and 
 employee the employer should come first. In other cases it is a 
 good rule to put the most important party first and the others as 
 nearly as may be in the order of the importance of their relation to 
 the enterprise or object matter of the agreement. 
 
 There is a consideration of primary importance in contract 
 writing that is sometimes overlooked — viz., whether the parties to 
 the agreement are legally entitled to enter into contract. For 
 instance, in the case of a company, the president or general manager, 
 or perhaps either, can sometimes legally contract in the company's 
 name, but sometimes he cannot, in which case, if haste be essential, it 
 would be proper to have him enter into and sign the contract and 
 afterward have it formally approved at a meeting of the board of 
 directors. A properly certified copy of the board's approval should 
 subsequently be attached to the contract. Access to its charter and 
 by-laws is generally necessary to determine who has authority to 
 enter into and sign contracts for a company. 
 
 In contracting no corporation can exceed the limit of its powers 
 as given by its charter. If it attempts to do so, its act will be ultra 
 vires and without effect; consequently it behooves one in writing 
 a contract with a corporation first to study well its charter, articles 
 of incorporation, and by-laws. 
 
 Contracting with unincorporated organizations as parties, such 
 as associations, clubs, societies, or congregations, is a precarious 
 business; nevertheless, it often has to be done. In order to insure 
 the payment of money obligations by such parties a sufficient sum 
 should be deposited in advance in the hands of a reputable trustee 
 with instructions to pay it to the proper party or parties as soon as 
 the obligations covered in the contract have been met; otherwise 
 the other contracting party is liable to lose his entire consideration, 
 because it is very difficult to hold legally an organization that has 
 no legal existence, even if all the members thereof be individually 
 liable. Here again I speak from sad experience, for at the outset of 
 my consulting practice I lost what I considered then a large fee by 
 dealing with a committee of public-spirited citizens, who were not 
 honest enough to pay their Just debts after the proposed enterprise 
 had failed. Even the law did not enable me to collect the bill, as 
 
SPECIFICATIONS AND CONTRACTS. 67 
 
 my lawyers did not present the case to the court in the proper 
 manner. 
 
 Again, any person under twenty-one years of age, termed in law Infants 
 an infant, who enters into a contract, has the privilege of repudiating 
 it after arriving at the age of maturity, in case that it does not 
 redound to his advantage; consequently it behooves the writer of a 
 contract to make sure in all doubtful cases that the contracting 
 parties are of age. In engineering contracts, however, this ques- 
 tion is seldom likely to arise, because very young men are not often 
 concerned in a prominent way with important enterprises. 
 
 Similarly, imbeciles, inebriates, and lunatics are incompetent, Parties Incompetent 
 and contracts made by them are legally voidable at their option. 
 While it is highly improbable that either an imbecile or a lunatic 
 would ever be made a party to an engineering contract, it is not 
 impossible that a man chronically addicted to the overuse of liquor 
 miight b8 so concerned. Such a man might plead that he was under 
 the influence of drink when he signed the document and thus possibly 
 effect his release from its obligations; consequently the writer of 
 an engineering contract should assure himself of the temperate 
 character or at least of the sober condition of the parties thereto. 
 
 A married woman in some states cannot contract, sue, or be Married Woman 
 sued in her own name. While it is uncommon for women to be 
 engaged in enterprises involving engineering, it is by no means 
 impossible, as I have learned from a hard lesson; for in the case of 
 a contract for the engineering of a large and novel enterprise that 
 I entered into with a certain man, it transpired that he was acting 
 as agent for a married woman. Before our work was finished the 
 man died, and the woman gave us notice in writing that she would 
 assume his share of the contract, and instructed us to finish our 
 work. This we did, and she paid us one-half of our total fee; but 
 before the date specified in the contract for the payment of the 
 second half, the bottom dropped out of the scheme, and the lady then 
 refused to make any further payment. She did not plead her mar- 
 ried state as a justification for her refusal, but we knew what we 
 might expect in a legal contest over the question, consequently we 
 entered the balance on the wrong side of our ledger in the "Profit 
 and Loss" account. 
 
 In case of war a contract entered into between parties who ^^^ 
 are subjects or citizens of the conflicting countries is illegal, and if 
 war be declared subsequent to the signing of the contract, its obli- 
 gations cannot be enforced by law until after the war has ceased. 
 
68 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Agency 
 
 Oovernment as 
 Party 
 
 Execution 
 
 Preamble 
 
 As engineers are often interested in projects in foreign countries, 
 this is a matter tliat needs to be borne in mind when preparing the 
 contracts for such enterprises. 
 
 When a contract is entered into by an agent, care should be 
 taken to make this relationship both clear and legal in the docu- 
 ment by stating the name of the owner or corporation and following 
 it with the words "acting by and through Mr. X, Agent, Attorney^ 
 Engineer, President, or Treasurer (as the case may be), by virtue 
 of the authority vested in him through power of attorney of the 
 
 (here name the individual or company) dated the day of 
 
 19 — , a copy of which is hereto annexed," or in some similar 
 
 and equally explicit manner. In this way the name of the real prin-^ 
 cipal is made certain, the authority of the agent is preserved, and 
 the possible liability of the agent as the principal is averted. It 
 must be remembered that no claims or obligations against a principal 
 are created by a contract entered into by an agent who acts without 
 proper authority, unless the contract be afterward confirmed directly 
 or indirectly by the principal. 
 
 Much engineering work is being done and is to be done in the 
 future by contract with the United States Government. In making^ 
 such contracts it is important to note that although the Government 
 may enter suit on its contracts for their enforcement, it cannot,, 
 without its own consent, be sued for non-compliance therewith. 
 Instances are not unknown of repudiation of contracts by govern- 
 ments. Furthermore, public officers cannot be held personally" 
 liable for contracts signed by them in their official capacity. 
 
 The names of the parties in the body of a contract should cor- 
 respond exactly with the signatures and seals at the end, for a 
 variation might prove fatal to the validity of the document. 
 
 3d. The preamble is a most important portion of any contract. 
 It should explain fully all the whys and wherefores of the agree- 
 ment and its raison d'€tre. A thorough explanation of these would 
 often render clear the intent of a clause in the body of the instru- 
 ment that is otherwise ambiguous. 
 
 Once more I am speaking from experience, for in an impor- 
 tant but hurriedly prepared contract one of the clauses was not 
 drawn with sufficient clearness, and, in consequence, one of the 
 parties to the agreement tried to take an unfair advantage of it. 
 Had the preamble explained carefully and in detail the ultimate 
 object of the contract and the various steps necessary for its accom- 
 
SPECIFICATIONS AND CONTRACTS. 69 
 
 plishment, the said party would not have been able to make the 
 claim he did. 
 
 You will be better able to judge of the importance of the pre- 
 amble and to understand its scope after hearing read the specimen 
 contracts that are to conclude this lecture. 
 
 4th. Every contract should contain a statement of when or conditions Precedent 
 under what conditions it is to become operative. The date may be 
 some particular day of month and year or immediately after, or 
 some definite time subsequent to, some act or occurrence, such, for 
 instance, as the giving of written notice, or the deposit of a certain 
 amount of money in a certain place, or the completion of a certain 
 piece of work, or the arrival of a railroad at a certain point. What- 
 ever the "condition precedent" may be, it should be made clear in 
 the document beyond the peradventure of a doubt. 
 
 5th. Too often in contracts nothing is said concerning the Duration 
 
 duration of the agreement or of how it is to be drawn to a close. 
 
 In some cases it would be impracticable thus to limit the life of the 
 
 contract; but in others it is not only practicable, but also advisable, 
 
 and sometimes it is imperative, especially where a bond for proper 
 
 completion of work is involved. 
 
 6th. The statement of what each party to the contract binds Legal Representa. 
 
 tives 
 himself, his executors, administrators, successors, or assigns, as 
 
 the case may be, to do or to refrain from doing, should be thorough 
 and complete in every detail. The importance of this is self- 
 evident, nevertheless it is a point that is not always given proper 
 attention in contract writing. 
 
 In all contracts between corporations or between a corporation 
 and an individual, the promises to perform should be made binding 
 upon the successors or assigns of each corporation, although it is 
 probable that the law would enforce this even if the stipulation 
 were omitted. 
 
 In contracts where an individual is a party to the agreement it Contracts for Per- 
 sonal Service 
 is best to bind not only himself, but also his executors or assigns, 
 
 unless, perchance, the obligation be of such a nature as to be non- 
 transferable, as for instance, the performance of personal duties 
 or services -of an expert nature or involving special skill. Thus 
 an engineer's services are not transferable, unless some special 
 provision be made and agreed to by both parties that, in case of his 
 death or inability for good and sufficient reason to finish his work, 
 his contract is to be assumed by some other engineer, either named 
 or to be determined afterward in some specific way. But the death 
 
70 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Consideration 
 
 Consideration 
 equate 
 
 Inad- 
 
 Eventualities 
 
 of one member of a firm of engineers will not cancel an agreement; 
 for as long as one of the original members of the firm remains in 
 charge the contract will hold. In other words, it would require the 
 death or incapacity of all the original members of the firm to 
 abrogate the contract, unless special provision to the contrary exist 
 in the written agreement. 
 
 Construction contracts are generally assignable, unless they 
 contain provision to the contrary. 
 
 7th. The consideration which each party to an agreement is 
 to give and is to receive should be clearly and fully stated in the 
 document, otherwise unsealed contracts are liable to be held value- 
 less and void in law. Moreover, the consideration must be real, 
 substantial, and adeiuate. Some lawyers make a practice in many 
 cases of specifying a consideration of one dollar, and they even try 
 to pass that dollar around among the several parties to the agree- 
 ment by having each party make nominally that payment to each 
 of the other parties so as to show that each receives a valuable (?) 
 consideration. In my opinion, such a practice is mere humbug and 
 unworthy of adoption by any man pretending to scientific attain- 
 ments in his profession, no matter whether that profession be law 
 or engineering. Its adoption, it seems to me, is prima facie evidence^^ 
 of weakness in the document and a confession by its writer that he \ 
 has failed to make evident the true consideration that each party is 
 to receive and the real reason for each party's entering into the 
 agreement. 
 
 There may be some excuse for passing the dollar in case of a 
 parent deeding property to his child, where the true consideration 
 is love and affection; but a dollar does not constitute a real con- 
 sideration — it would be insufficient usually to pay the cost of type- 
 writing the document; hence its employment is a fiction and a farce. 
 
 8th. No portion of the work of contract writing requires greater 
 experience and ability than the forecasting of all possible eventuali- 
 ties that would materially affect the agreement and the proper pro- 
 vision for what is to be done in the case of each eventuality. All 
 contracts are more or less faulty in this particular, for it would 
 require omniscience to forecast all future happenings; nevertheless, 
 in preparing an important contract one should endeavor to foresee 
 and provide for all possibilities and probabilities. The lawyer or 
 engineer who makes a practice of giving this important matter full 
 consideration in every contract that he writes will soon find himself 
 In demand by capitalists to aid them in making their investments 
 
 / 
 
 / 
 
 X 
 
 V . 
 
SPECIFICATIONS AND CONTRACTS. 71 
 
 and in consummating their enterprises. The succeeding examples 
 of contracts will illustrate what I mean by the forecasting of eventu- 
 alities and providing for them. 
 
 9th. The matter of penalties is one that has to be handled with Penalties 
 gloves, for the law is very jealous of its rights and prerogatives, and 
 deems that it alone is authorized to specify and enforce a penalty, 
 which it interprets as a punishment for failure to perform or comply 
 with the terms of an agreement. On this account it is better not to 
 use the term "penalty" in any contract, but to employ instead that 
 of "liquidated damages." In my practice I have a clause in con- 
 struction specifications that reads as follows: 
 
 "For each day of delay beyond the date set in the contract for 
 completing the entire work herein outlined, all in accordance with 
 the plans, specifications, and directions of the Engineer, the Com- 
 pany shall withhold permanently from the Contractor's total com- 
 pensation the sum of dollars; and the amount thus with- 
 held shall not be considered as a penalty, but as liquidated damages, 
 fixed and agreed to in advance by the contracting parties as a proper 
 compensation to the Company for the loss caused it by such delay." 
 
 Liquidated damages are but seldom enforced, owing mainly to Liquidated Damages 
 the characteristic good nature of engineers,^ for they object to taking 
 advantage of a contractor who has worked faithfully but has been 
 unfortunate. Again, the fact that the sympathy of jurors is gener- 
 ally with the workingman and against corporations is a reason why 
 disputes involving the retention of money to compensate for delays 
 are generally settled out of court. 
 
 10th and 11th. In most contracts for construction and in Abrogation or Can- 
 cellation 
 
 some other types of contract there is no need to provide for a 
 possible abrogation of the agreement, because the completion of 
 the work involved is a natural cancellation; but in some other types, 
 such, for instance, as partnership* contracts that continue indefi- 
 nitely, full detailed provision should be made for annulment at any 
 time. Great care should be exercised to describe fully how a" 
 current business matters are to be closed and what compensation is 
 to be paid to the other party or parties by the party who desires 
 the said cancellation. To do this in a satisfactory manner will 
 require business knowledge and ability of the highest order. 
 
 12th. It is quite important in many contracts to state where Lex Loci 
 the instrument was executed and where it is to be put in force, 
 notwithstanding the fact that the residence of each party in case 
 
 1 And the aversion of courts and juries to their enforcement. 
 
 
72 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Payments 
 
 Contracts for Pro- 
 fessional Service 
 
 Extras to be Ordered 
 in Writing. 
 
 Alterations 
 
 of individuals or the state of organization in case of corporations 
 has been described in the introductory clause of the document. The 
 laws governing a contract may be determined by the place where 
 the contract was made or by that in which it is performed. Wait 
 treats this question very thoroughly on pages 49 to 51 of his 
 Engineering and Architectural Jurisprudence. 
 
 13th. Methods of making payments under construction con- 
 tracts are generally covered in the specifications, where, in my 
 opinion, they properly belong, although I have on several occasions 
 been adversely criticized for not putting a payment clause in the 
 contract proper. In all other types of contract in which payments 
 of money are involved, full provision should be arranged for the 
 exact manner in which all payments, both partial and final, are to 
 be made. This remark applies with special force to contracts 
 involving engineering fees; for in these, if payments on account are 
 not arranged for, there is a chance that the engineers will receive 
 no compensation at all until after the completion of their work, and 
 this might be delayed for an indefinite period. Our usual practice 
 is to ask one-half of our fee upon the completion of the plans and 
 specifications and the other half in monthly payments proportionate 
 to the amount of contract work done on the construction, so that 
 when the latter is finished we shall have been paid in full. We 
 have learned to provide also that we are to be compensated properly 
 for all extra expense to us due to failure to complete the work in 
 the time specified. It has cost us many thousands of dollars to 
 learn this lesson, consequently the hint that I am giving you ought 
 to be valuable. 
 
 14th. In construction contracts the subject of extra payments 
 also belongs in the specifications, although in many cases it is 
 covered in the contract proper. Our standard clause for this item 
 reads thus: 
 
 "No extras will be allowed, unless they be ordered in writing 
 by the Engineer. For extras so allowed the Contractor will be paid 
 the actual cost to him, plus ten (10) per cent, for profit. Satisfac- 
 tory vouchers will be required from the Contractor for all extra 
 labor and materials." 
 
 15th. It is a wise precaution to provide for making changes in 
 every important contract. Our standard clause for this item is as 
 follows : 
 
 "No change or alteration shall be made in the terms or condi- 
 tions of this agreement without the consent of both parties hereto 
 
SPECIFICATIONS AND CONTRACTS. 73 
 
 In writing; and no claim shall be made or considered for any extra 
 work, unless the same shall be authorized and directed in writing 
 by the engineer." 
 
 16th. In construction contracts there should always be a clause Subletting Forbid- 
 den 
 to govern assigning the contract and subletting the work. Our 
 
 standard clause for this reads thus: 
 
 "The party of the second part hereby agrees that it will not 
 
 assign or sublet the work covered in this contract, or any portion 
 
 of it, without the written consent of the party of the first part, but 
 
 ivill keep the same within its control." 
 
 17th. In respect to provision for settlement of disputes Engineer's Decision 
 •engineers are somewhat at variance. Some think that the engineer 
 should be the sole arbiter, but I do not believe that such an arrange- 
 ment is just, savoring, as it does, altogether too much of autocratic 
 rule. I am a firm believer in arbitration for the settlement of all 
 •disputes on important matters, and it has for many years been my 
 custom to provide in all construction contracts for such a method 
 of settlement. Our standard clause for this matter is as follows: 
 
 "The decision of the Engineer shall control as to the interpreta- 
 tion of drawings and specifications during the execution of the work 
 Tinder them; but if either party shall consider itself aggrieved by 
 any decision, it may require the dispute to be finally and conclu- Arbitration 
 sively settled by the decision of three arbitrators, the first to be 
 appointed by the party of the first part, the second by the party of 
 the second part, and the third by the two arbitrators thus chosen. 
 In case that the two first chosen fail to agree upon a third, the latter 
 
 shall be appointed by 
 
 By the decision of these three arbitrators or that of a majority of 
 them, both parties to this agreement shall be finally bound." The 
 person chosen to appoint the third arbitrator should be some promi- 
 nent official, such as the judge of a certain court, the mayor of a 
 certain city, or the governor of a certain state. 
 
 It is seldom that an arbitration clause in a contract is utilized, 
 l)ecause engineers as a rule are reasonable. Only once in my thirty 
 years of practice has it been appealed to. The subject of dispute in 
 that case was some lumber very properly rejected by my inspector 
 as unfit for use. Unfortunately, the result of the arbitration was 
 adverse to my decision, owing to a too friendly understa^^^-^ 
 between the officers of the Company and the Contractor. >\ jC^^^-^^^-r 
 
 Notwithstanding the fact that the contract reads that "By the Appeal from Award 
 decision of these three arbitrators, or by that of a majority of them, /llS 
 
74 SPECIFICATIONS AND CONTRACTS. 
 
 both parties to this agreement shall be finally bound," the law has 
 decided that the losing party has still a right to appeal to the courts; 
 consequently, this clause of our form of contract is not binding. 
 Although I have known this for years, I have made no change in 
 the clause, for the reason that at least nine contractors out of ten. 
 prefer arbitration to the delays, uncertainties, and expense that ar© 
 inseparable from legal litigation, and I have never heard of a case 
 in which the loser by arbitration appealed to the courts. It would 
 simplify matters if immediately after an arbitration is agreed upon 
 each party concerned were to give to the other a bond guaranteeing 
 that he will abide by the decision of the arbitrators. 
 
 Bonds or Surety 18th. The bond question is a prominent feature of any construc- 
 
 tion contract and occasionally is important in other types of contract. 
 My firm has finally come to the conclusion that a good Surety Com- 
 pany bond is the only kind that we shall either ask for or accept in 
 future, for no other kind is so satisfactory to the Company or is 
 obtained with so little difficulty by the Contractor. All personal 
 bonds are obtained by favor and they are generally very unsatisfac- 
 tory, for the solvency of the sureties is difficult to prove, and to 
 enforce payment is still more difficult. Many years ago I had my 
 first and last experience with a personal bond. It was when building 
 my residence that I accepted from the contractor a joint bond signed 
 by three or four persons, among them a good friend of mine. This 
 bond was accepted by my lawyers; nevertheless, later on when the 
 contractor threw up the work I found that the only responsible man 
 on the paper was my friend. As I could not press him, I waived 
 the matter, and in consequence was materially out of pocket. 
 
 Sureties Released There is considerable humbug in connection with sureties ta 
 
 agreements, for a slight change in contract, plans, or specifications 
 is often sufficient to render the bond null and void. If any one 
 doubt this statement, let him read what Wait says on pages 13 to 17 
 of his Engineering and Architectural Jurisprudence. In my opinion 
 the only way to protect the Company is to insist upon having a 
 Dond that will permit of all necessary changes in plans and specifica- 
 tions without releasing the surety, and even such a bond might be 
 voided by the law's declaring it illegal because it departs from 
 current practice.^ 
 
 Law and Equity There are some very strange things about the law. On two or 
 
 three occasions I have been provoked to make the statement that 
 "laws are made to protect rogues against honest men," and truly it 
 
 ^ Decisions. 
 
SPECIFICATIONS AND CONTRACTS. 75 
 
 does seem sometimes as if such were the case. Law and equity are 
 two entirely different things. The less that engineers have to do 
 with the former and the more they employ the latter, the better it 
 will be for all concerned. 
 
 In adjusting disputes I am a firm believer in the principle of Compromised Claims 
 compromise, or, to put it in more homely words, in that of "give and 
 take." It is nearly always practicable to bring two disputing parties 
 to terms by suggesting a reasonable compromise. 
 
 19th. If, according to a contract, the Contractor is to indemnify indemnity for Negli- 
 the Company against all liability or damages on account of acci- 
 dents, it is only fair that the former should be given the privilege 
 of assuming the sole defense of all lawsuits arising from such claims. 
 You will see later how our standard form of contract covers this 
 point. 
 
 20th. The manner of defining by special clauses names used 
 in the contract, such as "Engineer," "Company," etc., will be seen 
 later in the various appended examples of contracts. 
 
 21st. A contract can be dated either in the opening or in the Contract Date 
 final clause, or in both. In the latter case it is better not to repeat 
 the date, but to insert the sentence "Dated the day, month, and year 
 first herein written." 
 
 22d. It is important that the signatures coincide exactly with Signature and Seal ' 
 the names of the parties as given in the opening clause of the agree- 
 ment, and that proper seals are attached when they are needed. If a 
 party to a contract be a corporation, its corporate seal should be 
 used, but in the case of an individual almost any kind of seal will 
 suffice — either a wafer or the word "seal" with a scroll drawn 
 around it with pen and ink being commonly used. In the latter 
 case it is better to write in small letters the initials of the signer 
 over the word "seal." 
 
 Let me here call your attention to an important and funda- Specialties 
 mental difference between contracts with and without seals. The 
 former do not need to have a consideration mentioned in them in 
 order to make them valid, while the latter do require such mention. 
 In former times there was far greater difference in the importance 
 of sealed and parole (or unsealed) contracts than there is to-day; 
 for then a sealed contract could not be modified without taking many 
 formal legal steps, while to-day it can be changed quite readily by a 
 short supplementary contract, provided there be a proper considera- 
 tion mentioned therein for the making of the change. 
 
 23d. Where the party to a contract is a corporation, the proper Witnesses 
 witness to the Company's signature is the Secretary of the Company, 
 
76 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Acknowledgments 
 
 Contract Form 
 
 Introduction and 
 iParties 
 
 who should use its corporate seal for attesting the document, but 
 in case the party is an individual any witness will suffice. 
 
 The best possible witness to signatures is a properly authorized 
 notary public, because if any doubt be expressed concerning the 
 authenticity of the said signatures, all that is necessary is to prove 
 the notary's authority, which is a matter of public record, while 
 for all other witnesses it is obligatory to search for them and either 
 produce them in person or prove that it is impracticable to do so on 
 account of death or departure from the country; and in this case it 
 is generally required that there be brought forward reliable parties 
 who will swear that the witnesses' signatures are authentic. 
 
 In the hope that it may prove useful to you and to the readers 
 of the volume that later on will contain this lecture, I herewith 
 reproduce the standard "Form for Contract" of Waddell & Harring- 
 ton for appending to construction specifications. 
 
 MEMORANDUM OF AGREEMENT, Made and signed this 
 
 day of 19 , by and between the 
 
 , the party of the first 
 
 part, and sometimes termed in this agreement and in the specifica- 
 tions the "Company," and 
 
 Preambles 
 
 the party of the second part, and sometimes termed in this agree- 
 ment and in the specifications the "Contractor." 
 
 WHEREAS, 
 
 Undertaking and 
 Consideration 
 
 NOW THIS AGREEMENT WITNESSETH: 
 
 First. — The party of the second part, for and in consideration 
 of certain payments to be made to it as hereinafter specified, will 
 
 Time of Essence 
 
 all in accordance with the plans and specifications hereunto 
 annexed and made a part hereof, and will fully finish and complete 
 
 the same by , unless, in 
 
 the opinion of the Engineer, the party of the second part be delayed 
 or prevented by circumstances that are absolutely beyond its 
 control. 
 
 Second. — The party of the second part shall begin the work of 
 construction as soon as practicable after the signing of the con- 
 tract, and shall push the same to completion as rapidly as possible 
 and within the time limit or limits set in the accompanying 
 specifications. 
 
SPECIFICATIONS AND CONTRACTS. 77 
 
 Third. — All important dimensions and characteristics of the 
 structures are fully described in the accompanying drawings and 
 specifications, which form a part of this contract. 
 
 Fourth. — In consideration of the performance by the party of I'ndertaking 
 the second part of its covenants and agreements, as hereinbefore 
 set forth, the party of the first part hereby covenants and agrees to 
 pay to the party of the second part as follows: 
 
 In case that there be any other materials furnished by the ^'^'ce of Extras 
 Contractor that are not included in this list, they shall be paid for 
 on the basis of actual cost to the Contractor plus ten (10) per cent, 
 for his profit. 
 
 It is understood that no payments, either partial or final, are 
 to be made for any material which is to be used for falsework or 
 plant, but only for such material as is left permanently in the 
 finished construction. 
 
 Fifth. — The schedule prices to be adopted in making partial Schedule of Prices 
 payments for all work as it progresses are to be as follows: 
 
 Sixth.— All material paid for by the party of the first part Title to Materials 
 shall be deemed to have been delivered to, and to have become 
 the property of the said first party, but the party of the second 
 part hereby agrees to store it and to become responsible for it 
 ■during the continuance of this agreement. If any of it be damaged, 
 ■destroyed, or lost from any cause, including, among others, floods, 
 ivashouts, and fires, the Contractor shall repair or replace the same 
 at his own expense to the satisfaction of the Engineer. 
 
 Seventh.— In case the party of the first part, notwithstanding Waiver 
 the failure of the party of the second part to complete its work 
 within the time specified, shall permit the said second party to 
 proceed, and continue, and complete the same, as if such time had 
 not lapsed, such permission shall not be deemed a waiver in 
 any respect, by the first party, of any forfeiture or liability for 
 damages arising from such non-completion of said work within 
 the time specified, and covered by the "Liquidated Damages" clause 
 of the specifications; but such liability shall continue in full force 
 
78 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Written Order for 
 Extras 
 
 Delays 
 
 Subletting 
 
 Engineer's Decision 
 
 Negligence, Indem- 
 nity 
 
 against the said second party, as if sucli permission had not 
 been granted. 
 
 Eighth. — No change or alteration shall be made in the terms or 
 conditions of this agreement without the consent of both parties 
 hereto in writing, and no claim shall be made or considered for any 
 extra work unless the same shall be authorized and directed in 
 writing by the Engineer. 
 
 Ninth. — In the event of any delay in completing the work 
 embraced in this contract, the party of the second part shall be 
 entitled to no extra compensation on account of such delay, as it is 
 hereby assumed that in submitting its tender it took its chances for 
 the occurrence of such delay. If, however, in the opinion of the 
 Engineer, the Contractor be delayed by any act of the Company 
 to such an extent as to cause him serious hardship, such as a tem- 
 porary cessation of the work, the Company shall allow the Contractor 
 whatever compensation for such delay as may appear to the Engineer 
 to be just and equitable. 
 
 Tenth. — The party of the second part hereby agrees that it will 
 not assign or sublet the work covered in this contract, or any portion 
 of it, without the written consent of the party of the first part, but 
 will keep the same within its control. 
 
 Eleventh. — The decision of the Engineer shall control as to the 
 Interpretation of drawings and specifications during the execution 
 of the work under them; but if either party shall consider itself 
 aggrieved by any decision, it may require the dispute to be finally 
 and conclusively settled by the decision of the three arbitrators,, 
 the first to be appointed by the party of the first part, the second 
 by the party of the second part, and the third by the two 
 arbitrators thus chosen. In case that the two first chosen fail to 
 
 agree upon a third, the latter shall be appointed by 
 
 By the decision of these 
 
 three arbitrators, or by that of a majority of them, both parties to 
 this agreement shall be finally bound. 
 
 Twelfth. — As, according to the terms of the accompanying 
 specifications, which form a part of this contract, the party of the 
 second part is to indemnify the party of the first part against all 
 liability or damages on account of accidents occasioned by the 
 omission or negligence of itself, its agents, or its workmen during 
 the continuance of this agreement, and against all claims for 
 royalties on patents; it is hereby agreed that the party of the 
 second part shall be promptly and duly notified in writing by the 
 
SPECIFICATIONS AND CONTRACTS. 79 
 
 party of the first part of the bringing of any such suit or suits, 
 and shall be given the privilege of assuming the sole defense 
 thereof. The party of the second part is to pay all judgments 
 recovered by reason of accidents or patents in any suit or suits 
 against the party of the first part, including all legal costs, court 
 expenses, and other like expenses. 
 
 Thirteenth. — The Contractor further agrees to give to the Com- Bond 
 pany a surety-company bond, satisfactory to the party of the first 
 
 part in the sum of 
 
 for the faithful performance of this contract and the specifications, 
 and of all the terms and conditions therein contained, and for the 
 prompt payment for all materials and labor used in the manufacture 
 and construction of the structures, and to protect and save harmless 
 the Company from claims on patents and from all damages to 
 persons or property, caused by the negligence or claim of negligence 
 of the Contractor, his agents, servants, or employees in doing the 
 work, or in connection therewith, and from injury to or loss of 
 materials paid for by the Company either partially or in full before 
 the completion and acceptance of the construction or constructions. 
 
 Fourteenth. — The word "Engineer" as used in this contract Parties Described 
 refers to the Consulting Engineers of the 
 
 or their duly authorized representative. 
 
 IN WITNESS WHEREOF, the parties to this agreement have Execution 
 hereunto set their hands and seals. 
 
 Dated the day, month, and year first herein written. 
 
 WITNESSED BY 
 
 The ninth item of this form, as originally written without Extras and Delay 
 qualification, has been severely criticized on more than one occasion 
 because of alleged unfairness. I refer to the clause which reads: 
 "In the event of any delay in completing the work embraced in this 
 contract, the party of the second part shall be entitled to no extra 
 compensation on account of such delay; as it is hereby assumed 
 that in submitting its tender it took its chances for the occurrence 
 of such delay." I admit the one-sidedness of this clause, and that 
 if it were enforced to the letter by a narrow-minded or unfair 
 engineer, it might effect a hardship upon the Contractor; neverthe- 
 
80 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Cost plus Percentage 
 
 Example for Dis- 
 cussion 
 
 Parties 
 
 less, as a matter of policy we still leave it in our construction con- 
 tracts in order to prevent contractors from constantly making claims. 
 for extras on account of trivial delays; but, if a delay were of such 
 importance as to necessitate a partial or total shutting down of the 
 work, we would certainly see that the Contractor is compensated 
 for the extra expense to which he is put by stopping and restarting^ 
 construction, for in our dealings with contractors we aim always to? 
 act the part of "judge" and not that of partisan of the Company. 
 
 Once in a while it becomes necessary for a Company to let 
 work on the basis of actual cost, plus a percentage for profit, and 
 in this case special care has to be taken to cover all possible details 
 and eventualities in order to protect the Company from extortion: 
 and needless expense. This manner of letting work is very 
 favorable to the Contractor, but is troublesome and expensive for 
 the Engineer and rather risky for the Company. Under certain 
 conditions, however, it is the only way in which the work can be 
 let at any reasonable figure, such conditions, for instance, as govern 
 railroad or bridge building in a tropical country where fevers; 
 are prevalent and where the conditions affecting the cost of con- 
 struction are practically unknown. My firm has acted as engineers 
 on such work, and, consequently, we have learned by experience- 
 how contracts therefor should be prepared. The following is the 
 type of contract that we would draft for such a case: 
 
 Let us assume that there is a railroad being built in the 
 tierra caliente of Mexico from Matamoras on the American border 
 through or near Tampico and Vera Cruz to the border of Guatemala^ 
 by an American company organized in West Virginia under tha 
 name of the Mexican Gulf Coastline Railway Company, and that it 
 desires to let to the Central Bridge Company of Kansas City, Mo., the 
 contract for building the substructures of all bridges and all the 
 culverts on the line and for erecting all the superstructures, the 
 metal for which is to be furnished and delivered at the bridge sites 
 by the Company. Let us assume also that the basis of the contract 
 is that the Contractor is to be paid the actual cost to him of the 
 entire work, plus fifteen (15) per cent, for profit. 
 
 Under such conditions we would prepare specifications of our 
 standard type, with possibly a few modifications, and would attach 
 them to the following contract: 
 
 MEMORANDUM OF AGREEMENT, Made and signed this four- 
 teenth day of March, 1905, by and between the Mexican Gulf Coast- 
 line Railway Company, a corporation of the State of West Virginia^ 
 
SPECIFICATIONS AND CONTRACTS. 81 
 
 U. S. A., and having its principal business office in New York City, 
 N. Y., the party of the first part, and sometimes termed in this 
 agreement and in the specifications the "Company," and the Central 
 Bridge Company, a corporation of the State of Missouri, U. S. A., 
 and having headquarters at Kansas City, Mo., the party of the second 
 part, and sometimes termed in this agreement and in the specifica- 
 tions the "Contractor." 
 
 WHEREAS, The party of the first part has already begun the Preamble 
 construction of its road at several points along its line, which starts 
 from the American border at Matamoras, Mexico, and parallels the 
 Gulf coast, running near the cities of Tampico, Tuxpan, and Vera 
 Cruz, and extending to the border of Guatemala, and 
 
 WHEREAS, The party of the first part has already entered 
 into contract with certain American firms for the manufacture of 
 the metal-work for the superstructure of all the bridges required for 
 its entire line, and 
 
 WHEREAS, The party of the first part desires to let to some 
 reliable American contractor the contract for building all the bridge 
 piers, abutments, and culverts and for erecting all the superstruc- 
 tures of bridges on the entire line of its road, and 
 
 WHEREAS, The party of the second part makes a specialty of 
 building the substructures and superstructures of bridges, and has 
 had a wide experience in this line of construction, 
 NOW THIS AGREEMENT WITNESSETH: 
 
 First. — The party of the second part, for and in consideration Subject-Matter 
 of certain payments to be made to it as hereinafter specified, will 
 furnish all the materials for and construct complete all the bridge 
 piers, abutments, and culverts, will erect and paint all the metal- 
 work for the superstructures, and will furnish and put in place all 
 the flooring for the bridges of the entire line of the said railway, all 
 in accordance with the specifications hereunto annexed and made a 
 part hereof, and with the plans and directions of the Engineer. 
 
 Second. — The party of the second part shall commence the work Commencement 
 of construction as soon after the signing of the contract as it is 
 practicable to begin, starting at as many different points along the 
 line of the road as the Engineer may direct, and shall push the same 
 to completion as rapidly as possible. 
 
 Third. — In consideration of the performance by the party of the ConsideratioiL 
 second part of its covenants and agreements, as hereinbefore set 
 forth, the party of the first part hereby covenants and agrees, for 
 itself, its successors, and assigns, to pay to the party of the second 
 
82 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Cost to Include 
 
 Plant 
 
 Repairs 
 
 Sickness and Travel- 
 ing Expenses 
 
 part for the furnishing and completion of the entire work the actual 
 cash cost thereof, plus fifteen (15) per cent, for profit. 
 
 In computing the cost of the work, there shall be included all 
 items of materials, labor, and transportation of men, materials, and 
 plant to and fro, but no allowance will be made for cost of plant or 
 deterioration of same, or for the time or personal expenses (other 
 than railway and Pullman fares) of the party of the second part, or 
 for interest on moneys required to carry on the work. Accident 
 insurance for employees, insurance against loss of materials or plant 
 by fire or shipwreck, and all stamps for documents, and taxes of all 
 kinds shall be considered items of legitimate expense, and shall be 
 allowed for by the Engineer in the monthly estimates, as shall also 
 the cost of housing the workmen, but not their sustenance. 
 
 By the term "Plant" is meant all machinery and apparatus, new 
 or second-hand, such as engines, dredges, diving apparatus, pile- 
 drivers, wire rope used for tackle, blocks, forges, riveting apparatus, 
 and blacksmith's tools that are of a permanent nature; but does not 
 include such perishable materials as hemp rope, rubber hose, wheel- 
 barrows, bolts, shovels, rubber boots, and all other tools and appa- 
 ratus of a temporary nature. The decision of the Engineer shall 
 control as to what is and what is not "Plant," and his decision shall 
 be final. 
 
 In respect to repairing plant and tools it is understood that all 
 minor repairs that are done by the blacksmith and other employees 
 of the Contractor are to be charged to the Company, as are also 
 repairs during construction to the perishable parts of the plant and 
 tools, such, for instance, as the timber for pile-drivers, the easily 
 broken parts of riveting machinery, and pipes for boring outfit; but 
 when the work of the Contractor is finished there will be no allow- 
 ance made to him for the deterioration of his plant, nor will he be 
 allowed to put it into thorough repair at the expense of the Company 
 just before he completes the entire construction. When this com- 
 pletion occurs all plant is to be the property of the Contractor, and 
 all other apparatus of any value and all surplus materials are to be 
 delivered to the Company as per the directions of the latter. But the 
 Company reserves the right to purchase from the Contractor any of 
 his plant at its actual value where it was bought less a proper allow- 
 ance for depreciation; and the Engineer is to be the sole arbiter 
 concerning the actual value of such plant in case that the Company 
 and the Contractor fail to agree thereon. 
 
 No sick or incapacitated employee shall be included on the 
 
SPECIFICATIONS AND CONTRACTS. 83 
 
 Contractor's pay-roll without the written consent of the Engineer 
 in each and every case. 
 
 In respect to traveling expenses for employees, none shall be 
 paid for the journey to the work until after the employee has been 
 on the work for three (3) months; and no return expenses shall be 
 allowed unless the employee has been discharged on account of no 
 fault of his own, or until he has worked for the Company at least 
 twelve (12) months. The traveling expenses allowed shall cover 
 nothing but the railroad fare, except that in the case of the Con- 
 tractors and their regularly salaried employees sleeping-car 
 charges also shall be borne by the Company. 
 
 The men's time spent in traveling from the United States to Travel 
 their work is to be paid for in case they remain three (3) months 
 or more continuously thereon; otherwise there will be no allowance 
 for time spent in traveling. In no case will any workman be 
 allowed compensation for the time spent in returning home. No 
 ■employee discharged for incompetency or misbehavior shall be 
 allowed any return traveling expenses. 
 
 If during the progress of the work, in the opinion of the Delay 
 Engineer, its prosecution is being delayed by reason of these restric- 
 tions concerning traveling expenses, the said restrictions may be 
 modified or removed altogether by the mutual consent in writing of 
 the two parties to this agreement, but in this manner only. 
 
 No material is to be paid for until after it is delivered at site, 
 unless the Company shall have had it in its possession for over 
 thirty (30) days. 
 
 Medical attendance and medicine at site will be paid for by the Medical Attendance 
 Company; but no other medical or hospital expenses will be 
 allowed, and the Company will bear all expenses connected with 
 providing boiled and filtered or condensed water for drinking 
 purposes. 
 
 The commissariat department shall be considered as a thing Commissary 
 apart from this contract. The Contractor shall manage it at his 
 own expense, and shall charge enough for board to reimburse himself 
 for the entire outlay connected therewith and to provide a profit 
 not exceeding fifteen (15) per cent. At the same time the Company 
 .shall insist that all employees be properly fed. The Company will 
 make no charge for hauling commissariat supplies for the Contractor 
 tover its own lines. In respect to the proper feeding of employees and 
 a reasonable price for board, the Engineer shall be the sole arbiter 
 
84 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Exchange 
 
 Tools and Supplies 
 
 Accounts 
 
 Workmen 
 
 Preparation 
 
 Vouchers 
 
 in case that any dispute arise; and to this end the Contractor's com- 
 missariat books shall always be open to his inspection. 
 
 In order to keep the accounts straight, all payments made in. 
 Mexico for labor and materials are to be in Mexican money, but the 
 Engineer's monthly estimates are to be made in American money^ 
 the rate of exchange to be adopted in effecting the reduction being^ 
 that ruling in the City of Mexico on the date of the Engineer's, 
 estimate. 
 
 All bills for materials purchased outside of the Republic of 
 Mexico, exceeding in amount five thousand dollars ($5,000,00) in 
 gold, after being approved by the Engineer, shall be sent directly 
 to the Company for payment; but the Contractor shall receive his. 
 fifteen (15) per cent, profit upon them. 
 
 Tools and other supplies may be furnished the Contractor by 
 the material department of the Company, in which case the Con- 
 tractor shall receive his fifteen (15) per cent, profit on the wholesale^ 
 cost to the company of any materials upon which profit would be 
 allowed, were they purchased elsewhere. 
 
 The Contractor's books shall at all times be open to the inspec- 
 tion of an expert accountant or accountants appointed by the Com- 
 pany to investigate the accounts. 
 
 The methods and times for payments shall be as described in 
 the accompanying specifications, which form a part of this contract. 
 
 Fourth. — The number of men to be sent from the United States 
 to the work and their salaries or wages shall be subject to the 
 approval of the Engineer, and he shall be satisfied as to their 
 fitness before they are engaged. The number of men to be employed 
 at each site shall also be subject to the Engineer's approval. He 
 may order that the number be increased if, in his opinion, there 
 are not enough, or that it be decreased, if it be too great for 
 economic working. 
 
 The Contractor shall purchase plant and materials in advance 
 of the requirements, so as to have no idle men on the work. In case 
 that he fails to do so, the Engineer shall have the right to prevent, 
 the Company from loss of money because of such negligence, by 
 making an equitable reduction in the monthly payments. 
 
 The Engineer shall approve the purchase of all materials 
 obtained outside of the Republic of Mexico and all important pur- 
 chases of materials in same. The decision as to what purchases 
 are important and what are not shall rest with the Engineer. 
 
 All expense bills are to be properly vouchered in triplicate 
 
SPECIFICATIONS AND CONTRACTS. 85 
 
 before being presented to the Engineer for his approval, and none 
 shall be honored by the Company without his approval. The 
 Engineer shall attach one set of vouchers to his monthly estimates, 
 shall keep another set for his own records, and shall return the 
 third to the Contractors. 
 
 All pay-rolls are to be signed by the payees in the presence of Pay-Roiis 
 the Engineer or one of his duly authorized representatives; and 
 when they are complete they shall be copied in duplicate in type- 
 writing and the copies shall be attested by a notary. One attested copy 
 is to be attached to the monthly estimate, the other is to be retained 
 by the Engineer, and the original is to remain the property of the 
 Contractor. In case of employees unable to write, the paymaster 
 shall attach to the pay-roll an affidavit certifying that all the men on 
 the said pay-roll have been paid in full. 
 
 The Company is not to be held liable for the failure of the Compliance with 
 
 Laws 
 Contractor to comply with any of the Mexican laws, especially those 
 
 relating to books, accounts, and stamping of documents. 
 
 Before the plant is shipped to the site of the work it must be 
 approved in writing by the Engineer; and the Contractor shall 
 provide in advance whatever plant the Engineer may deem necessary 
 for a satisfactory prosecution of the work. 
 
 Fifth.— All material paid for by the party of the first part shall f^^l^^f^ °' ^^■ 
 
 be deemed to have been delivered to and to have become the 
 
 property of the said first party; but the party of the second part 
 
 hereby agrees to store it and to become responsible for it during 
 
 the continuance of this agreement or until it has been placed in the 
 
 work and accepted by the Engineer. If it be possible, all materials 
 
 that are liable to injury by fire are to be insured to as near their full 
 
 value at the place where stored as is practicable. In case that the insurance and Re- 
 placing 
 
 Contractor fail so to insure and any of the Company's property 
 that is in his charge be injured or destroyed, it shall be repaired 
 or replaced according to the directions of the Engineer, and the cost 
 of such repairs or replacements shall be deducted by the 
 Engineer from the Contractor's monthly estimates. In case it be 
 impossible to insure the said materials, the Company will stand 
 the cost of all loss by fire, provided that, in the opinion of the 
 Engineer, the Contractor used due diligence in caring for the 
 materials so injured or destroyed; but the Company shall in no way 
 be liable for injury to or loss of materials by water, flood, theft, or 
 maliciousness. 
 
86 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Subletting 
 
 Defects 
 
 Right of Way Sixth. — The party of the first part shall secure to the party of 
 
 the second part the right to enter upon the places to be occupied by 
 the structures and by the materials thereof during construction, 
 free from cost, damage, or claim for damage of any kind whatever. 
 
 Seventh. — No change or alteration shall be made in the terms 
 or conditions of this agreement without the written consent of both 
 parties thereto. 
 
 Eighth. — The party of the second part hereby agrees that it will 
 not assign or sublet the work covered in this contract, or any 
 portion of it, without the previous written consent of the party of 
 the first part, but will keep the same within its control. It will 
 not be the policy of the Company to permit any subletting by the 
 Contractor, because its principal object in letting this contract for 
 cost, plus a percentage for profit, is to avail itself of the said Con- 
 » tractor's experience, constructive skill, and ability to handle men 
 and work. 
 
 Ninth. — If the Engineer should find occasion to reject and 
 insist upon the removal and replacement of any portion of the 
 completed or partially completed work, and if, in his opinion, the 
 Contractor is to blame for the defects, the cost of such removal and 
 replacement is to be deducted by the Engineer from the Contractor's 
 monthly estimates. 
 
 Tenth. — If during construction it appear to the Engineer that 
 the Contractor is not making proper progress on account of insuffi- 
 cient plant, labor, materials, supplies, or energy, the Company shall 
 give the Contractor notice in writing that it is not satisfied with the 
 progress that is being made, explain its conception of the reasons 
 for the delay, and suggest remedies therefor. Then, if, after the 
 expiration of twenty (20) days, the Engineer reports that the 
 Contractor has not taken the steps indicated by the Company as 
 necessary for a satisfactory prosecution of the work or other steps 
 which, in the opinion of the Engineer, will prove equally 
 effective, the Company shall have the right, after giving the 
 Contractor a further twenty (20) days' notice in writing, to under- 
 take itself, either by administration, or by letting the contract 
 to other parties, the completion of the said work which is thus being 
 neglected. 
 A.bandonment Under these circumstances the Company shall have the right 
 
 to enter upon and take possession of the plant, tools, materials, and 
 supplies of the said Contractor, or any part thereof; and in such 
 case the Contractor shall be allowed a fair price for the use of all 
 
 Progress 
 
SPECIFICATIONS AND CONTRACTS. 87 
 
 plant returned, and compensation in full for any portion thereof 
 used up or expended on the work. 
 
 This provision shall apply to the entire work involved in the 
 contract as well as to any portion of it, which means in effect that 
 if, in the opinion of the Engineer, the Contractor does not make a 
 practice of prosecuting his work with due diligence, thoroughness, or 
 economy, the Company shall have the right to finish the said work ' 
 
 in the manner provided in this clause of the agreement. 
 
 Eleventh. — The decision of the Engineer shall control, etc., etc. Engineer's Decision 
 (This clause is taken without change from Waddell & Hedrick's 
 standard form previously quoted.) 
 
 Twelfth. — (This also is from our standard form and covers the 
 question of defense of lawsuits.) 
 
 Thirteenth.— Whenever the reserve of ten (10) per cent, of the Retained Percentage 
 monthly estimates, provided for in the contract, amounts to fifty 
 thousand dollars ($50,000,00), the Company shall pay to the Con- 
 tractor twenty-five thousand dollars ($25,000.00) on account, so that 
 at all times after the first quarter-million dollars' worth of construc- 
 tion is allowed for in the estimates, there shall be a reserve in the 
 Company's hands varying in amount between twenty-five thousand 
 ($25,000) and fifty thousand ($50,000) dollars. 
 
 Fourteenth. — The Contractor further agrees to give to the Com- Bond 
 pany a good and satisfactory surety-company bond in the sum of 
 fifty thousand dollars ($50,000.00) gold for the faithful performance 
 of this contract according to the specifications, and for the prompt 
 payment for all material and labor used on the work, and to protect 
 and save harmless the Company from all damages to persons or 
 property caused by the negligence, or claim of negligence, of the 
 Contractor, or his agents, servants, or employees in doing the said 
 work or in connection therewith, the form of the said bond to be 
 satisfactory to the Company. In case, though, on account of the 
 construction being done in a foreign country, there be experienced 
 special difficulty or expense in obtaining a satisfactory surety-com- 
 pany bond, the Contractor shall deposit with some Trust Company 
 of New York City, to be named by the party of the first part, securi- 
 ties to the full value of fifty thousand dollars ($50,000.00) as a 
 guarantee instead of the aforesaid bond, which securities shall be 
 satisfactory to the party of the first part. Whatever surety be 
 decided upon, it shall continue in full force during the existence 
 of this contract; and it shall not be waived or voided by any change 
 in the plans, specifications, or amount of work involved, nor by any 
 
SPECIFICATIONS AND CONTRACTS. 
 
 Arbitration 
 
 Engineer 
 
 Registry of Contract 
 
 Abandonment 
 
 Execution 
 
 change in the contract itself that, in the opinion of three arbitrators 
 (one appointed by the surety company, one by the party of the first 
 part, and the third by the two arbitrators thus chosen), is not in 
 equity a good and sufficient cause for the cancellation of the surety. 
 All these conditions will have to be agreed to in advance by the pro- 
 posed surety company, or else its surety will not be considered by 
 the party of the first part; and in case of a cash or equivalent 
 guarantee, the party depositing the same will have to agree to the 
 said conditions. 
 
 Fifteenth. — In case of any arbitration, if the two arbitrators 
 first chosen refuse or fail to decide upon a third, the latter shall be 
 appointed by the Mayor of New York City.^ 
 
 Sixteenth. — The word "Engineer" as used in this contract refers 
 to the Consulting Engineers of the Mexican Gulf Coastline Railway 
 Company or their duly authorized representatives. 
 
 Seventeenth. — Either party to this agreement shall at any time 
 have the right to make this contract a public contract according to 
 the laws of the Republic of Mexico. 
 
 Eighteenth. — In case that at any time the Company decides to 
 discontinue either temporarily or permanently the construction of its 
 railroad or bridges, it shall have the right either to order the Con- 
 tractor to cease operations until further notice or to cancel the 
 contract. In the first case the Company shall pay all the expenses 
 for closing down, storing, and taking care of the plant, and starting 
 work again, also what, in the opinion of the Engineer, is a proper 
 allowance for interest on cost of plant while it is out of use, together 
 with fifteen (15) per cent, on these amounts for profit; and in the 
 second case the Contractor is to be paid in full for all work done and 
 materials furnished up to the date of cessation besides the entire 
 cost of transporting the men and plant back to Kansas City, 
 U. S. A., with the usual fifteen (15) per cent, added for profit. 
 
 IN WITNESS WHEREOF, the parties to this agreement have, 
 in the City of New York, hereunto set their hands and seals. 
 
 Dated the day, month and year first herein written. 
 
 Attest. 
 
 Secretary of the Mexican Gulf Coast- 
 line Railway Company. 
 
 [Seal] 
 
 Secretary of the Central Bridge Com- 
 pany, 
 
 [Seal] 
 
 Mexican Gulf Coastline Railway 
 Company. 
 
 By 
 
 By 
 
 President. 
 
 Central Bridge Company. 
 
 President. 
 
 1 The Mayor might decline to appoint, or his appointee might be a 
 politician. 
 
SPECIFICATIONS AND CONTRACTS. 89 
 
 You may have noticed that while this contract contains many r.iquidated Damages 
 
 clauses that are not included in the ordinary type of construction 
 
 contract, the latter has certain provisions that do not exist in the 
 
 former, notably a clause for "liquidated damages." The reason 
 
 for this omission is that under the assumed conditions it was 
 
 impossible to set any dates for the completion of the various 
 
 structures or of the entire work involved; hence no penalty could be 
 
 demanded. 
 
 I desire to call your attention to a feature of this method of Cost-plus-Percentage 
 
 Plan 
 
 letting work on a percentage basis that is, perhaps, foreign to the 
 
 subject of the lecture — viz., the unusually large amount of labor that 
 
 it involves for the engineers, who, in addition to their ordinary 
 
 duties, have practically to assume the functions of administrators. 
 
 For this reason their fees on such work should be greater than on 
 
 ordinary contract construction. 
 
 As it is my intention to send to each of you later a copy of this Practical Problem, 
 
 Contract Plan 
 lecture, I am going to ask that you study the preceding contract 
 
 carefully and check it against the list of requirements that I have 
 given for scientific contract-writing, in order to see whether any- 
 thing of importance has been omitted and how thoroughly the 
 document has been prepared. This suggestion will apply also to all 
 the succeeding examples of contracts. Such a study will do far 
 more to teach you how to prepare proper contracts than would the 
 listening to twenty lectures. You could, if you so desire, carry the 
 .study still further by assuming all the conditions precedent for some 
 other type of contract, then prepare the document so as to embody 
 in it all the principles and important features that I am advocating. 
 On account of your inexperience in the business features of engineer- 
 ing, your productions would naturally be somewhat crude, but the 
 henefit to yourselves from the preparation of such essays would be 
 very great, especially if you were to submit them for criticism to 
 some good legal authority. 
 
 Contracts looking to the development of large enterprises are 
 not uncommon, but the attendant conditions are generally rather 
 vague and uncertain; hence the drafting of a pioper agreement 
 hetween the various parties concerned is quite a difficult matter. 
 
 Let us assume that there is a project on foot to build in Example, Promoters' 
 
 Agreement 
 Colorado a large dam across Lonetree Gulch for the double purpose 
 
 of irrigating the lands below the site and of developing electric 
 
 power to be transmitted to Denver, and that a company named the 
 
 Lonetree Gulch Development Company has been duly organized 
 
90 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Enterprise 
 
 Franchise 
 
 Charter of Limita- 
 tions 
 
 under the laws of the State of Colorado by John Smith and Arthur 
 Jones, real estate brokers of Denver, for the purpose of consum- 
 mating the enterprise. Let us assume also that these men in doing 
 the preliminary work necessary to secure the charter, after spending 
 four thousand dollars ($4,000.00), have exhausted all of their 
 resources, and that, in order to bring the project into proper shape to 
 present to financiers, considerable expensive engineering work is 
 essential. On this account they have gone to Wallace & Henderson, 
 Consulting Engineers, of Kansas City, Mo., who make a specialty of 
 engineering large enterprises, and requested their assistance. These 
 engineers have called in Green & Robinson, electrical engineers, 
 also of Kansas City, Davidson & Osgood, masonry contractors, of 
 Chicago, and Holman & Curtis, grading contractors, of Denver, to 
 share with them the expense of doing all the preliminary work,. 
 which they estimate will cost $6,000 in actual cash, with no allowance 
 for personal engineering services. 
 
 The original promoters have agreed to deliver to the engineering 
 and contracting firms eighty (80) per cent, of their entire holdings 
 in the enterprise, in compensation for the engineering work neces- 
 sary to prepare a presentation of the scheme so thoroughly drawa 
 that it will receive due consideration from capitalists. The two 
 contracting firms have agreed to subscribe six thousand dollars 
 ($6,000.00) each to the general fund. The two engineering firms are 
 to receive three thousand dollars ($3,000.00) each as compensation 
 in full for their cash outlay, and are to devote their time and atten- 
 tion to the preliminary work continuously till its completion. 
 
 It is understood that the Lonetree Gulch Development Company 
 has organized and has held sufficient meetings to enable it to secure- 
 from the State of Colorado the charter for constructing the dam,, 
 irrigation system, and power plant, but that no stock has been 
 issued, only enough having been subscribed for to qualify the 
 board of directors. The promoters value their charter and the 
 recorded results of the work that they have done at fifteen thousand 
 dollars ($15,000.00), but are willing to dispose of eighty (80) per 
 cent, of their entire holdings for a preliminary cash payment of 
 four thousand dollars ($4,000.00), and eight thousand dollars 
 ($8,000.00) to be paid to them by the two contracting firms and 
 the two engineering firms jointly immediately after the enterprise- 
 is financed and when compensation for their past and future work is. 
 assured. 
 
 It is understood also that, as the Lonetree Gulch Development 
 
SPECIFICATIONS AND CONTRACTS. 91 
 
 Company's charter will expire in about six (6) months, the original 
 promoters are to have its privileges extended by the State Legisla- 
 ture for another three years, and that this must be done before the 
 first payment of four thousand dollars ($4,000.00) on account will 
 be made by the purchasers. 
 
 The eighty (80) per cent, of their holdings that the promoters Compact 
 sell is to be divided equally among the four buyers, so that each 
 engineering company, each contracting company, and the original 
 promoting company shall hold twenty (20) per cent, of the capital 
 stock when it is distributed, which will be after the preliminary 
 engineering work is done and before the financiers are approached. 
 
 After paying the promoters four thousand dollars ($4,000.00) Engineering Ex- 
 on account and the engineers six thousand dollars ($6,000.00) to 
 reimburse them for their cash expenditures, there will be left two 
 thousand dollars ($2,000.00) out of the twelve thousand dollars 
 ($12,000.00) subscribed by the two contractors. This balance is to 
 be held by the Consulting Engineers to defray traveling and other 
 expenses incident to the financing of the project after the preliminary 
 engineering work and estimates are completed. 
 
 It is further understood that the bargain made with the Engineering Talent 
 financiers is to be conditioned on Wallace & Henderson being 
 retained as principal engineers of the enterprise, with Green & 
 Robinson as consulting electrical engineers, and that the total com- 
 pensation for engineering is to be not less than five (5) per cent, of 
 the entire cost of the work, including right of way and all other 
 expenses connected with the consummation of the enterprise and 
 completion of the construction, which fee is to be divided between 
 the two firms in the ratio of the contract prices of the portions of 
 the construction under their respective jurisdictions. It is also 
 conditioned on the understanding that the contract for the masonry 
 dam and for the construction required for power development 
 and transmission is to be given to Davidson & Osgood, and that for 
 the irrigation works and any other construction that there may be 
 to Holman & Curtis, at schedule rates determined by the Consulting 
 Engineers on the basis of estimated actual cost plus twenty (20) per 
 cent, for profit. 
 
 It is understood that in dealing with the financiers the latter Financial Backing 
 will demand a large portion of the capital stock, and that the exact 
 amount thereof which they are to receive will be settled by mutual 
 agreement between the financiers on one side and the five interested 
 parties on the other, and that the decision of a majority of the five 
 
92 SPECIFICATIONS AND CONTRACTS. 
 
 in respect to this and all other matters in controversy shall govern. 
 After the amount of stock to be relinquished is determined, each of 
 the five equal holders of the entire stock shall relinquish the per- 
 centage of his holdings that has been agreed upon. 
 
 Draft of Contract Under the preceding circumstances and conditions the follow- 
 
 ing is the draft of contract that I would make to define and secure 
 the interests of all concerned and to prevent, if possible, the 
 financiers from taking more of the cream of the enterprise than the 
 amount to which they are justly entitled: 
 
 Parties MEMORANDUM OP AGREEMENT, Made and signed this 
 
 twentieth day of March, 1905, by and between John Smith and 
 Arthur Jones, the party of the first part and sometimes termed 
 herein the "Incorporators," real estate brokers of Denver, Colo., 
 and sole owners of the stock in the Lonetree Gulch Development 
 Company, a corporation of the State of Colorado, and the firm of 
 Wallace & Henderson, Consulting Engineers, of Kansas City, Mo., 
 the party of the second part, and sometimes termed herein the 
 "Consulting Engineers," and the firm of Green & Robinson, elec- 
 trical engineers, of Kansas City, Mo., the party of the third part, 
 and sometimes termed herein the "Electrical Engineers," and the 
 firm of Davidson & Osgood, masonry contractors, of Chicago, 111., 
 the party of the fourth part, and sometimes termed herein the 
 "Masonry Contractors," and the firm of Holman & Curtis, grading 
 contractors, of Denver, Colo., the party of the fifth part, and some- 
 times termed herein the "Grading Contractors." 
 
 The four firms — viz., Wallace & Henderson, Green & Robinson, 
 Davidson & Osgood, and Holman & Curtis — respectively the second, 
 third, fourth and fifth parties to this agreement, are sometimes 
 hereinafter termed the "Purchasers," the five parties to the contract 
 are hereinafter sometimes termed collectively the "Syndicate," and 
 the financiers who will later be requested to subscribe the money 
 for the construction will be termed for convenience the "Bankers." 
 
 rreambles WHEREAS, The party of the first part as incorporators and sole 
 
 stock-owners of the Lonetree Gulch Development Company has 
 obtained from the State of Colorado a charter permitting it to build 
 a dam across Lonetree Gulch at a point to be selected by its engi- 
 neers for the purpose of irrigating certain lands and developing 
 and transmitting power, and 
 
 WHEREAS, The party of the first part has spent in cash some 
 four thousand dollars ($4,000.00) on preliminary surveys and 
 borings, and 
 
SPECIFICATIONS AND CONTRACTS. 93 
 
 WHEREAS, The party of the first part recognizes the fact that, 
 in order so to present its project to capitalists as to induce them to 
 subscribe for the bonds of the Company, it is necessary to do con- 
 siderable expensive engineering work and to prepare from the 
 results of it preliminary plans, specifications, estimates of cost, 
 estimates of revenue, and other papers; and has in consequence 
 approached the party of the second part with the suggestion that it 
 form a combination to buy a controlling interest in the company 
 and to do all the said preliminary engineering work and finance the 
 project, and 
 
 WHEREAS, The party of the second part, not being expert in 
 electrical engineering, has decided to take in with it the party of 
 the third part to do all the engineering on the power develop- 
 ment, and 
 
 WHEREAS, The engineers, not having the necessary cash to 
 spare for the development of the enterprise, have called in the par- 
 ties of the fourth and fifth parts to take a share of it in considera- 
 tion of their furnishing the money required for the preliminary 
 expenses, and 
 
 WHEREAS, The parties of the second and third parts desire 
 to secure the entire engineering work involved in the construction 
 of the dam and irrigation plant, and in the development of the 
 power, and 
 
 - WHEREAS, The parties of the fourth and fifth parts desire 
 to secure contracts for building the dam, irrigation plant, and 
 all the machinery, houses, and other constructions for power 
 ; development.^ 
 
 NOW THIS AGREEMENT WITNESSETH: 
 
 First. — The party of the first part hereby agrees, for a consid- Stock Consideuatiou 
 ^ration hereinafter mentioned, to transfer to the parties of the 
 second, third, fourth, and fifth parts, jointly, eighty (80) per cent 
 of its entire holdings in the said project, including the before^ 
 mentioned charter from the State of Colorado, and all the plans^ 
 notes of surveys, and estimates made to date by or for the party of 
 the first part, in order that the Purchasers may use them in their 
 work of completing the plans, estimates, and other documents to 
 present to financiers. 
 
 ^ A good practice is to insert a general clause, making mutual covenants 
 or agreements between the parties, thus : — "For and in consideration of the 
 mutual agreements herein contained, it is hereby mutually agreed between 
 the parties hereto as fellows :" 
 
94 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Stock Distribution 
 
 Subject-Mattel" 
 
 Be«t Endeavors 
 
 I'reliminaiy Opera- 
 tions 
 
 Working Capital 
 
 Second. — As payment for the said eighty (80) per cent, of the 
 Incorporators' holdings the Purchasers agree as follows: 
 
 A. To pay to the Incorporators the sum of twelve thousand 
 dollars ($12,000.00), four thousand dollars ($4,000.00) thereof 
 within thirty (30) days after the extension of the charter for 
 another three (3) years has been granted by the State of Colorado, 
 and the remaining eight thousand dollars ($8,000.00) within 
 "^hirty (30) days after the entire project has been financed, the 
 capital secured, and the Purchasers assured of their contracts 
 for the engineering and construction of the entire work by payment 
 to them from the Bankers of not less than twenty thousand dollars 
 ($20,000.00) on account. 
 
 B. To do at their own expense all the preliminary engineering 
 work required for putting the project in proper condition to present 
 to capitalists, including surveys for the dam, irrigating ditches, and 
 transmission line for power; borings for the foundations of the dam; 
 plans and specifications for the dam, irrigation system, and power 
 development and transmission; a complete detailed estimate of 
 cost of the entire enterprise, including right of way, land, construc- 
 tion, machinery, legal fees, administration, and engineering; a com- 
 plete and detailed estimate of probable earnings, and an exhaustive 
 and well-drafted prospectus. 
 
 C. To do their best (with the aid of the Incorporators) to 
 finance the project and to secure bonuses and other aid from the 
 United States and State Governments and from individuals who 
 would be directly benefited by the consummation of the enterprise, 
 and thus by the united efforts of the entire Syndicate to secure 
 the necessary money to build the said dam, irrigation system, and 
 power plant. 
 
 Third. — The parties of the second and third parts, in consid- 
 eration of certain remuneration hereinafter mentioned, hereby agree 
 to do at their own expense all of the before-mentioned preliminary 
 engineering work, including the making of all surveys, borings, plans, 
 and estimates, and the preparation of the prospectus, and to give 
 to the said work their undivided attention and the full benefit of 
 their experience and professional skill. They also agree to finish, 
 in the shortest practicable time consistent with thoroughness the 
 entire work previously described. 
 
 Fourth. — The parties of the fourth and fifth parts hereby agree 
 to deposit in the hands of the party of the second part six thousand 
 dollars ($6,000.00) each so as to form a working capital of twelve 
 
SPECIFICATIONS AND CONTRACTS. 95 
 
 thousand dollars ($12,000.00), which capital will hereinafter be 
 termed the "Purchasers' Fund." This fund is^ to be utilized in 
 making the first payment of four thousand dollars ($4,000.00) on 
 account to the Incorporators, paying for the preliminary engineering 
 work, and presenting the fully prepared project to the Bankers. 
 
 Fifth. — The parties of the second and third parts are to be^ paid Advances 
 ■out of the Purchasers' Fund the sum of six thousand dollars 
 ($6,000.00), to be divided equally between them as compensation for 
 their cash outlay in connection with the preliminary engineering 
 work described previously; and this amount is to^ be paid to them 
 as soon as they deliver to the Syndicate the complete papers for 
 submission to the Bankers. 
 
 Sixth. — As scon as the preliminary engineering work is finished Stock Issue 
 and the various papers depending upon it are prepared, a copy of 
 •each of the said papers shall be delivered to each member of the 
 Syndicate, and within ten (10) days from the date of such delivery 
 the Incorporators shall issue and distribute to the Purchasers their 
 eighty (80) per cent, of the capital stock of the Lonetree Gulch 
 Development Company. The amount of stock thus delivered to the 
 Purchasers shall immediately be distributed equally among the four 
 firms of which the said Purchasers are composed. 
 
 Seventh. — The two thousand dollars ($2,000.00) remaining in Exploit atioa 
 the Purchasers' Fund after the Promoters and the Engineers are 
 paid is to be used in presenting the project to the Bankers; and in 
 •case that it be insufficient for the purpose, each member of the 
 Syndicate will be required to contribute to the said fund from time » 
 
 to time a certain small sum of money to be determined by the Con- 
 ;sulting Engineers as requisite for the purpose. 
 
 Eighth. — When the Syndicate is makirg its bargain with the Bonus 
 Bankers for the development of the project, it will be necessary to 
 turn over to them a portion of the capital stock of the Company, 
 which portion the Syndicate will naturally strive to make as small 
 as possible. Each of the five parties to this agreement shall turn 
 over to thfe said Bankers the portion of his total stock agreed upon, 
 thus leaving the said five members equal owners of the balance of 
 the said capital stock. 
 
 This entire balance cf stock is to be deposited with a Trustee, Stock Syndicate 
 selected by a majority vote of the five members of the Syndicate, to 
 be held by him until the completion of the entire construction of the 
 
 ^ The substitution of the future "shall be" for the infinitive "is to be" 
 is preferable. 
 
96 SPECIFICATIONS AND CONTRACTS. 
 
 dam, irrigation system, and power plant. Should, however, as 
 hereinafter provided for, any member of the Syndicate be expelled by 
 a majority vote of that body, the Trustee shall transfer on his books, 
 as directed by the Syndicate, the stock of the said expelled member. 
 As soon as the said construction has been completed and the 
 accounts of the Syndicate have been finally settled, but not before, 
 the Trustee shall deliver to the owners thereof the stock standing in 
 their names on the books. 
 
 In case of any disagreement between the members of the 
 Syndicate concerning the proportion of the total stock to be 
 relinquished to the Bankers or concerning any other matter not 
 specially covered herein, a majority vote of the said members of the 
 Syndicate shall rule, and there shall be no appeal from any formal 
 decision of the majority of the said Syndicate. 
 I'romoters to Stand Ninth. — "When the Syndicate makes its bargain with the 
 
 Bankers, its members shall stand firm for the following basis of 
 agreement, and no modification whatsoever shall be made in the 
 terms thereof without the unanimous consent in writing of all five 
 members of the said Syndicate. 
 
 A. The party of the second part is to be retained to do the 
 entire engineering work in connection with the designing and con- 
 struction of the dam and irrigation system, 
 
 B. The party of the third part is to be retained to do the 
 entire engineering work in connection with the designing and 
 construction of the power plant and the power transmission line. 
 
 I C. The compensation of the engineers for the work that they 
 
 do after the project has been financed shall not be less than five (5) 
 per cent, of the entire cost of the enterprise (barring, of course, the 
 cost of the engineering itself) ; and they shall divide the total fee 
 between them in the proportion that the contract cost of the work 
 done under each one's charge bears to the total contract cost of the 
 entire work. 
 
 D. The party of the fourth part is to be given the contract 
 for building the dam, power plant, and transmission line at schedule 
 rates figured by the Consulting Engineers on the basis of actual 
 cash cost, plus twenty (20) per cent, for profit. 
 
 E. The party of the fifth part is to be given the contract for 
 constructing the irrigation system and any other construction there 
 may be besides that herein mentioned, at schedule rates figured by 
 the Consulting Engineers on the basis of actual cash cost, plus 
 twenty (20) per cent., for profit. 
 
SPECIFICATIONS AND CONTRACTS. 97 
 
 F. In case that either the Bankers or the Contractors fail to 
 approve the Consulting Engineers' figures for the schedule prices, 
 the dispute is to be settled by arbitration, one arbitrator being 
 appointed by each of the two disputants and the third by the two 
 thus chosen. In case that the said two fail to agree upon a third 
 arbitrator, the latter is to be appointed by the Governor of the 
 State of Colorado. By the decision of a majority of these three 
 arbitrators the said schedule rates are to be finally determined. 
 
 G. In case that the Bankers decide that the construction is to 
 be done by some other organization than the Lonetree Gulch Devel- 
 opment Company, the members of the Syndicate are to receive free 
 of charge the same percentages of stock in the new organization as 
 it was agreed upon that they were to retain finally in the original 
 company. 
 
 Tenth. — The entire agreement is based upon the assumption Conditions rreccdent 
 that the Legislature of the State of Colorado will grant to the Lone- 
 tree Gulch Development Company, its successors or assigns, an exten- 
 sion of time of three (3) years for starting work upon the 
 construction and the same amount for the completion thereof. If 
 the said extension of time be refused by the Legislature, this 
 agreement is to become null and void. 
 
 Eleventh. — If in the future it be found necessary to obtain United Efforts 
 from the Colorado Legislature any further extension or extensions 
 of time for either starting or finishing the construction, or for both, 
 the Purchasers and the Incorporators hereby agree to use their best 
 united efforts to secure such extension or extensions; and any 
 expense incurred in obtaining such extension or extensions shall be 
 borne equally by the five parties to this agreement. 
 
 Twelfth. — The obligations and benefits of this agreement are Legal Representa- 
 tives 
 to be binding upon and to accrue to not only the various parties to 
 
 this agreement, but also their executors, administrators, successors, 
 
 or assigns, as the case may be. 
 
 Thirteenth. — This agreement shall continue in existence either Duration of Contract 
 
 until the entire project is consummated, or until the charter of 
 
 the Company lapses because of failure to have it extended. 
 
 Fourteenth. — In case that the Syndicate and the Bankers come Undivided Attention 
 to terms and the construction proceeds, the parties of the second 
 and third parts hereby agree to devote to the engineering work 
 their full time and best attention, and to give to it the benefit of 
 their experience and skill; and the parties of the fourth and fifth 
 
98 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Harmony Pledged 
 
 Expulsion from Syn- 
 dicate 
 
 Sale of Stock 
 
 Alterations 
 
 Subletting 
 
 parts hereby agree to do all the contracting work in a thorough and 
 workmanlike manner and in strict accordance with the plans, 
 specifications, and instructions of the engineers, all for the purpose 
 of insuring that the entire construction shall be first-class in every 
 particular and a credit to everybody concerned in its designing and 
 building. 
 
 Fifteenth. — All the members of the Syndicate hereby pledge 
 themselves that they will in all cases try to act in harmony and 
 to do all they can to develop the project and accomplish the aims 
 for which the Syndicate was formed and which this document 
 expounds. 
 
 Sixteenth. — In case that any party of the Syndicate fails to 
 keep the agreements into which it has entered in this document, it 
 shall be given written notice by a majority of the said Syndicate 
 to the effect that it is not acting in a manner which will redound 
 to the best interests of the Syndicate, and that if it does not modify 
 satisfactorily to the Syndicate its objectionable actions within 
 twenty (20) days, it will be expelled from the said Syndicate. 
 
 In this case the Syndicate will choose a successor and will sell 
 to him for as large a sum of money as possible the entire holdings 
 of the expelled party, including the stock deposited in the Trustee's 
 hands, if any be then so deposited, and will deliver to the said 
 expelled party the said sum of money, less the amount required to 
 settle the expelled party's indebtedness to the Syndicate as a body 
 and to its individual members, and to square all accounts of the 
 said expelled party in connection with its work that is covered in 
 this agreement. If the price at which the said stock is to be sold 
 be unsatisfactory to the expelled party, the latter shall have the 
 privilege of trying for the space of thirty (30) days to obtain a 
 better price; and if the said expelled party secure a better price, the 
 Syndicate shall either buy the stock at that price or allow the 
 expelled party to sell it. 
 
 Seventeenth. — No change or alteration shall be made in the 
 terms or conditions of this agreement without the consent of all 
 five (5) parties hereto in writing. 
 
 Eighteenth. — The parties to this agreement hereby agree that 
 they will neither sublet any of the work herein described nor sell 
 any portion of their interests without the consent of all five (5) 
 parties hereto in writing. 
 
SPECIFICATIONS AND CONTRACTS. 99 
 
 IN WITNESS WHEREOF, the parties to this agreement have Execution 
 
 hereunto set their hands and seals at the City of Denver, Colo. 
 
 Dated the day, month, and year first herein written. 
 
 Witnessed by ^o, ,% 
 
 (Seal) 
 
 (Seal) 
 
 (Seal) 
 
 (Seal) 
 
 (Seal) 
 
 The preceding contract is a very complicated document, possibly Form Proposed 
 as complicated as any of you are ever likely to be required to draft. 
 It has been written with care and has been checked by competent 
 authority; hence it ought to serve well as a model for drafting 
 agreements between several parties. 
 
 The next type of contract that I shall present is one between 
 
 the promoters of an enterprise and capitalists whose aid they are 
 
 seeking to finance it. 
 
 Let us assume that the same firm of engineers — viz., Wallace & Exfimple. Agreement 
 
 to Finance 
 Henderson, of Kansas City, Mo. — has developed the project for 
 
 building a toll bridge over the Arkansas River and an electric rail- 
 way between the cities of Van Buren and Fort Smith, and has formed 
 in Arkansas a company named the Van Buren and Fort Smith 
 Bridge and Railway Company to build the proposed line and 
 structure; also that it has obtained a charter from the United States 
 Government for bridging the river and franchises from the two 
 cities for the construction of the electric railway; also that all 
 isteps thus far have been taken in a perfectly legal manner, and 
 that the Company's books and records are in proper shape. Only 
 enough stock has been subscribed to qualify the directors, and the 
 •entire stock is thus far controlled by the firm of engineers. 
 
 It is assumed also that these engineers have taken the project Scheme Outlined 
 to a firm of brokers, Raymond & Effingham, of Philadelphia, who 
 are themselves capitalists, but who are not strong enough financially 
 to underwrite the entire issue of bonds, the amount of cash required 
 for the enterprise being in the neighborhood of eight hundred 
 thousand dollars ($800,000.00). 
 
 Under these conditions the contract that I would draft is as 
 follows: 
 
 MEMORANDUM OF AGREEMENT, 
 l5y and between A. J. Wallace and G. I, Henderson, Consulting Parties Described 
 Engineers, both of Kansas City, Mo., and copartners, doing business 
 
100 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Preamble 
 
 Declaration 
 
 Financial Scheme 
 
 Duration 
 
 Sale of Bonds 
 
 (^apital Stock 
 
 under th€f firm name of "Wallace & Henderson, the party of the first 
 part, and sometimes hereinafter termed the "Promoters," and P. J. 
 Raymond and S. L.. Effingham, both of Philadelphia, Pa., copartners,, 
 doing business under the firm name of Raymond & Effingham, the 
 party of the second part, and sometimes hereinafter termed the 
 "Brokers." 
 
 WHEREAS, The said Wallace & Henderson have prepared 
 complete in every essential particular a project for building an 
 electric railway between Van Buren and Fort Smith in the State of 
 Arkansas, with a toll bridge for vehicular and electric railway 
 traffic to cross the Arkansas River on the line of the said railway, 
 and have organized in the State of Arkansas a company for building 
 the said railway and bridge, and have taken the said project to the 
 said Raymond & Effingham to finance with a resulting mutual benefit 
 to both parties, now, therefore, 
 
 THIS AGREEMENT WITNESSETH: 
 First. — The incorporated name of the Company for building the 
 electric railway and bridge is the Van Buren and Fort Smith Bridge 
 and Railway Company, and the entire stock thereof is now owned 
 and controlled by the party of the first part. 
 
 Second. — The party of the first part hereby agrees to place in 
 the hands of the party of the second part, and in its hands only, the 
 financing of its project to build the said electric railway and bridge. 
 
 Third. — The party of the second part hereby agrees to use its 
 best efforts to effect the underwriting of the bonds of the said 
 Company, and in every way to endeavor to finance the project with 
 the least possible delay. 
 
 Fourth. — The parties hereto hereby agree to divide equally 
 between them all profits resulting from the disposal of the Com- 
 pany's securities. 
 
 Fifth. — The duration of this contract shall be six (6) months 
 
 from the date of its signature, but its life may be extended by the 
 
 consent of both parties hereto in writing. 
 
 t 
 
 Sixth. — The amount of bonds to be sold for developing the 
 project shall be one million dollars, and the Brokers in disposing of 
 them are to obtain as high a price as possible, under no circum- 
 stances parting with them for less than eighty-five (85) cents on 
 the dollar. 
 
 Seventh. — In dealing with the bankers and underwriters, the 
 Brokers are to keep as low as possible the percentage of the capital 
 
SPECIFICATIONS AND CONTRACTS. 101 
 
 stock of the Company that is given with the bonds; and under no 
 circumstances shall the amount so given, hypothecated, or pledged 
 be so large as to cause the control of the enterprise to pass out of 
 the hands of the parties of the first and second parts. 
 
 Whatever stock is left over after the arrangement with the 
 bankers and underwriters is consummated is to be divided equally 
 between the two parties to this agreement. 
 
 In case that the Brokers in making the sale of the bonds find Stock Banus 
 it necessary to part with more than forty (40) per cent, of the capital 
 stock, they shall not finally agree to do so until after they have 
 received in writing the assent of the Promoters to the proposed 
 arrangement. 
 
 Eighth. — It is not contemplated that either Wallace & Hender- Privilege of rromo 
 son or Raymond & Effingham will be underwriters for the bonds, 
 but either of them may subscribe, if they so desire, and they shall 
 receive with the bonds they buy the proportion of stock set apart 
 to go to the underwriters, the same as if they were in no other way 
 connected with the project, and in addition to and entirely apart 
 from any profits to be divided under this agreement. 
 
 Ninth. — The Brokers hereby agree that in any financial arrange- i^ngineers to be Ke 
 
 tciined 
 ment entered into by them they will see that there is provision made 
 
 by which the party of the first part shall be retained as engineers 
 of the Company to design and supervise the construction of the 
 railway and bridge, with full control over all matters of an engineer- 
 ing character, and that they shall receive in compensation for their 
 services and for those of their assistants a gross fee of not less than 
 five (5) per cent, of the grand total cost of the railway and bridge, 
 excluding from the said total only the Engineers' and the Brokers' 
 fees. 
 
 In the same manner the Promoters agree, in so far as it is Commission 
 within their control, to see that Raymond & Effingham receive for 
 their services in financing the project a gross fee of three (3) per 
 cent, of the said grand total cost, corputed as just described. 
 
 It is distinctly understood, however, that neither party hereto 
 is assuming individual or personal liability to the other for the said 
 fee, but both parties are in good faith to do everything which lies 
 in their power or control to see that the said fees are paid. 
 
 Tenth. — No change or alteration shall be made in the terms or No Changes 
 conditions of this agreement without the consent of both parties 
 hereto in writing. 
 
Example, Copartnor- 
 6hip 
 
 Introduction 
 
 rreamWe 
 
 Name 
 
 Duration 
 
 Salary 
 
 102 SPECIFICATIONS AND CONTRACTS. 
 
 IN WITNESS WHEREOF, the parties to this agreement have 
 hereunto set their hands and. seals in the City of Philadelphia, Pa., 
 this twentieth day of March, 1905. 
 Witnessed by 
 
 (Seal) 
 
 (Seal) 
 
 (Seal) 
 
 (Seal) 
 
 I shall give you before closing one more example of contract 
 preparation, illustrating a type of agreement that may be useful to 
 you some day. It is a partnership contract between two engineers. 
 
 Let us assume that Mr. M. S. Clements, hydraulic and sanitary 
 engineer, of St. Louis, Mo., who has been practising successfully 
 there in those specialties for many years, desires to take in as 
 junior partner his principal assistant engineer, Mr. K. L= Strange, 
 and that all the details of the partnership have been settled. I 
 shall not state them in advance, as they will appear in the document, 
 which I would draft thus: 
 
 MEMORANDUM OF AGREEMENT, by and between M. S. 
 Clements, Civil Engineer, of St. Louis, Mo., the party of the first 
 part, and K. L. Strange, Civil Engineer, of St. Louis, Mf)., the party 
 of the second part. 
 
 WHEREAS, The party of the first part has for many years 
 been established in St. Louis, Mo., as a consulting hydraulic and 
 sanitary engineer, and has developed a large and successful prac- 
 tice, and 
 
 WHEREAS, The party of the second part has been in the 
 employ of the party of the first part for over seven (7) years, 
 and during the last three (3) years has been his Principal Assistant 
 Engineer, and 
 
 WHEREAS, The parties to this agreement have concluded that 
 it will be mutually beneficial to enter into a partnership to prosecute 
 the business of civil engineering in the special lines of hydraulic and 
 sanitary work, 
 
 NOW THIS AGREEMENT WITNESSETH: 
 First. — The name and designation of the firm shall be Clements 
 
 & Strange, Consulting Engineers. 
 
 Second. — The agreement shall be operative on and after 
 
 January 1, 1905. 
 
 Third. — The party of the second part shall in any event receive 
 
 fifteen hundred dollars ($1,500.00) per annum; i. e., if his share of 
 
SPECIFICATIONS AND CONTRACTS. 103 
 
 the net profits for any year be less than that amount, the difference 
 between his said share and the said amount shall be paid to him 
 out of the total profits of the firm for the year, or, failing these, by 
 the party of the first part. 
 
 Fourth. — The share of the net profits of the party of the second Share in Profits 
 part shall be as follows: 
 
 Up to January 1, 1908, twenty-five (25) per cent.; from then 
 until January 1, 1911, thirty (30) per cent.; from then until January 
 1, 1914, thirty-five (35) per cent.; from then until January 1, 1917, 
 forty (40) per cent., and after the latter date, forty-five (45) per 
 cent. 
 
 Fifth. — The net profits for any year shall be figured by sub- I'vofits Defined 
 tracting from the gross receipts for the said year the entire 
 business expenses for the year, such as those incurred in doing 
 office work, field work, traveling, and advertising, but the aforesaid 
 guaranteed amount of fifteen hundred dollars ($1,500.00) per annum 
 shall not be considered as a part of the office expenses. 
 
 Sixth. — An accurate set of books shall be kept, from which Books of Account 
 can readily be computed the net profits for the year, and a cash 
 settlement shall be made at the beginning of each year for the 
 preceding year. 
 
 Seventh. — If any completed piece of work be unpaid for at the Payments of Sliares 
 end of the year, it shall be assumed as paid for in making the settle- 
 ment; but the party of the second part shall not receive his share 
 of the delayed payment until after the said payment is made. 
 
 Eighth.— At any time after January 1, 1914, the party of the increasing,' interest 
 second part shall have the privilege of purchasing the balance of a 
 half-interest in the business by paying to the party of the first part 
 in cash one of the following sums, according to the date of the 
 establishment of the equal partnership. 
 
 In 1914 $15,000.00 
 
 In 1915 13,000.00 
 
 In 191G 11,000.00 
 
 In 1917 : 9,000.00 
 
 In 1918 7,000.00 
 
 In 1919 5,000.00 
 
 After 1919 3,000.00 
 
 The payment of any one of the preceding amounts shall not only ^''^1°^ Property 
 entitle the party of the second part to a half-interest in all future 
 business, but shall also make him a half-owner of all office fixtures, 
 library, instruments, patents, records, and field apparatus that may 
 
104 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 I'atents 
 
 Joint Patents 
 
 Joint Efforts 
 
 Copyriglits 
 
 Authorship 
 
 be owned by the party of the first part at the time of the formation 
 of the equal partnership, it being understood that all apparatus, 
 books, etc., etc., purchased for the firm before the establishment of 
 the equal partnership shall be the personal property of the party of 
 the first part, or simply an addition to his present office property, 
 notwithstanding the fact that they have been paid for out of the 
 funds of the firm. 
 
 Ninth. — All royalties from patents owned by the party of the first 
 part on January 1, 1905, shall be thrown into the gross profits of the 
 business. 
 
 Tenth. — If in the future any joint patent is taken out, it shall 
 be the property of the office, and any royalty or other gain therefrom 
 shall be thrown into the gross receipts of the office. In case of a 
 dissolution of partnership at any time, the future interest of all such 
 joint patents shall be arranged according to the basis of division 
 of office profits governing at the time of the said dissolution, and 
 both parties shall afterward have the right to use such patents for 
 their own professional work without accounting; but in case of 
 royalty thereon by other parties, the amount of said royalty shall 
 be divided between the two parties to this agreement according to the 
 basis of division herein provided for. 
 
 Eleventh. — Neither party to this agreement shall take out for 
 himself any patent for anything connected directly or indirectly 
 with the work of the office without first obtaining from the other 
 party written permission to do so; but a written refusal or a verbal 
 refusal in the presence of witnesses to enter into a proposed joint 
 patent shall be considered an equivalent to giving such written 
 permission. 
 
 Twelfth. — If the parties to this agreement write a joint book 
 for publication, the profits on same shall be considered a part of 
 the office receipts, and shall be divided accordingly ; and any technical 
 book written by either party shall be treated in like manner as long 
 as the partnership continues. In case of a dissolution of partnership, 
 each party shall, for the future, own outright any books published in 
 his own name; also the percentage of interest in all joint books 
 that is the basis of division of office profits governing at the time of 
 the said dissolution. 
 
 The party of the second part, however, shall be entitled to no 
 pecuniary interest in any books written by the party of the first part 
 prior to January 1, 1905, even though future additions thereto be 
 
SPECIFICATIONS AND CONTRACTS. 105 
 
 made. On the other hand, no expense connected with such solely 
 individual books shall be considered a part of the office expenses. 
 
 Thirteenth. — Whenever the contemplated future equal partner^ lOcjiial Inun-csis 
 ship is consummated, the profits on all contracts for work entered 
 into before the date of the equal partnership shall be divided accord- 
 ing to the terms of this agreement, and shall not be considered as 
 pertaining to the said equal partnership. 
 
 Fourteenth. — In the event of the death of the party of the first Donth 
 part before the formation of the contemplated equal partnership, the 
 party of the second part shall have the privilege of purchasing the 
 good-will of the business, together with all of the office fixtures, 
 library, records, instruments, and other property connected with the 
 "business, except as hereinafter stated, by paying to the estate of 
 the party of the first part the sum of three thousand dollars 
 ($3,000.00) in cash or in an equivalent that will be satisfactory to 
 the executors of the said estate. 
 
 It is understood that this sum does not cover any patents. Settlement 
 ■either individual or joint, but that the estate of the party of the 
 first part shall have a half-interest in all royalties therefrom, unless 
 after the death of the party of the first part, the party of the second 
 part purchases from the estate the said patents or shares in patents. 
 And the party of the second part at the settlement of the office 
 affairs, after the death of the party of the first part, shall have the 
 privilege of purchasing all of the said patents at a price to be 
 agreed upon between the said second party and the said executors; Arbitration 
 and if an agreement as to their value cannot be otherwise arrived at, 
 the price shall be settled by arbitration, the party of the second part 
 appointing one arbitrator, the executors another, and the two thus 
 chosen, the third. In case of failure of the two arbitrators first 
 chosen to determine upon a third, the latter shall be appointed by 
 the Mayor of St. Louis. By the decision of the majority of these 
 three arbitrators both the party of the second part and the executors 
 shall be finally bound. 
 
 In case, however, the party of the second part elects not to Use of Patents 
 purchase the said patents, he shall have the use of the joint patents 
 by special agreement in each case with the executors, but the latter 
 shall have full control of all Clements' individual patents. 
 
 In case of the death of the party of the first part, either before Completion of Work 
 or after the formation of the contemplated equal partnership, the 
 party of the second part shall finisTi all work on all contracts then 
 uncompleted, and shall pay over to the estate of the said first party 
 
106 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Net I'rofits 
 
 Sale of ratents 
 
 Control 
 
 Cancellation 
 
 Dissolution 
 
 the latter's full share of all net profits thereon, as computed by the 
 rate of division governing at the date of his death. 
 
 Fifteenth. — In case of the death of the party of the second part 
 prior to that of the party of the first part, the estate of the former 
 shall receive the same percentage of net profits from all unfinished 
 work as would have been his under the terms of this contract at 
 the time of his death. And the party of the first part shall have the 
 use of ail joint patents held by the firm, but the estate of the party 
 of the second part shall be entitled to the same percentage of royal- 
 ties accruing from the use of the said joint patents as the party of 
 the second part would at the time of his death have been entitled 
 to under the terms of this contract. 
 
 ■ Provided that the party of the first part shall have the privilege 
 of purchasing from the Strange estate the interest in all joint 
 patents held by the party of the second part at the time of his deaths 
 according to the arrangement previously outlined for the case of 
 the death of the party of the first part. 
 
 Sixteenth. — Until the contemplated future equal partnership be 
 entered into, the policy and management of all business affairs shall 
 rest entirely with the party of the first part, but the party of the 
 second part shall be consulted, as in the past. 
 
 Seventeenth. — Should either party to this agreement at any time 
 desire to cancel the same, he shall give in writing to the other party 
 twelve (12) months' notice of his intention to do so; and, in case 
 of failure so to notify, he shall, at the date of severing his connec- 
 tion with the business, pay to the said other party in cash the sum 
 of one thousand dollars ($1,000.00), which amount shall not be 
 considered as a penalty, but as liquidated damages (for loss to the 
 said other party) herein agreed upon by the contracting parties. 
 
 Eighteenth. — In case of a dissolution of partnership with twelve 
 (12) months' notice, all work connected with contracts entered into 
 before the giving of notice of dissolution shall be completed, if 
 possible; and the profits thereon shall be divided according to the 
 terms of this contract. All new work taken during these twelve 
 (12) months shall belong to the party who is to continue the businessf 
 and shall be done at his expense, the other party being concerned 
 with it in no manner whatsoever. If at the end of twelve (12) 
 months there still be any old work uncompleted, the party who con- 
 tinues the business of the office shall finish it and shall give to the 
 other party after the final settlement therefor is made his proper 
 share of the net profits thereon. It is understood that, unless other- 
 
SPECIFICATIONS AND CONTRACTS. 107 
 
 wise agreed upon, the party of the first part shall be the one to carry- 
 on the business in case of a dissolution of partnership. 
 
 Nineteenth. — But in the case of dissolution of partnership Notico of Dissolu- 
 without the twelve (12) months' notice, there shall be made an 
 immediate settlement of the affairs of the firm, by which the party 
 leaving shall be paid by the other party in either cash or notes a 
 fair allowance for his interest in all unfinished contracts. If the 
 two parties cannot agree upon the terms of the settlement, the matter 
 shall be fixed by arbitration in a manner similar to that herein- 
 before described. 
 
 Twentieth. — No change or alteration shall be made in the terms No Changes 
 or conditions of this agreement without the consent of both parties 
 hereto in writing. ' 
 
 Twenty-first. — The parties to this agreement hereby agree that Effort 
 they will at all times do all that lies in their power to further and 
 increase the business of the firm, and to establish for it a world- 
 wide reputation for doing thorough, honest, scientific, economic, 
 and skilful work. 
 
 IN WITNESS WHEREOF, The parties to this agreement have Execution 
 hereunto set their hands in the City of St. Louis, Mo., this tenth day 
 of December, 1904. 
 
 Witnessed by 
 
 In concluding this lecture there are a few general matters of Conclusion 
 
 importance to which I desire to call your attention, especially as 
 
 they are often ignored in the preparation of contracts. 
 
 No erasure with a knife, rubber, or other similar instrument Erasures aad Cor- 
 rections 
 should be made in any legal document, but if a mistake has occurred, 
 
 it should be lined out in the case of handwriting and crossed out 
 
 with a close repetition of the letter x in the case of typewriting. 
 
 Corrections like these must evidently have been made while the 
 
 document was being transcribed and before it was signed, while in 
 
 case of an erasure no one can say what was originally written, or 
 
 that the correction was not made after the signing of the document. 
 
 As a matter of precaution, it is advisable to have each signer of a 
 
 contract initial on the margin of the page on which it occurs each 
 
 correction that the document contains. This will show conclusively 
 
 that all the interested parties concurred in making the changes. 
 
 However, if a draft of an agreement contain many such corrections, 
 
 it is better to have it recopied before obtaining the signatures. 
 
108 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Fraudulent Changes 
 
 Sunday Laws 
 
 Deliberation 
 
 Counsel 
 
 Length of Discourse 
 
 Theoretically, every contract should be written on a single page, 
 for otherwise what is there to prevent a dishonest person from 
 removing all the pages except the last and replacing them with 
 similar pages containing matter prepared in his own interests? 
 Some people meet this objection by pasting together in one continu- 
 ous piece all the sheets of the document and marking in red ink on 
 the joined parts a waved line that passes alternately from one sheet 
 to the other. Others take the precaution to have all the parties to 
 the agreement initial each page of the bound sheets. The manifold- 
 ing of typewritten documents is a fairly good means for preventing 
 the making of fraudulent changes in such papers; but in case 
 that all copies but one are destroyed, this check would become 
 inoperative. 
 
 Contracts executed on Sunday are illegal. They may be agreed 
 upon and drafted on Sunday, but to be valid they must be dated and 
 signed on some other day of the week. 
 
 It is always advisable to let a contract "get cold" before 
 signing it; i. e., it should be set aside for at least one night and read 
 over carefully the next day by all the parties in order that each 
 may make sure that the document expresses exactly in every par- 
 ticular what has been agreed upon verbally, and that there is no 
 clause in it prejudicial to his interests. By giving the mind a rest 
 one is often able to comprehend a document more clearly and thus 
 save himself or his clients from future trouble or pecuniary loss. 
 
 After an engineer has prepared a contract and has added all the 
 finishing touches to it, he should submit the draft before it is signed 
 to a competent lawyer for his comment. This is better than letting 
 the lawyer draw it in the first place, for I contend that a competent 
 engineer can draft an engineering contract better than any lawyer; 
 nevertheless, an independent check is necessary for any important 
 document, and who so competent to check a legal paper as an 
 attorney! 
 
 When I started to write this address it was my intention to 
 conclude it with a short summary of the Law of Contracts, but 
 its dimensions are already far in excess of those I originally con- 
 templated, and perhaps, also, some of you may be thinking, in 
 excess of the legitimate limits of a lecture to long-suffering engineer- 
 ing students; consequently I shall instead advise you to study the 
 subject carefully in such standard works as those of Wait, Johnson, 
 and Parsons. I trust that listening to this address and studying 
 it later after it is printed will lead you better to comprehend and 
 
SPECIFICATIONS AND CONTRACTS. 109 
 
 to appreciate the dicta of legal authorities on the subject of Engineer- 
 ing Contracts. 
 
 Finally, I desire to call your attention to the fact that I have 
 by no means endeavored to cover in this address the entire ground 
 of this important subject, but only to show you its practical features 
 and how you may prepare yourselves by hard study to become expert 
 in the preparation of legal-engineering documents. 
 
Examples for Practice in Contract 
 
 Writing. 
 
 Cases for Practice It will not be necessary for the student, before starting to write 
 
 one of the contracts outlined in the following list, to obtain specimens 
 of actual contracts for similar cases, because all the necessary 
 instructions for doing such writing are given in the preceding 
 lecture. Nevertheless, it would do him no harm were he to peruse 
 in advance of beginning his work a few such contracts. He would 
 probably find, though, that they do not come up to the criterion of 
 excellence and thoroughness given in that lecture; and on this 
 account it would hardly pay either him or his professor to take 
 much trouble to obtain such specimens of actual contracts. 
 
 In case that the student finds that the "Conditions Precedent" 
 are not complete enough to enable him to draft a proper contract for 
 any one of the following "Cases," he will be at liberty to supply as. 
 he may see fit such omitted conditions. 
 
 CONDITIONS PRECEDENT FOR CONTRACTS TO BE DRAFTED' 
 FOR PRACTICE BY ENGINEERING STUDENTS. 
 
 CASE NO. 1. 
 
 Electric Street Rail- The firm of Winans & Jenkinson, Consulting Engineers, of 
 
 way and Viaduct 
 
 Washington, D. C, has agreed with the Capital Rapid Transit Com- 
 pany, of Richmond, Va. (a corporation of that State), to do all the 
 engineering work in connection with the exploiting of that Com- 
 pany's project to build an electric street railway line and a toll- 
 viaduct for vehicular and other traffic in the City of Richmond, and 
 in connection with the designing and construction of the said rail- 
 way and viaduct, in case that the Company be successful in raising 
 the necessary money. 
 
 The work of the Engineers is to be divided into three parts, viz.: 
 
 A. — A study of the project so as to determine the total cost of 
 
 construction, the probable income from traffic of all kinds, and the; 
 
 probable cost of operation and maintenance; also the preparation 
 
 of a report to the Company embodying the results of their investi- 
 
SPECIFICATIONS AND CONTRACTS. Ill 
 
 gations, which report is to be put in proper shape for submission 
 to capitalists in order to induce them to subscribe for the bonds 
 and other securities of the Company. 
 
 B, — Aiding the officers or representatives of the Company in 
 their interviews with capitalists and endeavoring in every legitimate 
 way to help finance the enterprise. 
 
 C. — Doing the entire engineering work connected with the 
 designing and construction of the proposed railway and viaduct, 
 including inspection of viaduct metal at the rolling-mills and the 
 .shops, the operating machinery at the places where it is manufac- 
 tured, and all other materials in the field, unless the Contractors 
 elect to have any of such materials inspected elsewhere, in which 
 case they shall be so inspected by the Engineers but at the Con- 
 tractors' expense. 
 
 The Company is to pay the Engineers thus: 
 
 For the preliminary work and report, twenty-five hundred 
 dollars ($2,500.00). 
 
 For aiding in financirg the project, nothing. 
 
 For designing, inspection, and superintendence of construction, 
 a fee of five (5) per cent, of the grand total cost of the finished 
 railway and viaduct, the division of the said fee being on the basis 
 of three (3) per cent, for plans and specifications and two (2) per 
 cent, for inspection and superintendence. 
 
 The Company is to do its best to secure from Richmond capital- 
 ists one-half of the money required for the entire enterprise. 
 
 If the report of the Engineers prove unfavorable, their contract 
 with the Company is to be closed, and they are to be paid at once 
 the twenty-five hundred dollars ($2,500.00) mentioned; but if 'r. 
 should be favorable to the viaduct and unfavorable to the railroad, 
 the Company is to endeavor to raise the money for the viaduct, and 
 in case of its success the Engineers are to design, inspect, and 
 supervise the construction of the said viaduct for five (5) per cent. 
 of the entire cost of the finished structure. 
 
 In case that the Engineers' report prove favorable, but the 
 Company fail to secure the necessary money and abandon the 
 enterprise, the Engineers are to receive a further payment of one 
 thousand dollars ($1,000.00), and their contract is then to be ter- 
 minated. 
 
 If, after the report is finished and the project is presented to 
 capitalists, it develop that the scheme can be materialized only by 
 the resignation of Winans & Jenkinson as engineers for the con- 
 
112 SPECIFICATIONS AND CONTRACTS. 
 
 struction of the railway and viaduct, they shall terminate their 
 contract with the Company and shall receive for so doing a further 
 payment of ten thousand dollars ($10,000.00). But should they be 
 retained on the viaduct and not on the railway, this ten-thousand- 
 dollar ($10,000.00) payment is to be reduced in the proportion that 
 the estimated cost of the railway bears to the estimated cost of the 
 railway and viaduct. 
 
 If, after the Company gives formal orders to the Engineers to 
 proceed with the preparation of plans to submit to contractors for 
 tendering, the project should be abandoned, the Engineers are to be 
 paid in full for all work done up to date, plus one-half of the balance 
 of their estimated total fee. 
 
 Draft the contract between the Company and the Engineers for 
 the above "Conditions Precedent/' 
 
 CASE NO. 2. 
 
 Viadnet The Engineers of the Capital Rapid Transit Company (men- 
 
 tioned in Case No. 1) have prepared plans and specifications for the 
 proposed viaduct and have called for bids thereon at schedule rates 
 for excavation and for all the various materials in place, with the 
 result that the Virginia Bridge Company, a corporation of the State 
 of West Virginia, and having headquarters at Wheeling, W. Va., has 
 submitted the most satisfactory tender, their bid being as follows: 
 
 For excavation, including back-filling, one dollar and sixty 
 cents ($1.60) per cubic yard. 
 
 For piles in place, sixty-two cents (62c.) per lineal foot, no 
 allowance being made for the ends cut off. 
 
 For substructure concrete in place, nine dollars and forty cents 
 ($9.40) per cubic yard. 
 
 For superstructure metal (excluding hand-rails, railway rails 
 and trolley-poles), erected and painted, four and two-tenths cents 
 (4.2c.) per pound. 
 
 For reinforced concrete to support the pavement, exclusive of 
 the reinforcing bars which are to be paid for as superstructure 
 metal, ten dollars and fifty cents ($10.50) per cubic yard. 
 
 For asphalt pavement, including a ten-year guarantee for repairs, 
 one dollar and fifteen cents ($1.15) per square yard. 
 
 For hand-rails in place, two dollars and thirty cents ($2.30) per. 
 lineal foot of hand-rail. 
 
 For railway rails in place, including bonding, one dollar and 
 twenty-five cents ($1.25) per lineal foot of single track. 
 
SPECIFICATIONS AND CONTRACTS. 113 
 
 For drainage down-spouts in place, ten cents (10c.) per lineal 
 foot of down-spout. 
 
 The trolley-poles and the trolley-line are not to be included in 
 this contract. 
 
 The entire work is to be completed within seven (7) months 
 from the date of signing the contract, under a forfeit of fifty dollars 
 ($50.00) per day, which forfeit has not been mentioned in the 
 specifications that are to form a part of the contract. 
 
 The schedule prices to be adopted in making partial payments 
 for all work as it progresses are to be determined by the Engineer. 
 
 The amount of bond required is forty thousand dollars 
 ($40,000.00). 
 
 Draft the contract between the Company and the Contractor for 
 the preceding conditions. 
 
 CASE NO. 3. 
 
 The Kansas City Southwestern Railway Company, a corporation Replacing Bridge 
 of the State of Missouri, being desirous of replacing four (4) old 
 and seriously overloaded, single-track, steel spans of two hundred 
 (200) feet each, at four (4) different places on the line of its road, 
 has had four (4) new, riveted, through spans manufactured by the 
 Pennsylvania Steel Company, all the metal for which spans, includ- 
 ing an ample supply of rivets and pilot nuts for driving the pedestal 
 pins, is to be delivered by April 15, 1906, at a certain point on the 
 line of the Company's railway; and has had its Consulting Engineers 
 call for bids for the erection of the said metal and for the furnish- 
 ing and putting in place of the deck-timbers and for laying the 
 rails that are furnished by the Railway Company, the Contractor 
 having to furnish and put in place falsework strong enough to 
 carry safely the passing trains, and having to take down, mark, and 
 store the metal of the old spans. 
 
 The Central Bridge Company, of Kansas City, Mo., a corporation 
 of the State of Missouri, made the most satisfactory tender, which 
 was as follows: 
 
 For falsework in place, strong enough to carry safely the Com- 
 pany's trains, seven dollars and twenty-five cents ($7.25) per lineal 
 foot of structure. 
 
 For taking down, marking, and storing the metal of the old 
 spans according to the directions of the Engineer, two dollars and 
 eighty cents ($2.80) per lineal foot of structure removed. 
 
 For erecting and painting the new metal-work of the super- 
 structure, eight-tenths of a cent (0.8c.) per pound. 
 
114 SPECIFICATIONS AND CONTRACTS. 
 
 For furnishing and putting in place the timber for the decks, 
 thirty-five dollars ($35.00) per M. feet B. M. 
 
 For laying rails, fifteen cents (15c.) per lineal foot of single 
 track. 
 
 Provided that the metal is delivered at the bridge-sites by May 
 1, 1906, the last of the four spans is to be completed and ready for 
 traffic by October 1, 1906; and in case of delay in the delivering of 
 the said metal, the time for completion is to be properly extended. 
 
 The Contractor will not be allowed to interfere with the passage 
 of any passenger train more than one hour or with that of any 
 freight train more than two (2) hours, unless special written per- 
 mission to the contrary be given by the Company. 
 
 The schedule prices for partial payments on the work as it 
 progresses are to be determined by the Engineer. 
 
 A bond of twenty-five thousand dollars ($25,000.00) will be 
 required as a guarantee that the Contractor will comply with all the 
 requirements of the specifications and contract. 
 
 The forfeiture for non-completion of the work on time shall be 
 fifty dollars ($50.00) per day per span; but this forfeiture shall not 
 be exercised by the Company unless the Engineer deem that such 
 enforcement is just and called for by either the Contractor's wilful 
 delay or the Company's actual loss. 
 
 Draft a contract between the Railway Company and the Con- 
 tractor for the preceding conditions, taking special care to protect 
 the Company against detention or wreckage of trains. 
 
 CASE NO. 4. 
 
 Promoters' Agree- Two engineers of New York City, John Brown and James Smith, 
 
 ment 
 
 desire to enter into a contract to prosecute a general engineering 
 
 practice, starting on January 1, 1907. 
 
 Brown is the better situated financially, consequently he is to 
 advance ten thousand dollars ($10,000.00) to the firm as a working 
 * capital and is to receive six (6) per cent, interest on it, but each 
 
 year Smith must put one thousand dollars ($1,000.00) of his share 
 of the net earnings of the firm into the working fund, and Brown 
 is to draw out annually a like amount until their two deposits are 
 equalized. Brown receiving each year six per cent, on the excess of 
 his deposit over that of Smith. 
 
 For the first year Brown is to receive seventy-five (75) per cent, 
 -of the total net profits and Smith twenty-five (25) per cent., and each 
 year Brown's share is to decrease five (5) per cent, and Smith's is 
 
SPECIFICATIONS AND CONTRACTS. 115 
 
 to increase that amount until the division becomes equal. But 
 should Smith fail for any year to deposit his one thousand dollars 
 ($1,000.00), no increase for that year will he allowed him; but the 
 next year he shall have the privilege of depositing two thousand 
 dollars ($2,000.00) and receiving an increase of ten (10) per cent. 
 In case of failure for two consecutive years to deposit the amount 
 agreed upon. Smith shall not have the privilege of depositing three 
 thousand dollars ($3,000.00) at once and claiming an increase of 
 fifteen (15) per cent., but the amount of his deposit at any one time 
 shall be limited to two thousand dollars ($2,000.00), and his corre- 
 sponding increase in percentage shall be limited to ten (10). 
 Should the business of the firm run so low in any year that Smith's 
 share of the net profits is less than twelve hundred dollars 
 ($1,200.00), Brown out of his private funds shall pay Smith the 
 difference between twelve hundred dollars ($1,200.00) and Smith's 
 said share. 
 
 At the outset the entire equipment of the office, valued at five 
 thousand dollars ($5,000.00), is to be furnished by Brown, and any 
 additional equipment required from time to time is to be paid for 
 cut of the ofiice earnings; and when the partnership is placed upon 
 an equal basis. Smith shall pay Brown twenty-five hundred dollars 
 ($2,500.00), with interest thereon at six (6) per cent, from the date 
 of the forming of the partnership until that of the equalization, after 
 which Smith shall be a half-owner in all of the office equipment. 
 Before the partnership is equalized Brown may dissolve it at any 
 time by giving Smith six (6) months' notice in writing and paying 
 him one thousand dollars ($1,000.00) and his regular share of the 
 net profits on all unfinishd work, Smith having the option of taking 
 at once in cash the amount of the said net profits as estimated by 
 Brown or of waiting for the completion of the said unfinished work 
 and receiving then his exact share of the said net profits. 
 
 Smith may terminate the contract at any time by giving Brown 
 six (6) months' written notice and waiving all claim to profits on 
 unfinished work; but should he fail to give the six months' notice, 
 he is to pay Brown five hundred dollars ($500.00) for his failure 
 to do so. 
 
 In the event of the death of either of the partners, the survivor 
 shall finish all business uncompleted at the time of the said death, 
 and shall turn over to the estate of his deceased partner that 
 partner's share of the net profits on such unfinished business, figured 
 according to the rate of division ruling at the time of said death. 
 
116 
 
 SPECIFICATIONS AND CuNTRACTS. 
 
 ^jinployraent 
 
 Promoter's Agree- 
 ment 
 
 In case of Smith's death before the formation of the equal part- 
 nership his estate shall have no claim against Brown for any share 
 of the office equipment; but in case that his death occur after the 
 formation of the equal partnership Brown shall pay to his estate 
 one-half of the value of the said outfit as appraised by three 
 arbitrators. 
 
 In case of Brown's death before the formation of the equal 
 partnership, Smith shall have the right to purchase the entire ofiice 
 equipment by paying to Brown's estate the sum of five thousand 
 dollars ($5,000.00); but if Brown's death occur after the formation 
 of the equal partnership. Smith must pay to his estate one-half of 
 the appraised value of the said equipment. 
 
 Draft the contract between the two partners upon the preceding 
 basis. 
 
 CASE NO. 5. 
 
 Augustus Hurlburt, of Lexington, Mo., a man of some means, has 
 conceived the idea of building a toll bridge over the Missouri River 
 at his city, and desires to engage the services of Henry Jones, a civil 
 engineer, of St. Louis, Mo., who makes a specialty of bridgework, to 
 assist in the financing of the enterprise and to do all the engineering 
 work required from start to finish. As Jones is without means, 
 Hurlburt is to furnish all the cash required to materialize the project, 
 but Jones is to receive no personal compensation until the enter- 
 prise is financed, after which he is to get a net fee of two and one- 
 half (2.5) per cent, of the grand total cost of the entire structure, 
 payable monthly proportionately to the value of the work done on 
 actual construction. In addition to this he is to receive twenty (20) 
 per cent, of whatever portion of the bridge Company's stock that 
 Hurlburt has been able to retain in making his agreement with the 
 capitalists. 
 
 Draft an agreement between the two parties on the above 
 basis and define carefully what each party is to do from start to 
 finish. 
 
 CASE NO. 6. 
 
 William Simpson, a promoter, has developed a project for 
 building a concrete dam across Arapahoe Creek, in Colorado, and 
 irrigating thereby a large tract of land. He has organized a stock 
 company in Colorado and called it the Arapahoe Irrigation and 
 Development Company, the amount of the capital stock, for the 
 purpose of organization only, having been fixed at ten thousand 
 dollars ($10,000.00). 
 
SPECIFICATIONS AND CONTRACTS. 117 
 
 To build the dam and to purchase about one-half of the land 
 to be irrigated will require cash to the amount of two million, five 
 hundred thousand dollars ($2,500,000.00), including a fair profit on 
 the construction and purchase. He desires to expand his organiza- 
 tion by increasing his capital stock to three million dollars 
 ($3,000,000.00), issuing bonds to that amount, and disposing of as 
 many of these securities as is necessary to raise the two and one- 
 half million dollars ($2,500,000.00) in cash. 
 
 He takes the project to the New York bankers, Messrs. Fish & 
 Robbins, who agree to undertake the underwriting of the bonds and 
 to subscribe liberally themselves. The bonds are to bear five (5) 
 per cent, interest, and the lowest figure at which they are to be sold 
 is eighty-five cents (85c.) on the dollar. Fish & Robbins are to 
 make a portion of their profit on the sale of the bonds at some higher 
 figure than this. Simpson is to retain fifty-five (55) per cent, of 
 the capital stock, and the remaining forty-five (45) per cent, is to 
 be turned over to Fish & Robbins, who will part with as little as 
 they can when getting the bonds underwritten, and will retain the 
 balance as profit. 
 
 Fish & Robbins also agree to advance money at six (6) per cent, 
 interest from time to time to Simpson up to a limit of three hundred 
 thousand dollars ($300,000.00), in order to enable him to carry on 
 the work of construction and to make the first payments on lands 
 purchased. For this loan they are to have a one-quarter interest in 
 Simpson's profit on the purchase of land and construction of dam 
 and irrigating ditches; for it is Simpson's intention to do all the 
 construction himself and to purchase land that will lie under the 
 ditch as cheaply as he can and turn it over to his Company at ten 
 dollars ($10.00) per acre. This arrangement is to be well under- 
 stood in advance by all parties interested in the project. To the 
 owners of the remaining land lying under the ditch the Company 
 will later on sell water privileges at as high a price as it can obtain. 
 The Company will begin by farming some of its own lands, and by 
 leasing others to farmers, with the intention of ultimately selling 
 all its lands at a great profit and furnishing water for them at a 
 fair price. 
 
 The underwriters are to advance money on the bonds upon 
 certificates of an engineer appointed by them to supervise the work, 
 stating that certain lands have been purchased and paid for in full, 
 and that actual work to the value of the amounts indicated has been 
 done, including a proper profit for the Contractor. In other words. 
 
118 SPECIFICATIONS AND CONTRACTS. 
 
 the subscribers to the bonds will advance money only for an equiva- 
 lent cash expenditure for work or land. 
 
 The entire engineering is to be done by and under the 
 Engineer appointed by the underwriters; but the complete detailed 
 plans and specifications are to be agreed to by Simpson, the Arapahoe 
 Irrigation and Development Company, and the underwriters 
 (through their Engineer and a special committee) before any money 
 Is advanced for construction or purchase. 
 
 Because of this arrangement Simpson will have to advance out 
 of his own pocket whatever money is necessary for the preliminary 
 engineering work and for the preparation of the plans and specifica- 
 tions; but the amount of such expenditure is to be refunded to him 
 just as soon as the final contract is entered into between the Com- 
 pany and the underwriters. All engineering expenses are to be 
 borne by the Company, and are to be considered a part of the 
 construction expense. 
 
 Simpson is to be paid by the Company for his work at the 
 following rates: 
 
 For the concrete foundations of dam below ordinary water- 
 level, as determined in advance by the Engineer, including the 
 necessary excavation and back-filling, twenty-two dollars ($22.00) 
 per cubic yard. 
 
 For the remaining concrete of the dam and for all other concrete 
 work on the entire job, fourteen dollars ($14.00) per cubic yard. 
 
 For cast-iron pipe in place, including the lead calking of the 
 joints, five and two-tenths cents (5.2c.) per pound of pipe. 
 
 For steel gates and other steel constructions in place, six cents 
 (6.0c.) per pound. 
 
 For timber of flumes, trestles, and other constructions in place, 
 fifty-five dollars ($55.00) per M. feet B. M. 
 
 For all earthwork, measured in excavation, excepting only the 
 excavation for the base of the dam, thirty-three cents (33c.) per 
 cubic yard, provided the haul does not exceed five hundred (500) 
 feet. 
 
 For overhaul of earthwork, one cent per cubic yard for each 
 one hundred (100) feet of haul exceeding five hundred (500) feet. 
 
 For all other materials or work not included in this list, actual 
 cash cost, plus fifteen (15) per cent, for profit. 
 
 Upon the preceding hypotheses the student will please draft 
 the following papers: 
 
 A. — Contract between Simpson and Fish & Robbins. 
 
SPECIFICATIONS AND CONTRACTS. 119 
 
 B. — Contract between Simpson and the Arapahoe Irrigation and 
 Development Company. 
 
 C. — Contract between the Arapahoe Irrigation and Development 
 Company and the underwriters. 
 
 CASE NO. 7. 
 
 Rufus Thompson, hydraulic engineer and contractor, of Minne- Promoter's Agree. 
 
 ment 
 apolis, Minn., has developed a project for building a complete system 
 
 of water-supply and sewerage for the City of Hiawatha, Wis., and 
 has entered into a provisional contract with that city, according to 
 which it is to pay a certain lump sum for the sewerage system and 
 certain hydrant rentals for city water, and is to give to the com- 
 pany that Mr. Thompson has organized the exclusive privilege for 
 thirty (30) years of supplying the citizens of the said city of 
 Hiawatha with water. The construction of the entire system of 
 water-works and sewerage is to be subject to the inspection and 
 acceptance of the City Engineer of Hiawatha, who will act as Con- 
 sulting Engineer on the work. 
 
 A liberal estimate of the entire cash cost of the water-supply 
 and sewerage systems proposed is one million, two hundred thousand 
 dollars ($1,200,000.00). 
 
 Mr. Thompson has already organized under the laws of the 
 State of Wisconsin, for the sole purpose of materializing this project, 
 the Hiawatha Water-Supply and Sewerage Company, the amount 
 of the capital stock being fixed at first at twenty thousand dollars 
 ($20,000.00), with the intention of increasing it later to one million, 
 five hundred thousand dollars ($1,500,000.00) and bonding the 
 property to a like amount. 
 
 Mr. Thompson has taken the project to the New York bankers, 
 Solomon, Lowenstein & Co., who have agreed to underwrite the 
 bonds to the amount of six hundred thousand dollars ($600,000.00) 
 and to assume the underwriting of the remainder. The bonds are 
 to be sold to Solomon, Lowenstein & Co., at eighty-two cents (82c.) 
 on the dollar, and they are to obtain as much higher a price as they 
 can when dealing with the other underwriters. Solomon, Lowenstein 
 & Co. are to part with as little as possible of the capital stock of 
 the Company when dealing with the other underwriters, in no case 
 giving more than forty dollars ($40.00) in stock with each one 
 hundred dollars ($100.00) in bonds; but with their own purchase of 
 six hundred thousand dollars ($600,000.00) of bonds they are to 
 receive three hundred thousand dollars ($300,000.00) in stock. 
 
120 SPECIFICATIONS AND CONTRACTS. 
 
 After the entire bond issue has been subscribed, whatever stock 
 has been left over is to be divided between Mr. Thompson and the 
 bankers in the ratio of two-thirds (%) to the former and one-third 
 (%) to the latter; but all the stock controlled by the said Thompson 
 and the said bankers is to be pooled or held in trust for a term of 
 ten (10) years, or until such a time as the Company has declared 
 two (2) successive annual dividends of not less than six (6) per 
 cent, on the entire capital stock. 
 
 The trustees for the pool are to be Mr. Thompson and Mr. 
 Lowenstein, and their headquarters as trustees are to be in the 
 New York office of Solomon, Lowenstein & Co. 
 
 Mr. Thompson is to be retained, if possible, as Chief Engineer 
 of the enterprise, and is to be paid by the Company for his services 
 and for those of his assistants in doing the entire engineering, 
 inspection, and superintendence of construction five (5) per cent, 
 of the total cost of the completed work, including right of way and 
 all other legitimate items of expense. 
 
 Should, however, the services of Mr. Thompson be objectionable 
 to the underwriters, who may desire to appoint an engineer of their 
 own, Mr. Thompson is not to be made the Chief Engineer, but in 
 lieu of such an appointment is to receive from Solomon, Lowenstein 
 & Co. either twenty-five thousand dollars ($25,000.00) in cash, or 
 one hundred and twenty thousand dollars ($120,000.00) in the stock 
 of the Company, at his option. 
 
 Draft the contract between the promoter and the bankers upon 
 the basis just indicated. 
 
 Draft also a contract between the Company and Mr. Thompson 
 for the engineering work. 
 
 CASE NO. 8. 
 
 Ocean Pier The Mexican Transcontinental Railway Company, a corporation 
 
 of the Republic of Mexico, having headquarters at Mexico City, 
 desires to let a contract for an ocean pier to be built in the harbor 
 of Vera Cruz, Mexico, and has had prepared complete detail plans 
 and specifications by its Consulting Engineers ready for both letting 
 the contract and actual construction. The Consulting Engineers' 
 estimated total cost of the finished structure, exclusive of the 
 engineering fee, is two hundred and five thousand dollars 
 ($205,000.00). 
 
 Bids have been called for, but owing to the almost constant 
 presence of yellow fever in Vera Cruz none of the bidders was will- 
 
SPECIFICATIONS AND CONTRACTS. 121 
 
 ing to name a lump sum for the work at all near the Engineers' 
 ■estimate. 
 
 The lowest bidder was the Central Bridge Company, of Kansas 
 City, Mo., who asked two hundred and sixty thousand dollars 
 ($260,000.00) for the work, but stated in their tender that they would 
 ibe willing to undertake the contract at actual cash cost, plus twenty 
 (20) per cent, for profit. 
 
 A conference between the Consulting Engineers and the pro- 
 prietors of the bridge company resulted in the following compro- 
 mise, which was submitted to the President of the Railway Company 
 and accepted by him: 
 
 The Contractors are to furnish free of charge all the plant 
 necessary to build the pier, and no allowance is to be made for 
 either its use or for its deterioration while employed on the work; 
 but the cost of the repairs to it during construction is to be con- 
 sidered as a portion of the cost of the work, and is to be allowed 
 for in the Engineers' monthly estimates. 
 
 The Contractor is to be paid the actual cost of the entire work, 
 including freight on materials and plant to Vera Cruz and freight 
 on plant back to Kansas City, plus seventeen (17) per cent, on the 
 said entire cost as profit, provided that the total amount of the said 
 profit does not exceed thirty-two thousand dollars ($32,000.00). 
 
 All items of labor, materials, transportation of men, materials, 
 and plant between the United States and Vera Cruz, traveling 
 expenses of the Contractors and of their salaried employees, insur- 
 ance of every kind on men, plant, and materials that it is customary 
 for American contractors to pay when doing similar work in 
 foreign countries, stamps for documents, and taxes of all kinds 
 shall be considered as legitimate expenses and shall be allowed by 
 the Engineers. As the structure is located in the city, the workmen 
 will have to find board and lodgings for themselves, unless the Con- 
 tractors desire to house and board the men, which they are at 
 liberty to do as their own private venture. 
 
 The Company will not allow any sick or incapacitated men to be 
 kept on the pay-roll, except by written permission of the Engineers 
 for men who have been hurt on the work and who are willing to 
 waive in writing all claims for damages, provided they are kept on 
 the pay-roll until well enough to resume work. 
 
 The Company will not pay for any medical attendance, medicine, 
 or hospital charges for their Contractors or any of their employees; 
 and on this account the Contractors are at liberty to enter into 
 
122 SPECIFICATIONS AND CONTRACTS. 
 
 contract with all the workmen whom they send from the United 
 States, or with European or American workmen engaged in Mexico 
 to insure them against illness (in any way that seems best to the 
 Contractors) by deducting a certain fixed percentage from all the= 
 said workmen's wages; but this arrangement shall not apply in the 
 case of Mexican workmen. 
 
 The decision as to what is and what is not "Plant" is to be left 
 entirely to the Engineers, the intent being to class as materials for 
 the work everything that is likely to be used up or expended 
 thereon, and to class as plant that part of the Contractors' working 
 outfit that will be worth returning to the United States after the pier 
 is finished. 
 
 The Engineers' estimates are to be made in American money, 
 but according to the laws of Mexico the Contractors' accounts must 
 be kept in Mexican currency. The rate of exchange to be used by 
 the Engineers in reducing Mexican to American currency shall be 
 that ruling in the City of Mexico on the date of the estimate. 
 
 The number of men employed and their salaries or wages shall 
 be subject to the approval of the Engineers, who shall also convince 
 themselves of the men's fitness for the work. 
 
 The Engineers are to approve of the Contractors' plant before 
 work is started, and shall order more to be supplied if subsequent 
 developments show that it is necessary. 
 
 The Engineers are to approve of all materials purchased by the 
 Contractors for use on the work; and all expense bills are to be 
 vouchered before being presented for approval. 
 
 All pay-rolls are to be signed by the payees in the presence of 
 a duly authorized representative of the Engineers, and two" copies 
 thereof are to be made and attested by a notary. 
 
 The Company shall not be held liable for the failure of the 
 Contractors to comply with any of the Mexican laws, especially those 
 relating to the stamping of documents. 
 
 Owing to the high rates charged by the casualty insurance com- 
 panies on work done in Mexico, the Company will itself insure the 
 Contractors against accidents, but the latter must report all casual- 
 ties immediately in writing to the Engineers and to the President of 
 the Company. Minor accidents are to bs settled for as quickly as 
 possible by the Contractors after consultation with the local repre- 
 sentative of the Engineers and after receiving his approval; but nO' 
 individual settlement exceeding two hundred dollars ($200.00) in. 
 
SPECIFICATIONS AND CONTRACTS. 123 
 
 gold shall be made without special written permission from the 
 Company. 
 
 The Contractor is to provide a bond of fifty thousand dollars 
 ($50,000.00) gold; but the Company will allow the premium thereon 
 to go into the Engineers' estimates as a part of the cost of the work. 
 
 Draft a contract between the Company and the Contractors to 
 meet all the preceding conditions and any other conditions that 
 ought to be covered in such a document. 
 
 CASE NO. 9. 
 Assuming the conditions given in the last case, draft a contract Contract for Services 
 between the Engineers, Walters & Hendricks, of Philadelphia, and 
 the Railway Company so as to cover all the peculiar conditions of 
 the case, as well as all the usual conditions included in contracts 
 for doing engineering work in the United States. 
 
 The payments to the Engineers are to be in American money 
 as follows: 
 
 For complete detailed plans and specifications, six thousand 
 dollars ($6,000.00). 
 
 For inspection of metal-work at mills and shops and for super- 
 vising the loading of it on vessel and unloading it at Vera Cruz, 
 also for the checking of shop-drawings, one dollar and fifty cents 
 ($1.50) per ton. 
 
 For supervision of construction in the field, the actual total 
 cash cost thereof to the Engineers, including all the traveling 
 expenses to and fro, plus a lump sum of two thousand dollars 
 
 ($2,000.00). 
 
 The pier to be designed is to be five hundred (500) feet long 
 and seventy-five (75) feet wide. 
 
 The deck is to consist of six (6) -inch creosoted planks supported 
 by rolled I-beam stringers and cross-girders resting on screw-piles. 
 There are to be two railroad tracks at the middle of the structure 
 extending over its whole length. The live load per square foot of 
 floor is to be taken at four hundred (400) pounds. 
 
 CASE NO. 10. 
 
 Joseph Mason, a railroad contractor of Tombstone, Ariz., has Syndicate 
 conceived the project of building a railroad about ninety miles 
 long to the Alvarado Mine, which has lately been opened and which 
 shows great quantities of low-grade ore that would have to be trans- 
 ported to Tombstone on the way to a smelter. The line projected 
 
124 SPECIFICATIONS AND CONTRACTS. 
 
 by Mason's reconnaissance would pass near several high-grade mines 
 and several large ranches, from all of which business for the railroad 
 could be obtained. In addition to this there would probably be 
 other business from new mines that would undoubtedly be opened 
 and from other ranches that would be located close to the railroad. 
 
 Mr. Mason has called in Adolf Macklin, a railroad engineer of 
 Tombstone, and Arnold Potter, of Phoenix, Ariz., who has been 
 successful in launching several large construction projects in that 
 territory, to aid him in the materialization of the project. 
 
 These three parties constitute what may be termed the 
 "Promotion Syndicate." 
 
 The arrangement between the members of the Syndicate is that 
 Macklin is to survey the route, make plans, profile, estimate of 
 cost, and complete specifications for letting the contract, and prepare 
 a prospectus to submit to capitalists, all at the expense of Mason; 
 but Macklin himself is to receive no salary. 
 
 A stock company is then to be formed at Mason's expense, the 
 amount of the capital stock at the outset being limited to ten thou- 
 sand dollars ($10,000.00), consisting of one thousand (1,000) shares 
 of ten dollars ($10.00) each. With the exception of one share for 
 each of the other incorporators of the Company, Mason is to hold 
 in his own name all of the stock until the project is about to be 
 financed, when other arrangements will be made. 
 
 After the Engineer's preliminary work is done, the members of 
 the Syndicate are to determine a proper contract price per mile of 
 road for building and equipping it complete, allowing an estimated 
 profit of twenty (20) per cent.; and Mason is to take the contract 
 for building the entire road at these figures after the necessary 
 capital is raised. 
 
 Macklin is to have the contract for all the engineering work 
 from start to finish, is to pay every expense connected therewith, 
 and is to receive as his gross compensation one thousand dollars 
 ($1,000.00) per mile of main line and five hundred dollars ($500.00) 
 per mile for sidings and branch lines, provided that the project is 
 materialized. 
 
 If it is, Macklin is to refund to Mason out of the engineering 
 fee one-half of the total cost of the entire work involved in making 
 the surveys, plans, profiles, estimates, and prospectus. 
 
 Potter is to make what commission he can out of the bankers. 
 In dealing with the latter the Syndicate is to reserve for its members 
 as much as possible of the capital stock, and what is saved is to h& 
 
SPECIFICATIONS AND CONTRACTS. 125 
 
 divided among them on the basis of one-half (Vo) to Potter and 
 one-quarter m,) each to Mason and Macklin. 
 
 As soon as everything is ready to submit to bankers, Potter and 
 Macklin are to make a trip at Mason's expense to some of the 
 principal money centers of the country, and are to use every legiti- 
 mate endeavor to float the enterprise, and are to continue their 
 work until either success is attained or the expenses of their trip 
 amount to six thousand dollars ($6,000.00), after which it is to be 
 optional with Mason as to whether they shall continue their efforts 
 or abandon the enterprise. If the latter be successful. Potter and 
 Macklin must each refund to Mason one-third (Vs) of the total 
 amount advanced by the latter for organizing the Company and 
 financing the scheme. 
 
 Draft a contract among the three members of the Syndicate 
 upon the preceding basis. 
 
 CASE NO. 11. 
 
 The Syndicate mentioned in Case No. 10 has been successful Guaranty 
 i^ its efforts. Macklin found that twenty-four thousand dollars 
 ($24,000.00) per mile of main line, fifteen thousand dollars 
 ($15,000.00) per mile of branch line, and nine thousand dollars 
 ($9,000.00) per mile of siding would cover the entire cost of 
 construction and equipment, and would allow a probable profit of 
 twenty (20) per cent; and Mason agreed to accept the contract at 
 these rates. 
 
 In round figures the number of miles of main line proved to 
 be ninety-two (92), the number of miles of branch lines nineteen 
 (19), and the number of miles of sidings and terminal tracks 
 ten (10). 
 
 The Tombstone Alvarado Railway Company was organized in 
 Arizona as agreed upon, then Potter and Macklin went to New York, 
 vvhere, after great efforts, they succeeded in inducing the banking 
 firm of Lieberman & Co. to underwrite the bonds. It was decided 
 between the Bankers and the Syndicate to issue five (5) per cent, 
 mortgage bonds to the amount of three and a half million dollars 
 ($3,500,000.00) and stock to a like amount. The Bankers were to 
 take the bonds at eighty (80) cents on the dollar and were to 
 receive sixty (60) per cent, of the capital stock. 
 
 They were to pay Potter a commission of ten (10) per cent, of 
 their net profit on the sale of the bonds, but were not to give him 
 .any portion of their share of the stock. 
 
126 
 
 SPECIFICATIONS AND CONTRACTS. 
 
 Bond 
 
 Copartnership 
 
 The Bankers also agreed to advance money to Mason from time 
 to time up to an amount of two hundred thousand dollars 
 ($200,000.00) to enable him to carry on the construction; because 
 as usual the proceeds of the sale of the bonds were not available 
 for payment to the Contractor until after certain amounts of work 
 were finished and certified to by both the Company's Engineer and 
 a supervising engineer appointed by the Bankers to see that the 
 money be properly expended. For this accommodation the Bankers 
 are to receive five (5) per cent, interest on the money advanced and 
 ten (10) per cent, of the Contractor's net profit on the entire work, 
 as shown by his books, which are always to be open to the inspec- 
 tion of the Bankers' representatives. 
 
 Draft a contract between the Bankers on the one hand and 
 the Railway Company and the members of the Syndicate on the 
 other, so as to embody all the pertinent conditions given in this case 
 and in the preceding one. 
 
 Draft also the necessary contract between Mason, the Contractor, 
 and the Tombstone Alvarado Railway Company, making the said 
 Contractor give the Company a surety company bond to the amount 
 of two hundred thousand dollars ($200,000.00), guaranteeing the 
 faithful performance of the work. 
 
 CASE NO. 12. 
 
 Referring to the last "Case," draft a contract between the con- 
 tractor, Joseph Mason, and the North American Surety Company 
 of New York City for the two hundred thousand dollar ($200,000.00) 
 bond required. 
 
 N. B. — It would be well for the student, before attempting this,, 
 to procure blank forms of bonds from two or three surety 
 companies. 
 
 CASE NO. 13. 
 
 • Two engineering firms of Pittsburg, Pa. — viz., Davis & Wilkin- 
 son, who make a specialty of electric railways, and Harris & 
 Elmore, who make a specialty of bridgework — have concluded to- 
 join forces to do the entire engineering work on an important elec- 
 tric railway that is to be built from Pittsburg to a neighboring city, 
 and that is to include an expensive bridge over the Monongahela. 
 River, besides a number of smaller bridges on the line. 
 
 Harris & Elmore are to attend to all the bridgework and Davis 
 & Wilkinson to the balance of the engineering; but in order to 
 save duplicating field parties, D. & W.'s employees are to supervise 
 
SPECIFICATIONS AND CONTRACTS. 127 
 
 the erection of the small bridses along the line at H. & E.'s 
 expense. 
 
 The combined firms are to receive from the Railroad Company 
 lor their services a gross fee of five (5) per cent, of the total cost 
 of construction, which fee is to be divided between the two firms 
 according to the ratio that the cost of work done under the juris- 
 diction of each bears to the grand total cost of construction. 
 
 All payments on account to the combination are to be divided 
 by these ratios, using the estimated total costs, irrespective of 
 whether the said payments on account relate to bridgework or to 
 other work. 
 
 It is understood that this combination of interests applies to 
 this particular piece of construction only, and that the two firms 
 are at liberty to do any other work they choose at the same time 
 that the joint work is in progress, provided, however, that neither 
 firm permits other business to interfere with the proper prosecution 
 of the said joint work. 
 
 Draft the proper contract between the two firms. 
 
 CASE NO. 14. 
 
 The Government of British Columbia is about to call for bids Copartnership 
 upon the substructure of a large bridge to be built across the Fraser 
 River. Armitage & Morris are an old-established firm of con- 
 tractors who have executed great constructions in the Province of 
 British Columbia, and have become wealthy thereby; but they have 
 had no experience in sinking piers by open-dredging or in driving 
 long piles by means of the water-jet. On this account they desire 
 to associate with them for this special contract Mr. Beaupere, an 
 engineer of experience in the contracting part of bridge construc- 
 tion, under the firm name Armitage, Morris, & Beaupere. 
 
 They agree to pay him a salary of two hundred dollars 
 ($200.00) per month from start to finish and to give him besides 
 a ten (10) per cent, interest in the net profits on the contract, 
 providing that there are any net profits, his monthly salary being 
 counted as a part of the expense of construction. 
 
 But if there are no net profits, Beaupere is not to stand any 
 share of the loss on the contract. 
 
 Armitage & Morris are to turn in all the plant they have that 
 can be used to advantage on the work, and are to purchase any 
 additional plant that may prove to be necessary. When the con- 
 tract is fulfilled, whatever remains of the said extra plant is to be 
 
128 SPECIFICATIONS AND CONTRACTS. 
 
 appraised by a party or parties agreed upon by the principals, and 
 the value thereof thus determined is to be added to the figured 
 profits on the work, the first cost of the new plant having been com- 
 puted as a part of the cost of construction. 
 
 If, before the substructure of the bridge is completed, the 
 Government decides to give the firm the contract for building the 
 approaches to the bridge or any portion of them, Beaupere is to 
 share in the profits on this additional work; but if the said approach 
 work is awarded the firm after the substructure is finished and 
 accepted by the Government's engineers, Beaupere is not to have 
 any interest in the additional contract. 
 
 Should at any time Beaupere desire to drop out of the combina- 
 tion, he may do so by giving the other partners ten (10) days' notice, 
 in which case he is to receive his salary in full to the date of his 
 leaving, plus cash to the amount of his share of the estimated profit 
 en the job up to that time, provided that the parties in interest can 
 agree as to what is a proper estimate of the amount of the said 
 profit. If they cannot so agree, the division of the profits is to be 
 postponed until the completion of the entire work contracted for at 
 the time of the dissolution of the special partnership, the amount 
 of profit at the said time being prorated from the actual total 
 profit in the proportion that the value of the entire work done 
 up to the date of the Government Engineer's last monthly estimate 
 bears to the total value of the construction as shown by his final 
 estimate. 
 
 But should at any time Armitage & Morris desire to sever the 
 special partnership, or in other words dispense with Beaupere's 
 assistance, they can do so by giving him ten (10) days' notice and 
 paying him an amount to be agreed upon by them all as a proper 
 compensation in full. Failing such an agreement, Beaupere is to be 
 paid his salary in full to the date of the sundering of relations; 
 and after the contract is completed he is to receive his full share of 
 the actual net profits, plus one-half of the remaining salary that he 
 would have earned had he remained till the finishing cf the work, 
 the said salary being counted as cost of construction when the net 
 profits are being computed. 
 
 In the event of the death of Beaupere before the contract is 
 completed his salary shall immediately cease, and his estate shall 
 be entitled to receive at once his share of the estimated profits up 
 to the date of the last monthly estimate; and after the contract is 
 finished one-half of the balance of his share of the actual total profit. 
 
SPECIFICATIONS AND CONTRACTS. 129 
 
 If an agreement cannot be reached as to the proper amount of esti- 
 mated profit at the time of Beaupere's death, the settlement shall be 
 postponed until after the entire work is finished and paid for; and 
 in this case six (6) per cent, interest shall be allowed from the 
 date of said death till the time of final settlement upon that portion 
 of the profits finallj^ determined to have been due at the said date 
 of death. 
 
 In case of the death of either Armitage or Morris before the com- 
 pletion of the work, the executors or heirs of the deceased shall 
 supply a competent man at their expense to complete the personal 
 work of the deceased; and in consequence the division of profits 
 of the special partnership will not be affected by such a demise. 
 
 If both Armitage and Morris should die before the completion 
 of the work, their executors or heirs must supply at their expense 
 competent substitutes to do the personal work of the deceased; and 
 at the time of final settlement of the affairs of the special partner- 
 ship Beaupere shall receive twenty (20) instead of ten (10) per 
 cent, of the total net profits, the increase being allowed as compen- 
 sation for the extra work and responsibility devolving upon him 
 because of the death of the two partners. 
 
 Draft a contract between the old firm and Beaupere embodying 
 all the preceding conditions and establishing the new temporary 
 partnership. 
 
Notes on the Law of Contracts. 
 
 An Appendix to Waddell's Specifications and Contracts. 
 By John Cassan Wait, M. C. E., LL. B. 
 
 Introduction. — Dr. Waddell has presented in the foregoing pages 
 a practical synopsis of the subject of Engineering Specifications and 
 Contracts, which, if carefully studied and applied to the cases pre- 
 sented, will, I believe, result in very great benefit to students of 
 engineering and architecture. He has first taken up the subject of 
 specifications, they being more directly the work of the engineer 
 or architect, being the subject-matter of the contract and therefore 
 reasonably requiring to be created, developed and described before 
 being made the subject of a contract. The specifications are also 
 more within the purview and understanding of the student of engi- 
 neering or architecture than is the contract, and they are therefore 
 properly the subject of prior study and practice. 
 
 SPECIFICATIONS. 
 
 1. Contract Embodies Specifications and Plans. — The specifica- 
 tions are not strictly an independent document to be distinguished 
 from the contract, but they are a component part of the contract, 
 the part descriptive of the structure and of the labor and materials 
 comprising it. If the specifications and plans are independent 
 printed or written documents, then they should either be fastened 
 to or bound with the contract, or they should be referred to in the 
 contract and identified either by description or by the signature 
 of the parties. The plans are mere graphic specifications, an abbre- 
 viated form of illustrating and specifying dimensions and details 
 of construction. The specifications should embody the plans, and 
 they together should contain a full and complete description of the 
 materials and work to be furnished and of the structure to be 
 erected. They should contain all the dimensions, instructions and 
 
132 SPECIFICATIONS AND CONTRACTS. 
 
 directions necessary to secure the result to be accomplished. The- 
 description of materials should be made by such tests and com- 
 parisons that if two contractors have work upon adjoining sections 
 with but an imaginary plane between them, the section engineers 
 respectively would and must arrive at the same result, whether it 
 be one of measurement or one of classification. 
 
 2. Contents of Specifications. — The specifications and plans 
 should definitely describe the site of the structure, the crude stock 
 and the process of manufacture of the materials and the finished 
 materials of construction, not only positively as to good properties 
 that they shall possess, but negatively, naming defects that they 
 shall not contain. They should provide for inspection and tests at 
 the mills and shops and for field inspection during erection, and 
 every class of work should be described in sufficient detail to enable 
 the builder to erect and complete the structure without further direc- 
 tion or explanation from the engineer or superintendent. Specifica- 
 tions and plans so prepared would be ideal, and every student of 
 engineering should at least endeavor to make his specifications and 
 plans ideal. 
 
 3. What are the Specifications. — The specifications may consist 
 of a printed book with the signature of the architect and engineer 
 and the approval of numerous officials of a company or of a govern- 
 ment, or it may consist merely of a letter written, or of a mere 
 sketch which describes the materials and methods to be employed. 
 Drawings exhibited to a contractor when a contract is signed, if 
 referred to in the contract so as to be identified, become a part of 
 the contract; likewise, an act of the legislature or of Congress may 
 be made a part of a contract by reference. So plans, profiles and 
 drawings may become a part of an act of the legislature, but if the 
 act itself does not refer to them they cannot be thereafter used in 
 construing the act. 
 
 Frequently specifications or plans are referred to as signed or 
 attached, when in fact they have not been signed or attached. In 
 such cases oral evidence may be introduced to show what specifica- 
 tions were intended. If they can be identified, then they are in 
 legal effect incorporated into the contract. 
 
 4. Specifications to 'be Created. — Contracts are sometimes drawn 
 requiring structures to be built according to general plans and speci- 
 fications, with the provision that the work shall be erected and 
 completed in accordance with drawings, directions and instructions 
 to be prepared or furnished by the architect or engineer. Such 
 practice frequently results in controversy and disagreements be- 
 
NOTES ON THE LAW OF CONTRACTS. 133 
 
 tween the engineer and the contractor, and it may well be doubted 
 if the contractor would be bound to execute work in accordance 
 with plans and specifications that differed materially from those 
 furnished to the contractor when he entered into the contract, and 
 which materially changed the cost of the work. Ordinances and 
 regulations referred to in a contract become a part thereof, and 
 will hold, not only as to the manner in which the work shall be 
 done, but also as to how it shall be paid for. 
 
 5. Limits of the Work to be Defined. — Specifications should' 
 show the limits and boundaries of work, not only as to their area 
 but as to the depth of the foundations and sub-structures. Much 
 litigation would be avoided if provision was made, either by unit 
 measure or otherwise, to compensate a contractor for the additional 
 and increased depth that excavations and foundations are required 
 to be carried to to secure good foundations. Frequently plans show 
 a depth to which foundations shall be carried, and the specifications- 
 provide that the excavation shall be carried and the foundation 
 built to such depth as shall be satisfactory to the engineer or archi- 
 tect. If the sub-soil be found poor, the engineer and architect shall 
 take it upon themselves to require the foundations to be sunk to 
 greater depth, to the great loss and damage of the contractor or 
 builder. Such practice leads to unhappiness and litigation, and 
 could easily be avoided to the advantage of both the owner and 
 the contractor by limiting the extent of the work vertically as well 
 as horizontally. The limits of work are defined or shown upon the 
 plans by boundary or dividing lines; whatever is required outside- 
 or beyond such limits is extra work, for which additional compensa- 
 tion may be claimed by the contractor. 
 
 6. Working Drawings at Variance wiiJi General Plans. — When 
 bids have been made and accepted on original plans and specifica- 
 tions, and the working drawings afterwards furnished vary from 
 the original plans, involving much additional work, the contractor 
 may refuse to continue the work at the contract price. That he 
 should do, notwithstanding the owner employs others to do the 
 work at an increased compensation, for the contractor may recover 
 for the work he has done if the variance between the original and 
 the working drawings be material. If, however, the contractor per- 
 forms the work without protest, he very likely will be held to have 
 done the work under his contract and at the contract price or prices. 
 
 7. Conflict of Specifications and Plans with Express Terms of 
 the Contract. — If the terms of the contract do not agree with the- 
 specifications, they are said to be in conflict, and the question is,. 
 
134 SPECIFICATIONS AND CONTRACTS. 
 
 "What was the intention of the parties as set forth in the instru- 
 ment taken as a whole?" The whole question is, "What was the 
 intention of the parties?" That must be determined from a con- 
 sideration of the entire contract, including the covenants, the speci- 
 fications and the plans. If the intention he legal, it will control, 
 i.e., if not incompatible with the rules and maxims of the law, the 
 mutual intention will prevail, and this is "the polar star" in the 
 interpretation of all contracts. To arrive at the intention the Court 
 will, so far as possible, put itself in the position and situation of 
 the parties at the time the contract was executed. The conduct of 
 the parties and the practical interpretation which they have them- 
 selves given to the terms of the contract, will have its influence, 
 if the intention be not clear as expressed. If the contract and speci- 
 fications do not agree with the working drawings and the work 
 has been done under the direction of the engineer, according to a 
 plan, model or sample furnished, the practical construction which 
 the parties have adopted will prevail over the literal meaning of 
 the contract and specifications. 
 
 8. Contract the Superior- Instrument. — ^Other things being equal, 
 the contract, being the more solemn instrument, is usually held to 
 prevail over the specifications. This is because the contract is 
 usually the more ceremonious undertaking and it usually defines 
 the obligations assumed by the parties. It is the culminating act 
 by which the parties bind themselves, and it is less often subject 
 to alteration. On the other hand, the specifications and plans are 
 descriptive of the work and the manner in which it is to be per- 
 formed, and they are frequently subject to changes and alterations 
 as new conditions and changed circumstances attending the perform- 
 ance of the work may arise. There might be reasons why either 
 the specifications or the plans should prevail one over the other, 
 depending upon the character of the confiict. The contract or the 
 specifications would prevail over the plans only because and for 
 the reason that the circumstances attending any case would lead 
 the Court to give greater weight to the contract or specifications, 
 because it more clearly and fairly expressed the intention of the 
 parties. If there were any attending circumstances that indicated 
 with sufficient certainty that the parties intended that the plans 
 should control, the Court would be bound so to interpret the inten- 
 tion of the parties; thus the plans, the proposal, the specifications 
 or the contract may prevail. 
 
 9. All Parts will te Reconciled if Possihte. — If the Court can 
 find a construction or interpretation that will harmonize with both. 
 
NOTES ON THE LAW OP CONTRACTS. 135 
 
 or all of the several parts of the contract, viz., the plans, specifica- 
 tions and covenants, it will adopt that meaning. The meaning which 
 is consistent with all parts. Therefore, when specifications required 
 walls to be vaulted, and the plans showed them to be 16 inches in 
 width without vaulting or spaces, it was held that the walls were 
 to be 16 inches including the vaulting, and that evidence would 
 not be admitted to explain the contract. So, when specifications 
 required walls to be plastered with K. & Co.'s cement under the 
 direction of the Superintendent of K. & Co., and the specifications 
 also required that cement and sand should be mixed in equal parts, 
 it was held that effect should be given to each requirement by hold- 
 ing that the Superintendent's powers extended to the laying of the 
 cement plaster and that the contractor was bound by the propor- 
 tions named in the specifications and that the contractor could not 
 change the proportions even though the Superintendent did con- 
 sent to it. 
 
 10. Construction against Party using Language, — Another point 
 of law to be considered in the interpretation of clauses which are 
 in conflict, is that the courts will usually construe the terms most 
 strongly against the party who first used them or who prepared 
 the contract. This rule of construction is generally applied, except 
 where the government or the public are the parties, in which case 
 it is usually held that the meaning will be adopted which is most 
 favorable to the government or public, the courts holding that the 
 interests of the public should be protected, because there is, pre- 
 sumably, nobody who has the interest in public welfare that he has 
 in his own. 
 
 11. Written and Printed Matter, and Punctuation. — If in the 
 contract or specifications the written portion of the contract is 
 repugnant to the printed part, it is the general rule that the printed 
 part must yield to the written, as the latter is presumed to be de- 
 liberately expressed in the written portion of the contract and sub- 
 sequent to the printed portion. To have any part of a contract 
 control another part, it must be inconsistent or opposed to it. If 
 the two parts can be reconciled, the Court is bound to do so. There- 
 fore, when the printed part provided that payments should be made 
 on the architect's certificate, and the written part provided that the 
 payments should be made at fixed stages in the progress of the 
 work and at a stated time after its completion, it was held that 
 there was no inconsistency between them and that neither part 
 would be rendered inoperative. In interpreting contracts or legal 
 documents, punctuation has very little weight. The want of a punc- 
 
136 SPECIFICATIONS AND CONTRACTS. 
 
 tuation mark or the misplacing of one will not be allowed to vitiate 
 the contract or destroy its meaning any more than bad grammar 
 or bad spelling. 
 
 12. Work According to Speciflcations or as a First-Glass Job. — 
 When work is to be performed in a good and thoroughly work- 
 manlike manner and at the same time according to specifications 
 and plans, the question arises as to whether the contractor is ex- 
 cused from making a first-class job if he completes his contract 
 in accordance with the specifications and plans. An undertaking 
 to construct a piece of work is an undertaking to do it well and 
 in a workmanlike manner, even though it be not expressly stipu- 
 lated; but if the owner or his architect or engineer specifies mate- 
 rials, workmanship or the manner in which the structure is to be 
 erected, and if after completion it proves to be defective and does 
 not fulfill the purposes for which it was intended, then the fault 
 lies with and the loss falls upon the owner. This was so held when 
 the owner required a contractor to follow his directions in making 
 an experimental article from a pattern furnished. The owner was 
 required to pay, even though the article was not fit for the uses 
 contemplated. 
 
 13. Implied Warranty of Work. — Whoever undertakes to erect 
 a structure, impliedly warrants that he is reasonably skilful in his 
 trade or calling and that the materials he uses should be suitable 
 for the purposes for which they are used. A builder has been held 
 liable for a defective chimney which would not carry off the smoke, 
 for which it was designed. The fact that the price paid was grossly 
 inadequate does not excuse the builder from fulfilling his under- 
 taking to do a thoroughly workmanlike job. When one has agreed 
 to execute a job in a plain and workmanlike manner, or in a man- 
 ner to be determined by the engineer, it has been held that he is 
 bound to show that he executed the work in a plain and workman- 
 like manner. The courts sometimes hold that the provision that 
 the work should be substantial and workmanlike was an additional 
 safeguard to insure a satisfactory completion of the work; that 
 while substantial and workmanlike did not imply a perfect job, 
 yet it was a question of fact for the jury to determine if the work 
 complied with the contract, and was not a question for the court. 
 It has been held that the work should be perfectly done for the 
 character of the job contemplated. It has also been held that the 
 ■ expression cannot be overcome by showing the custom or usage 
 which allowed the use of inferior materials or unskilful work. 
 
 14. Owner Warrants Sufficiency of Plans, When. — ^Work done 
 
NOTES ON THE LAW OF CONTRACTS. 137 
 
 strictly according to plans and specifications furnished and adopted 
 by the owner is done and completed at the risk of the owner, unless 
 the contractor has either expressly or impliedly undertaken to war- 
 rant the sufficiency and stability of the work. When work has been 
 completed in accordance with plans and specifications and under 
 the direction and to the satisfaction of the architect, and the struc- 
 ture collapses, the contractor is not liable if he has furnished skilled 
 labor and good materials and if the failure was due to defective and 
 insufficient plans. The same has been held of a machine that would 
 not work when completed; of a building that settled and cracked 
 because the footing stones were too small as specified by the archi- 
 tect; and where an arch fell because it would not sustain the load 
 imposed upon it. The contractor, to escape liability, must have 
 completed his work in a workmanlike manner and must have em- 
 ployed good materials and must have done his work in a thorough 
 and substantial manner, and he must prove that the structure failed 
 because of inherent defects of the plans and specifications. 
 
 15. Contract Entire, for a Completed Structure. — Some courts 
 have distinguished those cases in which the builder is merely to 
 build according to plans and specifications, from those cases in which 
 he is completely to furnish and deliver the structure ready for 
 use. Some of the courts held that if a contractor has undertaken 
 to deliver a structure complete, his undertaking is a warranty that 
 the plans and specifications are sufficient, and that by assuming 
 the obligation to complete and deliver a finished structure, the 
 contractor approved and adopted the plans and specifications fur- 
 jiished by the owner. This has been so held where a building settled 
 owing to latent conditions of the soil. The courts held that the 
 contractor having agreed completely to finish the building, fit for 
 use and occupation, he was bound by his covenant. In another 
 case, where the contractor was to construct a well for a certain 
 sum, according to specifications which called for a curb of certain 
 shape and size, to be made of timber and planking of a prescribed 
 size and quantity, it was held that the contractor could not recover 
 for work and materials lost by the caving of the well before com- 
 pletion, notwithstanding that the failure was due to weakness of the 
 curb specified. When the contractor warrants that the structure 
 will answer the purposes for which it was intended, or that the 
 machine will work, he will not be relieved from such warranty 
 because the plans or specifications are defective. 
 
 16. Undertaking to Build Implies Understanding of Plans, etc. 
 — An undertaking to erect a structure according to certain plans 
 
138 SPECIFICATIONS AND CONTRACTS. 
 
 and specifications implies an understanding of them on the part 
 of the contractor or builder, and the law will not permit him to 
 escape liability for the failure of the structure on the ground that 
 he exercised ordinary care and skill to understand and carry out 
 the plans and specifications. If the contractor departs from the 
 working drawings which are part of the contract, he becomes a 
 warrantor of the strength and safety of the structure, unless the 
 material deviations from the plans are made with consent or by 
 order of the owner. 
 
 17. Specifications against Engineer's Decision and Instruction. 
 — It is usually provided that work, labor and materials shall con- 
 form strictly to the specifications and plans, and also that the direc- 
 tions and instructions of the engineer, as given from time to time 
 during the progress of the work, shall be strictly followed, and 
 sometimes in addition thereto that the work shall conform to the 
 working drawings and directions given from time to time by the 
 engineer or architect, and that the whole structure shall be com- 
 pleted to the acceptance and satisfaction of the engineer. Some- 
 times the specifications and plans are prepared at the general offices 
 of the railroad, municipality or company, and the resident engineer 
 or engineer in charge may not agree that the same properly fit 
 or satisfy the conditions or circumstances arising during construc- 
 tion, and the latter establishes his own personal standard of excel- 
 lence to which the work shall conform, and the question is, Which 
 shall prevail — the specifications or the resident engineer? In this 
 case we return again to the polar star in the exposition of instru- 
 ments, and determine, if possible, what was the intention of the 
 parties. 
 
 18. Engineer's Powers Defined in Contract. — The engineer's 
 powers and duties are limited to those which the contract expressly 
 confers or may be fairly implied from its terms. He cannot go 
 beyond or behind it. His decision must relate exclusively to mat- 
 ters embraced within the agreement to submit to his directions and 
 determinations. His decisions are conclusive only with regard ta 
 work described in the contract and specifications. He must measure 
 and classify the work and materials according to the rules and tests 
 named by the parties in the specifications. Even though he be sole 
 judge of the work, its quality and character, he cannot accept what 
 the contract forbids nor demand what the contract does not re- 
 quire. He must accept those things which meet the requirements 
 of the specifications, and work and materials may not be accepted 
 because they are as good or as suitable for the purpose without 
 
NOTES ON THE LAW OF CONTRACTS. 139 
 
 the consent or acquiescence of the parties themselves. Neither the 
 owner nor the contractor will be bound by the acceptance of the 
 engineer, unless the work and materials conform to the contract 
 requirements, even if they be accepted in good faith or under an 
 erroneous view of the contract. So far as the contract and speci- 
 fications show an evident intention to limit the engineer's discre- 
 tion and to fix or name the quality of the work, so far must he 
 follow the specifications. 
 
 19. Engineer's Duty to Follow Specifications. — The first duty 
 of an engineer is to require that the work conform to the specifica- 
 tions. That done, he may exercise his discretion and good judg- 
 ment. He may not accept a brick house for one of marble, even 
 though the brick house is substantially as good or even better than 
 the one of marble. He cannot accept bluestone for brownstone, 
 nor a 12-inch wall for a 16-inch wall, nor Bessemer steel for open- 
 hearth steel. When the specifications require mortar to be of equal 
 parts of cement and sand, a different mixture cannot be authorized 
 by the engineer. When work and materials are required to be 
 strictly according to specifications, and the engineer is also to ac- 
 cept and approve the work finally, and the contractor has com- 
 pleted a structure strictly in accordance with the plans and specifica- 
 tions, must the engineer approve and accept? In this, as in all 
 cases of conflict, it is the question of intention. To determine that 
 the court will consider every part of the contract and it will put 
 itself in the shoes of the parties, consider their relations and the 
 conditions and circumstances under which the contract was made 
 and under which the work had to be done. The court will con- 
 sider the interpretation which the parties themselves have adopted. 
 Generally, when work is to be completed according to specifications 
 and to the acceptance and satisfaction of the engineer, and the 
 specifications describe the work and materials in detail, it is suf- 
 ficient to complete the work as specified. Such a performance 
 should be to the reasonable satisfaction and acceptance of the 
 engineer. 
 
 20. Engineer's Acceptance Additional Safeguard. — This has 
 been so held, but the courts have sometimes held that the require- 
 ments that the work should be to the acceptance and satisfaction 
 of the engineer was an additional safeguard. When the engineer's 
 decision is final and the engineer has signified his acceptance and 
 approval, it will bind the owner even though there has not been 
 a material compliance with the specifications; but the engineer must 
 have acted in good faith. If work has been completed according 
 
140 SPECIFICATIONS AND CONTRACTS. 
 
 to the specifications and plans and the engineer refuses his accept- 
 ance and approval, it is, to say the least, evidence of bad faith. 
 If the working drawings furnished by the engineer differ from the 
 original plans and specifications in material respects, and the con- 
 tractor has agreed to perform the work according to detail draw- 
 ings to be prepared and directions to be given by the engineer, he 
 can be required to do so and without extra remuneration; but it 
 is submitled that the working drawings and directions must con- 
 form reasonably with the original plans and specifications. 
 
 21. Work and Materials Rejected 'by Engineer. — Frequently the 
 specifications require that materials and work may be rejected by 
 the engineer and inspector, if, in their opinion, they do not conform 
 strictly to the specifications. If work and materials 'do conform 
 to the specifications and are rejected by the inspectors or engineers, 
 the question arises as to which will control and to what extent 
 the power of the engineer in rejecting or accepting materials will 
 bind the contractor or the owner. If the engineer has been given 
 the full power of an arbitrator or an umpire, and his conclusion 
 is made final and conclusive upon the parties, it is well settled in 
 England and in many of the United States that his decision will 
 control. If he accept inferior or defective materials, the owner 
 must pay for them, and if he reject good and substantial materials 
 the contractor must supply other better materials. This rule re- 
 quires that the contractor shall secure the acceptance of materials 
 before using the same. If materials are rejected the engineer must 
 be specific in describing the defects, so that the contractor can 
 remedy them. A notice to a contractor that certain parts of a struc- 
 ture are "worthless and dangerous, not fit for use, liable to cause 
 damage, and their construction in direct violation of the contract," 
 without specification of the nature of the alleged defects, has been 
 held insufficient to require a contractor to replace such parts or to 
 defeat his right to recovery. 
 
 When a certain kind of stone was specified and was used upon 
 the work and it was afterwards found defective, the contractor 
 recovered the contract price, it not being shown that the defect 
 was in the workmanship. The same has been held of sand used 
 which was particularly described and designated. If a builder give 
 notice of the poor quality of materials, and the work is carriea 
 on under the eyes of the owner, he may not refuse to pay for the 
 work because the structure is so affected by the weather as to 
 prove worthless. The use of brick made of inferior clay, in good 
 faith, by the contractor, the defective condition not being discov- 
 
NOTES ON THE LAW OF CONTRACTS. 141 
 
 ered by careful inspection, but developing only after exposure 
 to the weather, will not defeat the contractor's right to recover. 
 So, too, when the owner specifies certain brands of materials or 
 a manufactured product by the trade name, and then arbitrarily 
 confines the contractor to such materials, the owner takes the respon- 
 sibility of any inherent defects which may develop subsequently and 
 which are not discovered under ordinary inspection. 
 
 22, Defective Worlz and Materials Accepted by Engineers. — 
 If engineers or inspectors are clothed with authority to construe 
 and determine the meaning of the specifications and the plans, and 
 have the power to accept or reject materials and workmanship, and 
 the structure has been accepted and the contract fully executed, 
 and no fraud has been practiced by the contractor, it is well settled 
 that the owner or company can have no recovery against the con- 
 tractor for defective work or materials. It was held when excava- 
 tions and foundations were to be made for a structure under the 
 instruction and to the approval of an architect, that the contract 
 was performed whether the work had been done in conformity to 
 the drawings or not. It was held that when machinery for a steam- 
 boat was required to be of the best material throughout and of 
 first-class workmanship, subject to the inspection of the company's 
 superintendent, who had the right to reject anything not equal to 
 the requirements of the contract, and every facility was afforded 
 the inspector to inspect the work and materials, that the company 
 could not recover from the contractor for injuries resulting from 
 the failure of the steamboat. Likewise it has been held that a con- 
 tract to construct a wharf according to plans and specifications fur- 
 nished by the company, who saw the work during its progress and 
 until completion, that no recovery could be had from the contractor 
 because the structure was defective and injuries resulted. The 
 same has been held of a bridge erected and completed pursuant to 
 the directions of an engineer in substantial compliance with the 
 plans. 
 
 23. Acceptance of Structure. — The above cases are cases where 
 the decision of the engineer or architect had been made binding upon 
 the parties to the contract. It has been held that, if such ]:e not 
 the case, his acceptance of inferior materials will not bind the 
 owner nor relieve the contractor from performing his agreement 
 in strict compliance with the contract. It has also been held that 
 the work must have been accepted in order to conclude the owner; 
 that the payment of progress certificates did not constitute a waiver 
 of defects in quality which were not apparent from inspection. 
 
142 SPECIFICATIONS AND CONTRACTS. 
 
 If the contractor be subject to the direction of the engineer in 
 charge and his decision is made final and conclusive, and the 
 quality of materials furnished and the manner of doing the work 
 are specified, the contractor is not responsible for defects of 
 the work as a whole, if he has complied with the architect's direc- 
 tion. The engineer's failure, however, to object when work does 
 not conform to the contract and specifications, does not show acqui- 
 escence in such work or in the use of parts or members of a 
 structure which are smaller or of different dimensions than those 
 specified in the contract. 
 
 When it is provided that the materials shall be strictly in 
 accordance with the plans and specifications, and that a person 
 appointed shall inspect and accept such materials as he may deem 
 proper, it has been held that a difference of opinion between the con- 
 tractor and the inspector, as to whether or not the materials con- 
 formed to the plans and specifications, was an incident contemplated 
 by the terms of the contract, and that the rejection of materials in. 
 good faith by the inspector gave no ground for damages to the con- 
 tractor, even though the rejected material did conform to the specifi- 
 cations and plans. 
 
 24. Contract must be Construed as a Whole. — Whether or not 
 the specifications or the determination of the engineer shall control 
 must be determined from the whole contract, and the stipulations 
 granting such powers must be read in the light of the rest of the 
 contract, and the powers of the engineer must be exercised in accord- 
 ance with the understanding of the parties as outlined in the con- 
 tract. Much is often left to the engineer's discretion and judg- 
 ment, but so far as the contract and specifications show an evident 
 intention to limit the engineer's discretion and to fix the quality 
 and character of the work and its execution, so far will the engineer 
 be bound to follow the specifications and the plans. His duty is 
 first to determine the conformity of things with the specifications 
 and the requirements of the contract, and as to the rest, to consult 
 his own discretion and good judgment. He must decide whether 
 work has been executed in a manner and to a degree of perfection 
 promised or demanded in the contract. He cannot dispense with 
 the performance of a substantial part of the work; he may decide 
 whether work has been executed in a workmanlike manner, if the 
 materials are the kind required; but it cannot be contended that the 
 engineer can accept something unlike that which is called for, even 
 though it is substantially built and for all practical purposes as 
 
NOTES ON THE LAW OF CONTRACTS. 143 
 
 good or even better than the structure specified in the contract. 
 However conclusive the engineer's decision may be made, or how- 
 ever closely the contractor is to follow his instructions in all things, 
 that will not justify a departure from the express terms of the con- 
 tract. An acceptance by the engineer of a different class of work 
 or of inferior materials will not bind the owner, nor will it relieve 
 the contractor from his agreement to perform according to plans 
 and specifications. 
 
 25. Conflict Between Specifications and the Judgment of the 
 Contractor. — Frequently the contractor is made responsible for the 
 maintenance and repair of work and for its stability, and at the 
 same time he is also required to follow the specifications and plans. 
 The question arises as to how far the contractor must follow the 
 plans and specifications when in his best judgment the work will 
 not be stable or meet the requirements as to maintenance, strength 
 and durability. Here, as in other cases, it is a question of intention. 
 The courts will look to the instruments to determine the intent. 
 In such cases the question is, "Does the contractor warrant that the 
 specifications and plans are sufficient to effect such a result as he 
 will be able and willing to maintain for the purposes intended, and 
 for the period named?" Suppose, for instance, a contractor under- 
 takes to build a bridge in accordance with the specifications, plans 
 and directions of an engineer, and the engineer directs what founda- 
 tions shall be built, under the protest of the contractor "that said 
 foundations are insuflSicient and will not support the structure." 
 Suppose the foundations are built according to the orders and direc- 
 tions of the engineer, and the structure fails. Is the contractor 
 liable to reconstruct the foundations and the structure, or will the 
 owner be required to pay for the work done in the manner required? 
 Such a case is usually determined by deciding first if the contractor 
 was to build and furnish a completed structure, or only to furnish 
 work and materials for the structure. The courts distinguish an 
 undertaking to provide and furnish a complete structure from one to 
 furnish work and materials at a unit measure, or those cases where 
 different kinds of work are parceled out to several different con- 
 tractors. If a completed structure is to be furnished, then a con- 
 tractor is usually held liable to build and deliver over such a com- 
 plete structure and to be responsible for the maintenance and repair 
 of a structure for a definite period; and the courts hold that the 
 contractor adopts and approves the plans and specifications by 
 which the structure is to be built. This again brings up the subject 
 of liability for a structure whose failure is due to defective or 
 
144 SPECIFICATIONS AND CONTRACTS. 
 
 insufficient plans, and what has been said on that subject will 
 apply here. 
 
 26. Conflict of Specifications with Worlc and Materials Fur- 
 nished hy the Co-Contractors. — Sometimes work done by other con- 
 tractors does not comply with the specifications, and the stability, 
 strength or durability of the structure may depend upon such con- 
 dition. If a post-contractor has warranted the stability, strength 
 or durability of the structure, the question arises if he should make 
 the defective work good. The economy and quality of the painter's 
 work often depend upon the work done by the carpenter, and the 
 masonry work often depends on the stonecutter's work, and the 
 stability of a building may depend upon the foundations put in by 
 a prior contractor, and the success and satisfactory completion of 
 almost any job depends in a degree on the skilful performance of 
 work by other contractors or material men. Frequently the ques- 
 tion arises in doing masonry work as to who shall furnish the 
 centers for the arches; whether the mason or the carpenter shall 
 supply them. The obligation of each contractor is usually an obli- 
 gation to the owner, and there are no relations between the several 
 contractors except such as are created in the contract. If, there- 
 fore, one contractor is under no obligations to another contractor, 
 his obligation lies to the owner. His only remedy, therefore, for 
 defective work is against the owner, and it therefore becomes the 
 obligation of the owner to enforce contract obligations against each 
 and every contractor. If the owner does not enforce such obliga- 
 tions and if he does not require that each shall do his work skilfully 
 and completely, then he should he held liable to other contractors 
 for any damages which they may suffer by reason of the acts of 
 co-contractors or material men. 
 
 Sometimes the owner himself is to furnish the materials for 
 certain parts of the work. If the owner is to furnish the mate- 
 rials, as the steel and iron for a frame structure, and the con- 
 tractor is to forge, assemble and rivet such materials into a com- 
 plete structure, and the materials do not conform to the specifica- 
 tions, the question arises whether the contractor is liable for the 
 failure of the structure and if the contractor has not waived his 
 rights by failing to protest against the use of inferior materials. 
 
 27. Work to Specifications and Satisfaction of Owner. — When 
 work is to be completed to the satisfaction of the owner or employer, 
 and specifications have been prepared, or a certain result is to be 
 obtained which has been defined and described, and the work has 
 been completed according to such specifications or in such a manner 
 
NOTES ON THE LAW OF CONTRACTS. 145 
 
 as to accomplish the result, the question arises if the owner must 
 be satisfied. If the contractor has covenanted to do the work and 
 to satisfy the owner, he cannot he said to have fulfilled his con- 
 tract until he has satisfied his employer. But, the owner might 
 unreasonably, unfairly and fraudulently refuse to declare his satis- 
 faction, and thus defeat the contractor from recovering for his labor 
 and materials. This the law will no't allow, especially if the struc- 
 ture be erected upon the land of the owner or employer and to his 
 benefit and cannot be removed. It would be unreasonable and 
 unjust if the contractor should be denied a recovery for the reason- 
 able value of his work and materials, or at least for so much as he 
 has benefited the owner or employer. The law, or the court, there- 
 fore implies a contract and imposes upon the owner a promise to 
 pay to the contractor so much as he has been benefited. 
 
 When, however, the labor and materials have been wrought into 
 a chattel or an article which can be retained or returned to the 
 contractor, a different rule has been adopted. If the owner declare 
 himself dissatisfied and return the chattel to the contractor, it has 
 been held that no recovery could be had, the contractor having 
 failed to perform his obligation to please or satisfy his employer. 
 When the work or materials have been incorporated into a bridge 
 or a house, which by virtue of its permanent character has become 
 attached to the land of the owner, the courts hold that if the work 
 has been done according to the plans and specifications prepared 
 and submitted by the owner, it should and must be to his reason- 
 able satisfaction, and that therefore he must recompense the con- 
 tractor. The courts hold in such cases that the work need be com- 
 pleted only to the owner's reasonable satisfaction. When, there- 
 fore, a contractor was to receive for a public work "whatever the 
 board might allow as right and proper," it was held that the con- 
 tractor could sue for his reasonable compensation, even though the 
 board had tendered to him what it considered right and proper; 
 and when an employee was to be paid whatever he saw fit to charge, 
 it was held he could not make his charge unreasonable. 
 
 The owner's dissatisfaction must be in good faith, and he can 
 take into consideration only the performance of the terms of the 
 contract. He may not require materials not contracted for, and his 
 privilege must be exercised in a reasonable manner; not arbitrarily 
 nor capriciously, for the purpose of defeating the contractor's 
 recovery. 
 
 28. Application of Specifications to Extra Work. — A provision 
 that is often omitted in contracts and which is at times of impor- 
 
146 SPECIFICATIONS AND CONTRACTS. 
 
 tance, is one that requires extra work, or "extras," to conform to 
 the specifications and plans. Extra work, strictly, is work outside 
 of and not included in the contract. Clauses which require mate- 
 rials and work to be done to the engineer's acceptance have been 
 frequently and generally held not to apply to extra work. For- 
 tunately, the question is not often raised, because it is a foregone 
 conclusion among contractors and engineers that when the inten- 
 tion is manifest in the contract to require good, substantial work 
 and to employ materials of good quality and make, and that the job 
 or structure shall conform throughout to good workmanship, it is a 
 natural inference that the specifications for such work shall apply 
 to the extra materials and work, and this would be a reasonable 
 construction for the courts to apply; but the courts do not imply 
 warranties as to stability, strength and durability to extra work not 
 mentioned and provided for in the contract and specifications. 
 
 This fact, however, does not excuse the contractor for doing 
 or furnishing extra work and materials that are defective and not 
 suitable to the purposes for which they are intended. The general 
 presumption of law that "an undertaking to furnish materials and 
 do work requires the contractor to furnish such as shall accomplish 
 the purpose for which they are intended," applies as well to extra 
 work undertaken as it does to general work. Therefore, when in 
 the construction of a house a contractor is asked to build the foun- 
 dations and walls of a cistern, and he uses the same proportions of 
 •cement, sand and stone for concrete as was used in the foundations 
 €f the building, it has been held that he is liable for the defective 
 and leaky condition of the cistern, and can not excuse his failure 
 to make it tight by explaining that he has followed the contract 
 and specifications in making concrete for the cistern. If the work 
 had been done under the eyes of the inspectors and architect and 
 with their knowledge and approval, it is doubtful if the contractor 
 would have been held liable for the defective condition of the 
 cistern. 
 
 29. General Rules of Construction. — Throughout the discus- 
 sion and application of these rules or decisions, it should be con- 
 stantly borne in mind that in all cases of confiict it is a question of 
 intention of the parties which will be determined by the court after 
 a due and proper consideration of all the terms of the contract 
 and specifications, and the circumstances surrounding the parties 
 at the time they entered into the contract, and of the practical con- 
 struction which the parties themselves have placed upon the con- 
 
NOTES ON THE LAW OF CONTRACTS. 147 
 
 tract during its performance. The intention ascertained, it will 
 prevail in all cases. 
 
 30. Relative Length of Parts of Contract. — In connection with 
 this the relative length of the contract and specifications has been 
 the subject of much discussion in engineering and architectural 
 circles. It is really of little or no importance, and the question 
 should be determined by the universal rule that all legal documents 
 should be made as brief and as clear as is possible. The length of 
 the contract or the specifications should be determined solely and 
 entirely by the detail and care with which the parties and their 
 engineer define their intention, and that will depend largely upon 
 their ability to use good, pure English. The intention should first 
 be determined, and then it should be clearly, plainly and briefly 
 expressed. If the engineer be painstaking, conscientious and given 
 to detail, the specifications will be very lengthy, and if he tvho 
 prepares the contract be concise and confident, his character will 
 be reflected in the contract, and it will be proportionately abbre- 
 viated. It will depend largely upon the personal equation and the 
 experience of the party who prepares the instrument. 
 
 31. When the Intention is not Expressed. — The intention of 
 the parties should be fully expressed. If it be not, then the parties 
 are likely to be bound by what is known as custom and usage, or 
 the common practice, and this may not be what the owner or the 
 engineers contemplated. The constant struggle between con- 
 tractors and engineers, the former to have a good and workman- 
 like job and the latter to have a superior and exceptional piece of 
 work, keeps the standard of excellence low. Custom and usage 
 when the specifications are not definite would probably be deter- 
 mined by the contractor, the builder and the mechanics who work 
 for and under him, which would make the standard probably infe- 
 rior to what the owner and the engineer want. Unfortunately, 
 engineers are not so ready and willing to assist one another in 
 establishing a high standard of work, nor have jurymen so much 
 confidence in the theoretical training of engineers as they have in 
 the ordinary practical mechanic who is a layman like themselves 
 and who has their sympathy. Jurymen are likely to be tradesmen, 
 mechanics and material men, who favor contractors in the recovery 
 for materials and labor which they have bestowed upon structures, 
 and the benefit of which the owner has had and keeps. In such 
 cases contractors have a superior advantage when they seek to 
 recover for work which they have done or for materials which they 
 have supplied. 
 
148 SPECIFICATIONS AND CONTRACTS. 
 
 It therefore behooves the engineer, whose duty it is not only tO' 
 protect the interests of his employer, the owner, but also to da 
 justice to the contractor, to draw his specifications and to make his- 
 plans with extreme care, so that his intention may not be misun- 
 derstood, even though the parties endeavor to misconstrue them. 
 
 32. Specifications and Plans should Provide for a Result, — 
 Specifications and plans should provide for a result or a completed 
 structure. They should not aim merely to secure the supply of 
 materials and labor. They should be so complete as to require- 
 nothing from the engineer or architect but a fair interpretation and 
 explanation, and which, among persons familiar with the kind or 
 character of work which is described, can reasonably receive but 
 one interpretation. If the specifications be not complete and do not 
 embody such direction and control as shall fix and determine fully 
 what the contractor is to do and how it is to be done, and the 
 owner or his engineer or architect is required to assume direction 
 and control of the contractor and his employees, then the contractor 
 ceases to be an independent contractor, and he and his employees 
 become the servants of the owner, who may be held responsible for 
 their acts or negligence. Such relations of the parties are to be 
 avoided, as it is one of the principal objects in letting work to con- 
 tractors to avoid the responsibility due to the acts and negligence- 
 of the contractor and his servants. It is a well-established principle 
 of law that the owner cannot reserve the control and direction of 
 the contractor without assuming the responsibility for his acts. It 
 is therefore recommended that the contract shall not bestow the 
 direction or control on the engineer, but that the specifications and 
 plans shall so clearly and explicitly define what is required of the 
 contractor that the engineer or architect shall only have to define 
 and interpret such specifications and plans. To accomplish this, 
 the engineer is usually given the power to interpret and explain 
 the plans and specifications, as where there are apparent omissions, 
 or confiict between the several parts of the specifications themselves 
 or between the specifications or the plans and the contract. 
 
 33. Dividing Work, among Several Contractors. — In the prepa- 
 ration of specifications a word might be said as to the practice, par- 
 ticularly of architects, of letting work, as that of the erection of a 
 building, to several contractors, as to a mason contractor, a car- 
 penter, a plasterer, a plumber, an electrician and an ornamental 
 iron-worker. This practice the author deplores, and congratulates 
 the engineering profession that it has not fallen into this practice, 
 which he regards as an evil. Such a contract puts it within the 
 
NOTES ON THE LAW OF CONTRACTS. 149» 
 
 power of the several contractors to get in one another's way, to 
 damage and destroy one another's work and generally to delay the- 
 ultimate completion of the building. Engineers sometimes divide 
 the subjec-t-matter of a contract into several independent stages, 
 with good results. The foundation of a structure may be provided 
 and furnished by one contractor and the superstructure by another^ 
 as for a bridge or even for a building. So, frequently, the grading, 
 the foundations for structures, the track and bridges and buildings- 
 of a railroad may be profitably and reasonably let in four or five 
 contracts; but they are contracts which mark separate stages of the 
 progress of the work, where the several contractors are not upon 
 or in charge of the work at the same time, and where they will not 
 interfere one with another or destroy one another's work. TwO' 
 excuses are usually made for subdividing the work of a structure, 
 as a building, among several tradesmen or foremen-mechanics; one, 
 that it saves to the owner the contractor's profit; and two, that it 
 enables the owner or architect to select the best master mechanics- 
 for the different branches of the work undertaken. It is the author's 
 experience that the owner does not secure either the advantage 
 promised or the saving hoped for. Master mechanics will not gen- 
 erally give to owners the low prices that they will to employing 
 contractors, and it will frequently be found that the selection of 
 master mechanics is made by the architect, who sometimes, at least, 
 profits indirectly and unknown to the employer, he having his 
 favorites among mechanics and material men, which favoritism is 
 sometimes cultivated to the extent of receiving commissions, engag- 
 ing in business enterprises and accepting gratuities wholly unknown 
 to the employer or owner. Another objection is that the owner is- 
 deprived of the knowledge and experience of an employing con- 
 tractor, who looks at the situation from the standpoint and with 
 the eye of all the trades employed upon the job, while the practice 
 of dividing it up into numerous contracts and among the several 
 tradesmen or master mechanics gives to the owner only the separate 
 and individual views and experiences of the several mechanics or 
 tradesmen. 
 
 34. Work, at Cost plus a Percentage or a Fixed Sum. — Of late 
 :rears much work has been undertaken and done at a price denomi- 
 nated cost-plus-a-fixed-sum or cost-plus-a-percentage, an example of 
 which contract is furnished, introducing many conditions and cir- 
 cumstances attending such an undertaking. If the owner and the 
 engineer have explicit confidence in the contractor or superin- 
 tendent who undertakes the work, such a practice is, without doubt. 
 
150 SPECIFICATIONS AND CONTRACTS. 
 
 tlie fairest and best for both the owner and the contractor. It 
 avoids paying extraordinary prices to insure contingencies, acci- 
 dents and misfortunes which the contractor will certainly make a 
 part of his contract prices, and it gives to the owner a lower per- 
 centage of profit in consideration of his assuming the risks than 
 the contractor would be content with if he assumed the risks of 
 the work. On the other hand, the contractor is relieved of the 
 anxiety and unforeseen obstructions and the extraordinary condi- 
 tions attending the foundations and the ordinary risks of nature, 
 as well as of labor and other organizations. 
 
 Such a plan, however, with the dishonest contractor would be 
 a burden to an owner or employer. Unfortunately, a practice has 
 grown up among contractors, manufacturers and material men of 
 secretly allowing and paying commissions to sub-contractors, agents, 
 and even engineers, by which the actual cost of work, with the 
 usual trade discounts, may be increased from 5 to 25 per cent. If 
 a contractor were so disposed, he could fairly prove the actual cost 
 of the work much more than it would be if he gave to the owner 
 the benefits of low prices and discounts to which he is ordinarily 
 entitled. Owners sometimes seek to meet sharp practices of dis- 
 honest contractors by paying the bills for materials and the pay- 
 rolls for labor themselves directly, but this does not obviate the 
 evil practice, as the system of rebates is in vogue among con- 
 tractors, material men and manufacturers, as well as between 
 manufacturers and transportation companies. With a competent, 
 honest and conscientious superintendent or contractor in charge 
 of work, the system of cost-plus-a-fixed-sum, or cost-plus-a-percentage 
 of the cost, has, without doubt, very many advantages, and usually 
 results in great economy to the owner. This is especially true in 
 new construction, such as armored or reinforced concrete, at the 
 present day. The percentages or commissions paid to contractors 
 under such contracts vary from 2^2 to 15 per cent., depending upon 
 the character and size of the work. 
 
 CONTRACTS. 
 
 35. Contracts; Subdivisions, Covenants and Specifications. — 
 Two things usually determine the subdividing of the Contract into 
 covenants and specifications. One, a desire to prepare a general 
 form of contract which may be used throughout the various depart- 
 ments or bureaus and which shall be serviceable and apply to any 
 and all structures undertaken; another is the desire to have the 
 specifications contain and embody all those things and matters 
 
NOTES ON THE LAW OP" CONTRACTS. 151 
 
 which pertain to the actual, physical construction, erection and 
 completion of the work. The latter form is usually adopted for 
 individual pieces of work or for similar structures, of which several 
 are to be built under different contracts. In either case, the Con- 
 tract will usually contain the general covenants pertaining to the 
 liability of the contractor, the consideration for his undertaking, 
 the manner, time and method of payment, provisions covering lia- 
 bility for accidents, negligence and for default or delay on the part 
 of the contractor or the owner. The contract will also contain 
 provisions against subletting, the filing of liens and the failure to 
 make payments for claims of material, men and laborers. It will 
 provide for notices and contain those provisions required by statute 
 laws of the state or the charter of the municipality, such as those 
 providing for compliance with the labor law, the lien law, the 
 giving of bonds, the filing of the contract, the compliance with 
 ordinances and laws for the safety of the public, and police regula- 
 tions. The contract should also contain the description of the par- 
 ties, their residence, domicile, and the laws under which they exist. 
 The contract should also contain references to such other instru- 
 ments, ordinances and franchises as are intended to be made part of 
 the contract, including the specifications, plans and special acts of 
 the legislature or other public body under and by virtue of which the 
 contract is made and carried out. If the contract be prepared for 
 several bureaus or departments, and the several structures or pieces 
 of work which are to be undertaken under it are authorized by 
 separate acts of the legislature or of the board of aldermen, then 
 these special authorizations are better embodied and made a part 
 of the specifications which describe and specify the particular public 
 improvement or work which has been authorized. In fact, in such 
 cases it were better that all matters, provisions and stipulations 
 pertaining to a particular piece of work should be embodied in the 
 particular description of that work, which is the specifications. It 
 is bad practice to repeat clauses and provisions in the several parts 
 of the same instrument, unless they be made in the same language 
 and applied to the same structure and to the same circumstances 
 and conditions in each instrument, as such a practice leads to con- 
 fusion and conflict which may be detrimental to the interests of 
 either party. 
 
 36. Extra or Additioival Work. — Extra or additional work is 
 the contractor's aim and the owner's fear. Drastic provisions are 
 written and inserted in contracts to avoid additional or extra work, 
 especially where the contractor is to furnish for a lump-sum price a 
 
152 SPECIFICATIONS AND CONTRACTS. 
 
 completed structure. Contractors sometimes take work for the fair 
 and reasonable cost thereof, without profit, in anticipation that the 
 extras of the job, at handsome prices, will afford them their profits. 
 This is especially true where contracts are let after competitive bid- 
 ding. The usual provision is that no allowances or payments will 
 "be made on account of any additional or extra work, unless the 
 same be ordered in writing by the owner and the price agreed upon 
 at the time or before the work is begun, and that monthly state- 
 ments shall be rendered of such extra work, under the title thereof, 
 iDy the contractor to the owner. Provisions are written utterly pre- 
 cluding a contractor from any recovery whatever for furnishing such 
 extra work or materials, unless said provisions are strictly complied 
 with. When such contract clauses are inserted, controversies fre- 
 quently arise between the engineer and the contractor as to what 
 is or is not extra or additional work. The architect and owner 
 refuse to give such a written order or to determine the value of 
 work done before it is undertaken. As a result, this extra or addi- 
 tional work is one of the chief sources of litigation between con- 
 tractors and owners; and it usually arises from the failure to 
 properly and sufficiently describe the work to be done by the con- 
 tractor, or from overbearing conduct of engineers and architects 
 who are not willing to acknowledge that they inadvertently over- 
 looked certain items of labor or materials which are required to 
 complete the subject matter of the contract, or that they made 
 mistakes in establishing lines and grades or in designing the work. 
 
 Usually, if the work done by the contractor is strictly extra 
 work and outside of the contract and specifications and plans, the 
 courts permit him to recover for the same, even though no written 
 order was made, no price agreed upon and no account rendered. 
 This is usually allowed from the fact that the owner knew or 
 ought to have known that the work was being done, and that silence 
 under such circumstances gives consent. \ 
 
 37. Character of Extra Work. — Provisions for extra or addi- 
 tional work should be drawn with extreme care, and only after 
 the specifications have been prepared, revised and reviewed, an .1 
 after the engineer is satisfied that he has fully described all the 
 work contemplated by the contract. The intention should be as 
 clear as to what is comprised in the undertaking. Controversies 
 over extra work are the chief source of litigation in construction 
 contracts. 
 
 Of the various kinds of extra work there might be mentioned 
 that due to omissions from the specifications; that required to make 
 
NOTES ON THE LAW OF CONTRACTS. 153 
 
 ■alterations and changes and additions, as to meet the conditions of 
 the soil or circumstances unforeseen and discovered during the 
 progress of the work; that required to correct the mistakes and 
 ■errors of the engineer, his assistants and inspectors, such as errors 
 or alinement, grade and measurement; that required for experi- 
 mentation by the engineer or architect, as the adoption of new 
 methods or new materials; that required to renew or replace dam- 
 aged work, whether from action of the elements, act of God or from 
 insufficient plans, and that required to extend work to secure greater 
 stability, strength or durability. 
 
 38. Alterations Affecting the VaUdity of a Contract. — It is a 
 good practice to provide that alterations and changes made in a 
 ■contract shall not affect its validity. The courts have held that 
 when contracts are substantially altered and in material respects, 
 the contract may be held to be abandoned. It is therefore good 
 practice to provide that alterations made during progress of con- 
 struction shall not destroy the binding effect of the contract, so far 
 •as it is applicable. As a rule it is good practice, when material 
 alterations, additions or omissions are made, to have that the sub- 
 ject of a supplemental contract duly signed by the parties. This 
 obviates any question as to the effect that they may have upon the 
 original contract and leaves the situation clear and unmistakable. 
 
 39. Time of Essence — Delay. — In almost all construction con- 
 tracts time is of essence — i. e., the structure is required to be com- 
 pleted in a definite period of time. Delays are among the greatest 
 misfortunes attending construction work. The delay in the comple- 
 tion of a comparatively unimportant structure on the line of a 
 railroad or other public utility, may tie up hundreds of thousands or 
 even millions of dollars' worth of property and render it practically 
 useless. It is absolutely essential that the various parts of a public 
 improvement or a great work should be completed contemporane- 
 ously, so that they may be utilized in their respective places. 
 'Contracts are therefore drawn to avoid delays even of short periods, 
 and almost every device known is employed to secure absolutely the 
 performance of a contract within a stated time. Forfeitures, pen- 
 alties and liquidated damages, bonds and clauses of abrogation and 
 •cancellation of the most drastic character are inserted in construc- 
 tion contracts to insure the most supreme effort on the part of the 
 contractor to complete the work within the time named. On the 
 other hand, on the part of the contractor, he seeks to have clauses 
 relieving him from such covenants in case of labor strikes, riots 
 and internal strife that are beyond his control. Manufacturers and 
 
154 SPECIFICATIONS AND CONTRACTS. 
 
 supply men who have a monopoly of the goods which they manu- 
 facture, insert such conditions relieving them from damages for 
 delays caused by conditions beyond their control, and the poor 
 contractor or master mechanic is in the position of being "between 
 his Satanic Majesty and the deep blue sea." He is required abso- 
 lutely and unconditionally to perform the terms of his contract 
 with the owner, and he cannot, even by paying extraordinary prices, 
 secure the same terms with the monopolistic material men and 
 manufacturers. Add to this the troubles that arise with labor 
 organizations, and the contractor is in a position not to be envied 
 by the most optimistic business man. It is such circumstances that 
 frequently cause the insolvency of some of the largest contractors; 
 and builders. The drafting of clauses that will secure the comple- 
 tion of structures absolutely, and at the same time be fair and 
 reasonable as between the owner and the contractor, is one of the 
 most difficult of any that the engineers are called upon to prepare. 
 Other things should be considered than the financial interests of the 
 company or owner, viz., whether or not a fair-minded business man 
 would undertake absolutely to furnish the materials and erect a 
 structure complete within a certain, definite time, when he knows 
 absolutely that it is impossible to get a contract with the steel or 
 bridge companies for materials with which the structure is to be 
 erected. The entering into such contracts by builders and con- 
 tractors is sometimes an act that makes lawyers and engineers 
 question their sanity or good faith. 
 
 40. Abrogation or Cancellation of Contract. — It is frequently 
 provided that in the event of delay or certain defaults upon the 
 part of the contractor, the owner may abrogate or cancel the con- 
 tract and complete the work himself at the expense of the con- 
 tractor; and that he may retain any moneys due and owing to the 
 contractor for that purpose. This is an essential clause in a contract 
 where the contractor is given possession of the land or the structure 
 by license or lease from the owner, as the contractor in his unhappi- 
 ness might tie up indefinitely the work and prolong the construction 
 of it almost indefinitely. To meet such a situation without the 
 clause, the owner would have to assert himself forcibly, and would 
 very likely find himself very much in the minority with his engineers 
 and household servants, while the contractor would be surrounded 
 by his superintendent, foremen and an army of employees, part of 
 whom might be the most desperate characters known to the com- 
 munity. The author has known instances where the owner has 
 attempted to abrogate or cancel the contract and to shut out the 
 
NOTES ON THE LAW OP CONTRACTS. 155 
 
 contractor from the works, when the contractor has forcibly taken 
 possession, proceeded with and completed the work, and then sued 
 to recover the full contract price. Such a practice, however, is 
 unusual, and the provocation must be great that would prompt a 
 contractor or builder to assume such an undertaking. Usually the 
 failure or refusal to pay the contractor in progress payments, as 
 promised, is sufficient for him to abandon the work; but when the 
 owner does that he then subjects himself to a countersuit for 
 damages for breach of his contract. 
 
 41. Abrogation Contingent on Engineer's Certificate. — Usually 
 abrogation clauses are made dependent upon a certificate of the 
 engineer that in his judgment the contractor has unreasonably 
 delayed the work or has failed and refused to fulfill in accordance 
 with the contract terms; and the right to abrogate or cancel the 
 contract is made dependent upon such a certificate by the engineer. 
 This may seem unreasonable and unfair, especially where the 
 engineer is in the employ of the owner, but it is absolutely neces- 
 sary to have the abrogation dependent upon some act which can be 
 taken positively and unequivocally, and so as to define and determine 
 the right of the owner to abrogate without any question as to 
 whether or not the contractor has or has not fulfilled. 
 
 If the engineer or architect act unreasonably and fraudulently, 
 the contractor has his remedy in court, as the Halls of Justice are 
 always open to any claimant who can show fraud- and collusion 
 between the owner and his agents, architect or engineer. If the 
 engineer unreasonably and arbitrarily and in bad faith give such 
 certificate, or makes a decision against the interests of the con- 
 tractor, he has but to show evidence of such fraud and bad faith 
 sufficient to satisfy a jury that the conduct of the engineer was 
 reprehensible or unfair, and he may recover whatever damages he 
 has suffered by reason of such conduct, and usually from the owner 
 who employs the engineer or architect; sometimes from the engineer 
 or the architect himself. 
 
 A contract should not be abrogated or cancelled except as a 
 last resort, but in granting a contractor indulgences and permitting 
 him to do things forbidden by the contract, and which are sufficient 
 grounds for cancellation, the owner or the engineer or architect 
 should make it perfectly clear by correspondence, or by declaration 
 before witnesses, that the act or indulgence shall not be taken as a 
 waiver of the right to cancel the contract or as a condonation of the 
 conduct of the contractor. 
 
 42. Waiver of Contract Clauses. — This brings up a subject 
 
156 SPECIFICATIONS AND CONTRACTS. 
 
 which is very important throughout the performance of a contract, 
 and especially in the administration of the engineer's or architect's 
 duties. If a contract provides that payments shall be made in a 
 certain way and upon certain conditions precedent, and they 
 are made without regard to such events or conditions precedent not 
 once alone but several times, the owner, engineer and architect may 
 be held to have waived the express provisions of the contract, and 
 they may become what is known as a "dead letter." Great care should 
 be taken to follow strictly the terms and requirements of a contract, 
 lest the parties, the contractor as well as the owner, be held to have 
 waived certain conditions and to have modified the contract by the 
 acceptance or adoption of other terms changing or even contradict- 
 ing the express written terms of the contract. If a contractor 
 submits to a construction or interpretation of provisions of a con- 
 tract that are against his interests, and performs the work in 
 accordance therewith, even though complaining, but without making 
 sufficient protest, he may not thereafter claim and recover for such 
 work, injuries or damages, but will be held to have waived the 
 express provisions of the contract and to have acquiesced in the 
 construction adopted or insisted upon by the engineer. Want of 
 knowledge of this principle of the law causes great hardships to 
 the contractor or the owner, who, in the belief that he has a written 
 contract defining his rights, continues to expend labor and materials 
 npon a job, or consents to things being done upon a structure, in 
 the belief that the fair meaning of his contract will be upheld in 
 court; and who afterward finds upon consulting a competent 
 attorney, or when he gets into court at trial, that he has acquiesced 
 and waived the express provisions of his contract to his detriment 
 and loss. Engineers and architects in their desire to be fair and 
 sometimes to even assist a contractor by making the contract terms 
 easier, as sometimes by making payments ahead of time, commit 
 their employer to a practice which is contrary to the express terms 
 of their agreement and which works great mischief, not only by es- 
 tablishing a waiver of such terms, but also, sometimes, by effecting a 
 discharge and release of the contractor's sureties. 
 
 43. Eifect of Indulgences. — There are so many results not 
 anticipated to the layman that result from indulgences and from a 
 failure to insist upon the full and complete performance of contract 
 terms, that the author would impress upon students of engineering 
 and architecture that they should not consider themselves at liberty 
 to relieve the contractor from the full performance of the contract, 
 to the letter, unless the same be submitted to the owner or to his 
 
NOTES ON THE LAW OF CONTRACTS. 157 
 
 attorney as to the effect of such indulgences, omissions, alterations 
 and changes. The responsibilities will then be placed where they 
 belong, and the engineer or architect will not come in for condemna- 
 tion when trouble arises in consequence thereof. 
 
 44. Release of Sureties. — Sureties or bondsmen who have 
 signed a bond conditioned upon the performance of certain things 
 in accordance with the contract and specifications, have a right to 
 insist that tne owner shall perform his part of such contracts at 
 the times and in the manner and spirit, in the contract provided. 
 If material changes are made in the contract or material obliga- 
 tions assumed by the contractor are changed or the burden thereof 
 increased, or if the owner does not perform his obligations and 
 exercise all reasonable precautions for the protection of the surety, 
 then the bondsmen may be released and discharged from their 
 obligation to the owner. It should therefore appeal to the engineer 
 that the utmost care should be exercised in the making of payments, 
 in the furnishing of materials and in making material changes, that 
 they shall not in any way affect the bondsmen, or that the surety's 
 consent be obtained before such payments are made or changes 
 effected. It is not necessary that such changes in the contract terms 
 should be to the detriment of the sureties; if they be material 
 changes and be even to the benefit of the sureties, the bondsmen 
 may, nevertheless, be released and discharged, 
 
 45. Penalties vs. Liquidated Damages. — The practice of insert- 
 ing clauses providing for penalties, forfeitures or liquidated damages 
 is one that has been carried to gross excess. There is no excuse for 
 such a provision in a contract unless actual damages will be 
 suffered, and unless, furthermore, the damage cannot fairly 
 and reasonably be determined. Either party who assumes contract 
 obligations is liable for the failure or refusal to carry out and 
 fulfill the same, and in the amount of damages actually suffered; 
 and the party who first commits a substantial default is liable to 
 the other for the damages which he may suffer. A substantial 
 breach by one party authorizes the other party to take advantage 
 of the breach and to refuse further to perform his part of the con- 
 tract. If, however, he continue in the performance of the contract, 
 he may be held to have waived or condoned the first or primary 
 breach by the other party. In such case it is often necessary to give 
 notice to the party who has first committed a breach, that while 
 you permit him to continue with the contract and while you continue 
 to fulfill and perform your part of the contract, you do not waive 
 or condone the first offense or breach. 
 
158 SPECIFICATIONS AND CONTRACTS. 
 
 The courts are uniformly against the enforcement of contract 
 clauses providing for penalties, forfeitures and even liquidated 
 damages. If the contractor can show that the owner did not suffer 
 any damages, or that the damages which he suffered are materially 
 less than stipulated in the contract as liquidated damages, the courts 
 are likely to refuse to enforce a clause for liquidated damages and 
 to grant the owner only such damages as he has actually suffered. 
 The courts will not enforce penalties or forfeitures in any case. It 
 is therefore desirable always to avoid the words "penalties" and 
 "forfeitures," and to expressly declare that the amount stipulated is- 
 liquidated damages and not penalties and forfeitures. If an amount 
 be stated as liquidated damages for the breach of a contract, the 
 owner will usually be limited to that amount, even though his 
 actual damages are several times as much. The clause therefore 
 works both ways, against the interests of the owner as well as to 
 protect him. If the amount named be made so great as to provide 
 for any and every breach, then it will be so greatly in excess of one 
 or a few breaches by the contractor that the courts will regard it so 
 unreasonable and burdensome that they will refuse to enforce it^ 
 and will give to the owner only the actual damages that he may 
 prove that he suffered by reason of the one or several breaches by 
 the contractor. The use of a clause providing for liquidated dam- 
 ages is excusable only in those instances or cases where the amount 
 of damages cannot be determined or assessed. 
 
 46. Indemnity Clauses. — A contract for the erection and com- 
 pletion of a structure or works should not be turned into a policy 
 of insurance. It has been the practice to make a contractor liable for 
 damages or injuries to persons and property resulting from his 
 operations in the erection of structures; also to make him liable for 
 acts or negligence of himself and his employees. Ordinarily, such 
 indemnity should be limited to the wilful, negligent and malicious 
 acts of the contractor, and he should not be required to indemnify 
 the owner for misfortunes, injuries or damages to the person or 
 property of other people, which are the natural result of the under- 
 taking, and which could not reasonably have been avoided by the 
 exercise of due care and diligence on the part of the contractor. Of 
 course, it may be the intention of the owner and engineer to make 
 the contract one of insurance or indemnity at all hazards and in 
 any case. If such be the intention, it should he made clear and the 
 contractor should so understand it. 
 
 Under the general clause making the contractor liable for the 
 misconduct and negligence of himself and his employees, engineers 
 
NOTES ON THE LAW OF CONTRACTS. 159 
 
 and their employers have undertaken to shift upon the contractor 
 damages and injuries of every kind and from whatever cause. Thus, 
 in the erection of an elevated railroad over a trolley line, the rail- 
 road company has sought to hold the construction company for 
 damages which it suffered by causing the death of one of the 
 employees of the contractor, which resulted from the operation of its 
 trains — i.e., by running them too fast; and a municipality has 
 endeavored to hold a contractor responsible for damages to a mill- 
 owner resulting from depriving him of sewage water taken from a 
 stream by an intercepting sewer built for the municipality. The 
 damages complained of in the latter case were caused not by the 
 negligence or misconduct of the contractor, but by the fact that the 
 sewer was built at all, and the courts held that the municipality 
 only was responsible and not the contractor. 
 
 If construction contracts be drawn so as to provide for insur- 
 ance of all the risks that may arise during the construction, and 
 so as to assume responsibility for the results of the erection, com- 
 pletion and operation of the works undertaken, it may be expected 
 that insurance premiums will be added to the contract price of the 
 contractor, and that the premium rates will be in excess of that 
 charged for marine insurance. It is the feeling of the writer that a 
 construction agreement should not be made a contract for insurance. 
 
 47. SuMetting and Assignment of Moneys Earned. — Contracts 
 usually provide against the subletting of work without the consent 
 of the owner or engineer. They also sometimes forbid the assign- 
 ment of moneys earned or to be earned. If the contract forbids 
 the subletting of the contract or parts thereof to other master 
 mechanics or contractors, the performance of the contract may not 
 be sublet to other persons; but, generally speaking, a provision 
 forbidding the assignment of moneys earned or to be earned (in 
 the absence of a statute to the contrary as to wages) is not binding 
 upon the parties, as it prevents the transfer of property rights of 
 the contractor. This has been held to be so even when an act of the 
 legislature forbids the assignment of moneys earned under a con- 
 tract for a public improvement. It has also been held that such 
 provisions do not forbid the employment of sub-contractors or master 
 mechanics in the several trades to do the work for and on behalf 
 of the contractor, especially where the contractor is a general con- 
 tractor and known to be such at the time the contract was entered 
 into. Some courts have treated these clauses of contracts forbid- 
 ding subletting with more or less indifference, unless the owner 
 had and showed some good and sufficient reason for refusing his 
 
160 SPECIFICATIONS AND CONTRACTS. 
 
 consent to the subletting, on the ground that the contractor was 
 responsible for the performance and completion of his contract, and 
 for the further reason that in the event of death or disability, it 
 could and would very likely be performed and completed by his 
 executor or administrator, who might be anybody mentioned in the 
 will or designated by the Surrogate. 
 
 In the case of contracts for personal or professional services, a 
 contrary rule would prevail if the contractor be selected on account 
 of his peculiar qualifications and special skill to erect, say, a light- 
 house. In such a case it is doubtful if the contract could be assigned 
 or sublet, or if it would descend to his executors and administrators 
 upon his death. Contracts for professional services, as those of an 
 architect, engineer, attorney or physician, are not assignable and 
 cannot, against the wishes of the owner or employer, be continued 
 and completed by the legal representatives of the professional man. 
 
 48. ArMtration or Engineer's Decision. — Dr. Waddell's belief 
 in arbitration is not shared by the writer in construction contracts. 
 The writer's experience with contract clauses providing for arbitra- 
 tion is that in nine cases out of ten, when controversies have arisen, 
 one or the other of the parties will refuse to carry out the pro- 
 visions for arbitration. This they may do with impunity, as there 
 is no means of compelling them, under the ordinary provisions of 
 the contract, to carry out the terms of the submission to arbitration; 
 and they may, without generally subjecting themselves to any 
 damages whatever, decline either to appoint arbitrators or to attend 
 an arbitration. If, however, they do take part and the award be 
 made and served upon the parties, they are irrevocably bound by 
 such an arbitration. The trouble is and will he that they will refuse 
 to either appoint arbitrators or to attend or take any part whatever; 
 or one of the parties will seek to limit the scope of the arbitration 
 to those matters and things in which he feels the stronger, elimi- 
 nating and refusing to arbitrate matters which are apparently 
 against him. 
 
 Owing to this fact the use of the arbitration clause might as 
 well be omitted, as the parties, if willing to arbitrate, can at any 
 time come to terms of an arbitration for the settlement of their con- 
 troversies, and the use of the clause under the circumstances deceives 
 and misguides the contractor and sometimes the owner in the 
 belief that he can require the other party to submit their differences 
 to a board of arbitrators to be selected in accordance with the 
 terms of the contract. 
 
NOTES ON THE LAW OF CONTRACTS. 161 
 
 49. Arbitration Defeated. — The general form of contract 
 approved by the American Institute of Architects and the National 
 Association of Builders contains a clause similar to that given in 
 the text, and of some twelve or more cases that have come to the 
 notice of the writer, in only one have the parties consented to and 
 carried out the provisions for arbitration. In fact, it may be taken 
 as the rule, rather than the exception, that the owner will not carry 
 out the provisions for arbitration, and if he do he will insist that 
 the questions to be submitted be limited, or that the arbitrators be 
 selected from the legal, architectural or engineering profession, so 
 that the contractor will be outclassed, if not prejudiced. This 
 declaration is made after ten years' active experience in such 
 cases. It is believed that there is no more danger of injustice in sub- 
 mitting questions of construction to the absolute determination of a 
 civil engineer than there is in submitting it to the determination 
 of a judge, who may be as subject to influence as is the engineer, 
 and generally I believe that contractors, if they conduct their 
 operations in a fair, conscientious and skilful manner, will be better 
 treated and get more justice at the hands of a competent, experi- 
 enced civil engineer than they will at the hands of twelve ignorant 
 jurymen. The influence of blood, caste, politics, religion and secret 
 societies upon the different units of a court, are just as likely to 
 affect the recovery of a contractor in court as is the personal bias of 
 the engineer of the field or office; and the practice, which has grown 
 up in the centuries of experience, of leaving construction matters 
 to the determination of the engineer, is one that should be respected 
 and not dispensed with for the reason that it is autocratic. What 
 should be done among engineers and architects is to establish and 
 maintain such a standard of practice and of judicial determination 
 as shall command the respect and consideration of all contractors 
 and builders, and the dishonest, disreputable engineer or architect 
 deserves any fate that may overtake him. He is quite unfit to 
 exist in a civilized community. 
 
 An arbitration which requires the employment of three repre- 
 sentative men of a community or of professional life is an expensive 
 tribunal to determine ordinary questions of engineering contracts. 
 The expense of providing the arbitrators, added to that of the 
 stenographer at professional prices, is sufficient to deter the average 
 owner or contractor from proceeding with an arbitration, even 
 though he may have agreed to it inadvertently in the contract, not 
 knowing the extraordinary expense attending it. Trials at courts 
 are practically without expense to the litigants, except the employ- 
 
162 SPECIFICATIONS AND CONTRACTS. 
 
 ment of attorneys and the expense incident to providing witnesses, 
 experts, etc. This is expensive enough. 
 
 50. Appeal to Single Arbitrator. — A practice that is gaining 
 favor is to make an appeal from the engineer in charge of the work 
 to some distinguished, high-class engineer or other person familiar 
 with the work, and who has no personal acquaintance with either 
 the engineer or the architect in charge or with either party, and to 
 leave the determination of question in dispute to his sole determi- 
 nation. Such a practice is much less expensive, and by it the parties 
 secure the knowledge, experience and superior insight of a -profes- 
 sional man who, having no interest whatever in the matter and not 
 even an acquaintance with the parties, would he most likely to 
 determine the matter fairly and without prejudice. If such a party 
 be named in the contract when it is entered into and his determina- 
 tion he made final and conclusive, instead of the employee of the 
 owner, then there can be no failure of the arbitration, and the 
 parties, when the subject is submitted by the engineer in charge 
 to the arbitrator, will be conclusively bound by his decision and 
 award. Such an arbitrator need not necessarily be the foremost 
 engineer of the continent nor a leading light in the societies, but a 
 man whose experience in the particular line of work would specially 
 qualify him to determine the questions at issue. 
 
 Neither party to an arbitration can appeal from the decision 
 of the arbitrators when it is once made and communicated to the 
 parties. No appeal can be had by either party to the courts, unless 
 gross fraud and collusion are shown between the arbitrators and 
 one of the parties or the engineer and architect. The award by 
 arbitrators is final and conclusive upon the parties, without appeal, 
 if the award was fairly and honestly made. 
 
 51. Engineer's Decision as to Extras and Additional Worlc. — 
 Extra work has been defined as work outside of the contract. A 
 contract is supposed to apply to the work described therein, and the 
 terms of a contract cannot by implication be extended to apply to 
 anything except the structure, work and materials described. If, 
 therefore, it is intended that the engineer or arbitrator should pass 
 upon, inspect, accept and reject extra work, the contract should 
 specially provide therefor; otherwise his decision will not be final 
 and binding upon the contractor as to such extra and additional 
 work. The omission of this clause is one of the serious mistakes of 
 engineers and architects in the preparation of contracts. 
 
 52. Laws of what Place Govern. — It is well known that the 
 laws differ in the different states and territories. The laws of 
 
NOTES ON THE LAW OF CONTRACTS. 163 
 
 contracts are practically the same throughout the United States and 
 in the British possessions, but many laws which determine the 
 rights and liabilities under contracts vary greatly in different locali- 
 ties. Some states have what are known as statutes of frauds, 
 which determine the form and conditions under which binding 
 contracts may be made and concluded; also statutes of limitations, 
 which limit the time within which obligations are required to be 
 enforced by action in the courts. There are also lien laws and labor 
 laws which affect the contract and which differ in the various 
 states, territories and possessions of the United States. Therefore, 
 what laws apply to the contract? Generally, laws pertaining to the 
 legality and enforcement of the contract will depend upon the laws 
 of the place where it is made, and the laws pertaining to labor, 
 liens and legal rights of the parties will depend upon the place 
 where it is to be performed and enforced. These matters should 
 always be taken into consideration in the preparation of a contract, 
 and they usually require the advice of an attorney-at-law who is 
 familiar with the laws respectively where the contract is made and 
 where it is to be performed, and with the laws of the domicile of 
 the respective parties. 
 
 53. Corporate Power to do Business. — Another important mat- 
 ter to be considered, where either of the parties is a corporation and 
 the work is to be in a state or locality other than the domicile of 
 the corporation, is to determine that said corporation is entitled 
 to do business in the locality where the work is to be performed. 
 For instance, if a Jersey or Maryland corporation goes to the State 
 of New York and undertakes the erection and completion of a 
 structure, and it enters upon the performance of the contract with- 
 out securing from the Secretary of State the necessary license and 
 certificate to do business, the said corporation cannot enforce its 
 claims in the courts of the State of New York, nor can it collect 
 in its courts from the persons or corporations doing business in 
 the State of New York under license any of the moneys earned in 
 the performance of the whole or any part of the said contract. This 
 Is true in the State of New York, even though the contractor cor- 
 poration obtains, subsequent to undertaking the work, a license to 
 do business within the State of New York, and the courts have 
 gone so far as to hold that the foreign corporation doing business 
 in the State of New York without a license cannot assign the claim 
 accruing to it from the doing of business in the said state to a third 
 party, with the right to sue and recover the said claim. This is a 
 very grave hardship to a foreign corporation, and it is a matter that 
 
164 SPECIFICATIONS AND CONTRACTS. 
 
 is comparatively new in the statute laws of our states, and it there- 
 fore behooves the engineer who prepares contracts for foreign cor- 
 porations to see that said corporations are licensed to do business 
 in the territory where the contract is to be performed and fulfilled^ 
 lest the money be expended, the work done and the materials fur- 
 nished, with grave doubts as to a recovery therefor. 
 
 This is an example of what may result from engineers and 
 laymen preparing contracts and undertaking to do business without 
 the necessary guidance, counsel and advice of a well-informed 
 attorney-at-law, and it is but one of many instances of serious loss 
 resulting from a desire to economize, in what to good business men 
 are necessary expenditures in the conduct of any business — viz.^ 
 legal supervision. 
 
 54. Other Legislative Restrictions. — Restrictions are likewise 
 imposed frequently by the legislature upon municipal corporations, 
 including school districts and boards of education. They are 
 frequently restricted in their powers to contract, and require cer- 
 tain forms and certain ceremonies to be followed before a valid 
 contract can be made and entered into. One restriction most 
 familiar is that of advertising and awarding a contract to the lowest 
 bidder after public competition, and another is that the undertaking 
 should be founded upon petitions of abutting property-owners, and 
 another that it should be authorized by resolution of the board of 
 aldermen or city council after public notice and hearings. Other 
 requirements are that the contract should be approved by the cor- 
 poration counsel, and that money should be appropriated and cer- 
 tified by the financial officer of the municipality or of the state. 
 When these conditions are made conditions precedent to the making 
 and entering into of a contract by the government, state or 
 municipality, it is absolutely necessary that they should be strictly 
 followed, to the letter of the law, lest they be declared by the courts 
 to be ultra vires, invalid and not binding, and lest the contractor 
 shall have performed and fulfilled the contract in whole or in part,, 
 only to find that he is not entitled to recover for his services, labor 
 and materials. These are hardships against which neither the courts 
 nor public officials can relieve, though they may be subsequently 
 authorized and payment provided for by act of the legislature or of 
 Congress, if the contractor have the influence requisite to secure 
 the passage of a bill authorizing the same, which frequently is not 
 only expensive to the contractor in time, but in other valuable con- 
 siderations. 
 
NOTES ON THE LAW OF CONTRACTS. 165 
 
 55. Restrictions and Limitations are Numerous. — The restric- 
 tions and conditions precedent prevailing in these modern times 
 in the various states and nations are so numerous, so exacting, so 
 extraordinary, that no corporation or well-informed business man 
 or men will undertake a project of any importance without the 
 advice and counsel of a local attorney. To do so is suicidal to the 
 best interests and success of an undertaking. A restriction affecting 
 the right to enforce or to recover under a contract is that existing 
 in some states and which requires that the contract (and in 
 some states the specifications and plans) shall be registered 
 in the office of the town or county clerk, which precludes the con- 
 tractor from recovery for the work done and the materials furnished 
 if the law be not complied with and which in some localities makes 
 the contractor's recovery secondary to that of material men and 
 laborers who have furnished materials or labor for the structure. 
 These laws may appear to the student drastic and unreasonable and 
 unconstitutional and against the inviolability of contracts and 
 within the inhibitions of the Constitution of the United States, but 
 they have been held constitutional and are in force, and it is much 
 easier and far more economical to meet such conditions than it is 
 to litigate them through the highest courts to establish their uncon- 
 stitutionality. 
 
 56. Lien and Labor Laws. — Other local laws which should 
 always have the consideration of the parties who enter into a con- 
 tract to be performed in a foreign state or nation are the lien and 
 labor laws, which give to certain persons or classes of persons a 
 preference in the payment or establishment of their claims and 
 which determine the hours of labor, and in some instances even the 
 prices to be paid therefor and the manner of payment. These 
 restrictions may greatly enhance the cost of labor and materials and 
 therefore the structure, and seriously affect the contract price. If 
 they are not considered in making the bid and before entering into 
 the contract, then they may be and become the ruin of the con- 
 tractor and of the project itself. 
 
 In addition to the various statute laws, there should also be 
 mentioned the laws of custom and usage which prevail in different 
 localities and which determine the unit-method or manner of 
 measuring or determining quantities, or the manner and method of 
 doing, performing and completing work and the times or methods 
 of payment. These customs and usages are at times far-reaching, 
 especially in determining the measurement of stone, brick and 
 plaster work. 
 
166 SPECIFICATIONS AND CONTRACTS. 
 
 57. Authority to Contract. — One of the most difficult and deli- 
 cate things to determine in negotiating a contract is the authority 
 of the person or party who assumes to act, to make and enter into 
 a contract. If the real party be a corporation, it is a matter of 
 some delicacy to ask the engineer, the general manager or the 
 president for evidences of his authority to make the contract on 
 behalf of the corporation. The authority is vested primarily in the 
 board of directors, and it can be delegated only by an act of the 
 board of directors regularly convened, at a regular or special meet- 
 ing duly and properly called. Frequently the president or general 
 manager is authorized to execute contracts by the by-laws or by a 
 general resolution of the board. In such cases it is incumbent upon 
 the contractor to ask to see such minutes or to be furnished with a 
 copy of such resolutions certified over the hand of the secretary and 
 the corporate seal of the company. Likewise, the authority of a 
 public officer should be determined before accepting or entering 
 upon a contract executed by him. An agent, likewise, should be 
 expected to show conclusive evidence of his authority, by power of 
 attorney ordinarily, to make and enter into contracts for and on 
 behalf of his employer or principal. The authority of a public 
 officer will usually be found in the constitution or statutory laws of 
 the state or in the charter and ordinances of a municipality. Much 
 trouble, litigation and loss would be prevented if contractors, engi- 
 neers and architects would look into this matter of authority of the 
 parties to act, before accepting obligations assumed by them. 
 
 58. Legal Representatives of the Parties. — In contracts that are 
 assignable it is customary to declare the contract binding upon the 
 legal representatives of the parties. This is hardly necessary, as 
 every assignable contract is for the benefit of the legal representa- 
 tives of the parties. It might be that the legal representatives of a 
 person deceased might refuse to proceed with and fulfill some con- 
 tracts that partake of the character of personal services, and it is 
 a common practice to describe the parties as being the persons or 
 partnership and their executors, administrators or assigns. A 
 frequent expression among engineers and architects is to seek to 
 obligate an incorporated company, "its executors, administrators and 
 assigns," as if a corporation could have executors and administrators, 
 which is impossible. A corporation's legal representatives are 
 usually described by the words "successors and assigns"; a person's 
 l»y the words "executors, administrators or assigns," sometimes by 
 the word ''heir," which in a contract is superfluous. 
 
 59. Consideration. — The consideration of a contract ordinarily 
 
NOTES ON THE LAW OF CONTRACTS. 167 
 
 is that which the contractor is to receive for his undertaking, but 
 what he is to do is no less a consideration moving to the owner. 
 In the contemplation of the law, that which the contractor is to do 
 or perform is the legal equivalent of that which he is to receive 
 from the owner, hut the law (the court) shuts its eyes to ordinary 
 inequalities and will not substitute its own opinion for that of the 
 parties as to whether or not the acts and deeds of the parties are 
 equivalent. The courts will find an adequate consideration, unless 
 it be so clear that the consideration cannot be equivalent to the 
 obligation assumed by the other party. A ridiculous illustration of 
 such a case is one where the contract provides that "for and in 
 consideration of one dollar by the parties each to the other in hand 
 paid (a mutual exchange), the contractor hereby does undertake 
 and agree as follows." It is perfectly apparent that the exchange 
 of one dollar affords no consideration for the obligation of the con- 
 tractor, and such an expression might better be entirely omitted, as 
 it is an express declaration that no consideration did pass between 
 the parties. 
 
 60. Execution of Contracts. — Contracts are usually executed, 
 i. €., evidenced, hy the signature and seal of the party and fre- 
 quently by the acknowledgment of that signature before a notary 
 or commissioner of deeds. The signature and seal subscribed and 
 placed at the end of a contract are to witness the same; the seal is 
 a mere formality quite necessary when either of the parties is a 
 corporation. Care should be taken that the signature is in the 
 name of the party who assumes the obligation and whose name is 
 written at the beginning of the contract as the contracting party. 
 It is especially important that the exact title of a corporation 
 should be used, and the name of the corporation should be sub- 
 scribed, followed by the word "By" and the name of the officer who 
 executed it, with his title. It is good practice to place at the left 
 thereof the word "Attest," with the seal and the subscription of the 
 name of the officer who attests and affixes the seal. Likewise the 
 name of a co-partnership should be signed in full with the word 
 "By" and the name of the party subscribing, with his title, as 
 partner, agent or attorney. A person acting under a power of at- 
 torney as an attorney-in-fact should be distinguished from an 
 attorney -at-law merely. A common form is "IN WITNESS 
 WHEREOF the parties hereto, on the day and date above writ- 
 ten, have hereunto subscribed their names and affixed their seals." 
 This, however, will not answer for a corporation which has not 
 the power to subscribe its name and to aflBx its seal. For a cor- 
 
168 SPECIFICATIONS AND CONTRACTS. 
 
 poration a common form is "IN WITNESS WHEREOF the parties 
 hereto have caused this instrument to be executed by its appro- 
 priate officers on the day first above written." 
 
 61. Proof of Contract. — The object of having a contract, deed 
 or bond signed is in order that it may be more readily proven in 
 court. The courts require that either the parties themselves be 
 called to prove the execution of the instrument, or that somebody 
 who saw or knows the signatures of the parties, testify to the fact 
 that they are the signatures of the parties. It is therefore 
 convenient to have the party who witnesses the subscription to the 
 instrument, attest to the same by subscribing to the following 
 words, "Signed, sealed and delivered in the presence of," if the de- 
 livery of the instruments be made then and there. If only signed 
 and sealed then omit the word "delivered." It is preferable, how- 
 ever, to have the execution of the instrument acknowledged before 
 a public officer authorized to take such acknowledgments. Such are 
 notaries public, commissioners of deeds, clerks and judges of courts. 
 If such an officer signs and seals such an acknowledgment the court 
 will accept the instrument as sufficiently proved to be admitted in 
 the evidence. If, however, the instrument is to be used in some 
 other state than that in which the notary public or commissioner 
 of deeds resides, it is necessary to have the clerk of the court (the 
 county clerk) of the county in which the notary or commissioner 
 of deeds resides certify that the person so subscribing is a notary 
 public during the period within which the instrument is acknowl- 
 edged to have been executed. This certificate should not be over- 
 looked upon any instrument which is to be used without the state 
 within which it is executed, especially if the instrument (contract 
 or otherwise) is to be registered with the county or town clerk in" 
 said foreign state. If the contract is to be used in a foreign coun- 
 try, it is sometimes necessary to have it attested or certified by 
 the minister or consul credited to that country. 
 
 There is more to the proper execution of a contract, deed or 
 bond than is generally supposed among laymen, and it is well always 
 to submit a contract, deed or bond to an attorney before it is 
 finally accepted, for advice as to whether it has been duly and 
 properly executed and all the requirements of the law complied with. 
 
 62. In conclusion, the writer would impress upon technical 
 students a realization of the value to them, as engineers or busi- 
 ness men, of the study of the principles of contract law, and 
 recommends most strongly an earnest effort to prepare Specifica- 
 
NOTES ON THE LAW OF CONTRACTS. 169 
 
 tions and Contracts covering the examples presented by Dr. Wad- 
 dell, and in connection therewith to study and apply the principles 
 which he has laid down, having in mind the evils and misfortunes 
 described in the foregoing sections. As practicing engineers and 
 architects, or as business men, you will unquestionably appreciate 
 the value of such study and exercises more than you can now, as 
 students, realize their importance. A very valuable feature of Dr. 
 Waddell's lectures is the practical examples presented, which are 
 abundant food for intellectual effort and application. For reference 
 and for a more extended treatment of the law of contracts, the 
 writer naturally refers to his own works, which Dr. Waddell has 
 already mentioned in the text. 
 
 It is the element of practical illustration and example — the 
 principle of laboratory instruction embodied in Dr. Waddell's lec- 
 tures that will recommend his treatment to professors of technical 
 schools. This principle is the one that to-day places the industrial 
 schools nearly a century in advance of the schools of law and per- 
 haps of theology. This presentation and study of the practical and 
 the theoretical together is the one thing, more probably than any 
 other, that has contributed to the superiority of our industrial and 
 technical schools, and our colleges of medicine, dentistry and agri- 
 culture. Much though it is to be regretted, it has yet to be adopted 
 generally in the law schools. 
 
 Be not content with theories, 
 
 Dare the arduous and practical. 
 
 "Reading makes a full man, writing an exact man." 
 
 Read and write. 
 
INDEX. 
 
 Page 
 Abandonment of work.... 17, 86, 88 
 
 Abrogation : 
 
 Contingent on engineer's cer- 
 tificate 155 
 
 Of contract 71, 154 
 
 Abutments, concrete 29 
 
 Acceptance : 
 
 By engineer an added safe- 
 guard 139 
 
 Of defective work 14, 141 
 
 Of structure 141 
 
 Accidents, responsibility for.... 15 
 
 Accounts 84 
 
 Adherence to specifications 10 
 
 Agency 68 
 
 Agreement : 
 
 For developing large euter- 
 
 prise 89 
 
 Promoters' 89 
 
 To finance an enterprise 99 
 
 Alterations 7 
 
 Affecting validity of contract. 153 
 
 In contracts 72 
 
 In specifications 11 
 
 Of plans 15 
 
 To be ordered in writing 19 
 
 Appeal from arbitrator's award. 73 
 
 Arbitration 160 
 
 Appeal from award of 73 
 
 Defeat of 161 
 
 Of disputes 20, 73 
 
 Arbitrator, single 162 
 
 Arbitrators 88 
 
 Assignment forbidden 20 
 
 Of moneys earned 159 
 
 Attestation to contracts 65 
 
 Authority to contract 166 
 
 Backfilling 32 
 
 Bending tests 25 
 
 Blasting 23 
 
 Bonds 74, 79, 87 
 
 Borings 28 
 
 For steel pier 40 
 
 Page 
 
 Bridge contract, example of . . . . 80 
 
 Cancellation of contracts. .. .71, l54 
 
 Cement 30 
 
 Fineness of, 31 
 
 Storage of 32 
 
 Tests 31 
 
 Changes in specifications 11 
 
 Co-contractors, specifications in 
 
 conflict with work of 144 
 
 Commissary 83 
 
 Commercialism 7 
 
 Competency of parties to con- 
 tracts 65, 67 
 
 Compromise on claims 75 
 
 Concealment of facts 8 
 
 Concrete 29 
 
 Tamping dry surfaces in 30 
 
 Conditions, changes in 7 
 
 Conditions precedent to contract. 69 
 Conflict between specifications 
 
 and contractor's judgment.. 143 
 Conflict of specifications and 
 
 plans with terms of contract 133 
 
 Conflict of specifications with 
 
 co-contractor's work 144 
 
 Consideration 76, 166 
 
 Inadequacy of, in contract. ... 70 
 
 Construction : 
 
 Of contract as a whole 142 
 
 Of contracts and specifications 146 
 
 Of steel pier 40 
 
 Contract : 
 
 Abrogation of 154 
 
 Authority of parties to 166 
 
 Cancellation of 154 
 
 Consideration of 166 
 
 Construction against party us- 
 ing language 135 
 
 Construction of 146 
 
 Construed as a whole 142 
 
 Covenants of 150 
 
 Date of 75 
 
 Engineer's powers defined in. 138 
 
I'age 
 
 IJsseutials of 70-76 
 
 Execution of 1G7 
 
 Form 7G 
 
 Intention to be fully expressed 
 
 in 147 
 
 Interpretation of iru, 135 
 
 Proof of 168 
 
 I'unctuation of 13o 
 
 IJelative lengths of various 
 
 parts 140 
 
 Scope of 21, 61, 131 
 
 Signature and seal 7'> 
 
 The superior instrument 134 
 
 Time of essence in 153 
 
 Unsealed 75 
 
 Validity of, affected by altera- 
 tions 153 
 
 Waiver of clauses in 155 
 
 Warranty involved in entirety 137 
 
 Witnesses to 75, 168 
 
 AVritten and printed matter.. 135 
 Contract writing, examples for 
 
 practice in 110-127 
 
 Contractor, directions to 14 
 
 Contractor's details , 12 
 
 Contractor's judgment in conflict 
 
 vrith specifications 143 
 
 Contractors, several 6 
 
 Contracts : 
 
 All parts reconciled if possible 134 
 Distinguished from specifica- 
 tions 60 
 
 Engineering 60 
 
 Essentials of 62. 63, 70-76 
 
 i^'or personal service 69 
 
 Fraudulent changes of 108 
 
 Indemnity clauses in 158 
 
 Misplaced confidence in 62 
 
 ( 'orporations : 
 
 Tower of, to do business 163 
 
 Restrictions imposed on. . .164, 165 
 
 Corrections of legal documents. . 107 
 Cost-plus-a-percentage plan. 80, 89, 149 
 
 Counsel 1 08 
 
 Covenants of contract 150 
 
 Damages 15 
 
 Liquidated 32, 71, 89 
 
 Date of contract 75 
 
 Decision of engineer 78 
 
 Defective work 86 
 
 Acceptance of 14 
 
 And materials accepted by en- 
 gineer 141 
 
 Delay, no damages for 20 
 
 Delays 78, 79, S3 
 
 Deliberation 108 
 
 Delivered material 19 
 
 Development of large enterprise, 
 
 agreement for 89 
 
 Fap" 
 Drawings : 
 
 At variance witli plans 133 
 
 Detail 3. 12 
 
 Errors in 12 
 
 Shop 13 
 
 N'erification of 12 
 
 Drifting tests 25 
 
 Duration of contract (t9 
 
 Engineer, status of 1 
 
 Engineering contracts (>() 
 
 ]']ngineer"s accei)1ance : 
 
 An added safe,i,'uard 139 
 
 Of defective work and ma- 
 terials 141 
 
 Engineer's decision 78. 87, 138 
 
 As to extra and additional 
 
 work 162 
 
 Vs. arbitration 160 
 
 Engineer's details 12 
 
 Engineer's duty to follow speci- 
 fications 139 
 
 Engineer's mistakes 9 
 
 Engineer's powers defined in con- 
 tract 138 
 
 Engineer's preparation 7 
 
 Engineer's rejection of work and 
 
 materials 140 
 
 Equity 74 
 
 Erasures in legal documents. . . . 107 
 
 Essentials of contracts 63 
 
 Attestation 65 
 
 Introduction 64 
 
 Parties, authority of 66 
 
 Parties, description of 65 
 
 Parties, number pf 65 
 
 Parties, precedence of 66 
 
 Ultra vires 66 
 
 Eventualities 70 
 
 Example : 
 
 Promoter's agreement 89 
 
 Examples for practice in contract 
 
 writing 110 
 
 Bond 126 
 
 Concrete dam, promoter's agree- 
 ment 116 
 
 Copartnership 126-127 
 
 Electric St. Ry. and viaduct. . 110 
 Employment, agreement for. . . 116 
 
 Engineering partnership 114 
 
 Engineering services, contract 
 
 for 123 
 
 Guaranty of syndicate by 
 
 bankers 125 
 
 Ocean pier 120 
 
 Partnership, engineering 114 
 
 Replacing steel Ry. bridge. . . . 113 
 Syndicate, contract among 
 members 123 
 
Page 
 
 Viaduct 112 
 
 Water-supply and sewage sys- 
 tem . . . •. 119 
 
 Examples for practice in writing 
 
 specifications 48 
 
 Abutments and piers , 51 
 
 Archbridge, reinforced concrete 53 
 
 Arch culvert 49 
 
 Bridge erection 58 
 
 Bridge, R. R 52, 53, 59 
 
 Building, steel 57 
 
 Chimney, brick 55 
 
 Cleaning and repainting 55 
 
 Concrete sewer main 53 
 
 Dam, concrete 54 
 
 Dyke 56 
 
 Excavation 56 
 
 Foundation, floating 58 
 
 Grading 50 
 
 Jetties, rock 55 
 
 Lighthouse, steel 58 
 
 Paving : 
 
 Asphalt 56 
 
 Wood block 56 
 
 Piers : 
 
 Masonry 52 
 
 Timber 54 
 
 Pipe line 51 
 
 Railroad 54 
 
 Bridge 52, 53, 59 
 
 Reinfo.rced-concrete arch bridge 53 
 
 Retaining wall 49 
 
 Roundhouse 58 
 
 Sea-buoy 58 
 
 Settling basins 56 
 
 Sewer main, concrete 53 
 
 Steel water tank 53 
 
 Swingbridge 57 
 
 Timber pier 54 
 
 Tower, steel 59 
 
 Track, electric Ry 57 
 
 Train-shed 57 
 
 Trestle, R. R 54 
 
 Tunnel, in clay 50 
 
 Rock 50 
 
 Turntable 55 
 
 Viaduct 59 
 
 Water tank, steel 53 
 
 Well, brick 55 
 
 Examples of specifications : 
 
 Lighthouse 34 
 
 f'ipe line 45 
 
 Steel pier 39 
 
 Excavation 29 
 
 Execution of contracts 68, 167 
 
 Form of 79, 88 
 
 Executive 68 
 
 Extension of time 19 
 
 Extra compensation 20 
 
 Extra work 151 
 
 Application of specifications to 145 
 
 Page 
 
 Character of 152 
 
 Defined 5 
 
 Extras 18 
 
 Price of 77 
 
 To be ordered in writing. .72, 78, 79 
 
 Favoritism 6 
 
 Field riveting 20 
 
 liinancing an enterprise, agree- 
 ment for 99 
 
 Forms for concrete work 30 
 
 Foundations : 
 
 Depths of 28 
 
 Lighthouse 35 
 
 Fracture 25 
 
 Fraudulent changes of contracts 108 
 
 Government as party to contract 68 
 
 Guaranty of results 3 
 
 Implied understanding of plans. 137 
 
 Implied warranty of work .... 136 
 
 Indemnity 15, 78 
 
 Clauses in contracts 158 
 
 For negligence 75 
 
 Indulgences, effect of 156 
 
 Infants 67 
 
 Inspection : 
 
 Delay in 13 
 
 Expense of 13 
 
 Facilities for 13 
 
 Field 13 
 
 Final 14 
 
 Notice of 13 
 
 Of defective work 14 
 
 Strictness of 16 
 
 Insurance 85 
 
 Intent of specifications 16 
 
 Intention, to be fully expressed. 147 
 Interpretation of contract, 
 
 134, 135, 148 
 
 Introduction to contract 64 
 
 Labor laws 165 
 
 Legal advice 108 
 
 Legal representatives of parties 
 
 to contract 69, 106 
 
 Letting work among several con- 
 tractors, disadvantages of. 148 
 
 Levels , 27 
 
 Lex loci ri, 102 
 
 Lien laws 165 
 
 Liens, discharge of 16 
 
 Lighthouse 34 
 
 Description 34 
 
 Dwelling house 37 
 
 Foundations 35 
 
 Pile driving 35 
 
 Spiral stairs 36 
 
rage 
 
 Substructure 35 
 
 Woodwork 38 
 
 Limits of the ^vork to be defined 133 
 
 Lines and levels 27 
 
 Liquidated damages 32 
 
 In contracts 71, SO 
 
 Litigation, notification of 21 
 
 Loading metal work on vessel . . 44 
 
 Locality, advantage of 5 
 
 Market, advantage of 5 
 
 Married women G7 
 
 Materials : 
 
 Acceptance of defective 141 
 
 Approximate quantities 22 
 
 Care of delivered 19 
 
 Cement 30 
 
 Concrete . 29 
 
 Delivery of 85 
 
 Hauling of 22, 27 
 
 Metals 23 
 
 Old and new 21 
 
 Rejected by engineer 140 
 
 Removal of 21 
 
 llewrought 24 
 
 Shipping 27 
 
 Title to 77 
 
 Workmanship on 25 
 
 Medical attendance 83 
 
 Membership organization 66 
 
 Mistakes of engineer 9 
 
 Negligence 78 
 
 Indemnity for 75 
 
 Notification of impending suits. 21 
 
 Obstructions or obstacles, unfore- 
 seen 25 
 
 Painting : 
 
 I'rotection of pipes by ........ 46 
 
 Steel pier 42 
 
 I'aints for steel pier 43 
 
 I'apers, return of 18 
 
 Parties to contracts 65, 66. 67 
 
 Incompetent 67 
 
 Legal representatives of 166 
 
 Payments on contracts 72 
 
 For work 16 
 
 Monthly estimates 17 
 
 Percentage retained 17 
 
 Progress 16 
 
 Pay-rolls 85 
 
 Penalties in contracts 32, 71 
 
 Personal service, contracts for. . 69 
 Piers : 
 
 Concrete 29 
 
 Specifications for steel 89 
 
 Pile driving, lighthouse 35 
 
 Pile foundations 29 
 
 I'ago 
 
 I'iles for steel pier 40, 41 
 
 Piling 29 
 
 I'ipe line, specifications for.... 45 
 
 Plans : 
 
 Alteration of 15 
 
 At variance with drawings... 133 
 
 Conflict of with contract 133 
 
 Prepared by contractor 3 
 
 Understanding of 137 
 
 Utility of 2 
 
 Plant, definition of 82 
 
 Powers of engineer defined 138 
 
 Preambles of contracts 68, 70 
 
 Precision 8 
 
 Prices : 
 
 Schedules of 77 
 
 Unit 34 
 
 I'rior negotiations S 
 
 I'rofessional service, contracts 
 
 for 72 
 
 Progress of work Si; 
 
 I'rogress payments 1(5 
 
 Promoter's agreement 89 
 
 I'roof of contract 168 
 
 I'roposals 33 
 
 Protection of pipes 46 
 
 Pumping from excavations 29 
 
 launching of steel work 25, 26 
 
 Punctuation of contract i;')5 
 
 Reaming punched holes in steel 
 
 work 2() 
 
 Rejection of work and materials 
 
 by engineer 140 
 
 Release of sureties 157 
 
 Repairs 82 
 
 Replacement of destroyed ma- 
 terial 85 
 
 Responsibility for errors in draw- 
 ings 12 
 
 Restrictions imposed on corpora- 
 tions, legislative 164, 165 
 
 Result to be specified 148 
 
 Results, when wanted 5 
 
 Retained percentage of payment 87 
 
 Right of way 86 
 
 Risks 28 
 
 Riveting, field 26 
 
 Scope of contract 21, 61, 131 
 
 Shipping : 
 
 Materials 27 
 
 Metal work on vessel 43 
 
 Shop drawings 13 
 
 Signature of contract 75 
 
 Acknowledgment of 76 
 
Page 
 
 Single arbitrator 162 
 
 Specialists 4 
 
 Specifications : 
 
 Adhei-ence to 10 
 
 Against engineers decision.. 138 
 
 Alterations in 11 
 
 And plans, provision in for re- 
 sult or complete structure. 148 
 Application of to extra work. 145 
 
 ( 'lianges in, effect of 11 
 
 Conclusive 4 
 
 Conflict between contractor's 
 
 judgment and 143 
 
 Conflict of with co-contractor's 
 
 work 144 
 
 Conflict of with contract 133 
 
 Construction of 146 
 
 Contents of 132 
 
 Definition of 2 
 
 Engineer's duty to follow. . . . 139 
 
 (Jeneral and special provisions 
 
 Good 4 
 
 Intent or spirit of 3 6 
 
 Language of 6 
 
 Of results 3 
 
 Preparation of 2 
 
 I*urpose of 3 
 
 Scope of 61 
 
 To be created 132 
 
 What are the? 132 
 
 Work in accordance with. 136, 144 
 
 Ultimate object 
 
 Specific clauses 21 
 
 Steel and iron 23, 24 
 
 Structure, acceptance of 141 
 
 Subletting of work 78, 86, 150 
 
 Forbidden in contracts 20, 73 
 
 Sunday laws 108 
 
 Surety 18 
 
 Release of 74, l."')7 
 
 Tamping concrete 30 
 
 Temporary works 22 
 
 Tenders 33 
 
 Testing materials : 
 
 Cement 31 
 
 Steel and iron 24, 25 
 
 Page 
 
 Thoroughfares, closing 15 
 
 Time : 
 
 Extension of 19 
 
 Of essence in contracts. . . .76, 153 
 
 Titles 10 
 
 Tools and supplies 84 
 
 TraflBc, interference with 23 
 
 Transportation : 
 
 Of men and materials 22, 27 
 
 Of metal work by vessel 44 
 
 Travel, expenses for 83 
 
 L'ltra vires 66 
 
 Understanding of plans 137 
 
 Undertaking 76, 77 
 
 Unsealed contract (specialty) . . 75 
 
 Validity of contract as affected 
 
 by alterations 15Ti 
 
 Variance: plans vs. drawings.. 133 
 
 Verification of drawings 12 
 
 Vouchers . . 84 
 
 Wa iver 77 
 
 Of contract clauses 155 
 
 War, effect on contracts 67 
 
 Warranty of work 137 
 
 Implied 136 
 
 Witnesses to contract 75, 168 
 
 Woodwork for dwelling house . . 38 
 
 Work : 
 
 Abandonment of 17 
 
 Acceptance of defective 141 
 
 According to specifications. . . . 136 
 And material rejected by en- 
 gineer 140 
 
 At cost-plus-a-percentage or 
 
 fixed sum 14?) 
 
 Completion by owner 17 
 
 Implied warranty of 136 
 
 Limits to be defined 133 
 
 Payments for 16 
 
 Subletting of 159 
 
 To satisfaction of owner 144 
 
 Workmanship 25 
 
 Written vs. printed parts of con- 
 tract 135 
 
L 
 
'tC 24 J 90/ 
 
,!7£Ri!\'?Y OF CONGRESS 
 
 028 160 823 f I 
 
 
 ■f-i 
 
 
 <,-, . ../, 
 
 
 v^ 
 
 
 
 
 •' t'-'M