Engineering and Architectural Jurisprudence: A Presentation of the Law of Construction for Engineers, Architects, Contractors, Builders, Public Officers, and Attorneys at Law

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J. Wiley & Sons, 1897 - Architects - 905 pages
 

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Contents

What Contracts and Claims are Assigpable
9
What Interest does an Assignee Take
10
Third Parties Strangers and Beneficiaries
11
Tbird PartySureties
12
Tbird Parties Surties are Not Liable to Them
13
Changes which will Not Release the Surety
16
Surety Discharged by Otber Causcs
17
Persons as Parties Who May Contract 23 Disabilities to which Persons are subject
18
Imbeciles Inebriates and Lunatics
19
Married Women
21
Other Conditions Affecting a Persons Capacity to Contract
22
Either Party under Dures
23
Principal should be Made the Party If Agent Assumes the Obligation He will be Liable
24
Proof of Agency
25
Names of Parties in Body of Contract should Correspond with Signatures
26
Agents should be Duly Authorized to Cootract
27
Public Agents Not Liable for Bluuders
28
Authority cannot be Iuferred from Business or Family Relations
29
Boards Committees and Councils in Their Representative Capacity
30
Public Officers are presumed to Do Their Duty
31
Means of Obtaining Information
32
Ap Agent or Fiduciary cav Have No Interest in the Coutract
33
Artificial Parties Corporate Bodies 43 Charter and Statute Limitations
34
Other Restrictions to which Corporate Bodies are SubjectCost must Be within the Appropriation or Limit of Indebtedness
36
Appropriation must Not be Exceeded
37
The Legislature or Congress may Ratify the Contract
38
Cases where Appropriation has been Exceeded
39
Unincorporated Orgavizations as Parties
40
Second Party Not Named but Determined by His Own Act
42
Charter and Stalute Requirements must be Stricily Carried Out
43
No Recovery can be Had for Work and Materials Furnished for Public Work Contrary io Law 53 The Law will Not Imply a Contract which the Law ...
44
Irregularities Need Not be Caused by Contractor
46
Precautious to be Taken by Coutractors with Regard to Parties and Their Powers 56 Source of Power 57 Residence of PartiesPlace where Contract is ...
48
CHAPTER II
54
Consideration in Case of Subscriptions
55
Adequacy of Consideration
56
The Consideration Must Not be Wanting
57
The Consideration must Be Present
59
From Whom Consideration must Come
61
Changes or New Terms in a Contract
62
Consideration Good in Part
63
CHAPTER III
65
The Undertaking must Not Have for its Object the Creation of a Monopoly
71
Immoral Contracts
77
Manner of Coming to an UnderstandingOffer avd Acceptance Make a
83
CHAPTER V
91
SECTION PAGE 106 Contracts for an Interest in Lands
97
Special Agreements Relatiug 10 Lands
98
Contracts for the Creation Assigument and Surrender of Estates in Laud
99
Application of the Liw 10 Construction Work
100
Statute of Limitations 112 Objects and Reasons for the Stalute
102
Disabilities that May Prevent the Operation of the StatutePersonal Dis abil ties
103
The Letter of the Law is Applied Strictly without Regard to Hardship or Mis fortuie
104
Contracts for Employment Not to be completed within a Year
105
Injury Concealed by Frand so that Right of Action was Not Known
106
Bid Work Concealed When under Inspection and Supervision of Engineer
107
Law of Contracts Proof of Terms of Collateral Contract Parol or Verbal Agreements 122 Parol Evidence Not Admissible to Vary or Contradict a Writ...
108
When Parol Evidence will be Received
110
Parol Evidence to Explain Obscure and Ambiguous Contracts
112
Parties may be Hell to the Construction They have Themselves Adopied
113
26 Witnesses cannot Testify as to the Meaning of a Contract
114
The Intention of Parties should Control
115
Independent Oral Agreements
117
Subsequent Promises Must be Founded upou a Consideration
118
PART II
120
The Advertisement or Notice to BiddersInvitation to Contractors and Bu ld
122
The Form of Advertisement to be Adopted
123
As Regards ibe Allvertisement or General Notice to Bidders
126
Necessity for Restrictions and Regulations
127
Instructions should Give All Necessary Information 10 Bidders
129
There must Be Competition in Compliance with the Starlite or Charter
130
Public Officers cannot Legalize nor Ratify Void Contracts
131
SECTIONS PACE 142 The Legislature May Ratify Cootracts
132
Labor Laws und Limitatious must be Complied With
134
Form of Notice and lustructions
136
Bidders may be Required to Possess Ceriaiu Qualifications
138
Restrictious which Exclude Certain Persons from Bidding
139
148a Possibility of the Law Beiug Used to Escape Onerous Contracts
142
What is Good Evidence of Fraud and Coilusiou of Public Officers and Ser vants
143
Oath as to Truthfuluess of Statements
144
Propriety of Certain Requirements and Restrictions
148
There should be a Standard for Comparison of Bids
149
The Bid should Contain neither More vor Less than is Called for by the Instruc lions Plans aud Specifications
150
Specifications by which Bids were Invited
152
Right to Make Changes and Alterations Reserved
156
Works Whose Cost Exceeds a Certain Amount Within the Statute Charter or Ordinance
157
What Work Comes Within the Statute
158
State or City to Furnish Certain Things at a Specified Price
159
Conditions and Stipulations as to the Perfurmance and Completion of the Work
161
Conditions and Stipulations as to Performance and Completion of the Work
164
Bond and Certificd Check io Ivsure the Execution of the Contract and Surety for Faithful Performance and Completion of the Work
167
Proposal to be Accompanied by Consent of Sureties
168
Inforination to be Furnished and Conditions to be Imposed when Contract is Executed
169
Acceptance of Proposal and Execution of ContractRight to Reject Bids
170
Powel to Determine Responsible Bidder is Discretionary
171
Discretion Must be Exercised in Good Faith
172
Bids Rejected but Reconsidered Without a New Advertisement
173
Whether Lowest Bidder can Compel an Award to Himself
175
Public Officer may be Enjoined from Illegally Awarding Contract
176
What Remedies a Bidder May Have
177
Liability of Public Officers för Acts Discretionary or Quasi JudicialMisdeeds in Awarding the Contract
179
Liability of Public Officers for Ministerial Acts
180
Bids Cannot be Recalled
181
What Constitutes an Acceptance of the Proposal or an Award of the Contract
182
Bid to Furnish Materials
185
Form of Proposal for Public Work
186
CHAPTER VII
192
In Absence of Agreement or Pleilge Owner may Exercise his Own Preference
193
Implied Agreement to Romuveraie Bidder for His Labor or to Award Con tract to Lowest Bidder
194
PART III
196
Auother form of Introduction
197
Contract may consist of Two or More Written Instruments
203
Reference to Maps in Deeds and Other Forms of Conveyancing
209
Contracts Terms are Usually Construed most Strongly Against the Party
230
SECTION PAGE
236
Provision for the Inspection and Rejection of Inferior Materials and Work
242
Provision that Contractor shall Not Assign or Sublet
248
SECTION PAGE
252
Recovery of Damages Stated may Depend Upon Whether It Is a Penalty
258
Matiers to be considered in Determining the Amount of Liquidated Damages
264
Delay Occasioned by the Fault of the Owner
270
If Works Are in a State of Good Repair after a Certain Time Owner will
276
SECTION PAGE
279
Act of Third Party as Engineer or Architect may be Made a Conditiou
285
Before the Award is Made Agreements to Submit to Arbitration are
291
Parties are Bound after Award is Made
297
No Definite Line of Separation of Cases for and against Binding Effect
303
Employment or Agency of Engineer oi Architect Confere no Special Powers
309
SECTION PAGR 376 Engineer cannot Pledge His Employers Credit to Pay Subcoutractors or Workmen
311
Ratificatior of Engineers Orders may be Imp ied from Acquiescence or Adop tion of Prior OrdersIuslauces
312
Engineer cannot Change Contract and Specitications nor Make New Terms
313
Engineers Powers to Determine Quantities
314
Engineer must Act in Good Faith and Have Strict Regard for the Methods Prescribed in Contract
315
Engineers Power to Determine Quality Character and Classification
317
Engineer cannot Make a New and Intermediate Classification
318
English and American Decisions Compared
319
Powers to Determine the Sufficiency and Skill with which Work is Per formed
320
Powers of Engineer or Architect may be Extended by Other Clauses so as to Permit Sone Deviations from Plans and Specitications
322
Prior Promise to Classify Work or Materials in a Certuiu Way Not Always
323
Engineer to Determine the Value of Work and Materials
324
Provision that Engineer shall Determine Every Question Arising Out of or Pertaining to the Work or Contract
325
Instances in which Engineers Decisions have been Held Not Biuding under a General ClauseExtra Work
326
Other Instances Not Covered by a Sweeping ClauseBreach by Either Party
327
28
329
Many Cases Hold that Agreements for Changes and Alterations are Subject to Engineers Determination Same as for Work Under Contract
330
Engineers Power to Determine all Questions may Sometimes be Limited by Specializing
332
Engineer to Determine the Meaning and Iutention Expressed in the Specifica tion and Contract
334
Engineer should Not be Able to Enlarge_bis Own Powers
335
The Contract Creates the Powers of the Engineer or Architect
336
Can the Engineer Interpret the Coutract Wrongfully if He Interprets It Honestly?
337
English Scotch and American Views
338
Objection that such a Clause Ousts Courts of Their Proper Jurisdiction Treated
339
May Make Payment or Any Right to an Action Conditioned on the Engineer Determining Any Differences Existing
340
Two Classes of Cases the Distinction between them Well Marked and Defined
341
Payment by Owner Made Contingent on Engineers Certificate
343
Indebteduess should be Created by Promise Only and Not by Performance of Work
344
Courts Unwilling to Construe the Stipulation a Condition Precedent
345
Make the Engineers Certificate a Condition Precedent to the Promise to Puy by Owner
346
The Condition Precedent may be Waived
347
If Payment of Contract Price is Conditional on Procuring Engineers Certificate It will Hold
349
Language that Makes a Condition Precedent
351
A Condition Precedent Must be Expressed It will not be Implied
353
Right to Require Engineers Certificate may be Waived
354
RECOVERY BY CONTRACTOR WITHOUT PRODUCING ENGINEERS CERTIFICATE
357
426a Difficulties Mei iu an Action at Law
364
Mistake of Eogineer in his Decision or Estimate an Element of Fraud
370
A Pure Mistake does not Render Award or Estimate Void but Subject
376
Performance of Condition Precedent Prevented by Failure or Refusal
383
Instances Showing when the Engineers Determinations bave been Upheld
390
Provision that Estimate and Decision of Engineer shall be Fival and
396
Work Instead of Certificate is Rejecied when Engiueer bas Goue Wrong
397
Elements of an Arbitration are Wanting when but One Party is Bound by Award
398
Home Reasons why Stipulation should Not be Favored or Upheld Ever
399
The Clauses have Found Lille Favor in the Government Departments in other Cities or with Olber Corporations
400
Modified Forms of the New York Clauses Are in Use
401
Right to Revise Estimates or to Require Work to be Done According to Con truct though Certified wy Engineer
402
y to Furnish Proper Work and Materials
403
Coutractors Liability for Deiective Work and Materials wbich have been Inspected Approved and Certified
404
Materials and Work Inspected and Approved by Inspectors
405
Defects Concealed by Fruud or Connivance
406
CHAPTER XVI
408
Its Form and What It should Contain
409
Certificate must be Made and Executed in Strict Conformity with the Re quirements of Conrract
410
Certificate must be Ceriain as to Amount and It should be complete
411
Parties should Agree as to Form and Matter of Certificate
412
Certificate must Meet Requirements of Contract
413
Certificate Good in Part and in Part Bad
414
Right to a Hearing may be Waived by the Parties
423
Earlier Cases Treated Engineer as an Arbitrator avd Required a Hearing 42+ 496 In Many Cases an Engineer and Arbitrator are Distinguished
425
Intention of Parties in Regard to Hearing should be Expressed
426
CHAPTER XVII
428
Certain Acts may be Delegated
429
Certain Duties cannot be Delegated except by Express Agreement
430
The Engineer must Do Whatever the Contract Expressly Requires of Him
431
Contract Clause Permitting Delegation of Engineers Duties Omitted
432
Engineer Not Properly Designated
433
Delegation of Duties by Engineer as a Public Officer
434
CHAPTER XVIII
435
The American and English Courts Agree as to Interest an Engineer can Have in His Company
436
Moral Obligation of Engineer Forbids any Secret Interest
438
Provision that Contract may be Rescinded if the Engineer o Any Officer of the City or Company is Interested in the Contract
439
Profits Made by an Engineer or Agent in the Conduct of His Employers Busi ness Belong to the Employer
443
Conspiracy or Collusion Between Contractor and Engineer
444
Engineer should Be a Disinterested Person and the Agent of Neither Party
445
Company or Owner may Employ an Engineer Known to be Interested in the Contract
446
e or Superior Officers
447
MATTERS OF DOUBT AND DISPUTE SUBMITTED TO ARBITRATION SECTION PAGE The Appointment of Arbitrators and an Umpire 519 Pr...
448
Certain Matters to be considered in a Subinission to Arbitratiou
449
What Questions may be submitted to Arbitration
450
What Parties may Act as Arbitrators
452
Wbat Constitutes a Submission to Arbitration
453
A Submission to Arbitratiou should be Distiuguished from an Appraisal
454
What Rules Govern the Arbitration
455
Conduct of the Hearing
456
Arbitrators must Determine Questions ThemselvesCannot Leave Them to Oihers
457
The Arbitrators must Act Together
458
Matters Left to Two Arbitrators with Power to Cali iu an Umpire
459
The Award
460
CHAPTER XX
462
Provision Limiting the Recovery of the Contractor to the Contract Price
464
Provision that Extra Work shall be Ordered in Writing and the Price Deter mined
465
Provision that Contractor will Not Interfere with Other Contractors
466
Conditions Precedent to Liability must be Strictly Performed
467
An Unsigned Sketch or Plan is Not a Written Order
468
Want of Written Order may be Cured by Final Certificate if Certificate Par takes of the Nature of an Award
469
English and American Practice Compared
471
Engineers Authority to Direct Alterations Additions or Omissions is Not Authority to Order Extras except in the Manner Required by Contract
472
Without Special Authority the Engineer or Architect cannot Render His Em ployer Liable for Extra Work
473
Who May Authorize Extra Work or Order Alterations on Behalf of the Parties
475
SECTION PAGR 556 Ordinances Resolutions and Appropriations cannot be Changed by Members of the Bodies Creating Them
477
Tlie Acts of Individual Members may be Ratified or Adopted by the Board
478
Engineers Authority to Order Extras may be Established by Implication Ratificatiou or Adoption
479
Liability for Extra Work may be Assumed by a New or Supplemental Agree ment
482
Simple Contracts and Those Under Seal may be Changed by Parol
483
The Agreement to Waive or Rescind should be Supported upou a Sufficient Consideration
484
Completion Preventea by Circumstances Beyond the Control of Either Party Casualties
485
The Owner City or Company may by Express Agreement on Its Part become Liable for Exira Work though Noi Ordered in Writing
486
The Stipulation for a Written Order may be Waived
487
If Amount of Work or Materials is Reduced by Changes
490
Effects of Alterations and Changes
492
Changes which Modify or Extinguish the Original Contract
495
Original Contract Rescinded or Reduced to a Parol Agreement
496
Alterations of Terms of Contract may Change Form of Action by Contractor
497
Effect of Change and Alterations on Liability of Surety
498
Etfect of Changes Ordered under a Clause Reserviug ihe Right to Make Alter ations
499
Contractors Rights are Frequently Preserved by Notices on His Part
503
Contractor should Make His Claim foi Extras when the Addition or Alteration is Required
504
Contractor mny be Held to the Terms Acquiesced In or Adopted
505
Owner may Waive his Rights by Remaining Silent and Not Objecting
508
Instances where Changes bave been Made
509
Owners Liability for the Cost of Extra Work Caused by Circumstances Un foreseen and Unknown
511
Alterations and Additions an Excuse for Delay in Completing Works
513
More Expensive Material Ordered and Furnished than the Contract Required
514
Provision that Estimates are Approximate Only and that Proprietors shall Not be Responsible for Inaccuracies
516
Preliminary Estimate of Work Incorrect
517
Extra Work Determined by Custom and Usage
518
Provision that Engineer or Architect shali Have Power to Determine whether Work is or is Not Included in the Contract
519
Quantity Character and Value of Extra Work Left to Judgment of Engineer or Architect
520
Power 10 Decide Questions of Extra Work Does Not Imply Power to Deter mine Damages for Breach of Contract
523
Provisior that Questions and Doubls with Regard to Extras shall be Submit ted to Arbitration
524
Provision that Disputes as to Extra Work shall be Referred
525
Limits of Work Not Properly Detined
526
Estimates of Quantities of Work und Materials
528
CHAPTER XXI
530
Peculiar Effect of Custom and Usage
531
What may Coustitute a Usage
532
Usage must be Certain and Uviform
534
Parties to Contract should Have Knowledge of Usage 53 5
535
Kuowledge of Parties of Trade Usages and Customs
536
A Usage must be Moral
538
A Practice that Subverts Justice and Is Contrary to Good Morals Is Not a Usage
540
Whư0 Usage will be Adinilted to Explain ContractsIt cannot Contradict Express Terms of Contract
542
Usage can be Employed to Explain an Ambiguous Contract
543
There must be Ambiguity which Question the Court must Decide
545
Instances in Brickwork
546
Instances in Stonework
548
Instances in Plastering
550
Instances in EarthworksExcavations and Embankments
551
Ownership of MaterialsEffect of Usage
552
Some General Examples of Usage
553
28 Custom of Whai Place Controls
556
Certain Words and Phrases Defined
557
CHAPTER XXII
559
Provision that Contractor sball Give and Serve All Notices
560
Provision that Contractors shall Ivdemnify Owners for All Claims Costs
561
A Man must Maintain His Property in a Reasonably Safe and Proper Manner
568
City Company or Owner Cannot Escape Liability by Delegating Duties to
574
The Relation of Independent Contractor is Not Determined by the Term
581
The Mode Method and Manner of Doing the Work niay be Prescribed in
587
Interpretation of Certain Contract Clauses
594
SECTION PAGE
598
Destruction of Works Does Nit Excuse Failure to Complete by a Specified
605
Work Destroyed which was to be Paid for as It Progressed
611
CHAPTER XXIV
617
Abusive Conduct of Owner may be a Just Cause for Abandonment by
625
Work only Partly Performed which was to be completed for a Lump Sum
631
SECTION PAGE
636
What will Be a Substantial Performance
643
Specific Performance of Contract
649
CHAPTER XXVI
655
Agreements that Owner may Terminate Contract are Valid and Bivding
661
SECTION PAGE
666
To Retain Liquidated Damages ibe Discretion to Terminate Contract must
673
Terminating Contract should Be an Act of Last Resort
679
Provision that Engineer shall Determine what is Due Contractor for Work
685
American and Euglish Decisions Compared
691
Claims of Laborers and Materialmen Disputed by Contractor
697
SECTION PAGB 766 Provision that Contractor shall Furnish a Certificate of Register of Deeds that po Liens or Claims huve been Filed
698
76? Coutructors Covenaut Aguinst Liens does not Bur Muterialmen and Laborers frorn Filing Liens
699
Contractor to Execute a Release of All Claims or Demands before Final Pay ment
701
Mechanics Lien Laws of Different States
702
Liens op Public Buildings
704
Burdens Created upon Property by Uvauthorized Agents
705
Provision for Failure to Make Monthly Payments
706
Engineers Certificate should be Made a Condition Precedent to Owners Lia bility
707
Special Provisions as to Payments
708
Provision that Ownei will Pry op Performance of Conditions and Rendering of Engineers Certificate
709
Provision that Progress Certificates shall Not Prejudice Right of Owner or City to Require fuli Performance of Contract
710
Prevision Fixing Compensation at a Pric per Unit of Measure
711
Provisiou that All Money Due to Owner may be Recovered by Action or may be Retained out of Moneys Due to Contractor
712
Provision that Notices may be Seot to Contractor s Place of Business
714
What l or Is Not a Signature
716
Sigued by One Party Only
717
notormai Cintracis which are to be Reduced to Writing at some Future Time
718
Execution of Contract Signed Sealec Witnessed and Delivered
719
Why is Contract in Writing Why Signed Sealed and Witnessed ?
720
PART IV
722
Dismissal or Discharge of an Employee
724
Gross Moral Misconduct Pecuniary or Otherwise
725
Habitual Negligence oi Conducı Calculated to Injure Masters Business
726
Incompetence or Incapacity
727
Condonation of Employees Offense
728
Duty of Discharged Einployee to Seek Other Employment
729
Wbai Constitutes ad Employmeni of an Engineer or Archiiect ?This is Often a Difficult Question
732
What Is a Performance of a Contract of Service ?
735
Recovery for Services Rendered
736
CHAPTER XXIX
739
Incorporeal Property in Architectural and Engineering Designs Copyright and Patentright
740
Rights of a Purchaser to Incorporen Creations
743
Rights of an Author Inventor or Designer when in the Emplos of Another
744
Things Made or Created Outside of Office Hours
746
Employees Right to His Inventions
747
What Is Invention and Who Is the Inventor ?
748
Ipstances of Invention between Employer and Employee
750
CHAPTER XXX
751
That the Employee Possesses Skill is Implied from the Undertaking to Act
752
SECTION PAGE 830 Deternipation of Skill Possessed or Want of Skill
753
Professional Man must Possess Ordinary Skill and Exercise Ordivary Care
754
Negligence on the Part of an Agent
755
Skill Required of Specialists
756
Owner may Offset His Damages Against Sum Due Engineer or Architect for Services
757
Architect or Engineer must Give Such Careful Superintendence and Ivspec liou as to Prevent the Contractor from Making Material Omissions and Va...
758
Engineer and Contractor or Architect and Builder Jointly and Severally Liable
760
Engineer and Architect are Liable to their Employer and to Nobody Else
762
Liability for Acts of Assistants
763
CHAPTER XXXI
764
Attempts have been Made to Discriminate between Judges in Court and Judi cial Officers
765
Engineer or Architect must Not Act Fraudulently
767
Engineer is Liable to His Employer when He may Not be Liable to Con tractor
768
Engineer or Architect may Owe a Double Dnty to His Employer viz as an Arbitrator and a Professional Man
770
CHAPTER XXXII
773
County Officers and Their Liability
774
State Employees Held Liable for Negligence
775
Public Officers and Their Liability upon Contracts Executed for the State
776
Officer or Employee Is Responsible for His False Representations 857 Engineers and Architects Linbility when Holding Office of Public Trust 858 A ...
777
Commissioners of Public Works and Their Liability
779
CHAPTER XXXIII
783
If Architect or Engineer Supervises and Directs Work He may Have a Lien in Some States
784
ror Architect must Not Act Fraudulently
792
M
847
of a Public Officer
855
Engineers Compensation
902
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Page 92 - That no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.
Page 396 - And it is hereby expressly agreed and understood by and between the parties hereto that the said parties of the first part, their successors and assigns, shall not, nor shall any department or officer of the city of New York, be precluded or estopped by any return or certificate made or given by any engineer, inspector...
Page 608 - The principle seems to us to be, that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance.
Page 717 - Part further covenants and agrees to merchandise such wheat in foreign ports , it being understood and agreed between the Party of the First Part and the Party of the Second Part...
Page 191 - KNOW all Men by these Presents, That we, are held and firmly bound unto our...
Page 338 - Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by , and decision shall be final and conclusive...
Page 97 - ... or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto...
Page 581 - ... care of the person employed : but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned.
Page 187 - ... named has any interest in this proposal or in the contract proposed to be taken ; that...
Page 108 - When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing...

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