Lapas attēli
PDF
ePub

and agree

added to the amount to be paid under this contract, or deducted therefrom, as the case may require : it being expressly understood that no extra work of any kind shall be performed, or extra materials furnished, by the said part of the first part, unless authorized by the said part of the second part, and the said Superintendents in writing; and that the said part of the second part, and the said Superintendents may, from time to time, make any alterations of, to, and in the said plans and specifications, upon the terms aforesaid.

The said part of the first part, for sel and legal representasives, further promise

that insurance shall be effected upon the building as soon as the roof is put on and covered; the amount of said insurance to be for such sum as the said part of the second part, and the said Superintendents shall direct, to be further increased, from time to time, at the direction of the said party of the second part, and the said Superintendents; the policy to be in the name and for the benefit of said part

of the second part, or legal representatives, and to be made payable, in case of loss, to

for whom it may concern ;-each party to this agreement hereby agreeing to pay one-half the cost of such insurance. The said part

of the second part, for sel and legal representatives, in consideration of the materials being provided and the labor done as herein required, and all other of the stipulations, requirements, mat. ters and things herein set forth, being kept and performed by said part of the first part, Covenant, Promise, and Agree, to and with the said part of the first part:

that will well and truly pay, or cause to be paid, unto the said part of the first part, or

legal representatives, the dollars, in the manner following: It is agreed by and between the parties to this agreement, as follows:

Ist. That for each and every day's delay in the performance and completion of this agreement, or of any extra work under it, after the said

in the year one thousand nine hundred and there shall be allowed and paid by said part of the first part, to said part of the second part, or representatives, damages for such delay if the same shall arise from any act or default on the part of the said part of the first part. 2d. That the said part of the first part, or

representatives, shall not be delayed in the constant progress of the work under this agreement, or any of the extra work under the same or connected therewith, by said party of the second part, or by his Superintendents or any other contractor employed by the said part of the second part, upon or about the prem-' ises ; and for each and every day, if any,

shall be so delayed, additional day to be allowed to complete the work aforesaid, from and after the day hereinbefore appointed for its entire comple’ion, unless upon the contingency provided for below in the 5th article.

3d. That each and every person employed, by sub-contract or "piece

sum of

[ocr errors]

day of

[ocr errors]

fork,” by the said part of the first part, in the providing materials or performing labor or works in the fulfillment or execution of this agreement, shall be, in the opinion of the said Superintendents, a suitable, competent, and satisfactory person. 4th. That the said part of the first part shall and will engage

and provide own cost and expense, during the progress of the works under, and until the completion and fulfillment of this agreement, a thoroughly competent “ Foreman of the Works,” whose duty it shall be to attend to the general supervision of all matters hereby undertaken by said part of the first part, and also to the correct and exact making, preparing, laying-out, and locating of all patterns, moulds, models, and measurements in, to, for, and upon the works hereby agreed upon, from and in conformity with the said plans and specifications, and according to the direction of said Architects.

5th. That if at any time during the progress of the work the said Superintendents shall find that said work is not carried forward with sufficient rapidity and thoroughness, or that the materials furnished, foreman of the works, sub-contractors or workmen employed by the part of the first part, are unsatisfactory, and insufficient for the completion of the work within the time and in the manner stipulated in the plans and specifications aforesaid, shall give notice of such insufficiency and defects in progress, materials, foreman, sub-contractors, or workmen, to the party of the first part; and if within three days thereinafter such insufficiency and defects are not remedied in a manner satisfactory to --the party of the second part, through the agency of said Superintendents, or otherwise, may enter upon the work, and suspend or discharge said party of the first part. and all employed under him, and carry on and complete the work, by "days work," or otherwise, as may elect, providing and substituting proper and sufficient materials and workmen ; and the expense thereof shall be chargeable to the said party of the first part, and be deducted from any sum which may be due to him on a final settlement; and the opinion of said Superintendents shall be final, and their certificate in writing conclusive evidence between the parties hereto, on all questions and issues arising on or out of this fifth article of this Agreement, subject to the final decision of the referees hereinafter named.

6th. That the said part of the first part shall be solely responsible for any injury or damage sustained by any and all person or persons, or property, during or subsequent to the progress and completion of the works hereby agreed upon, from or by any act or default of the said part of the first part; and shall be responsible over the party of the second part for all costs and damages which said party of the second part may legally incur by reason of such injury or damage ; and that the said part of the first part shall give all usual, requisite, and suitable notices to all parties whose estates or premises, being adjoining those upon which the works hereby agreed upon are to be done, may or shall be anv wav interested in or affected by the per. formance of said works.

[ocr errors]

said part

said part

7th. That the said part of the first part shall, from time to time, during the progress of said works, apply to the said Architects for all needtul explanations of the true intent and meaning of the said plans and specifications; and that “working-plans” shall, at the expense of the said part of the second part, be from time to time, and whenever requisite, furnished by the said Architects to the said part of the first part, upon reasonable notice being given to the said Architects that the same are requisite and needful; and further, that the said part of the first part will not and shall not, in the execution, performance, and fulfillment of this agreement, in any way deviate from the entire and exact compliance with, adherence to, and fulfillment of the said plans, "working-plans," and specifications, by reason of any practical difficulty which, in opinion, may or shall arise or occur ; unless some such deviation shall, in the opinion and by the certificate of the said Architects, become absolutely necessary and unavoidable, in which case of the first part

to make such deviation as they may be directed by said Architects.

And Whereas it is the intention of the parties hereto, that the said part of the first part shall bear and pay all the expenses necessary for and incident to the carrying into full and entire execution and completion all the works contemplated in this agreement, it is further understood and agreed by and between the parties to this agreement, that in case any lien or liens for labor or materials shall exist upon the property or estate of the

of the second part, at the time or times when by the foregoing terms or provisions of this agreement a payment is to be made by the said part of the second part to the said part of the first part, such pay. ment, or such part thereof as shall be equal to not less than double the amount for which such lien or liens shall or can exist, shall not be payable at the said stipulated time or times, notwithstanding anything to the contrary in this agreement contained ; and that the said part of the second past may and shall be well assured that no such liens do or can attach or exist before shall be liable to make either of the said payments.

It is expressly understood by the part of the first part, that all the works described or referred to in the annexed specifications are to be executed by the said part of the first part, whether or not the said works are illustrated by the aforesaid plans or working-drawings; and that said part

of the first part to execute all works shown by the aforesaid plans and working-drawings, whether or not said works are described or referred to in the said specifications.

If any apparent discrepancy shall be found to exist between the plans working-drawings, and the specifications, the decision as to the fair construction of said discrepancy, and of the true intent and meaning of the plans, working-drawings, and specifications, shall be made by the Architects here. inbefore named; and said part of the first part shall provide and execute the said works in accordance with said decision,—with the right of a final decision by the referees hereinafter named, -as a part of the original works undertaken by said part of the first part.

And Further agreed by the parties hereto to submit, and hereby do submit, each, all, and every demand between them hereinafter arising, if any, concerning the value of any changes of, or omissions in, or additions to, the aforementioned plans or specifications, or concerning the manner of performing or completing the work, or the time or amount of any payment to be made under this agreement, or the quantity or quality of the labor or materials, or both, to be done, furnished, or provided under this agreement or any other cause or matter touching the work, the materials, or the damages contemplated, set forth, or referred to, in or by this agreement, or concerning the construction of this agreement, to the determination of

the award of whom, or the award of a majority of whom being made and reported within

year from the time hereinbefore fixed upon for the final completion of this agreement, to the Superior Court for the County of

, the judgment thereof shall be final ; and if either of the parties shall neglect to appear before the Arbitrator , after due notice given of the time and place appointed for hearing the parties, the Arbitrator may proceed in absence.

In Witness Whereof, The parties aforesaid have interchangeably set their hands and seals the day and year first above written, to this and other instrument of like tenor and date.

(Signatures.) (Seals.) Executed and Delivered in Presence of

CHAPTER VII.

CONSIDERATION.

SECTION I.

THE NEED OF A CONSIDERATION.

It is an ancient and well-established rule of the common law prevailing in this country, that no promise can be enforced at law unless it rests upon a consideration ; by which word is meant a cause or reason for the promise. If it do not, it is called a naked bargain, and the promisor, even if he admits his promise, is under no legal obligation to perform a promise that he made without a consideration.

There are two exceptions to this rule. One is when the promise is made by a sealed instrument, or deed (every written instrument which is sealed is a decd). Here the law is said to imply a consideration; the meaning of which is that it does not require that any consideration should be proved. The seal itself is said to be a consideration, or to import a considera tion.

The second exception relates to negotiable paper; and is an instance in which the law-merchant has materially qualified the common law. We shall speak more fully of this exception when we treat of negotiable paper.

The word "consideration," as it is used in this rule, has a peculiar and technical meaning. It denotes some substantial cause for the promise. This cause must be one of two things ; either a benefit to the promisor, or else an injury or loss to the promisee sustained by him at the instance and request of the promisor. Thus, if A promises B to pay him a thousand dollars in three months, and even promises this in writing, the promise is worthless in law, if A makes it as a merely voluntary promise, without a consideration. But if B, or anybody for him, , gives to A to-day a thousand dollars in goods or money, and this was the ground and cause of the promise, then it is enforce able. And if A got nothing for his promise, but B, at the request of A, gave the same goods or money to C, this would be an equally good consideration, and the promise to pay B would be equally valid in law.

This requirement of a consideration sometimes cperates harshly and unjustly, and permits promisors to break their word under circumstances calling strongly for its fulfilment. Courts have been led, perhaps, by this, to say that the consideration is sufficient if it be a substantial one, although it be not an adequate one. This is the unquestionable rule now, and it is sometimes carried very far. In one case an American court refused to inquire into the adequacy of the consideration,-or whether it was equal to the promise made upon it,--and said, if there was the smallest spark of consideration, it was enough, if the contract was fairly made with a full understanding of all the material facts. Still, there must be some consideration.

a

SECTION II.

WHAT IS A SUFFICIENT CONSIDERATION.

The law detests litigation ; at least courts say so ; and there. fore they consider anything a sufficient consideration which

« iepriekšējāTurpināt »