These cases may be put as illustrations of the practical difficulty of applying such a test and as indicating that the test is little more than a matter of pure form:

1. In return for a promise of A to build according to specifications, B promises to pay what C thinks just, not exceeding $10,000, taking into account not only the value of the work, but any default of either party in the performance of the contract. It seems hard to believe that a court would or should hold such a contract so illegal as to preclude all recovery upon it, and if any recovery is to be had upon it, clearly C's decision which involves not only a valuation of the work, but a decision

127 Pac. 514; Crilly v. Philip Rinn Co., 135 111. App. 198; Lamson Consolidated Store Service Co. v. Prudential F. Ins. Co., 171 Mass. 433, 50 N. E. 043; Brocklehurst & Potter Co. v. Marach, 225 Mass. 3, 113 N. E. 646; Grant v. Pratt, 110 N. Y. App. Div. 867, 97 N. Y. S. 29, 186 N. Y. 611, 79 N. E. 1106; Symms Powers Co. v. Kennedy, 33 S. Dak. 355, 146 N. W. 570. 65 Meacham v. Jamestown etc. R., 211

N. Y. 346, 105 N. E. 653, Ann. Cas. 1915 C. 851, citing President, etc., Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250; Seward v. Rochester, 109 N. Y. 164, 16 N. E. 348; Sweet v. Morrison, 116 N. Y. 19,22 N. E. 276; National Contracting Co. v. Hudson River Power Co., 170 N. Y. 439, 63 N. E. 450, 192 N. Y. 209, 84 N. E. 965.

as to defaults which may depend on matters of law as well as of fact. How far in substance does the case differ from the following:

2. In return for a promise of A to build according to specifications, B promises to pay $10,000 if C thinks A entitled to so much, in view of any default of either party in the perform-anoe of the contract.

3. For the same promise by A, B promises to pay $10,000, and C's determination of any question in dispute shall be final and a condition precedent to any right of action.

4. For the same proipise by A, B promises to pay $10,000, and it is mutually agreoft that all matters in dispute shall be left to C's determination which shall be final.