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(49 Utah, 453)
the surety was liable where the cost of compleBOARD OF EDUCATION OF SALT LAKE tion exceeded the original contract price. CITY V. WRIGHT-OSBORN CO. et al. [Ed. Note. For other cases, see Schools and (JOSEPH NELSON SUPPLY CO., Inter School Districts, Cent. Dig. $$ 195, 196.] vener). (No. 2930.)
5. SCHOOLS AND SCHOOL DISTRICTS On 81(2)— (Supreme Court of Utah. April 19, 1917.)
BUILDING CONTRACTS-CONTRACTOR'S SURE
TY-LIABILITY. 1. SCHOOLS AND SCHOOL DISTRICTS O 85 - Assuming that a provision in such contract CONSTRUCTION CONTRACTS – ARCHITECT's requiring a bond which should expire two years CERTIFICATE.
| from the date of the contract controlled the conUnder a contract for the construction of a struction of the bond, though not contained school building authorizing the school board to therein, the surety was nevertheless liable where terminate the contract on certificate of the the contractor defaulted within two years, architects, where two architects who were part- though suit was not brought and the an:ount exners were named, but one of them was a mere pended by the obligee in completing the work silent partner, and the other did all of the work was not ascertained within the two years. of preparing the plans and specifications and
| [Ed. Note. For other cases, see Schools and superintending and overseeing the erection of
School Districts, Cent. Dig. 88 195, 196.) the building, a certificate on which the board terminated the contract was not insufficient be 16. SCHOOLS AND SCHOOL DISTRICTS 81(2)cause it represented the judgment of only the
CONTRACTOR'S SURETY-EVIDENCE-ARCHIactive architect.
TECT'S CERTIFICATE. (Ed. Note.--For other cases, see Schools and Where a contract for the construction of a School Districts, Cent. Dig. 202.]
school building provided that, if the board com
pleted the work upon the contractor's default, 2. SCHOOLS AND SCHOOL DISTRICTS O 85
the expense of completing the work should be CONSTRUCTION CONTRACTS-TERMINATION
audited and certified by the architects, and that NOTICE—"AND"-"AT ONCE.”.
the decision of the board thereon should be final Under a contract for the construction of a and conclusive, the architects' audit and certifischool building which provided that, if the cate was admissible against the contractor's contractor should fail to supply sufficient labor surety in an action on the bond. or materials, or in the performance of any of the agreements therein, such failure being certified
ertified [Ed. Note.-For other cases, see Schools and by the architects, the school board should be at School Districts, Cent. Dig. 88 195, 196.] liberty after three days' written notice to the contractor to provide any such labor or mate
7. APPEAL AND ERROR 1002, 1011(1)-RErials, and deduct the cost from moneys due the
VIEW - CONFLICTING FINDINGS — SEPARATE contractor, "and" that, if the architects should
TRIALS OF ISSUES. certify that such action be taken, the board Under a contract for the construction of a should also be at liberty "at once" to terminate school building, the school board terminated the employment of the contractor and complete the contract and completed the work pursuant to the work, the board was entitled, upon the archi. an architect's certificate stating that the contects certifying that the contract should be ter-tractor had defaulted in certain particulars, and minated, to terminate it immediately without among other matters was installing boilers not notice. as "at once" meant immediately and in compliance with the specifications. In an acwithout
und” meant in addition tion against the surety for the difference beor something added to what preceded it.
tween the cost of the work and the contract
price, the party which sold the boilers to the [Ed. Note.-For other cases, see Schools and
contractor intervened and sought judgment School Districts, Cent, Dig. $ 202.
against the surety for the purchase price. The For other definitions, see Words and Phrases, issues between plaintiff and the surety were First and Second Series, And; At Once.] tried before a jury, which found for plaintiff,
and found that the specifications adopted by 3. CONTRACTS Om 152–CONSTRUCTION-MEAN-the architect were those known as specifications ING OF LANGUAGE.
No. 1, with which the boilers did not comply. All the words used in a contract must, if The issue between the intervener and the surepossible, be given their usual and ordinary ty was then tried without a jury, and the court meaning and effect; as it will not be assumed found that specifications No. 2 were those adoptthat the parties did not intend what their lan- ed, and that the boilers complied therewith. guage implies.
Hold that, while these findings were in direct [Ed. Note.-For other cases, see Contracts,
conflict, as they were based on conflicting eviCent. Dig. 88 732, 733, 738.)
dence, it was the exclusive province of the jury
in one case and of the judge in the other to de 4. SCHOOLS AND SCHOOL DISTRICTS 81(2)-termine the weight of the evidence and the cred
BUILDING CONTRACTSLIABILITY OF SUB-ibility of the witnesses, and the Supreme Court ETY.
could not interfere with the findings, but must A school board. having terminated a con- treat them as though they constituted the retract for the construction of a school building | sult in two separate and distinct cases. as authorized by the contract, advertised for [Ed. Note.-For other cases, see Appeal and bids for the completion of the work, and re- Error, Cent. Dig. 88 3935–3937, 3983-3988.] quired contractors to state in their bid a guaranteed maximum cost for completion of the work, 8. SCHOOLS AND SCHOOL DISTRICTS 81(2)and the percentage for which they would per CONSTRUCTION CONTRACTS - CONTRACTOR'S form the work, but provided that payment would BOND-LIABILITY. be based only on the actual cost of labor and Under the bond of a contractor for the conmaterial, and that the contractor's percentage struction of a school building conditioned for the would be based thereon. Held that, assuming payment of labor and materials, the surety was that the board was required to advertise for bids liable for the purchase price of boilers and to complete the work, and that the original con- other materials sold the contractor for use in the tractor's surety was entitled to insist on this construction of the building and fully complybeing done, there was nothing in the require ing with all specifications, though the school ment that bidders include a guaranteed maxi-board in completing the work after the contracmum cost preventing competitive bidding, and tor's default removed the boilers and part of
For other cases see same topic ani KEY-NUMBER in all Key-Numbered Digests and Indexes
the other materials and substituted different “Should the contractor at any time refuse or boilers.
neglect to supply a sufficiency of properly skill[Ed. Note.-For other cases, see Schools and ed workmen or of materials of the proper qualSchool Districts, Cent. Dig. $$ 195, 196.)
ity, or fail in any respect to prosecute the work
with promptness and diligence, or fail in the Appeal from District Court, Salt Lake performance of any of the agreements herein County; T. D. Lewis, Judge.
contained, such refusal, neglect, or failure being Action by the Board of Education of Salt shall be at liberty after three days' written no
certified by the architects, the said second party Lake City against the Wright-Osborn Company tice to the contractor or to any of his agents and the Fidelity & Deposit Company of Mary- to provide any such labor or materials, and land, in which the Joseph Nelson Supply Com- to deduct the cost thereof from any money then pany intervened. From judgments in favor of due or thereafter to become due to the contracplaintiff and the intervener, the Fidelity & De- tor under this contract; and such certificates posit Company appeals. Affirmed.
of the architects, together with the action of Stephens & Smith and Dey, Hoppa ugh & and if the architects shall certify that such ac
the board thereon, shall be final and conclusive; Fabian, all of Salt Lake City, and Guy Le Roy tion be taken, the said second party shall alsı) Stevick, of San Francisco, Cal., for appellant. be at liberty at once to terminate the employ; James Ingebretsen, of Salt Lake City, for re ment of the contractor for the said work, and spondent Joseph Nelson Supply Co. M. E. Wil- immediately to enter upon the premises and to son and Walton & Walton, all of Salt Lake City, take possession of all materials thereon, together for respondent Board of Education.
with all tools, machinery, apparatus, and conveniences, and in case of such discontinuance of
the employment of the contractor, he shall not FRICK, O. J. The plaintiff, hereinafter this contract until the said work shall be wholly
be entitled to receive any further payment under designated respondent, commenced this ac- i finished, at which time, if the unpaid balance of tion against the Wright-Osborn Company as the amount to be paid under this contract shall contractor, hereinafter styled contractor, and exceed the expenses incurred by the said seeagainst the Fidelity & Deposit Company of shall be paid by the said second party to the
ond party in finishing the work, such excess Maryland, hereinafter called appellant, in the contractor, but if such expense shall exceed such district court of Salt Lake county, to recover unpaid balance, the contractor shall pay the on an indemnity bond made and delivered
difference to the said second party. The exby the appellant to the respondent wherein herein provided, either for furnishing materials,
pense incurred by the said second party, as the former agreed to indemnify the latter or for finishing the work and any damages infor any loss or damage it should sustain in curred through such default, together with the case the contractor failed, neglected, or re value of the use of tools, machinery, materials,
and conveniences that may be taken by the said fused to comply with the provisions and second party, shall be audited and certified by conditions of its contract. The Joseph Nel- the architects, and the decision of the said secson Supply Company, hereinafter called in- ond party thereon shall be final and conclusive.
And this shall be construed to mean not only tervener, intervened in the action and set up the completion of the heating and ventilating a claim for material sold and delivered to system for the buildings, but the removal of all the contractor which it alleged it had de rubbish from the same, as well as from the livered to the contractor to be used in the grounds." school building being erected by the respond
The respondent, after alleging that the ent, and which had not been paid for by the contractor had entered into the contract as contractor.'
aforesaid, also further alleged: The respondent alleged that it entered into That the appellant had made and delivered to a contract with the contractor whereby the the respondent a certain bond in which ap
pellant had agreed to indemnify the respondlatter agreed to furnish all the material and ent in case said contractor should fail to labor necessary to complete a heating and comply with the conditions of its contract in ventilating plant or system in a high school completing and installing said heating and building which respondent was then erecting to comply with the provisions of its contract in
ventilating plant; that the contractor had failed at Salt Lake City, Utah, that the contractor the following particulars, namely: That the was required to furnish a bond for the faith- contractor had attempted to furnish material ful performance of its contract, and that it of a poor and inferior and improper quality,
* and not of the quality required by the would promptly pay for all labor and ma- specifications and contract, and furnished and terial. The contract is set forth in full as delivered at said building and attempted to put an exhibit and is made a part of the com in place therein inferior and improper boilers plaint. The terms and conditions of the con
not in accordance with the contract and insuffi
cient for the purpose for which they were used, tract are numerous and specific. It is not and * wholly neglected to supply a suffinecessary, except in one particular, to set ciency of properly skilled workmen and failforth the many conditions and provisions ed to prosecute the work with promptness and contained in the contract, since those that 1913, the architect mentioned and referred to in
diligence; that on the 17th day of January, are deemed material will be specifically re said building contract, 'Exhibit 1,' certified in ferred to in the course of the opinion. Since writing that said contractor had refused and the action, however, is more particularly neglected to supply, a sufficiency of properl
skilled workmen, and had refused and neglected based upon article 13 of the contract, and to supply a sufficiency of material of the proper in view that one of the controlling questions quality, and had failed to prosecute the work involved on this appeal depends upon the with promptness and diligence, and had faileil construction of certain provisions contained generally in the performance of the agreements
on said contractor's part to be performed, and therein, we quote said article in full. It further certified in writing to the plaintiff that reads as follows:
it was necessary for the plaintiff to terminate
the employment of the said Wright-Osborn and diligence, and that the contractor indicates Company in respect of and arising from said a disposition in the handling of this work that contract, and that such action of termination of convinces us that said contractor will be unable said employment should be taken by the plain to carry on the work with that degree of extiff, and thereupon, and on the same day, the pedition contemplated by the contract; in fact, said plaintiff did, by resolution, at once termi- the contractor indicates so little capacity that nate the said employment, and thereupon noti- it is difficult under all the existing conditions fied each of the defendants of said action;" that to prophesy a date when said contractor will the contractor furnished material of inferior complete the contract in accord with the plans quality for hangers for the air ducts and that and specifications. said hangers were improperly placed; that the "On account of certain labor union difliculties contractor failed “to do skilled workmanship which have arisen between this contractor and in making the joints" in certain pipes and fail. the labor unions of this city, it seems that the ed to "properly ream said pipes"; that said entire work in the building, not ouly that concontractor wholly failed and refused to proceed templated by the contract with the Wright-Osin the execution and performance of its said born Company, but that required from other contract, so that agreeably to the provisions of contractors working upon said building, will be said contract the further employment of the so delayed and hampered that we are quite dissaid
[contractor] was by plaintiff ter- couraged and cannot come to any other concluminated."
sion than to say that, if the high school building Respondent then alleged that it had com- by your honorable board and by the contracts
is to be erected within the time contemplated pleted the work the contractor had agreed which your board has entered into, and in acto do, specifically stating the cost thereof, cord with the plans and specifications, no other and demanded judgment for the amount it course of action can be followed than for your had expended in excess of the contract price. the said contractor, which employment arises
honorable board to terminate the employment of A copy of the indemnity bond made and de- by virtue of that certain contract existing belivered by the appellant was also attached tween your board and the Wright-Osborn Comto and made a part of the complaint. The pany. special provisions of the bond that are ma-exclusive, contains the important reasons for
"The above statement while not intended to be terial to this controversy will be referred to the certificate and recommendation which folin the course of the opinion. In view that lows, and we believe your honorable board will the sufficiency of the architect's certificate is deem it sufficient to justify said certificate and assailed, we append the same in full.
"We therefore certify that it is necessary for reads as follows:
your honorable board to terminate the employ“We have made an exhaustive investigation ment of the said Wright-Osborn. Company, of the facts and circumstances relative to the which employment arises by reason of that cerperformance of the contract existing between tain contract existing between your board and your board and the Wright-Osborn Company, the said Wright-Osborn Company, said contract dated July 1, A. D. 1912, and with great par- bearing date July 1, A. D. 1912, and we certify ticularity have examined into the facts relative that said action shall be taken by you, and we to the performance by that company of said recommend that said employment of said Wrightcontract, and we desire to report and certify as Osborn Company existing by reason of said confollows:
tract shall immediately be terminated." “That said company acting as said contractor, has failed and neglected to perform said con
The contractor did not answer the comtract in many particulars, some of which failplaint nor appear in the action. The appelures and neglects we will particularly refer to. lant filed its answer, in which, after mak
"In the first place, the said contractor has brought upon the ground and delivered at the ing specific admissions and denials, it set up building certain galvanized iron for the air various defenses, all of which are sufficiently ducts to be constructed by said contractor in the reflected in the points its counsel have raised building, which galvanized iron is of poor qual- and which are hereinafter discussed. ity and not of the quality required by the specifications furnished by us to the contractor, and The case was tried to a jury, which returnwe have refused to accept said iron.
ed a verdict in favor of the respondent, "In the second place, the contractor has deliv- from which this appeal is prosecuted. ered at the building and is now engaged in putting in place three Kewanee boilers. The boil
Counsel for appellant in their brief bave ers tendered by the said contractor are not such grouped all of their assignments of error unas are called for by the specifications, and said der the following heads: (1) and (2) That the boilers are insufficient for the purposes sought to be accomplished by them. After a thorough certificate of the architect on which the eminvestigation, we are satisfied that these boilers ployment of the contractor was terminated is tendered by said contractor will not sustain a void; (3) that the employment of the conpressure to exceed 110 pounds, and that you tractor was terminated without notice, and is will be unable to insure said boilers for a greater pressure than 110 pounds and the boilers re- therefore void; (4) that the appellant. is not quired by the specifications call for a pressure liable in this action because the respondent of 125 pounds. And then the tubing of the boil. was not legally damaged; (5) that no reers is 342 inches in diameter, whereas the specifications call for tubing 4 inches in diameter. covery can be had on the indemnity bond beAnd we are reliably informed that the boilers cause it ceased to be in force before the cause tendered by the contractor are of less value than of action arose; (6) that the respondent was the boilers called for by the specifications,
itself in default, and hence could not legally "Furthermore, the contractor has neglected to supply a sufficiency of properly skilled work- enforce a forfeiture against, and therefore men, and from the situation that now exists it terminate, the employment of the contractor; appears that said contractor will be unable (7) that the court erred in restricting the during the continuance of this contract to sup- cross-examination of the architect; (8) that ply a sufficiency of properly skilled workinen, ard the said contractor has failed and is still the court erred in permitting respondent to failing to prosecute the work with promptness amend its complaint in certain particulars;
and (9) that the court erred in withdrawing | cumstances, is of little, if any, importance. certain issues from the jury.
No doubt if the two architects had acted in Counsel state their first objection to the the matter, then, both upon principle and architect's certificate in the following words: under the authorities, the contractor would
“This suit is brought under the contract; and have been entitled to the judgment of both. plaintiff must therefore show the performance The architects, in one sense, would then have of conditions on its part, one of which is the been arbitrators, and either party would have issuance of a valid architects' certificate authorizing termination. The certificate he is void been entitled to their combined judgment. In because based upon a finding of fact not sub- this case, however, only one acted; and while mitted to the architect and which he had no the business was done in the name of Eld. authority to decide.”
redge & Chesebro, yet Eldredge was a mere We have read the evidence and the charge silent partner, and Chesebro did all that was of the court with care. We cannot perceive done in the matter precisely as though Eldin what respect the architect failed to com- redge was not nominally connected with the ply with the provisions of the contract in business. In view that Eldredge knew nothmaking the certificate. True, counsel argue ing about the matters, his judgment could that the architect did not act upon his own have been of no aid to any one, and in view judgment, and, further, that he did not act in that Chesebro acted alone, and was, as the good faith in making the certificate. The record discloses, by all regarded as the sole court submitted those questions to the jury, architect on the building, his act must be and in doing so adopted some of the requests deemed as the act of the architects named in offered by appellant's counsel. The conten- the contract. Any other view would merely tion that the architect based his judgment on enforce the letter and entirely ignore the esmatters outside of the contract was also ful- sence of the provisions of the contract cover. ly covered by the court's charge to the jury. ing the powers and duties of the architects. The court charged the jury that, if they In making this contention counsel seem should find that the architect's certificate somewhat inconsistent. They strenuously in. was based on facts, or on alleged defaults sist that the architect in making the certifioutside of the contract, their finding must cate must act only upon personal observation be in favor of the appellant. The jury and knowledge. If that contention be sound, found against appellant's contention on that how can they consistently contend that Eld. issue, and there certainly is sufficient evi- redge, who had absolutely no knowledge re dence to sustain such a finding.
specting the matters contained in the certifi. The same is true with respect to the con- cate, should participate therein? For him to tention that the architect did not act in good have done so would have been the same as faith in making the certificate. That issue though a stranger had been called in to act. was also fully covered by the court's charge, That certainly is not what is contemplated by and the jury also found against that conten- the provisions of the contract. tion.
This objection must therefore likewise fail. The first point raised by counsel must  The third point raised by counsel, in our therefore fail,
judgment, presents the serious question on  We fail to perceive any merit to coun- this appeal. By referring to article 13 of sel's second point. The objection to the the contract, which we have set forth in full, certificate is that it reflects the judgment it will be seen that, if the contractor shall of only one of the named architects, and is, fail, refuse, or neglect to do the things therefor that reason void. No doubt, under cer- in enumerated and such failure, refusal, or tain circumstances the objection might not neglectonly be of force, but it might be fatal to the being certified by the architects, the said seccertificate. The undisputed evidence is to ond party (respondent) shall be at liberty, after the effect, however, that in preparing all of three days' written notice to the contractor, the plans and specifications upon which the
* to provide any such labor or materials, high school building was constructed, includ- then due or thereafter to become due to the con
and to deduct the cost thereof from any money ing the contract in question, James L. Chese tractor under this contract; and such cerbro acted alone, that Eldredge was a mere tificate of the architects, together with the ac nominal partner, that is, a silent partner, so tion of the board thereon, shall be final and to speak, and at no time took any part in that such action be taken, the said second par
conclusive; and if the architects shall certify any of the matters pertaining to the making ty shall also be at liberty at once to terminate of the plans and specifications for the high the employment of the contractor,
* and school building or in superintending or over- immediately enter upon the premises," etc.
(italics ours.) seeing the erection thereof, and that Chesebro acted alone in that regard. Indeed, it was Appellant's counsel vigorously insist that, in shown that Elaredge did not know any- view that in this case the employment was thing whatever respecting the matters pertain- terminated upon the certificate of the areni. ing to the execution of the contract in ques- tect without giving three days' notice to the tion. Counsel's contention, therefore, that contractor, therefore the termination was void the contractor was entitled to the judgment of and of no effect. In support of the contenboth architects named in passing upon wheth- tion counsel, among other cases, cite McCleler the provisions of the contract were being lan v. McLemore (Tex, Civ. App.) 70 S. W. disregarded or not, under the facts and cir- | 224; George A. Fuller & Co. v. Doyle (C. C.)
87 Fed. 687; American, etc., Co. v. Butler, tend what their language implies. Again, if 165 Cal. 497, 133 Pac, 280, Ann. Cas. 1916C, it be true that it was the intention of the 44; and Connell v. Higgins, 170 Cal. 541, 150 parties that three days' notice be required bePac. 769. It is not necessary to refer to the fore the employment under the contract in other cases cited by counsel upon that point, question can be terminated under all circumsince they really have no application. In- stances, then it is equally true that the pardeed, all of the foregoing cases, except the one ties did not use apt words to express that in. from Texas, were disposed of on other tention or to convey their meaning. While it grounds. While it is true that in all of the is true that the owner is required to give cases cited the questions arose out of con- three days' notice before he can supply the tracts containing provisions similar to the one defects in the material, etc., it is, however, in question here, and while in the course of also true that if the architect shall certify that the opinions the provisions in the contracts "such action be taken,” that is, if the archiproviding for notice and the termination of tect shall certify that the employment be terthe employment of the contractor are either minated, then the owner may do that “at discussed or referred to, yet the provisions of once," that is, forthwith. Why say “at the contracts in question in those cases were once" if three days' notice is required? In not only different from the provisions of the view of the subject-matter, "at once” can only contract in question here, but the decisions mean what the term implies, namely, immewere based on other grounds. In the Texas diately and without delay. If the three case, however, the court directly passed upon days' notice must precede the termination of the provision with regard to the termination the employment under the circumstances, of the employment, and held that the employ- then it was wholly unnecessary to use the ment of the contractor could not legally be term “at once," since after the three days terminated without giving the three days' had elapsed the owner, upon the receipt of notice provided for in the contract. The pro the architect's certificate to that effect, could visions of the contract respecting the giving terminate the employment without further deof notice .passed on by the Texas court, in lay, and hence without further notice of any our judgment, was, however, materially dif- kind. Moreover, the word "and" in the proferent from the provisions upon that subject vision in the contract in question is also of in the contract in question here. In the Tex- peculiar significance. It is there used in the as contract it was provided that in case the sense of “in addition to," "something added contractor shall fail, refuse, or neglect to to what precedes it." In addition to the provide the labor or material, etc. right given the owner, after giving the three "such refusal, neglect, or failure being certified days' notice, to supply the things enumerated by the architect the owner shall be at liberty, therein it is given an additional right, namely, after three days' notice to the contractor, to at once to terminate the employment of the provide any of such labor or materials and to deduct the cost thereof from any money then contractor if the architects shall certify that due or thereafter to become due to the contrac- such be done. That is just what the parties tor under this contract; and if the architect stipulated might be done, and, having done shall certify that such refusal, neglect or failwe is sufficient ground for such action the own. so, courts bave no alternative save to ener shall also be at liberty to terminate the em- force the terms of the contract. While it is ployment of the contractor," etc. (Italics ours.) quite true that an argument could also be
Notwithstanding that the foregoing lan- presented in favor of the contention made by guage, to our minds, is much more favorable counsel for the appellant, yet in making that to counsel's contention, the Texas Court of argument something must always be interCivil Appeals expressed some doubt with re- polated into the contract that is not found gard to whether the three days' notice is re. therein either in express or by necessary imquired or not in case the contract is terminat. plication, and under such a construction it is ed upon broader grounds. · The provision in impossible to give all of the words used in the contract here which gave the respondent the contract their usual and ordinary meaning the right to terminate the employment reads and effect. reover, the certificate of the quite differently from the provision in the architect in this case' covers defects which, Texas case. After providing that after giving it would seem, no amount of notice could three days' notice to the contractor respecting have obviated or cured, and that such condi. the latter's failure to comply with the pro- tions might arise must necessarily have been visions of the contract there enumerated the contemplated by the parties, and that such owner may supply the defects and recover all is the case is clearly indicated in the concosts thereof from the contractor, the contract tract. True, as counsel contend, there are further provides:
also matters stated in the certificate for “And if the architects shall certify that such which a termination of the employment was action be taken, the said second party shall al- not provided for in the contract, but that so be at liberty at once to terminate the em- question was thoroughly gone over at the ployment of the contractor," etc.
trial, and the matters in that regard were  It is a cardinal rule of construction all properly submitted to the jury, and were that all the words used by the parties must, found in favor of respondent. While we have if possible, be given their usual and ordinary arrived at the foregoing conclusions with meaning and effect. It will not be assumed some hesitation, yet we are firmly of the opinthat the parties to the contract did not in-lion that this objection cannot prevail,