are well defined and have not been mystified by many changes and modifications, the court will endeavor to enforce them, or such ones as may still be binding.

Should the work, when partially completed, be abandoned by the contractor, without cause, or without consent from the owner, and should the builder refuse to proceed with it, the courts will not allow him a claim. He would not only be unable to recover a reasonable price for the completed work, but would be liable for damages to the owner.

If, however, the owner accepted the abandoned work, and derived benefit therefrom by proceeding to complete the agreement under another contractor, the courts would be likely to hold that, upon the completion of the work and the final payment to the second contractor, the first contractor would be able to recover the balance, if any, existing between cost of the work as done under the second contract and the amount of the original contract, deducting, of course, any damages which the owner might have sustained. by delays caused by the abandonment of the work.

32. Responsibility of Owner.-The owner instead of the contractor is often at fault in carrying out the agreement, and in such a case the builder usually has no cause to complain of his treatment by the law. Where the owner is delinquent in the fulfilment of his agreement, the contractor may present his case to the court in two ways. He may hold that the contract is still in force and claim compensation at the contract rates for the work that has been done, together with a claim for damages which resulted to him, due to loss of profit on account of the owner's delinquency; or he may claim that the contract has been abrogated, or annulled, and require reasonable payment for his work and materials furnished. Though he has either of the above paths to pursue in prosecuting his case, it is well defined by law that he cannot present evidence applicable to both, but must accept one or the other and hold to it. He should be governed as to his choice by the circumstances surrounding his claim, and the advice of his counsel.

In regard to a case where a contractor was prevented by the owner from proceeding with the contract, the New York Court of Appeals plainly stated the two grounds upon either of which a contractor could take his stand in presenting his claim; the opinion held by this court was as follows: "Where performance is prevented by one party to a contract, who terminates the agreement against the will of the other party, the latter may either sue for breach of contract, and recover as damages the profits he would have made if allowed to complete the work; or he may waive the contract, and bring his action on the common count for work and labor generally, and recover what the work done is actually worth; but in this case he cannot recover his profits on the unexecuted part of the work."

The owner may abandon his contract by failing to live up to his agreement, or he may prevent the contractor from carrying out the work, and fulfilling the agreement. Such a case as this was decided in Indiana. The owner of a building in course of construction having failed to pay the instalments on the work at the several periods when they were due according to the contract, was sued for damages by the contractor, who claimed he had to abandon the work because of the non-payment of the instalments. The court's opinion in the matter was somewhat to the effect, that if the owner had really prevented the contractor from fulfilling the agreement, then he should be able to recover, as damages, the profits that would have accrued to him, providing he had completed the job; but that the mere non-payment of instalments due on the contract before the work was finished, did not constitute such prevention.

There are numerous other instances where it has been held that the contractor was unable to fulfil his part of the agreement on account of the owner failing in some way, either avoidable or unavoidable, to live up to the contract. In all such cases, it seems to be the opinion of the courts, where it can be proven that the contractor was willing and ready to comply with his part of the agreement, and was prevented by the owner from doing so, that he is entitled to

recover, not only for the actual work done, but also for any profit which he would have received upon the completion of the contract. For instance, should certain ironwork be ready for a building at the stipulated time, and should the building, which was not in a condition to receive it, burn down, the parties furnishing the ironwork would undoubtedly be able to recover the contract price, less the cost of erection; for they had completed their agreement as far as it was possible, within their power, to do so; further completion being impossible, owing to the failure of the owner to have his building ready in time.

33. Death of Either Party.-Death of the contractor ends the contract, unless some provision is made in the agreement by which his heirs or executors become responsible for its completion, and it has been decided by the court in Missouri that no lien can be taken out against the building for work or materials thereafter furnished under the contract. The contractor seems in this case to have the advantage, as the death of the owner does not affect the contract, because it is binding against his estate.

Where the contracting parties wish to guard against any of the above mentioned contingencies, all that is required is the insertion of a clause in the contract which will convey their mutual intent and meaning in regard to the matter considered, and the court will see that it is enforced irrespective of general principles and precedent.

34. Abandonment Not Always Justified. The contractor, before taking so serious a step as the abandonment of a contract, should be sure of his position, and determine whether he is justified in such a proceeding; for, as the Supreme Court of Missouri expresses it, "a mere breach of contract does not entitle the other party to stop work and recover for unperformed work. He might stop work and recover for what he has already done, but not for what remained to be done. To recover for that, he must have been prevented from going on by the unauthorized interference of the other party. The measure of damages on the

contract, in such cases, is the contract price, less what it would cost to complete the work."

35. Forfeiting of Contract.-It sometimes occurs that one of the parties of a contract may find it impossible, owing to the conduct of the other party, to fulfil the terms of the agreement. In such a case he should notify the other party immediately, declaring his unwillingness to be bound by the contract, or at least by certain stipulations in it; if he fails to do this promptly, it may be held that by his silence he waived his right to do so. For instance, a contractor may have been unreasonably delayed and interfered with by the owner's demands requiring a number of changes, or by the owner's withholding his decision on certain important questions, which prevented the contractor from proceeding with the work and completing it in the specified time. This being the case, the contractor is entitled to rescind the agreement, but he should do so at the time, or it may be held that he has waived his right to do so.

Instead of the owner being at fault, the contractor may fail to have the building finished at the stipulated time. This might give the owner the power to rescind the contract, but he should exercise this right at once; for should he fail to do so, and permit the contractor to proceed with the work, it would very probably be held that he had waived his right, and all he could claim would be damages, as provided in the contract, for injury due to the delay caused by the failure of the contractor to complete the agreement at the specified time.

The contractor, before entering upon an agreement, should ascertain whether the plans and specifications call for work that can actually be constructed, and whether the conditions are such that they can be carried to completion. Anything that is not clear to him from the plans or specifications, should be explained by the architect to his satisfaction; otherwise, if he should find, after signing the contract, that he cannot in any possible way carry out the work as shown, the court will very likely hold that he, being a

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responsible builder, should have known whether the plans could be carried out, and that he was bound by the contract.

36. Reinstating Contracts.-Any contract that has been declared forfeited under the terms of the agreement, may be reinstated by the mutual consent of the parties concerned; in which case they will no longer be governed by the annulment.

37.

FRAUDULENT CONTRACTS.

"Statutes of Frauds and Limitations."-In the several states, there are codes of special laws which are known as the "Statutes of Frauds and Limitations." The particular clause in these statutes of interest to those engaged in building operations, is here quoted from the statutes of Maine and reads as follows: "No action shall be maintained upon any agreement that is not to be performed within one year from the making thereof." That is to say, no contract shall be valid (unless in writing) that calls for an accomplishment of certain things that cannot be fulfilled in one year from the date of making the contract. The decision of a New Hampshire court is interesting in that it held, that if the performance of the contract could be accomplished within a year (even though it was improbable that it would), the contract was not within the statutes and did not have to be in writing. The language of the court in this case was: "The Statute (of Frauds) does not apply to any contract, unless by its express terms, or by reasonable construction, it is not to be performed—that is, is incapable in any event of being performed-within one year from the time it was made. If by its terms, or by reasonable construction, the contract can be fully performed within a year, although it can only be done by the occurrence of some contingency by no means likely to happen, such as the death of some party or persons referred to in the contract, the statute has no application, and no writing is necessary. If the agreement can be fully performed by either of the parties within one year, and it is so performed, the agreement of