Evening journal., 1916-06-06

pleted before the time specified In the
contract Based on our knowledge of
engineering Jurisprudence and the
practice of the courts in cases per
tanning to penalties and liquidated
damages, we do not believe that the
above provision would be upheld in
liquidation case.
Recommendation by Attorney for Levy
Court.
II does not matter whether the for.
feiture be described as penalty or as
liquidated damages. In many cases
penalties have been construed to mean
liquidated damages. and I'm many cases
a provision as to liqufdbted damages
has been construed TO mean penalty.
Where damages are uncertain I'm their
nature, difficult TO ascertain, or Inn
poss BILE 10 be estimated with GER
tainty, and where the forfeiture rs
not disproportionate to the breach
the Courts will construe such for
feiture clauses as liquldated damages
irrespective of whether such forfeit
ure clauses are designed as penalties
or as liQuidated damages
Statement Of Commission Of Enel,
neers.
Section So provides that the CON
tractor shall keep the road In repair
for a period Of one year. and that
the Levy Court shall retain five pei
cent. OF the contract price for a per
iod Of one year and that IL the con.
tractor does not make satisfactory
repairs the Levy Court will have the
right to make necessary repairs anC
deduct the cost thereof from the five
per cent. due the contractor. We ar,
OF the opinion that this provision ma
terially increases the contract pricel
of road work in New Castle county
that the provision is unwarranted 4
the work Is constructed under com
petent supervision. and in accord
ance with well drawn specification
and. furthermore, that the provision
materially interferes with thu
proper maintenance OF the road
during the period OF one year afte
their completion. We strongly rec
ommend the elimination Of Sec
ton 55."
Recommendation OF Attorney 10
Levy Court.
The above recommendation canno
be adopted, as Il is contrary &
law. pna
Whether the amendment TO IN
present law is desirable is a Questio
which should be considered by tn
New Castle County State Highwa
Commissioner,
Recommended by Highway Comml;
siOner.
A bill should be introduced in III
next session of the Legislature Il
the purpose OF amending the eXis
ing law in reference to the retentiC
of FIVE per cent. Of the contract prii
for the period Of one year. II is a
solutely necessary. on account Of u
increased heavy travel on our cou
ty roads that maintenance be col
menced by the county immediate
upon the completion Of the road
is believed that the retention Of {
said five per cent does materially
crease the contract price for the co
structiOn. and that the amount OF sa
increase is more than is saved by d
county by reason of being relieved
the maintenance Of the road for o
year. or course. Section 50 cam
be eliminated from the contract al
specifications without an amendme
TO the existing law.
Statement Of Commission Of En-!
neers.
Section Ga provides that the q
gineer or the supervisor, under Il
direction OF the highway commi
sioner. is TO furnish estimates f
quantities of work done before pa
tial payments can be made One su
ordinate under the highway cOmml
sioner should be responsible for G
Inmates OF quantities. and IL Is Sc
. evident that the engineer alone shOu
be specified for this detail of L
. work
- Comment by Attorney for Levy Cou
I AS above stated. under the law
r certificate Of the supervisor. and al
) a certificate of the surveyor or enl
! neer, II any there be, stating as ne
, as may be, the total amount Of wO
' done. must be furnished to the lie
Court and the commissioner. A chan
is therefore recommended in resp,
TO Section "a. so that IL will re
that the supervisor and the engine
. II there be any. are to furnish os
3 mates for quantities OF work doi
before partial payments can be maj
Statement Of Commission OF En-
neers.
:. Section 40 covers the subject
/. payments. The contract and spec
= cations are not definite as 10 part
n payments or the final payment. II
D section provides that partial p'
ments shall be made during
J. progress Of the work. but does }
say how ofton.s ="
q Comment by Attorney for Levy Cou
u Section 1906. of the Revised CO
y Of the State Of Delaware. 1915. p
S vides that partial payments may
! made on account Of said contra
when certified TO by the said co
missioner. not exceeding eighty !
cent. OF the full value Of the We
= done prior TO said payments. AS
: highway commissioner is the pers
n to decide when such partial PAYNE
Is are to be made. IL is not a mat
!. of contract between the contractor a
the Levy Court. The parties to
4. contract, Said Section 1906 provi'
that at least five per cent. OF the c.
+ tract price shall not be paid to
n contractor within the period of {
g year after the work specified to
s. done by such contract shall hi
e, been fully performed and accep
.e by the said Levy Court and the S
rs commissioner. Therefore,t the r