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or deceit and will not assist one who violates his obligations in this way; therefore a contract procured by fraud will not be enforced for the benefit of the party perpetrating the fraud. Fraud will receive special attention in the next chapter, on torts.

Misrepresentation. With relation to misrepresentation made unwittingly, the textbooks on law show some divergence of opinion. In accorddance with principle it is commonly stated to be the law that misrepresentations (without fraud) if made in negotiations preliminary to the contract, perhaps as inducement to it, will not suffice to upset a completed contract. A misrepresentation that enters into and becomes a part of the contract, if material, may render it void, possibly on the ground of mistake; more probably it will create a liability for damages. If a plan, which is made a part of a contract, innocently misrepresents facts and the price bid is based on the plan, this misrepresentation, if material and serious, may render the party at fault liable for damages.

Exceptions. There are several apparent exceptions with relation to representations not a part of the contract: 1. In marine and life assurance, the company must rely upon the statements of the insured and is protected. not only against misrepresentations but against failure to reveal all essential facts. 2. Similarly, a wrong description of lands or the terms or conditions to which they are subject will vitiate the contract, and this is of interest to engineers. 3. Contracts for the sale of shares in corporations are in the same class. 4. In cases where fiduciary relations exist between the parties, good faith is so strongly insisted on that misrepresentation or failure to reveal all essential facts is fatal to the contract.

Engineer's Misrepresentation. Contracts for engineering construction commonly contain a provision that "the decision of the engineer shall be final " and clothe him with great powers, part of his duties being essentially those of an arbitrator. The courts are likely to hold that his position gives him a fiduciary character such that misrepresentations on his part take on the character of constructive fraud, and impose liability upon his client because the engineer is his agent.

Voluntary Agreement. The agreement must also be voluntary; if made under compulsion or duress, there can be no binding agreement. Imprisonment of a party to the contract made either unlawfully or through abuse of legal process constitutes duress and renders the agreement voidable by the party under duress. There are other forms of duress such as the imprisonment of husband, wife, or child, or any near relative; bodily harm to the party or a relative; an unlawful seizure or destruction of the property of the party to the contract; and threats may be sufficient to make the contract voidable on the score of duress. These cases may not be of great interest to engineers, but set out an important principle.

Undue Influence.

Undue influence will also vitiate a contract if it be exercised by a parent or anyone having special fiduciary or confidential relations, and the same is true where the party unduly influenced is mentally weak. Guardian and ward, attorney and client, principal and agent, physician and patient have been considered to hold such relations. Such undue influence prevents the agreement from being voluntary.

PARTIES

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Parties. There must be at least two parties to a contract. not contract with himself, even in a case where he is acting on one side for himself, and on the other side as the agent for some one else.

Competency. The parties must be legally capable of making a contract. Persons of unsound mind are incapable of making an agreement, and so incompetent to enter into a contract; similarly, a minor, or person under twenty-one years of age, is held to be incapable, no matter how intelligent. Persons suffering from the infirmities of age or sickness sometimes have their affairs managed by a conservator appointed by the court, so that contracts in their interest may be made. A drunken person, depending somewhat upon how drunk, may be sufficiently wanting in understanding to be incapable, but, in general, ordinary drunkenness will not suffice to vitiate a contract.

Married Women. Formerly, married women could not contract, but in most States this has been changed by statute. When a contract of importance is to be made with a married woman, it is the part of wisdom to consult a lawyer so that the contract may be effective under the laws of the State where the contract is made. The fact that women transacting business have oftentimes had little training in business principles, renders a contract with a woman more liable to misunderstanding, and for that reason more care should be used in making it.

Minors. A minor may contract for necessaries, and there are other cases where a contract clearly in his favor will be enforced. A contract with a minor has the disadvantage that the minor is not bound but may hold the other party if he so desires. Contracts are sometimes void, that is enforceable against neither party; sometimes they are only voidable, that is enforceable at the option of one of the parties and not of the other. The contract with the minor is voidable, rather than void; in the case of some contracts the minor may act when he becomes of age, and ratify the contract if he sees fit. The case of the minor is abnormal since one party while the other is not.

is held to the contract Minor's Services. The father is entitled to the services of a minor, and the engineer who employs him should in strictness make a contract with the father, and make payments to the latter. This is often burdensome;

when a minor is employed and payment is made to him for a time and his father makes no objection, the courts will uphold this arrangement, but not when the father gives notice of objecting.

Curiously enough, the minor has insufficient understanding to contract for himself, but as agent for another he may legally agree and make or sign a contract. The law protects the minor; the principal who employs a minor as agent is capable of protecting himself. If the agency is important and needs to be defined by a writing, any contract for the agency would properly be made with his father, as the minor may not make this contract for himself.

Corporations. A corporation, which may be regarded as an artificial person, may be, and in fact often is, one of the parties to a contract. The contract must be signed in its behalf, and in its name, by one of its officers or agents, properly authorized. It is important that anyone either accepting the signature, or signing himself for the corporation, should have sufficient assurance that the authority is legally and completely exercised; any one dealing with the corporation should know that the party signing for the corporation has authority to do so.

An engineer is often an employee or agent of a corporation of some sort; his representative character is such, his dealings with the agents of others so common, that special attention will be given in later chapters to corporations, and to agency. A special chapter will deal with the relations of engineers to others.

CONSIDERATION

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Consideration Defined. Consideration has been defined as something done, forborne, or suffered, or promised to be done, forborne, or suffered, by the promisor, in exchange for the promise. It may be a benefit to the promisor, or it may be a detriment to the promisee which gives it the quality of consideration. It must be lawful and it must be certain. If either illegal or impossible in itself, it is insufficient. It must in general be a present or future benefit or detriment; a past, completed transaction will not serve as consideration for a present promise. This means something past or done without connection with the performance of a contract. A sum of money paid at the time of the contract or even the day before for the purpose of obtaining the promise or contract would be a valid consideration. This is sometimes called an executed consideration, rather than executory which contemplates future action. A promise to do something already required by law or by public duty, however, will not serve as consideration. Forbearance, such as an agreement for the payment of additional money, or the compromise of a disputed claim is a valid consideration for a new promise to do something or to pay something.

Valid Consideration - Seal. There must be a valid consideration. A simple promise without consideration is not enforceable at common law. An apparent exception is that a written contract under seal need not have any consideration expressed. It is said that the seal imports a consideration. A plausible reason for this exception is necessity; in the case of certain writings in the nature of contracts there is no natural reason for any actual consideration. For example, some friend of a contractor joins him in a bond for the faithful performance of the contract; this friend has nothing to gain, no consideration for his promise, but the transaction is a common and a necessary one; affixing the seal is an act of some solemnity, and the law finds that the seal cures the defect. Necessity may not have been the primary cause of this legal rule or usage, but may now be considered a fair explanation of its survival and present existence. In some States there is a statutory provision that any contract put in writing is presumed to be founded on a consideration.

Seal and Scroll. A seal is a piece of wax or adhesive paper attached to the writing. In some States a scroll (or scrawl) with the word "seal" inclosed is a lawful seal; in many others it is not. Unless it is known that the scroll is legal, no chances should be taken, a seal should be used; half a postage stamp is a good seal in case of necessity.

Desirability of Seal. The question may arise, if a seal does away with the necessity for consideration, why not make all contracts in this way? One answer is that contracts are often made through offer and acceptance, or in some informal way. Another answer is that in case of a suit at law a contract or document under seal requires greater completeness of evidence in some formalities and in this way is disadvantageous. Moreover, the seal does not cure all defects; it is true of sealed instruments that in some cases reliance is placed upon a consideration expressed, in other cases, upon the seal alone. In the former case, if the consideration is found to be illegal or in any way fails, the contract may be void in consequence, for failure of consideration, even though under seal. Where dependence is clearly upon the seal, the seal alone is sufficient.

Mutual Promises. Most contracts call for the furnishing of goods or labor or both, on one side, and the payment of money on the other; these contracts are in the ordinary course of business; but contracts often consist of mutual promises, in which case each promise serves as consideration for the other. Each promise must be such as to be enforceable; if a man is so keen that he has made a contract in which the other makes real promises while he makes what are in form promises but which can not be enforced, he has overreached and there is no contract. It is held that mutual promises to subscribe to some beneficial object are enforceable although the consideration does not appear.

Inadequacy of Consideration. Inadequacy of consideration does not vitiate a contract; but it may serve sometimes as evidence of fraud in procuring the contract, or of duress, or of undue influence, or mistake. The consideration need not appear adequate, but must have some value, real or theoretical.

Failure of Consideration. Failure of consideration results when from any cause the consideration, once good, becomes incapable of being done or furnished, and it renders the contract void. Bankruptcy of a contractor would release the private party or corporation which contracted with him, although action in this matter might more often be taken on the basis of a breach of contract.

Reasonable Consideration Implied. It will be understood that often, while no consideration is expressed when goods are ordered or labor is hired, the law supplies the consideration that payment will be made, the amount to be a reasonable price, commonly the market price.

Negotiable Instruments. The laws dealing with negotiable instruments (bills of exchange, notes, and checks) are peculiar, especially touching the question of consideration which in these writings need not always be expressed. A later chapter deals with this subject.

SUBJECT MATTER

Lawful Acts. The agreement must be for the performance of some lawful act, or for the lawful abstaining from doing some specified act. The object of a contract must be lawful, both with reference to the Common Law and to statutory regulations. Engineers in their business have naturally nothing to do with wagers, which are unlawful; the buying or selling of stock on margins is practically a wager in cases where no stock in fact is transferred. Similarly, usury or contracting for interest on money at more than the legal rate is unlawful.

Licenses. Professional and commercial regulations often require licenses or prescribe restrictions. Doctors of medicine must be licensed; certain mechanics, gas fitters in some cities, must be licensed, and a contract with an unlicensed workman for personal services in his trade would be void. The formal surveys of mines for filing claims must be made by duly qualified Deputy United States Mineral Surveyors.

Sunday Laws. Of importance to engineers are the Sunday laws. Work on Sunday is forbidden by statute in most States. Frequently, work on Sunday seems necessary in the public interest, and works of necessity and charity may be legally done on Sunday. In a rapid transit subway the deepening of the foundations of a very high building, entered upon during the week, was continued over Sunday; continuous work seemed

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