is unnecessarily, or unreasonably, delayed, or that the Contractor is wilfully violating any of the conditions, or covenants, of this contract, or the specifications, or is executing the same in bad faith, or not in accordance with the terms thereof, or, if the work shall not be fully completed, within the time named in this contract for its completion, the Owner shall notify the Contractor to discontinue all work, or any part thereof, under this contract, by a written notice, signed by the Owner, to be served upon the Contractor, either personally, or by leaving said notice, at his place of residence, or business, or with his agent in charge of the work, or by notice, letter, or other communication, addressed to the Contractor, enclosed in a post-paid wrapper, and deposited in any post-office box regularly maintained by the post office; and, thereupon, the Contractor shall discontinue the work, or such part thereof, and the Owner shall, thereupon, have power to contract for the completion of the contract, or to place such and so many persons, as the Owner may deem advisable, by contract or otherwise, to work and complete the work herein described, or such part thereof, and to use such materials as the Owner may find upon the line of the work, and to procure other materials for the completion, so far as may be necessary to fully execute the same in every respect; and the cost and expense thereof, at the reasonable market rates, shall be a charge against the Contractor, who shall pay to the Owner the excess thereof, if any, over and above the unpaid balance of the amount to be paid under this contract; and the Contractor shall have no claim, or demand, to such unpaid balance, or by reason of the nonpayment thereof to him, and shall forfeit all claims to any moneys retained; and no molds, models, centers, scaffolding, planks, horses, derricks, tackle, implements, power plants, or building materials of any kind, belonging to, or used by, the Contractor shall be removed so long as the same may be wanted for the work. In case the Contractor shall, at any time, in the opinion of the Superintendent of the Owner, neglect faithfully to carry on and perform any portion of the work required by this contract, whereby safety and proper construction may be endangered, or which may not be subsequently rectified, or whereby damage and injury may result to life and property, or either of them, then, and in every such case, the Superintendent shall have the right forthwith, and without notice to the Contractor, to enter upon the work, and to make good any and all work and material and deficiencies arising by reason of such neglect; and the expense and cost thereof shall be a charge against the Contractor, to be deducted from any payment, or moneys, which may be due, or subsequently become due, under this contract, and the opinion and decision of the Superintendent of the Owner in all instances, which may arise in the manner aforesaid, shall be final, conclusive and binding upon the Contractor. But no action so taken by the Superintendent of the Owner shall release the Contractor from any and all consequences and damages, which may have arisen, or may arise, owing to such neglect, whether wilful, or by omission; and the Contractor covenants and agrees to hold the Owner harmless against, and from, any and all suits at law, and all and every damages and loss whatsoever arising therefrom. Should the Contractor fail to complete the contract, he shall forfeit all claims for compensation. No. 377. 11 Clause requiring approval of extra work.11 No work shall be considered as an extra, unless, before said work shall have been done, a separate written estimate therefor shall have been submitted by the Second Party to the Architect and the same shall have been approved by the First Party. No. 378. Clause requiring contractor to furnish bond after execution of contract.12 The Contractor shall, together with a good and solvent company licensed to do business in the State of Virginia, as surety, make and deliver to the Owner a bond in the sum of twenty-five thousand dollars, which shall be payable to, and collectible by, the Owner, upon the failure of the Contractor faithfully and fully to comply with each and all of the conditions of the specifications; and the Contractor shall furnish such bond, within ten days after the execution of the contract. "Adapted from M. L. Ryder Bldg. Co. v. City of Albany (1919), 87 App. Div. 868, 176 N. Y. Supp. 475. 12 Adapted from British & American Tobacco Co. v. U. S. Fidelity & Guaranty Co. (1917), 177 App. Div. 582, 164 N. Y. Supp. 406. No. 379. Clause transferring title to work and material to owner.13 All work and all materials delivered on the premises to form part of the work shall be considered the property of the Owner, and shall not be removed without his consent; but the Contractor shall have the right to remove all surplus materials, after the completion of the work. 13 Adapted from British & American Tobacco Co. v. U. S. Fidelity & Guaranty Co. (1917), 177 App. Div. 582, 164 N. Y. Supp. 406. 1 CHAPTER XXI PRINCIPAL AND SURETY. No. 380-Bond to secure performance of building agreement. coal. No. 382-Bond to secure performance of agreements between husband and wife, providing for custody of children and for appearing in divorce action in a foreign state. No. 383-Bond to secure fidelity of employee. No. 384-Bond to secure discharge of mechanic's lien, required by statute. No. 385-Bond of dealer to pay for purchases of milk or cream, required by statute. No. 386-Bond to secure fidelity of treasurer. No. 380. Bond to secure performance of building agreement.1 KNOW ALL MEN, that John Doe, residing at No. 112 Broadway, Borough of Manhattan, New York City (herein called the "Principal"), and the Roe Fidelity & Guaranty Co., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 371⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Surety"), are held and firmly bound unto The Koe Tobacco Co., Inc., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 57%1⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Obligee"), in the full and just sum of twenty thousand ($20,000) dollars, lawful money of the United States, to the payment of which sum, well and truly to be made, the said Principal binds himself, his heirs, executors, and 1 Adapted from British & American Tobacco Co. v. U. S. Fidelity & Guarantỷ Co. (1917), 177 App. Div. 582, 164 N. Y. Supp. 406. administrators, and the said Surety binds itself, its successors and assigns, jointly and severally, firmly by these presents. Signed, sealed and delivered this 5th day of January, 1923. WHEREAS, the said Principal has entered into a certain written contract with the Obligee, dated December 14, 1922, for the erection and completion of a building, known as the "Manufacturing Plant," all in accordance with the terms and conditions of the said contract and the plans and specifications prepared therefor, said contract being made a part hereof as fully and to the same extent as though set forth at length herein: Now, THEREFORE, THE CONDITION OF THE FOREGOING OBLIGATION IS SUCH, that, if the said Principal shall well and truly indemnify and save harmless the said Obligee from any pecuniary loss, resulting from the breach of any of the conditions of said contract on the part of the said Principal to be performed, then this obligation shall be void; otherwise to remain in full force and effect in law; PROVIDED, HOWEVER, that this bond is issued subject to the following conditions and privileges: 1. That no liability shall attach to the Surety hereunder unless, in the event of any default on the part of the Principal in the performance of any of the terms, covenants and conditions of the said contract, the Obligee shall promptly, and in any event not later than thirty (30) days after knowledge of such default, deliver to the Surety, at its office in New York City, written notice thereof, with a statement of the principal facts, showing such default to the date thereof; nor unless the said Obligee shall deliver written notice to the Surety, at its office aforesaid, and the consent of the Surety thereto obtained, before making to the Principal the final payment provided for, under the contract herein referred to. 2. That, in case of such default on the part of the Principal, the Surety shall have the right, if it so desires, to assume and complete, or procure the completion of, said contract; and, in case of such default, the Surety shall be subrogated to all the rights and properties of the Principal arising out of the said contract and otherwise, including all securities and indemnities theretofore received by the Obligee, and all deferred payments, retained percentages and credits, due to the Principal at the time of such default, or to become due thereafter, by the terms and dates of said contract. 3. That, in no event, shall the Surety be liable for a greater sum |