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

refeSt OF an SAID specified property
rs a penalty for the performance
OF the guaranty under this contract
and the loss the city has sustained in
the premises, becomes the property Of
said city, the same as if sold to said
city by bargain and sale with full
consideration paid and said city may
dispose Of said property and give a
good and clear title to same as it
shall see fit.
QD-ln case the contractor shall
not Mlfill the said contract by pro-
ducing the amount of water required
or otherwise, the city shall have the
benefit Of what he has done and he
shall have no right, title or interest
in the wells drilled and the seventy
five. (75) per cent Of the contract
price which he has received for the
wells he has drilled shall be in full
payment for all tat he has done and
everything he has furnished in the
premises and he shall lose all the ma
chinery and equipment as heretofore
set forth.
12)-Both parties hereto agree
to complete their several parts of
this contract by December /, 1913,
IS hereto stated, excepting in case of
inability TO get delivery on certain
materials by causes beyond their con
,rol, but either party must use their
best efforts 10 obtain the materials
as quickly thereafter as possible.
Soon after entering into the con-
tract defendant commenced drilling
at such spots on the designated prop
erty as he selected, and drilled Ii
wells by December /, 1918, which by
separate tests made as each well was
claimed completed produced in the ag-
gregate the flow Of water specified in
the contract. The individual test of
each well was made by measuring the
flow put through a standard weir by
defendant, the then city engineer
measuring and taking data Of its
slowage, which was preserved by the
city. These records Of the wells sep
arately tested as claimed completed
by defendant showed when compiled
an aggregate flow of, 03o gallons
per minute. No tests were made in
the meantime to determine whether
one we'll took water from another, as
was shown somtimes to be the case.
defendant claiming he could tell by
observation as the individual tests
were made whether any well de
creased this so-called flowage," and
that it did not He never measured
nor combined for measurement the
flow Of the IA wells in one volume,
nor demonstrated a flow Of at least
1000 gallons OF water per mute from
all cf them combined Neither did he
ever offer to cooperate with or aid
the city in doing so. Claiming his du-
les were ended when the total flow
| by separate tests of the individual
wells showed in the aggregate flow
Of not less than 1900 gallons per
minute, he quit on December 2, 1913,
leaving the wells uncapped and UNI
cared for, never, jas he admitted, re-
quested of the city council COM
bined test or sent them any written
communication on the subject, and
"never went back and did anything
about having a combined test
On November 9, 1918, before he
claimed TO have completed his well
digging, defendant secured from the
then city council resolution permit
ting him to remove one Of the two
drilling machines he had been using
in the Alma contract TO Howell, on
condition that $500 Of his next es-
innate be retained until he fulfills
the provisions of his contract with the
city providing for 1000 gallons pei
minute" He was paid rs per cent OF
the contract price provided for on
individual tests, and was also success
full in securing from the city 10 pei
cent more on warrants issued by the
city clerk and authorized by city au-
arose over testing the wells in com.
bination, following a change of city
with him TO st. Louis, Michigan, with
out permission of the city.
Claiming right under the contrac
TO retain possession of this drilling ma
chine to be taken without authority o.
plaintiff, after proper demand brought
this action Of replevin to recover its
possession in the Circuit Court o
Gratiot county where trial by Jur!
was had, resulting in a directed yer
dict for plaintiff with nominal dam
age of six cents, and judgment there
en-.
The questions raised and argued
under defendants assignments of err
llror involved a construction Of tn,
contract in relation to the so-callet
penalty provision, whether any dut!
devolved on the defendant to make
combined test of the wells, or to co
operate with the plaintiff in so doing
and refusal of the court to permit de
PENDANT TO show what was meant by
or 10 inch wells.
The city had not completed tn
erection and equipment of pumping
| station when defendant quit on Dec
! ember 2, 1918. The land where tn
! wells were drilled lies near the Pin