And although there seems still to be a failing effort in the English courts to maintain the necessity of the contracts of corporations being under seal,2 it is certain that the important business transactions of * daily occurrence, in both that country and here, where no such formality is resorted to by business corporations, in matters of contract, and where to look for any such solemnity would be little less than absurd, almost of necessity drive the courts of England to disregard the old rule of requiring the contracts of corporations to be made under the corporate seal.6

2. But when the charter of the corporation requires any particular form of authenticating their contracts, it cannot be dispensed with. And where, by the charter of a railway company, the directors were authorized to use the common seal, and all contracts in writing, relating to the affairs of the company, and signed by any three of the directors, were to be binding on the company; and the company entered into a contract, not under seal, by their secretary, to complete certain works, and, after part performance, the contractor was dismissed by the company, it was held he could not recover the value of the work done.3

2 Mayor of Ludlow v. Charlton, 6 M. & W. 815. But see Beverly v. Lincoln Gas Light & Coke Co., 6 Adol. & Ellis, 829; Dunston v. The Imperial Gas. Co., 3 B. & Ad. 125. Tindal, Ch. J., in Gibson v. East India Co.,5 Bing. (N. C.) 262, by which it seems that the English courts except from the operation of the rule only such transactions of business corporations as could not reasonably be expected to be done under seal. But see Bank of Columbia v. Patterson, 7 Cranch, 299, and 2 Kent, Comm. 289, 291, and notes, where it is said the old rule is condemned, and English and American cases cited and commented upon. Post, § 143; United States Bank v. Dandridge, 12 Wheat. 64; Bank of the Metropolis v. Guttschlick, 14 Pet. 19; Norwich & Worcester Railw. v. Cahill, 18 Conn. R. 484; San Antonio v. Lewis, 9 Texas R. 69. See, also, Weston v. Bennett, 12 Barbour, 196; Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74.

3 Diggle v. The London & Blackwall Railw., 6 Railw. C. 590. It is said here that a contract, to be binding on a corporation when not under seal, must be one of necessity, or of too frequent occurrence, or too trivial, to be made under seal. In a recent case in the Court of Exchequer, Williams v. Chester & Holyhead Railw., 5 Eng. L. & Eq. 497, Martin, B., thus comments upon the rule of evidence in regard to implied contracts of corporations. "Persons dealing with these companies should always bear in mind, that such companies are a corporation, a body essentially different from an ordinary partnership or firm, for all purposes of contracts, and especially in respect of evidence against them on legal trials; and should insist upon these contracts being by deed under the seal of the company, or signed by directors in the manner prescribed by the act of par

4

*3. But where the contract contains express provisions that no allowance shall be made against the company for extra work, unless directed in writing under the hand of the engineer or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work, upon the assurance of any agent of the company that it will be allowed by the company, without the requisite formality, must look to the agent for compensation, and cannot recover of the company, either at law or in equity. So, under the English General Company Acts, where the directors are authorized to contract on the part of the company, although not in writing, when such contracts would, if entered into by private persons, be binding in that form, three directors being a quorum for that purpose, it was held, that the mere fact that extra work was done with the approbation of the company's engineer, the special conliament. There is no safety or security for any one dealing with such a body, on any other footing. The same observation also applies in respect of any variation or alteration in a contract which has been made."

But see post, § 143, and cases cited. And where the assistant engineer upon a railway, having charge of the construction of a section of the road, becoming dissatisfied with the contractor, dismissed him, and assumed the work himself, agreeing with the workmen to see them paid, it was held his subsequent declarations could not be admitted, to charge the company for supplies furnished the contractors, on the ground that they were not made in the course of the performance of his duty as agent of the company. Stiles v. The Western Railw., 8 ́Met. 44; s. c. 1 Am. Railw. C. 397. See also Underwood v. Hart, 23 Vt. R. 120, where the subject of the admissions of agents is discussed, and the cases revised.

If a contract under seal be enlarged by parol and subsequently performed, or if the terms of the contract under seal be varied by parol, the proper remedy is by an action of assumpsit. Sherman v. Vermont Central Railw., 24 Vt. R. 347; Barker v. Troy & Rutland Railw., 27 Vt. R. 774. In Childs v. The Somerset and Kennebec Railw. in the Circuit Court of the United States, before Mr. Justice Curtis, 20 Law Rep. 561, it was held, that where the plaintiff, by special contract, agreed to build certain bridges and depots for the defendant corporation, for which he was to be paid partly in cash and partly in shares of their capital stock, and in the progress of the enterprise it became necessary to do much extra work, and furnish materials not provided for in the special contract; that the plaintiff was entitled to recover the whole value of the extra work and materials thus furnished in money, upon an implied assumpsit, and that the agreement to take pay in shares did not extend to this part of the work.

* Kirk v. The Guardians of the Bromley Union, 2 Phil. 640; Thayer v. The Vermont Central Railw., 24 Vt. R. 440; Herrick v. Same, 27 Vt. R. 673; Vanderwerker v. Same, 27 Vt. R. 125, 130.

tract requiring written directions for all the work, had no tendency to prove a contract binding the company.5

6

4. In one very well-considered case upon the subject of extra work, not authorized in the manner specified in the contract, it is said by the Vice-Chancellor: "From what I have been informed of the course taken at law in these cases, it is this: If, in an action by a contractor, it appears that the company have the benefit of the work, done with their knowledge, the court of law does not allow the company to take the benefit of that work without paying for it, although in covenant (or any action upon the contract) the contractor cannot recover." This may be in accordance with the general rules of law applicable to the subject.7

* SECTION X.

If one Party repudiate the Contract, the other may sue presently. -Inevitable Accident.

1. Party repudiating excuses the other. 2. New contract valid.

3. President cannot bind the company.
4. Effect of inevitable accident.

§ 114. 1. Questions often arise in regard to the right of a party to sue for damages before the time for payment arrives, and before he has fully performed on his part. But it seems now to be well settled, that where one party absolutely repudiates the contract on his part, he thereby exonerates the other from further performance, and exposes himself presently to an action for damages.1

5 Homersham v. Wolverhampton Waterworks Co., 6 Railw. C. 790. Pollock, Ch. B., said: "The company is not bound by the mere order of the engineer, or by the contract with one director.”

• Nixon v. Taff Vale Railw., 7 Hare, 136. But see post, § 130,

143.

Dyer v. Jones, 8 Vt. R. 205; Gilman v. Hall, 11 Id. 511. But, in many cases, the work is done by a sub-contractor, and enures to the benefit of the original contractor, as in Thayer v. Vermont Central Railw., 24 Vt. R. 440, and would not therefore give any right of action against the company, although in one sense they may put the work to their own use, and so may be said to have the benefit of it, to some extent.

1 Cort v. The Ambergate, Not. B. & E. J. Railw., 6 Eng. L. & Eq. 230; Planche v. Colburn, 8 Bing. 14; Hochster v. De Latour, 20 Eng. L. & Eq. 157. But in an action to recover damages on such contract, the jury are not to go into conjectured profits resulting from a sub-contract very much below what the plaintiff was to be paid, but only the difference between the contract price and

* 205

2. Where the contract is unconditionally repudiated by one party, before it is fully performed, it is competent for the other to stipulate for its performance, upon different terms, no doubt. And such stipulation, although not under seal, would probably be regarded as made upon a valid and sufficient consideration ; and if made by an agent of the former party to the contract, but who had not authority to bind his principal to such contract, it would nevertheless be binding upon the agent and other party contracting, and would not be required to be in writing, as it would be an original and not a collateral undertaking.

3. But it has been held, that after a railway company has entered into a written contract, for the performance of certain work, the promise of its president to allow additional compensation to the contractors, for the same work, is without consideration and not binding upon the company.2

4. A very singular question arose in a late English case.3 The plaintiff agreed to make and erect on premises, under the control of the defendants, certain machinery, and the latter were to provide all necessary brick work, &c. Before the works were completed the buildings in which the work was to be done were destroyed by fire. It was held the plaintiffs were entitled to recover for the work already done by them before the fire, and that it was an implied term of the contract that the defendant should provide the buildings in which the work was to be done, and enable the plaintiffs to do their part of the work and therefore that the defendant was not relieved by the occurrence of the fire; as a party who contracts to do a thing is bound to carry out his engagement, or to make compensation, notwithstanding he is prevented by inevitable accident.

the value of doing the work, at the time of the breach, can be given. Masterton v. Mayor of Brooklyn, 7 Hill, 61.

2 Colcock v. Louisville Railw., 1 Strobhart, 329; Nesbitt v. L. C. & C. Railw., 2 Speers, S. C. R. 697. The controversy here is in regard to hard pan excavation. And as the plaintiff contracted to do all the work on the road, and to construct the road-bed, and his contract only provided for earth and rock excavation, he is bound to accept his estimates under the contract, and especially, after having done so, he cannot claim extra compensation for excavating hard pan, even if he show that, by usage, "earth” has a technical meaning, and does not include hard pan.

3

Appleby v. Meyers, 12 Jur. N. S. 500.

* SECTION XI.

Decisions of Referees and Arbitrators in regard to Construction Contracts.

1. Award valid if substantially correct.

2. Court will not set aside award, where it does substantial justice.

§ 115. 1. The general rule of law, in regard to the decisions of arbitrators and referees, by which they have been held binding upon the parties, although not made strictly according to the technical rules of law, if understandingly made, and exempt from fraud or partiality, has been sometimes applied to contracts for construction of railway works, the settlement of which has been determined by an umpire. As where the contract reserved the right to the company to alter the gradients of the road, and to substitute piling for embankment without extra allowance. These alterations were made, and thus increased the expense to the contractors. The final settlement being made by referees, to whom "all matters in dispute, with the contract as a basis of settlement," were referred, and they having allowed the contractor compensation for this increased expense, it was held to be. within the power conferred upon the referees.1

2. So, too, where the contract specified a price for earth excavation, and another for rock excavation, but nothing was said of "hard pan," a good deal of which occurred in the course of the work, which was admitted to be more expensive then the ordinary earth excavation. The whole subject was referred, and the plaintiff claimed in his specification thirty cents per yard for excavating hard pan, and the referees allowed him fifty cents on trial. The defendants objected to the allowance, being more than the claim. But the court said, where the testimony was received without objection, and showed the party entitled to re

1 Porter v. Buckfield Branch Railw., 32 Maine R. 539. In this case the contract provided for payment of a portion of the price of the work in the stock of the company, and the arbitrators directed, that the same proportion of their award should be paid by issuing certificates of stock, and the award was held valid in this particular also.