Alma record. (Alma, Mich.) 1878-1928, 1921-05-12

drafted in certain particulars, is
fundamentally such that neither
partyi coldd absolutely default the
other without notice. Its compre-
hensively expressed ultimate object
was that defendant would drill a suf-
ficient number OF wells for the city
at a stated price, which should pro-
duce in combination a specified flow
Of water as shown by combined test.
BY paragraph Of the contract he
was given possession Of the tract of
land where the wells were 20 be drill
led for all purposes essential TO per-
formance on his part, with the right
to put down as many wells as he
wished wherever he thought best. He
had the right to their possession and
control until they were combined and
tested, and the implied if moi ex-
pressed, right tofdrill more if found
necessary to carry cut his agreement.
Time was not made of the essence of
their contract by the date for per-
Torrance stated in paragraph ~
whi,h contemplated possible delays
by reason or inability to get mater
;al, or for other causes beyond their
control.
Turning to the contract we find
It's first four paragraphs devoted to
detailing what defendant contracts to
do. In them no obligations on the
part Of the city direct or inferential
are found, beyond the implied agree
ment to pay him the stated price for
full performance of his contract.
The first paragraph distinctly OBJ
ligates him 10 furnish adequate ma
chinery, labor, etc, including every
thing necessary in the premises" and
20 drill a sufficient number of wells
10 furnish the city with safe drinking
water thcrefrom to the amount OF
1000 gallons per minute, and he
guarantees to produce the same
for the $4,000 This unqualified
guaranty underlies his whole contract,
which makes plain that the separate
flow OF individual wells measured at
different times to that amount is not
the accepted test Of the guaranty.
The second paragraph provides that
the wells must be combined, and their
combined flow must reach that a
mount before the guaranty is fulfill
led. Unless modified by subsequent
provisions, as is claimed, it is plain
The duty Of producing and proving
that guaranteed amount of water by
lie method prescribed is placed upon
defendant This ne has never done
or offered to do, nor requested plain
tiff TO do, nor offered to assist or
cooperate with it in so doing.
The third and fourth paragraphs
specify the size Of the wells, mater
ial to be used, his duty to observe
state laws and city ordinances, good
material and workmanship and protect
the city from liability for casualties.
The fifth, sixth and seventh para
graphs deal with and are primarily
devoted to payments, providing times
when 30 be made, amounts and condi-
tons. In paragraph five, subordin-
ate and directed to the paramount
/ provision as to payment, appears a
qualifying and not in all respects
lucid provision, relating to the city
installing its pumping machinery, etc.,
which it is contended for defendant
modifies the previous paragraphs
prescribing his obligations and in
effect ended mis- active duties when
! the aggregate of individual tests of
wells he claimed completed, made at
different times, summed up a flow of
1900 gallons per minute.
Defendants estimates furnished
under paragraph five for separate
have exceeded the minimum require
ment by SO gallons, and the 70 per
cent Of the entire contract price it
entitled him to have been paid. Par
agraph eleven takes care Of the situa-
ton so far as that transaction is con-
eerncd, in the event he thereafter
fails to fulfill said contract by pro-
ducing the amount of water required,
or otherwise"
Claiming that sufficient wells were
drilled on December 2,1918, he was
then at liberty under the first pro-
vision Of paragraph SIX TO demon
strate in such manner and as soon as
he saw fit, "to the common council
and their engineer that he has pro.
duced the amount of water required
under the contract and that he has
paid all claims for material, labor
accidents and damages" etc, which
as il reads entitled him 10 10 per cent
more, leaving but 10 per cent of the
full contract price contingent on fur
Their demonstrations under the pro
visions of paragraph seven; but the
concluding sentence of paragraph six
defers the time for payment Of that
Is per cent to a final test after "ths
city has installed its pumping ma
chinery and the necessary suction
, pipes leading to the wells" This
manifestly inapt and becloudine
modification is based on the asump
ton Of things to be done by the city
not otherwise mentioned or provided
for. Nowhere else in this contract il
! any mention made of the city having