PRECEDENT BUILDER'S CONTRACT WITH 11. All costs, damages, and expenses of and incident to the complete fulfilment of this contract on the part of the said A. B. shall be borne and paid by him exclusively, it being the intent of the parties hereto, that the said C. D. shall be liable only to make the pay- 12. Costs, how ments hereby expressly contracted to be made by him. to be paid. IN WITNESS. A LANDOWNER. XXVIII. CONTRACT between a Firm of BUILDERS and a PRECEDENT XXVIII. BUILDER'S CONTRACT WITH A COMPANY. AN AGREEMENT, made, &c., between A. B., C. D., 1. Parties. (here WHEREAS the said Company lately caused a specification for the making and completing of a new engine-house, boiler-house, coal bins, and campanile, and other works 'connected therewith on their lands at -, and drawings for the same, to be prepared by N. O., their engineer, and a copy of the specification, signed by him and the contractors, is hereunto annexed by way of schedule; and the drawings so prepared, and which are referred to in the specification, have also been signed by him and them, and those drawings are the following, namely: No. 1. General elevation, front and returns. No. 2. Ditto, back. VOL. II. L PRECEDENT BUILDER'S CONTRACT WITH 3. Contractors 5. Witness agreement. 6. Contractors to build within limited time, 7. to satisfaction of Company. 8. Company's engineer to be sole judge. No. 3. General ground plan. No. 4. Plan and sections of foundations. No. 5. Back front and return elevations. No. 6. Sections of house. No. 7. Tower. No. 8. Elevations and sections of boiler-house, coal bins, and flues. No. 9. General roof plan. No. 10. Sections and details of roof. No. 11. Windows, doors, and details. No. 12. Porch and stairs. AND WHEREAS the contractors tendered for the execution of the works for the sum of £, and the said Company accepted their tender. NOW THESE PRESENTS WITNESS, that, in consideration of the premises, the contractors do hereby for themselves jointly and severally, and for their respective heirs, executors, and administrators, covenant with the said Company, and the said Company do hereby covenant with the contractors, their executors, administrators, and assigns, as follows: 1. The contractors will, on or before the day of -, make and finish, in conformity with the said specification and drawings, all the works mentioned in the said specification and delineated in the said drawings, and in default thereof will pay to the said Company on and for every day after the said day of, until the said works shall be so made and finished, a sum of £ as liquidated damages. 2. The contractors will in every respect make and finish the works, and observe the several terms of the said specification, and fulfil their part of this contract to the entire satisfaction of the Company's engineer. 3. The Company's engineer shall be the sole judge upon all matters relating to the construction, incidents, and consequences of the said specification and drawings, and of this contract respectively; and his certificates in writing under his hand shall, so far as they respectively Pro extend, be binding and conclusive on both parties. PRECEDENT BUILDER'S CONTRACT WITH A COMPANY. 4. The contractors will at all times during the con- 9. Contractors tinuance of this contract, observe every direction with to obey engineer. respect to the performance thereof from time to time given. by the Company's engineer to the contractors, or to their foreman or agent. 5. For the purposes of this contract, the said N. O. shall be the Company's engineer until the Company, by writing under the hand of their chairman or secretary, delivered to the contractors, or left for them at their place of business, or at the works, shall appoint another engineer in his place. 10. N. O. to be engineer at present, for works, how to be made. 6. The Company will pay to the contractors for the 11. Payment execution by them of the works the sum of £- - or such greater or less sum as, according to the terms of the said specification, shall become payable by the Company to the contractors, and will pay the same according to the terms of the said specification. 7. The Company shall not be bound to make any such payment except on the production to them at their office in of a certificate signed by the Company's engineer, stating the amount to be paid; nor until the contractors shall by writing left at that office, have given at least one week's notice of their intention to apply for such payment. 8. All moneys which may from time to time become payable by the contractors for the non-fulfilment of this contract, shall from the time of their becoming payable be considered as liquidated damages due to the Company, and may be deducted by the Company from any moneys which may be due to the contractors on account of the execution of the aforesaid works, as if the same had been moneys paid by the Company to the contractors on account. IN WITNESS Whereof the said A. B., C. D., E. F., and G. H. have hereunto set their hands and seals, and the 12. Company to pay only on engineer's certificate. 13. Penalties, applied." how to be PRECEDENT BUILDER'S CONTRACT WITH A COMPANY. Contracts by or on behalf of public companies, how made and executed. said Company have hereunto caused their common seal to be affixed (b) the day and year first above written. (b) The Joint-Stock Companies Act, 1856 (19 & 20 Vict. c. 47), enacted, s. 41, that contracts on behalf of any company registered under that Act might be made as follows: 1. Any contract, which, if made between private persons, would be by law required to be in writing, and if made according to English law to be made under seal, might be made on behalf of the company in writing under the common seal of the company, and such contract might be in the same manner varied or discharged. 2. Any contract, which, if made between private parties, would be by law required to be in writing, and signed by the parties to be charged therewith, might be made on behalf of the company in writing, signed by any person acting under the express or implied authority of the company, and such contract might in the same way be varied or discharged. 3. Any contract, which, if made between private persons, would by law be valid, though made by parol only, and not reduced into writing, might be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contracts might in the same manner be varied or discharged. Joint-Stock Companies are, however, now regulated by the Companies Act, 1862, which does not contain any such provision, and although, wherever a contract is essential to the purposes and objects of a trading company, it may be enforced against them even if it be not under seal: Henderson v. Royal Mail Company, 5 E. & B. 409 : yet questions, which have to be decided by a jury, constantly arise as to what contracts come within this definition: see London Dock Company v. Sinnott, 8 E. & B. 347: and a person, dealing with such companies, should always bear in mind that they are essentially different from an ordinary partnership or firm for all purposes of contracts, and especially in respect of evidence against them, and should insist upon all contracts with them being by deed under the seal of the company. There is no safety or security for any one dealing with such a body on any other footing: Williams v. Chester, &c., R. C., 15 Jur. 828, Exch.; Serrell v. Derbyshire, &c., R. C., 19 L. J. 371, C. P.; Diggle v. Blackwall R. C., 6 Railw. Ca. 590; 5 Exch. 442; Harris v. South Devon R. C., 20 Beav. 384. XXIX. AGREEMENT under Seal between a CONTRACTOR and a RAILWAY COMPANY, for MAKING a RAILWAY without stringent stipulations. DISPUTES to be settled by INDEPENDENT ARBITRATION (α). Railway PRECEDENT CONTRACT (SIMPLE) FOR MAKING A RAILWAY. mutual cove nants. THIS AGREEMENT, made, &c., between A. B., of, 1. Parties. &c. (contractor), of the one part, and The Company, of the other part, WITNESSETH, that the 2. Witnesseth parties hereto hereby mutually contract, undertake, and agree with each other, and that the said A. B. (hereinafter called the contractor), so far as the stipulations and provisions of this agreement, and the works, matters, and things herein mentioned or referred to are to be performed, observed, executed, or done by him, doth hereby for himself, his heirs, executors, and administrators, covenant with the said Company, and their assigns: And the said Railway Company, so far as the said stipulations, provisions, matters, and things are to be performed, observed, executed, or done by them, do hereby for themselves and their assigns, covenant with the said (a) A Court of Equity will not entertain a bill for the specific purformance of a contract for making a railway, or executing works of a very complicated and difficult character, for the non-completion of which a remedy may be had at law in damages: Jackson v. North Wales R. C., 18 L. J. 91, Ch.; Ranger v. Great Western R. C., 1 Ra. Ca. 1, 51; 5 H. L. Ca. 72; South Wales R. C. v. Wythes, 1 K. & J. 186; 5 De G. M. & G. 880. The terms of the contract, from which the precedent in the text was taken, are less stringent on the contractor than many similar agreements in use at the present day, since they neither make the obtaining the engineer's certificate a condition precedent to the right to payment, nor place the contractor entirely within the power of the company's engineer, but leave disputes to be settled by arbitration, or by the superior Courts. The next Precedent contains clauses of the stringent nature indicated above. Specific performance not decreed of agree. ment to execute complicated works. |