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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 ali needful explanations of the true intent and meaning of the said pians 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 said part 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 said part 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 payment, 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 aid part of the second part 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 hereinbefore 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 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.
Fxecuted and Delivered in Presence of
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 deed). 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 enforceable. 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 operates 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.
WHAT IS A SUFFICIENT CONSIDERATION.
THE law detests litigation; at least courts say so; and there. fore they consider anything a sufficient consideration which
arrests and suspends or terminates litigation. Thus the com promise, or forbearance, or mutual reference to arbitration, or any similar settlement, of a suit, or of a claim, is a good con sideration for a promise founded upon it. And it is no defense to a suit on this promise, to show that the claim or suit thus disposed of would probably have been found to have no foundation or substance. If there be an honest claim, which he who advances it believes to be well grounded, and which within a rational possibility may be so, this is enough; the court will not go on and try the validity of the claim or of the suit in order to test the validity of a promise which rests upon its settlement; for the very purpose for which it favors this settlement is the avoidance of all necessity of investigating the claim by litigation. But for reasons of public policy, no promise can be enforced of which the consideration was the discontinuance of criminal proceedings; or any conduct by which public interests are harmed, as, for example, the procurement of the passage of a law by corrupt means.
If any work or service is rendered to one, or for one, and he requested the same, it is a good consideration for a promise of payment; and if he makes no promise, the law will imply the promise, that is, will suppose that he has made it, and will not permit him to deny it. The rule is the same as to payment for goods, or property of any kind, delivered to any one at his request.
No person can make another his debtor against that other's will, by a voluntary offer of work, or service, or money, or goods. But if that other accept what is thus offered, and retain the benefit of it, the law will, generally, imply or presume that it was offered at the request of that other party, and will also imply his promise to pay for it, and will enforce the promise; unless it is apparent, or is shown, that it was offered and received as a mere gift.
A promise is a good consideration for a promise; and it is one which frequently occurs in fact.
If A says to B, "If you will deliver goods to C, I will pay for them," although there is no obligation upon B to deliver the
goods, if he does deliver them, he furnishes a consideration fo the agreement, and may enforce it against A.
An agreement by two or more parties to refer disputes or claims between them to arbitration, is not binding upon any of the parties unless all have entered into it.
The principle, that a promise is a good consideration for a promise, has been sometimes applied to subscription-papers; all who sign them being held on the ground that the promise of each is a good consideration for the promises of the rest. The law on the subject of these subscription-papers, and of all voluntary promises of contribution, is substantially this: no such promises are binding, unless something is paid for them, or unless some party for whose benefit they are made,—and this party may be one or more of the subscribers,-at the request. express or implied, of the promisor, and on the faith of the sub scriptions, incurs actual expense or loss, or enters into valid contracts with other parties which will occasion expense or loss. As the objection to these promises or the doubt about them, comes from the want of consideration, it may be cured by a seal to each name, or by one seal which is declared in the instrument to be the seal of each.
It is to be regretted that the law does not regard a merely moral consideration as a sufficient legal consideration; but so it is. Thus, it has been held in this country, that a note given by a father to a party who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doctrine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made before the food or other articles were supplied, or even a request made before the supply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compensate one who had supported his son, or of a son to support his father; and this the law does not deem sufficient to make even an express promise enforceable at law.