provided in this contract. The specifications and other provisions of this contract, and the contract drawings, are intended to be explanatory of each other. Should, however, any discrepancy appear or any misunderstanding arise as to the import of anything contained in either, the explanation of the Engineer shall be final and conclusive.

A provision of the following kind is sometimes used:

H. The matter contained in the Information for Bidders, in the Proposal and Bid, in the Specifications and in the contract drawings, are hereby incorporated in and made a part of this contract to the same extent as if they were herein written.

I. The Legal Notice, Instruction to Bidders, Proposal of the Bidder, and the Specifications, all of which are hereto attached, are hereby made a part of this agreement the same as if they were herein written; the drawings for the work to be done under this agreement, on file in the Department of Public Service, Office of the City Engineer, are also hereby incorporated in and made a part of this agreement.

Such a provision seems unnecessary if the Contract covers all requisite features included in these other documents. The Contract should be made complete in itself so far as possible.

An addition to the clauses already considered is in good use and is shown below:

J. All things which in the opinion of the Chief Engineer may fairly be inferred from the contract and plans are to be executed by the Contractor as a part of the contract; and the Chief Engineer shall be the sole judge as to whether the detail plans conform to the general plans and contract.

Both of these provisions may hold good, but the Courts are slow to allow their powers to be taken away so far as the interpretation of any writing is involved. Where the exercise of expert knowledge is required, the courts would probably support the provision that the Chief Engineer's expert judgment should prevail. The comments on Section 26 should be read to correctly appreciate this.

Another clause sometimes added is:

K. The work is to be made complete, and to the satisfaction of the Chief Engineer, notwithstanding any minor omissions in the specifications or plans.

4. PERMITS. Permits of a temporary nature necessary for the prosecution of the work shall be secured by the Contractor. Permits for permanent structures or permanent changes in existing facilities shall be secured by the Company.

This appears to be an unusual provision in a Contract, but it seems very desirable. The Contractor should secure permits necessary to him for carrying on the work; the Company should secure all lands, or rights of

way, or licenses necessary for the use of the work when completed. The distribution of duties is reasonable and proper.

It is provided in another Contract form:

A. The Contractor shall also procure and pay for all licenses or permits required in the prosecution of any part of the work embraced in this Contract.

This appears not to be so clear as Section 4, above quoted.

And in another:

B. The Contractor shall fully comply with all municipal ordinances and regulations, and obtain all required licenses and permits, and pay all charges and expenses connected therewith.

In many classes of work within a city, the requirements as to permits need to be well understood; they are sometimes many in number and some requirements may be very technical as to fulfilment. In the erection of buildings or in the building of sewers, the requirements of ordinances or rules of street or building departments must be complied with.

5. PROTECTION. Whenever the local conditions, laws or ordinances require, the Contractor shall furnish and maintain, at his own cost and expense, necessary passageways, guard fences and lights and such other facilities and means of protection as may be required.

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This also seems specific and desirable although not found in most Contract forms. It differs materially from a provision to hold the Company harmless in case any damage or an injury is incurred; it is provision to guard against damage to any interests, or against violation of statutes or ordinances; it is in the nature of a preventive rather than a remedy. This involves compliance with Statute Law and with the particular requirements thereof; guard fences, lights, and various kinds of protection are, however, required by the Common Law, to escape a charge of negligence. Under ordinances, etc., however, the specific requirements or regulations must be observed as laid down by any public authority.

The following clauses are taken from existing Contract forms:

A. The Contractor shall take whatever precautions may be necessary to render any portion of the work secure in any respect, or to decrease the liability of accident from any cause, or to avoid contingencies which are liable to delay the completion of the work.

B. The Contractor shall furnish and maintain, subject to the approval of the Engineer, all barricades and other protections, lights and signs, necessary for the proper protection of the public. He shall also furnish the services of watchmen. The cost of all the above shall be covered by the amounts paid at the rates and prices herein specified, and no extra charge will be made therefor.

C. The trench and work shall be properly lighted at night by the Contractor, who shall provide at his own expense watchmen, lights, etc., and take such precautions generally as may be necessary to prevent accidents and to protect life and property.

6. RIGHTS OF VARIOUS INTERESTS. Wherever work being done by Company forces or by other contractors is contiguous to work covered by this contract, the respective rights of the various interests involved shall be established by the Engineer, to secure the completion of the various portions of the work in general harmony.

Attention should be called here to Section 24 which defines Chief Engineer and Engineer. It is here provided that the Engineer on the ground shall settle this matter, which is the proper arrangement. Appeal to the Chief Engineer is, or may be, provided for.

In many classes of Contract work, there will be no opportunity for conflict of rights and this section may then be omitted. In railroad work and in the construction of buildings this will often be a necessary provision. Other forms are:

A. The other Contractors of the Commission may also, for all the purposes which may be required by their contracts or work, enter upon the work and premises used by the Contractor. Any differences or conflicts which may arise between the Contractor and other contractors of the Commission in regard to their work shall be adjusted and determined by the Engineer.

B. On the division line of contiguous contract sections, the Engineer will decide any matters in the details of construction within a limit of seventy-five feet on either side of the line where the work of contractors may be in conflict, and direct which of the contractors shall complete the details of construction within such limits.

C. During the progress of the work it will be necessary for other contractors and persons to do work in or about the construction or equipment of the Railroad. The Contractor shall afford to such other contractors or persons such facilities as the Engineer may require.

Any difference or conflicts which may arise between the Contractor and other contractors of the Commission in connection with the construction of the Railroad or otherwise in connection with the equipment of the Railroad in regard to the progress of, or the facilities afforded with respect to, their work shall be adjusted and determined by the Engineer.

The provisions of Section 6 ought to be of interest to Architects. In constructing a house, plumbing, heating, wiring, and various classes of work are often done under separate Contracts.

7. CONSENT TO TRANSFER. The Contractor shall not let or transfer this contract or any part thereof (except for the delivery of material) without

consent of the Chief Engineer, given in writing. Such consent does not release or relieve the Contractor from any of his obligations and liabilities under the

contract.

Other readings in whole or in part are:

A. The Contractor shall not sub-let or assign, by power of attorney or otherwise, any part or the whole of the work embraced in this contract, without the approval of the Commission.

B. The Contractor shall give his personal attention constantly to the faithful prosecution of the work, and shall not assign, sublet, or transfer, to any person or persons, this contract or any of the work hereby agreed to be performed, or any of the moneys falling due or to become due under this contract; and shall not issue any orders or drafts on the City for any moneys due or to grow due under this contract, unless by and with the consent of the Board, first duly had by resolution and entered upon the minutes of the Board, and agrees that no person other than the party signing this agreement as Contractor shall have any claim thereunder.

C. The Contractor shall give his personal attention constantly to the faithful prosecution of the work, shall keep the same under his personal control, and shall not assign by power of attorney, or otherwise, nor sublet the work, or any part thereof, without the previous written consent of the Commission, and shall not, either legally or equitably, assign any of the moneys payable under this agreement, or his claim thereto, unless with the like consent of the Commission.

D. Unless by the previous consent of the Board, to be signified by indorsement on this agreement.

E. No part of this work shall be sublet except to parties skilled in and properly equipped for the same and satisfactory to the Board.

F. 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 direction or instructions from the Engineer; he shall not assign, transfer, convey, sublet or otherwise dispose of this contract, or his right, title or interest in or to the same or any part thereof, without the previous consent in writing of the Board indorsed herein or hereto attached; and he shall not assign by power of attorney or otherwise any of the moneys to become due or payable under this contract unless by and with the like consent signified in like manner. If the contractor shall without such previous written consent, assign, . may at the option of the Board, be revoked and annulled, and the City shall thereupon be relieved and discharged from any liability and obligations growing out of the same to the contractor.

this contract

G. If the Contractor shall cause any part of this contract to be performed by a sub-contractor, the provisions of this contract shall apply to such sub-contractor and his officers, agents and employees in all respects, as if he and they were employees of the Contractor; and the Contractor shall not be in any manner thereby discharged from his obligations and liabilities hereunder, but shall be liable hereunder for all acts and negligence of the sub-contractor, his officers,

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