Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1876-12-13

OF November. Ordered placed ON file.
City Attorney, as follows:
TO The Hon. The Common Council Of TIE
City Of Alpena:
Gentlemen In regard to the liability
OF the city for labor performed by Thos.
Woods on Long Lake avenue, under q
written contract, would reply:
LIST. The contract between the city
and said Woods IN not apportionable-
that Is, the labor performed cannot be
measured or apportioned by the contract
rate; hence Mr.. Woods could not recover
the consideration In an action on the
contract, without showing that he had
complied substantially with Its require
ments.
I'd. II, however, the labor performed
by Mr.. Woods, under the contract, is Of
substantial benefit to the city, and the
city has appropriated IL, then Mr.. Woods
could recover on quantum meruit, bas-
ed on that benefit, such remuneration
AS the labor performed is reasonably
worth, not to exceed the contract price,
and subject to be reduced by any dam.
age growing out OF the nou-performanc
of the contract, and not properly enter
ing into the price as the city could
establish by way of recoupment.
3D.. II Mr.. Woods has failed to com.
pletc the contract according to its terms,
without any fault Of the city, or legal
excuse, he cannot recover anything until
the work Is completed, unless there has
been on the part Of the city waiver Of
strict performance, or an acceptance of
the work done, or the equivalent of one
Of these.
4th. understand from the Committee
on Streets and Sewers that, although Mr..
Woods has failed to comply strictly with
the provisions OF the contract, that they
do not consider him guilty OF a volunta-
ry abandonment or wilful departure
from Its terms. On the contrary, that
he acted in good faith, intending to per-
form the contract according to its stipu-
lations, as he understood them, and that
the work performed is of real and actual
benefit to the city, and worth, at fair
estimate, at least seventy dollars, the
contract price. Yet IL Is a well estab-
lished principle, that when party vol
UNFAIRLY enters into contract, and
without legal excuse fails to fulfill II oil
his part, he can recover nothing unless
there has been a waiver or acceptance by
the other party. The mere fact that full
performance may occasion to party
loss OF money, will not excuse him. The
courts, rs general rule, In such case,
have refused to modify the contract OF
the parties, or substitute another by sane
tioning recovery to any extent
9th. In the present instance, however,
inasmuch as it is practically impossible
for Mr.. Woods, owing to the lateness Of
the season, to perform any further work
in the way Of fulfilling the contract, and
as | understand there is some difference
o. opinion as TO whether the work al
ready performed Is not sufficient under
the contract, would recommend that
the bill be allowed at such sum as the
Council may deem reasonable and just,
and that in the future parties be given
distinctly to understand that unless
their contracts are fully compiled with,
no compensation need be expected.
Respectfully Yours,
A. T. MCDONALD.
City Attorney. |
Ordered placed on record.
City Attorney, reporting that the point
OF land at the intersection of Second ST. |
and Washington avenue, appears by the
record in the Office of the Register of
Deeds, to be part OF Lockwood street,
and that said street terminates on Wash.
lngton avenue, and not on Second street.
Placed on file.
Comptroller, reporting that he had re-
ceived an offer from james L. Denton, to
keep team in readiness at all times for
hauling engines to fires, for the sum OF
s1.25 per day.
Aldermen Richardson and Hcaly APP
peared and took their seats.
Moved by Aid. Rice that the Comp
ROLLER be instructed to hire James Z.
Denton's team to haul engines to fires
until January LIST, 1877, and until the
'urther order of this Council, at S1.25
Der day. Ayes, Gillett, Healy, Rice,
Steahy and Tinms. Car
led. |,
REPORTS OF COMMITTEES.
Ways and Means, recommending the
payment Of the following bills: