The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-11-21

use of another coagulent, to-wit: per-
chloride, or protocarbonate of iron. As a
matter of fact, however, it was not over
come, and it appears to me, from the
evidence, that whether it could have
been overcome, or could be overcome,
upon a recurrence of the same conditions,
is, at best, matter of opinion. 1t is
quite certain that the plaintiff has failed
to demonstrate it, and, as l understand
the testimony, would be obliged in order
to demonstrate it, to furnish device for
the application of the coagulent quite
different from that which has been fur
nished. All of which necessarily leads
us into field of uncertainty concerning
the capacity of the filter plant, to deal
with the particular problem which it
was intended to solve, quite apart from
plated and called for by the contract
sued on.
On July 10 the two additional filters
were added. 1t will be seen, however,
that there were then but IS days in which
to test them under the contract. Since
the test began April 5, and was to termin-
ate August 5, and did terminate at that
time, whereas the contract is specific to
the effect that new filters, if added,
should be tested during 25 days of the
four months running test of the entire
plant.
This might be considered as of COM
paratively small Importance or at least
as not being of the essence of the con-
tract if it had been demonstrated that
the plant with the two filters added was
in all respects capable of doing the work
which the plaintiff had stipulated that it
should do, but that was not the case.
The problem of the coagulants remain
ed undemonstrated, and however conf
dent the distinguished chemists who testi-
fed may be, that some other coagulant
than that used would do the work. it
can not be expected that the defendant
shall be required to pay out the larger
sum of money here claimed upon the
basis of an opinion when by the terms of
the contract upon which the claim is
founded it is entitled to demonstrated
fact.
Beyond this, however, neither the re-
suits of the test after the installation of
the two additional filters, nor the testi-
mony, nor both, have convinced me that
the plant as now constructed is capable
of delivering into the distributing mains
of the defendant company, at all seasons
of the year, water of the quality and in
the quantity called for by the contract.
Irregularity in the pressure, it is conced-
ed, disturbs the work of the filters and
renders the results unsatisfactory, and
it is also conceded that such irregularity
is necessarily produced by the fluctuation
in demand for water for consumption,
the pumps being obliged to keep pace
with the demand made by the consumers
through the distributing mains, which de-
mand may, within an hour or two, vary
from rate of 100000 gallons to a rate
of 100000 gallons per "a hours, or
vice versa.
The expert in charge ton behalf of
PLAINTIFF constructs the contract to mean
that the plant may be keyed up to meet
the maximum rate demanded during a
given time, even though that maximum
demand is maintained for but few mo-
ments. and he claims that operated upon
that theory, the plant will furnish the
water required by the contract. But
even this has never been demonstrated by
any such tests as the contract calls for.
And the difference between what the
plaintiff and the plaintiffs representa-
tive have believed and hoped and what
has been learned by the somewhat cost
ly experiment which has been made here
is so great that claims made by them,
even in the best of faith, leave a margin
for doubt. Thus, there is no doubt that
Mr.. Sands placed his entire knowledge,
skill and most indefatigable energy at
the service of the company in preparing
the plant for the test beginning April 5,
1894, and in conducting that test If he
had known or believed that some other
coagulant than alum and lime would give
better results, he would certainly have
used that other coagulant. If he had
known or believed when he began the
test that shot would operate more effect
lively in the cone valves than gravel he
would have begun with shot, and | take
it that it is impossible for him to be more
certain now about the problem, which
he has not demonstrated, that he can fol-
low the city demand with pure, clear
water of the quality and quantity called
for by the contract sued on, at all sea-
sons of the year, than he was when he
started upon the four months test, that
the arrangements which he had then
made were the best that could be made.
And yet as it turned out, they were not
the best. and this, although more than
two years had elapsed since the contract
of 80. and but more than gear had
elapsed during which the plant was in
position for the plaintiff to experiment
with.
My conclusion, therefore, is that it
matters very little what the scientists
who have testified for the plaintiff think
or believe the plant in question is capa-
BILE of doing-the contract sued on called
for demonstration, and not for an opin-
ion, and this being the case, even if had
been convinced that said plant could do
the work contracted for, L should not
feel authorized to condemn the defendant
to take it and pay for it for the reason
that defendants contract reads that it
shall take said plant and pay for it only
when said plant has actually done said
work.
l am unable to discover from the testi-
mony that plaintiff was prevented by
defendant from conducting the tests and
operating the plant as it, plaintiff, saw
fit. 1t seems to me that the utmost lati-
tude was allowed and the defendants
affairs and representatives did what
they could, in good faith, to aid repre-
of the plaintiff in their ardu-
Gus work
Plaintiffs demand should therefore be
rejected at it's cost.
THE PICAYUNE'S EDITORIAL.
The Picayune prints elsewhere the
text of Judge Monroe's decision in the
case of filter company against the New
Orleans Water Works company.
The decision, which seems very COM
plete in it's analysis of the facts and
sound as to the law, needs no COM
mendation or comment from the Plea
yune: but this fact furnishes an occa-
sion for the Picayune to address the |
water company a few well-meant and |
honest words of counsel.
The failure of the filter company in |
Tho case above cited is as the Plea