fixed price, and then allow the proprietor to control him in matters of method and detail; for this might destroy his power so to order the work as to make his contract a profitable one. The proprietor usually retains control by a skilled architect, not for the purpose of controlling the contractor in his methods, but for the purpose of assuring himself that the results enumerated in the specifications of the contract are reached by the contractor step by step as the work progresses. There is no sound view under which such a contract can be construed as creating the relation of master and servant between the proprietor and contractor, and the conclusion of the Illinois court cannot be upheld, and the great weight of authority is to the contrary."

The learned author cites many cases in support of the last quotation.

Again, several of the following excerpts taken from a valuable note to the case of Central Coal, etc., Co. v. Grider, 65 L. R. A. 475, bear on this question:

"To every agreement by which one person undertakes to produce certain concrete results for the benefit of another, there is manifestly attached an implied condition that the latter person shall have the right of refusing to accept the results finally obtained, if they do not constitute a satisfactory execution of the agreement. As a matter of ultimate analysis, this conception may be regarded as the basis of the well-settled doctrine that the independence of a contract is not destroyed by the inclusion of provisions which, although they entitle the employer to exercise a certain measure of control, go no further than to enable him to secure the proper performance of the work.

"Was there a control or direction of the person in opposition to a mere right to object to the quality or description of the work done? Where this element of personal control is found, then responsibility, either for malfeasance or nonfeasance, for fault or negligence, will attach, not only to the servant or workman (he is always liable), but to him who had the personal control over him, who was his superior in the sense of the maxim (i. e., respondeat superior). On the other hand, if an employer has no such personal control, but has merely the right to reject work that is ill done, or to stop work that is not being rightly done, but has no power over the person or time of the workman or artisan employed, then he will not be their superior in the sense of the maxim, and not an

swerable for their fault or negligence.' Stephen v. Police Commissioners (1876), 3 Sc. Sess. Cas. 4th series, 542.

"This statement of principles was quoted with approval in Saunders v. City of Toronto (1899), 26 Ont. App. Rep. 265.

If the other provisions of the contract are such as render the person employed an independent contractor, he will not be converted into a servant by the insertion of stipulations reserving to the employer 'the right to change, inspect, and supervise to the extent necessary, to produce the result intended by the contract.' Uppington v. City of New York (1901), 165 N. Y. 222 (59 N. E. 91, 53 L. R. A. 550).

"In other words, the relation of master and servant is not inferable from the reservation of powers which do not deprive the contractor of his right to do the work according to his own initiative, so long as he does it in accordance with his contract.'

* * *

"In a Canadian case, Osler, J. A., expressed the opinion that the legal criterion for determining the question whether the relation of master and servant existed was whether the alleged master had the power of controlling the work which the alleged servant was doing for him 'in respect to anything not necessarily involved in the proper doing of the work. Saunders v. City of Toronto (1899), 26 Ont. App. Rep. 265.

* * *

"In Norwalk Gaslight Co. v. Borough of Norwalk (1893), 63 Conn. 495 (28 Atl. 32), a contract for the construction of a sewer provided that the defendant borough was authorized by its engineer or such other person or persons, or in such other manner as it may deem proper, to inspect the materials to be furnished and the work to be done under the agreement, and to see that the same corresponded with the specifications. In the specifications were the following provisions: That the work should be backed in carefully, rammed and packed in and around the sewer with proper tools, by trusty persons 'approved by the engineer,' and no tunneling will be allowed except by written permission of the engineer;' that if, in excavating for any sewer or branch thereof, any water pipe, gas pipe, or other obstruction to be met with that 'in the judgment of the engineer should be avoided,' then the party of the second part (the contractors), after the same should have been measured by the engineer, should immediately fill such excavation; that the work should be prosecuted

at and from as many different points in such part or parts of the avenues or streets on the line of the work as the engineer might from time to time during the progress of the work determine; that plank foundations should be laid when necessary in the opinion of the engineer; that all work to complete drainage should be done according to the plans, etc., and, in accordance with all the directions of the engineer of said sewer committee;' that in cases of rock blasting the blast was to be carefully covered with heavy timber, according to the ordinances of the court of burgesses relative to rock blasting, which shall be strictly observed; that certain rock should be excavated with as little blasting as possible, and 'under the immediate supervision and direction of the engineer or his assistants;' that, if any person employed by the contractor on the work should appear to the engineer to be incompetent or disorderly, he was to be discharged immediately on the requisition of the engineer, and such person was not to be again employed upon them without permission of the engineer; that, if any materials or implements should be brought to the ground which the engineer might deem to be of improper description or improper to be used in the work, the same should be removed forthwith.

"Discussing the effect of this contract, the court said: "These provisions and others of similar import in the contract and specifications, certainly denote that a high degree of power to be exercised in the supervision of the work and to insure its performance by the contractor, was reserved by the defendant borough to its agents acting in its behalf; and, when coupled as it is with other provisions providing for the responsibility of the contractor "for all damages which may happen to neighboring properties, or in any way from neglect, and that he shall at his own expense, "shore up, protect, restore, and make good, as may be necessary, all buildings, walls, fences, or other properties which may be disturbed or injured during the progress of the work," fairly indicate that an intention existed on the part of the borough to reserve such control as in the judgment of its advisers was inconsistent with such immunity from liability as is now claimed in its behalf. But, on the whole, we are inclined to think that the weight of authority upon this question justifies us in holding that the reservations of control, being but partial, and existing in certain respects only, did not prevent the existence of the relation of contractee and independent contractor; that the general control over the work, as to the manner and method of its execution, the oversight and direc. tion of the performance of the actual manual labor, especially in

the particulars in the execution of which the plaintiff claimed that the injury to its property was caused, notwithstanding the prescribed limitations, remained in the contractor; that the persons doing the work were his servants, not those of the defendant; and that these considerations relating to general control constitute the true test by which to determine whether the relation be that of employer and contractor or that of master and servant.'

66* *

*In Uppington v. City of New York (1901), 165 N. Y. 222 (59 N. E. 91, 53 L. R. A. 550), another contract for the construction of a sewer provided that

"The city enginer was to "have the right to regulate the excavation," and not "more than 400 feet of trench" was to be opened at one time without his permission; while the commissioner of city works was authorized to "change at his discretion the amount of all the various kinds of work and materials and structures." The contractors were required to observe all the ordinances of the common council in relation to obstructing the streets, and "in all cases of rock blasting the blast" was "to be carefully covered with heavy timber, according to the ordinances of the common council" relating to the subject, "which ordinances shall be strictly observed." If any person employed by the contractor should "appear to the engineer to be incompetent or disorderly," he was to be discharged, and not employed again without permission. The engineer, with the consent of the commissioner, had power "to vary, extend, or diminish the quantity of work during its progress without vitiating the contract." It was also provided that “all explanations and directions necessary to the carrying out and completing satisfactorily the different descriptions of work contemplated and provided for under this contract will be given by said engineer." The city had the right to inspect the work and materials to see that they corresponded with the specifications. Any materials or implements brought upon the ground which the engineer "should deem to be of improper description or improper to be used in the work" were to be removed forthwith. The contractors were to have charge of, and be responsible for, the entire line of work until its completion and acceptance, and were not to be paid for any part thereof until the whole sewer was finished. The specifications contained many provisions relating to details of the work that are usually found in municipal contracts for the building of sewers.'

*

*

*

"It was held that there was nothing in the terms of the contract that required the conclusion that the contractor was a servant. Of a similar contract the court said, in the case of Rogers v. Railroad Co., 31 S. C. 378 (9 S. E. 1059):

"They are nothing more than certain rules under which the work was to be done by Hardin, and intended to guarantee the faithful execution of the specified work. We do not see why one working under specified rules may not be an independent contractor, as without such rules. One contracting to build a house according to specifications and plans drawn by an architect, and under the inspection of the architect, which is usually the case, would, none the less, be an independent contractor, because of the presence and inspection of the architect. The point is, Who is doing the work? Is the company doing it by its employés, or is the contractor by his? The company certainly had the right to see that the contractor was doing the work according to the contract, and that he employed skillful and proper laborers, and the regulations above were, as it appears to us, intended to accomplish this end—nothing more.'

"*** Likewise, a provision that the employer shall have the right of superintending and supervising by its agents execution of work under a contract, and of giving directions in relation thereto, does not render it less independent. Weber v. Railway Co. (1897), 20 App. Div. 292 (47 N. Y. Supp. 7).

"The same has been held with regard to a provision that the employer's agent is to 'superintend the work, and give such instructions from time to time during the progress as the necessities of the work shall demand.' Robinson v. Webb (1875), 11 Bush [Ky.], 464. And also with regard to a provision that the employer's engineer may declare the contract forfeited 'for noncompliance with his directions in regard to the manner of constructing' the railway in question. Thomas v. Railway Co. (1899), 191 Pa. St. 361 (43 Atl. 215). The trial judge, in an opinion adopted as correct by the supreme court, said:

"Noncompliance with the directions of the engineer must be construed in connection with other parts of the contract. It evidently means noncompliance with his directions in such matters as under the agreement he had the right to direct. It does not either expressly or by inference give him the right to interfere with the means Stark (an independent contractor) chose to use to accomplish the work. Such right is not reserved in the agreement, and it was not within the contemplation of the parties that the engineer could compel a forfeiture of the agreement by assuming at his will to give directions in matters over which the agreement did not give him jurisdiction.'