regulations in force where the building is to be erected.11

It is not necessary that the construction contract, any more than an ordinary contract, be contained in one instrument solely. Other conditions or provisions may be incorporated in the contract as a part thereof by proper reference to them in the main instrument.12 Thus the customary provision providing that the drawings and specifications are made a part of the contract, is valid and effective. When they are so incorporated in the contract, they become at once, by virtue of such incorporation therein, elements of direct importance in determining the rights of the various parties.13 The mere fact that the plans and specifications are not attached to the contract, although it is agreed that they shall be, has been held immaterial where the contract

11 Burger v. Koelsch, 77 Hun. (N. Y.) 44; Eastern, etc., Metal Co. v. Webb Granite, etc., Co., 195 Mass. 356; Chimene v. Pennington, 34 Texas Civil App. 424; Stevens v. Gourley, 7 C. B. N. S. 97; but see Morse v. Maurer, 35 Pa. Super. Ct. 196, holding that where the contract has been performed in accordance with its terms, the owner may not defend on the ground that additional expense will be required to make the work conform with the building regulations; and see Girard Life Insurance Co. v. Cooper, 162 U. S. 529; Disken v. Her

ger, 73 N. Y. A. D. 453.

12 Francis v. Heine, etc., Co., 105 Federal 413, reversed, but on other grounds, 109 Federal 838; Howard v. Pensacola, etc., Co., 24 Florida 560; Adams v. O'Connor, 6 Arizona 404; Bridge Co. v. Walker (Ky.), 205 S. W. 778.

13 Wilemet Steam, etc., Co. v. Los Angeles College Co., 94 Cal. 239; Howard v. Pensacola, etc., Co., supra., 24 Fla. 560; Cleveland, etc., Railroad Co. v. Moore, 170 Ind. 328; but see Hayes v. Wagner, 113 Illinois Appeals 299.

itself is sufficiently definite to determine the rights of the parties.14

Even if the contract reference is to plans and specifications which are not in existence, the contract will not be held void for lack of certainty, if in its other terms and provisions it sufficiently describes the work to be done.15

While there would seem to be no damage occasioned either party by not attaching the plans and specifications as agreed where the contract is absolutely definite and clear without them, nevertheless, where the provision that they shall be attached is made a definite term of the contract, and is clearly inserted for the purpose of protecting the parties, by making definite and clear every term of their agreement, it is unsafe to attempt to extend the rule as stated so as to include such a case, or to take liberties with the contract by not attaching the plans and specifications, when it has been specifically covenanted as a term of the contract that they shall be attached.

§ 63. Importance of Statutory Provisions.The provisions in the various States in regard to construction and other contracts differ, as is natural, in many respects. As in the case of a lien, the only really safe course to pursue in any given case is to become thoroughly acquainted with the special provisions of the statute in the jurisdiction in which the case arises. In California, it has

14 Womble v. Hickson, 91 Arkansas 266.

15 Hitchcock v. Galveston, 12 Fed. Cases 6534.

been held 16 that the contract cannot support an action for damages for its breach unless it is recorded, and that where an ordinance specifies that a permit must be obtained, a contract to construct without a permit is not lawful and will not be allowed to form the basis of a civil action.17 In Connecticut an agreement to build from plans and specifications not submitted to and approved by the officers by whom the statute required they should be approved, has been held to be void.18 While the foregoing are instances of special State statutes they should be noted, especially, as excellent examples of the rule that prudence requires that in the making and in the performance of the contract, all the parties should give proper heed to such ordinances and statutes as may apply, even if it be considered that their application is not necessarily clear or of any considerable importance.

§ 64. Void and Illegal Contracts.-In this same connection a distinction should be noted between a contract which is wholly void, because it is not properly consummated, or because it contemplates the doing of an illegal act, and a contract which in itself is perfectly lawful, but is not performed in a lawful manner. The latter contract will not be declared illegal as a whole so as to prevent a re

16 Condon v. Donohue, 160 Cal. 749.

17 Smith v. Luning, 111 Cal.

18 Wilcox Manufacturing Co. v. Brazos, 74 Conn. 208.

covery under it.19 The mere carrying out of a contract in an illegal way does not make the contract itself illegal.20 Even where the contract contains certain provisions which are not in accordance with statute or ordinance, it seems that its validity may possibly in some cases, and especially where nothing illegal was intended, be sustained.21 The requirement that the contract shall not usurp the jurisdiction of the courts is referred to elsewhere.22

19 Fox v. Rogers, 171 Mass. 546.

20 Barry v. Cape, 151 Mass. 99.

21 Favor v. Philbrick, 7 New Hampshire 326; Waugh v. Morris, L. R., 8 Q. B. 202. 22 See §71.

CHAPTER III

TERMS AND OPERATION OF

BUILDING CONTRACT

§ 65. The Architect as Arbitrator.—One of the provisions of the ordinary contract which may be extremely helpful, if properly drawn and understood, and at the same time is perhaps as likely to cause difficulty as any other, is the provision dealing with the finality of the decision of the architect and with his position as arbitrator. A provision that the decision of the architect, in regard to the construction and meaning of the drawings and specifications, shall be final is proper, and is recognized as entirely valid by the courts. Indeed, a provision in much fuller form and covering many points which the provision referred to would not recover, such as a provision that the certificates determinations and decisions of the architect shall be final and conclusive, has been recognized as valid, both by the Federal courts, by the courts of New York and by the courts of other States and of other countries.1

1 Riply V. United States, 223 U. S. 695; Conners v. United States, 130 Federal 609; Farrell v. Levy, 139 (N. Y.) A. D. 790; N. Y. Building Co.

v. Springfield, etc., Co., 56 A. D. (N. Y.) 294; Sweet v. Morrison, 116 N. Y. 19; Handy v. Bliss, 204 Mass. 513; Brown v. Decker, 142 Pa. State 640;