under the penalty expressed in a bond bearing even date with these presents, and hereto annexed, as follows:

B. Witnesseth, that the parties to these presents, each in consideration of the undertakings, promises and agreements on the part of the other herein contained, have undertaken, promised and agreed, and do hereby undertake, promise and agree, the party of the first part for itself, its successors and assigns, and the party (parties) of the second part for himself (themselves) and his (their) heirs, executors and administrators or successors as follows:

It should be noted that the Uniform Contract Form provides near the close of the entire agreement, that:

This agreement shall inure to the benefit of and be binding upon the legal representatives and successors of the parties respectively.

This apparently covers the reference to "heirs, executors, and administrators" which occurs above.

Another reading found elsewhere is this:

C. Witnesseth, that for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the said party of the first part, and under the penalty expressed in the bond bearing even date with these presents, and hereto annexed, the said party of the second part agrees, etc.

A very simple form used in the Standard Contract Form of the “ American Institute of Architects" is:

D. Witnesseth that the Contractor, in consideration of the agreements herein made by the Owner, agrees with the Owner as follows:

Another simple form including both clauses discussed above is this:

E. The Cambridge Bridge Commission, a Commission duly created by Chapter 467 of the Acts and Resolves of the Massachusetts Legislature, Session of 1898, and the other party signing this contract, hereinafter designated as Contractor, agree as follows:

Later Contracts, however, made by the same Commission have had a more elaborate form. The above might have been written in this way:

F. The Cambridge Bridge Commission, etc., party of the first part, hereinafter called the Commission, and Benjamin Young, party of the second part, hereinafter called the Contractor, mutually agree as follows:

Then the form would still be simple and yet a trifle clearer. The omission of the words, "each in consideration of the covenants and agreements hereinafter mentioned, to be performed by the parties hereto," etc., seems not important if the Contract in its later terms definitely provides that

each party agrees to do certain things. Probably most lawyers or others drafting a Contract would prefer to have the word "consideration" used in this connection.

Even then, the following simple form has much to commend it:

G. The Cambridge Bridge Commission, etc., party of the first part, hereinafter called the Commission, and Benjamin Young, party of the second part, hereinafter called the Contractor, each in consideration of the agreements to be performed, and the payments to be made by the parties hereto, mutually agree as follows:

In this form, the term "witnesseth" is dispensed with, as are several other words rather formal in character.

One form in use provides that:

H. A, B, and C, the .....

Commission, herein acting for the Commonwealth of Massachusetts, and without personal liability to themselves, and ...... hereinafter designated as Contractor, agree as follows:

.....

The Contractor shall furnish all the materials, superintendence, labor, equipment and transportation, except as hereinafter specified, and shall execute, construct and finish, in an expeditious, substantial and workmanlike manner, to the satisfaction and acceptance of the Chief Engineer of the Company, (Here follows a statement of the work to be performed.)

Other readings taken from actual Contract forms are:

A. The contractor agrees, at his own proper cost and expense, to do and complete all the work and furnish all the labor, machinery, tools and materials, except as herein specified, and to do everything required to build, etc.

B. The Contractor shall furnish and do everything, except as herein otherwise provided, necessary to complete the work in accordance with the terms of this contract and with the requirements of the Chief Engineer thereunder.

C. The Contractor agrees at his own expense, to do and complete all the work and furnish all the materials required to be done or furnished by him in the following specifications in a proper, thorough and workmanlike manner, in accordance with the terms of this contract and specifications, and to the satisfaction of the Chief Engineer; and to do all and singular the things in this contract and specifications provided.

D. The Contractor shall and will at his own cost and expense furnish all the materials not otherwise expressly designated to be furnished by the Commission, and do all the work called for by this contract, as set forth in the specification hereinafter contained, to wit:

Other forms are in part as shown below:

E. At his proper cost and expense to do all the work and furnish all materials, tools, labor and all appliances and appurtenances called for by this agreement.

F. All material and supplies, plant, tools, and implements, teams, cars, and tracks; in fact all material and appliances of every sort or kind that may be necessary for the full and complete carrying out of this contract.

G. The Contractor shall provide a complete and adequate construction plant of tools and machinery of a character suitable for performing satisfactorily and expeditiously the various parts of the work, and an effective organization of workmen, mechanics, tradesmen and other employees trained and skilled in their various occupations..

The following form has been used by the Board of Water Supply of New York:

H. The Contractor shall do all the work and furnish all the materials, tools and appliances, except as herein otherwise specified, necessary or proper for performing and completing the work required by this contract, in the manner and within the time hereinafter specified. He shall complete the entire work to the satisfaction of the Board, and in accordance with the specifications and drawings herein mentioned.

Another New York form adds to the above:

I. At the prices herein agreed upon and fixed therefor; provided, however, that said contract drawings may from time to time be altered or modified as hereinafter provided.

Reference to Section 28 will show a proper provision for changes, which hardly need to be covered here.

Either of the above readings is valuable because it provides in a general way, independent of Specifications or General Conditions, that the Contractor shall carry out the Contract to the satisfaction of the Chief Engineer. Some Contracts drawn by very competent Boards fail to include this clause. Nevertheless the clause seems important in two particulars; it provides a general clause covering the Contract without specific items which occur later, and it provides that the work shall be done to the satisfaction of the Chief Engineer. The importance of the latter provision will be discussed to better advantage in connection with Section 26. That the New York Water Supply Contract provides for "the satisfaction of the Board" rather than of the Chief Engineer is probably due to a special provision of Statute Law applying to New York City exclusively, and for many Contracts would not be advantageous.

in accordance with the plans hereto attached identified by the signatures of the parties hereto, or herein described, and the following GENERAL CONDITIONS, requirements and specifications, forming part of this contract.

This clause provides for identifying plans by the signatures of the parties, which represents good practice. In some cases, however, a simple

description of a plan may suffice and be more convenient. Reference to the General Conditions which follow, seems necessary; as also reference to the Specifications that, for railroad work of various sorts, can best be arranged in a separate document " which forms part of the Contract."

The work covered by this contract shall be commenced....

.day of

of this contract.

and be completed on or before the

.191.... time being of the essence

Many Contracts fail to use the words, "time being of the essence of the Contract," or words of similar purport. This clause seems wise in case provision is made either for "liquidated damages" or damages otherwise determined, if the work is not completed at the time specified. It is equally desirable wherever clauses are introduced providing that the Commission may take the work from the Contractor, or take other special measures in case the Contractor fails to conduct the work in an expeditious manner. Along this line the New York Water Supply Contract provides:

A. The time in which the various portions and the whole of this Contract are to be performed and the work is to be completed is of the essence of this agreement.

The blank lines in the Uniform Contract Form allow a provision to be introduced dealing with damages for failure to complete the work within the time specified, which is a suitable provision in many Contracts but not in all.

A discussion of penalty and liquidated damages and of forms used in specifying the latter, may be found in the next chapter.

And in consideration of the completion of the work described herein, and the fulfillment of all stipulations of this agreement to the satisfaction and acceptance of the Chief Engineer of the Company, the said Company shall pay, or cause to be paid, to said Contractor, the amount due to the Contractor, based on the following prices:

Other readings are:

A. It is further agreed that the following prices shall be paid by the Commonwealth and received by the Contractor as full compensation.

B. The City agrees to pay and the Contractor agrees to receive the prices specified in the proposal submitted by him . . . . which said prices are as follows to wit:

....

C. The Commission shall pay and the Contractor shall be compensated in full for everything furnished and done by him under this contract and for well and

faithfully completing the work and the whole thereof upon the basis of the several prices set forth and provided in the following items herein:

D. The City will pay and the Contractor shall receive:

E. It is agreed that the Commonwealth shall pay and that the Contractor shall receive:

F. The Contractor agrees to construct the part hereinafter described of a Rapid Transit Railroad, with its appurtenances. The City agrees to pay the Contractor the sums of money hereinafter mentioned at the times and in the manner and upon the terms and conditions hereinafter set forth.

The direct reading that the "City shall pay and the Contractor shall receive" seems desirable; this is a positive agreement by each party to one of the most important provisions of the Contract.

Many Contracts add to this, clauses of the following character:

G. As full compensation for furnishing all the materials called for, not found in the work, and for all labor and use of tools and other implements necessary for executing the work contemplated in this contract; also for all loss or damage arising out of the nature of the work, or from the action of the elements, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the work, and for all reasons of every description connected therewith; also for all expense incurred by and in consequence of the suspension of discontinuance of said work as herein specified and for well and faithfully completing the work, and the whole thereof, according to the plans and specifications and requirements of the Engineer under them, which said prices are as follows to wit:

A large part of this seems to be legal verbiage and much of it may be provided for elsewhere in the Contract, as appears to be done in the Uniform Contract Form. It appears to be unnecessary here.

The following reading is suggested:

H. The Company will pay and the Contractor will receive as full compensation for the completion of the work described herein and the fulfilment of all stipulations of this agreement to the satisfaction and acceptance of the Chief Engineer of the Company, the amount found by the Chief Engineer to be due the Contractor, based on the following prices:

Monthly payments are provided for in Section 36.

A provision is frequently added after the schedule of quantities stating that they are approximate. Such a provision is usually introduced also in the Proposal. It seems desirable that the Contract should contain such a provision, and forms for this purpose are discussed in the next chapter.