agents and employees as if they were employees of the Contractor. The employees of the sub-contractor shall be subject to the same provisions hereof as employees of the Contractor; and the work or materials furnished by the subcontractor shall be subject to the provisions hereof, as if furnished directly by the Contractor.

H. No part of this work shall be sublet except to parties skilled in and properly equipped for the same and assented to in writing by the Board before such part of the work is begun.

Most Contracts forbid subletting. A large proportion of such Contracts are sublet in part or in whole without the consent of the other party. Under such circumstances, the legal effect of such a provision forbidding subletting is that the sub-contractor acquires no legal rights under the subcontract or assignment, is not recognized, and has no standing with the Company, City, or Board; he is treated as a foreman, the Contractor proper being the only recognized responsible party.

It is important, however, that there should be no official recognition of the sub-contractor by the Chief Engineer in any way. Furnishing estimates of the work done by the sub-contractor has been held to be a recognition which amounted to a waiver of the condition; the Chief Engineer or other person of the Board whose written consent is specified must be a party to the recognition.

If the Engineer, without the knowledge of the Chief Engineer, should furnish such an estimate, or otherwise recognize the sub-contractor, this could hardly operate as a waiver; the Engineer's authority would not reach that far.

No harm results in most classes of work if there is an informal subletting. In a small proportion of Contract work, there is necessity for the personal attention, constantly, of a Contractor specially skilled in that work, and in this case a drastic provision should have place in the Contract, calling for the annulment of the contract for violation of this provision. For most Contracts, Section 7, above, seems sufficient, and free from undue verbiage. When written consent is required, the Chief Engineer seems the proper representative of a railroad Company; in other cases the Commission or Board; in the case of a City, in general the officer or Board which signs the Contract in behalf of the City.

8. SUPERINTENDENCE. The Contractor shall constantly superintend all the work embraced in this contract, in person or by a duly authorized manager acceptable to the Company.

This section seems properly put here. Many Contractors nowadays are carrying on work in many places, and much in the way of direct personal attention is not to be expected, especially if competent "man

agers are employed; if not expected, it ought not to be asked for in the Contract. In the small proportion of cases where the personal element is essential, the clause may well read:

A. This contract specially demands the constant attention of the Contractor in person in addition to such other superintendents and foremen as the work may demand.

Under comments on Section 7, are other readings which cover this feature.

The two clauses following are also in point here:

B. The Contractor shall be responsible for the entire work until completed and accepted by the Board. The Contractor will be required to give his personal attention to the fulfillment of this contract and to the execution of the work. He shall keep the entire work under his control, and shall not sublet all or any part of it.

The Contractor shall at all times have a competent foreman, superintendent or other representative on the work, who shall have authority to receive and execute orders from the Engineer, who shall receive shipments of material to the Contractor, and who shall see that the work is executed in accordance with the specifications and plans and the orders of the Engineer thereunder. The Contractor shall see that the different parts of the work are brought together in harmony and he shall coöperate with other contractors and with the Engineer as to the proper conduct of the work.

Other readings are:

C. The Contractor shall give his personal attention constantly to the faithful prosecution of the work and shall be present, either in person or by a duly authorized representative, on the site of the work, continually during its progress, to receive directions or instructions from the Engineer. He shall maintain an office on the site of the work, where copies of the contract and of all working drawings shall be kept ready at any time.

The last clause would be inappropriate in many small Contracts.

D. During the performance of any work on the premises or public streets of the City, the Contractor shall keep on the ground an experienced representative or superintendent, duly authorized to represent and act for the Contractor in all matters pertaining to the work to be done under this contract.

When it is found necessary to give directions during the absence of the Contractor at any time during the progress of the work herein specified, orders given by the Commissioner shall be received and obeyed by the foreman or superintendent having charge of the work about which orders or directions are given.

E. The Contractor must have on the work at all times a foreman, superintendent, or other competent representative, to whom orders and instructions may be given, his name to be certified by the Contractor to the Engineer. Any orders given such foreman, superintendent or representative shall have the same force and effect as if given directly to the Contractor.

F. The Contractor shall have a representative on the work at all times who shall have authority to act upon the orders or the directions of the Engineer.

G. The Contractor shall employ suitable superintendents and foremen who shall be present while any work is being done under this contract.

The reading given in Section 8 above, is concise and to the point.

9. TIMELY DEMAND FOR POINTS AND INSTRUCTIONS. The Contractor shall provide reasonable and necessary opportunities and facilities for setting points and making measurements. He shall not proceed until he has made timely demand upon the Engineer for, and has received from him, such points and instructions as may be necessary as the work progresses. The work shall be done in strict conformity with such points and instructions.

This section, while it appears not to be in common use in other Contract forms, seems very much to the point. It does appear to be covered in most part in the following:

A. All lines and grades will be given by the Engineer, but the Contractor shall provide such materials and give such assistance as may be required by the Engineer, and the marks given shall be preserved. The Contractor shall keep the Engineer informed a reasonable time in advance, of the times and places at which he intends to work, in order that lines and grades may be furnished and necessary measurements for record and payment may be made with the minimum of inconvenience to the Engineer or of delay to the Contractor.

There is some question whether the Contractor should be required to furnish stakes and labor to assist the Engineer in staking out the work. It is not properly the Contractor's business to do so.

The following clause covers some of the requisite features as to lines and grades:

B. All work provided for under this contract shall be done under the direction and supervision of the Engineer and his properly authorized agents. The Contractor shall be guided by all lines, stakes, marks and grades given by them, and shall carefully preserve the same as far as possible during the progress of the work, and shall furnish all needed facilities without extra charge therefor, to enable the Engineer to properly give any required lines and grades and measure the work from time to time.

The two provisions following are parts of one Contract:

C. During the progress of the work the Commission will give, through the Engineer, to the Contractor, suitable points, marks or benches, indicating the line and grade of the Railroad and of the sewers; such points or bench marks to be established at such intervals as the Engineer deems necessary for the Contractor to be able to perform his work. The principal lines and grades are to be given by the Engineer, who may change them from time to time as may be authorized and directed by the Commission. The stakes and marks given by the Engineer

shall be carefully preserved by the Contractor, who shall give to the Engineer all necessary assistance and facilities for establishing benches and plugs and for making measurements.

D. Before commencing work on any part of the route, the Contractor shall give notice in writing to the Engineer at least one (1) week in advance of his intention to commence such operation; and before commencing manufacture, or resuming manufacture, if the same has been suspended, of any article called for by these specifications, notice shall be given to the Engineer in writing at least one (1) week in advance, with the name and address of the maker and the amount and description of the material to be manufactured.

One Contract form provides:

E. No special compensation shall be made for the cost to the Contractor of any of the work or delay occasioned by giving lines and grades, or making other necessary measurements, or by inspection; but compensation shall be considered to have been included in the prices stipulated for the appropriate items.

This makes the matter very clear but is probably unnecessary; it apparently is sufficiently covered by Section 3. Some Engineers may nevertheless prefer to include it. The delay referred to is the necessary interference to work while giving lines and grades. There should be no delay to the Contractor in waiting for lines and grades. The Contractor has a moral right to every reasonable facility to allow his doing the work in the most advantageous manner.

10. REPORT ERRORS AND DISCREPANCIES. If the Contractor, in the course of the work, finds any discrepancy between the plans and the physical conditions of the locality, or any errors on plans or in the layout as given by said points and instructions, it shall be his duty to immediately inform the Engineer, in writing, and the Engineer shall promptly verify the same. Any work done after such discovery, until authorized, will be done at the Contractor's risk.

This does not say that, if there is any discrepancy, the Contractor must find it; it says if he finds any discrepancy. This demands of the Contractor that he shall work with the Company for the best conduct of the work. As a matter of evidence, it might be difficult to provide that a Contractor did find any discrepancy, unless it was also known to the Engineer or some of his subordinates. Nevertheless in some cases evidence would be available and this section seems worth while. The implication is that work done before notice of error is not at the Contractor's risk, which is right and proper.

The wording in one case is this:

A. The Contractor shall promptly report to the Engineer, in writing, any discrepancy or error which he may discover in the plans, drawings, specifications or contract.

Other forms are:

B. Any correction or errors or omissions in plans and specifications may be made by the Chief Engineer when such correction is necessary for the proper fulfilment of their intention as construed by him.

Possibly the two clauses following belong with Section 3 rather than

here.

C. The Contractor is required to check all dimensions and quantities on the drawings or schedules given to him by the Engineer, and shall notify the Engineer of all errors therein which he may discover by such examination and checking. He will not be allowed to take advantage of any error or omission in these specifications, as full instructions will be furnished by the Engineer should such error or omission be discovered, and the Contractor shall carry out such instructions as if originally specified.

D. The aforesaid plans, and the surveys with the calculations based thereon, are believed to be correct; but the Contractor must examine for himself, as no allowance will be made for any errors or inaccuracies which may be found therein, and the Commonwealth does not guarantee them to be even approximately correct.

It seems to be unfair to the Contractor to require him to stand responsible for errors made by the Engineer's draftsmen; the Contractor ordinarily has no special facilities for verification. In the case of bridge or other structural plans, the Bridge Company has unusual facilities to do checking and the clause in this case seems defensible and probably wise. It may be proper in other specific cases; for the general run of Contracts, it is not fair to the Contractor.

The following provision is along the same general lines and seems reasonable. The Engineer who finds his own errors has here authority to correct them, and evidently under this provision the Contractor is not to be held responsible for work done before the errors are discovered and corrected.

E. The Engineer shall have the right to correct any errors or omissions in the contract or specifications when such corrections are necessary for the proper fulfilment of their intention. The action of such corrections shall date from the time that the Engineer gives due notice thereof, and any alterations in the work, rendered necessary thereby, shall be made as directed.

11. PRESERVATION OF STAKES. The Contractor must carefully preserve bench marks, reference points and stakes, and in case of wilful or careless destruction, he will be charged with the resulting expense and shall be responsible for any mistakes that may be caused by their unnecessary loss or disturbance.

This seems an excellent provision, although omitted in many Contract forms. Several forms of provision as to this have been given in the comments upon Section 9.