trolled from the water-works pump house; the bell and striker to be placed in the court-house tower, and one manual repeater located at the water-works pump house for automatically operating the tower bell striker, and capable of repeating the number of any one of 30 different fire-alarm boxes, as may be desired, together with all the poles, wires, insulators, brackets, battery, etc., necessary for constructing line and electrical alarm circuit, connecting repeater at water-works with tower bell striker in the tower; said poles to be good sound cedar, of sufficient length to carry the line over all other electrical wires now erected; the line to be of the very best quality of No. 12 galvanized telegraph wire, well insulated on good glass insulators, secured to the poles, and all joints well soldered; also all the necessary battery and minor attachments for the successful operation of the same,all complete and ready for service for the sum of $1,248. It being indefinite as to the actual weight of a bell, although intended to be cast of a given weight, it is proposed to make an addition or reduction in the price given at the rate of 16 cents per pound, according to the variation of the weight of the bell from the proposed weight. "The company agrees to do all of the above work, and complete the contract in about 30 days from the date of signing the contract, and your honorable body shall thoroughly test the working of the same within 30 days after the completion of said work, and if found to be satisfactory, and according to contract, accept and pay for same.

"In case the manual repeater is left from the list of apparatus and a signal key used, the above figures will be reduced to $1,148.

"It is further proposed that in case a 2,500-pound bell is used the above figures will be reduced to $1,063. The bell foundry guarantee all bells, and we guarantee all of our machinery as to perfection to perfection of operation, and against breakage caused by flaws or defects in castings. "All of which is respectfully submitted.

"UNITED STATES ELECTRIC FIRE-ALARM Co.,
"S. A. Chase, Sec'y."

Alderman Comstock, one of the committee, afterwards reported to a meeting of the common council on July 5, 1887, that the committee had negotiated for a fire-alarm

with a 3,000-pound bell, and asked the council to settle on some location for it to be placed. Such report was received and the committee discharged, and the following record thereof was entered upon the journal of the common council, to wit:

"Alderman Comstock, chairman of the special committee appointed to purchase a fire-alarm, reported that they had negotiated for an alarm with a 3,000-pound bell, and asked the council to settle upon some location for it to be placed. Report adopted, and committee discharged."

On July 23, 1887, the city of Big Rapids entered into a contract in writing with the plaintiff in this suit, which said contract was signed by the mayor in behalf of the city, and by the United States Electric Fire-alarm Company, by S. A. Chase, its secretary. The aforesaid proposition made by the United States Electric Firealarm Company was attached to said written contract, and became and was a part thereof, and in addition thereto the contract contained the following, that is to

say:

"It is hereby agreed between the city of Big Rapids of the one part, and the United States Electric Fire-alarm Company of the other part, as follows:

"The said second party hereby agrees to put in a firealarm bell in court-house tower, to do all work and · furnish all material and things used in connection therewith, as specified in specifications hereto attached, consisting of four sheets; and same are declared to be and are a part of this contract.

"Said second party agrees to set poles at such distance apart as to support wire in a good and substantial manner, and to set same of sufficient depth to stand in proper manner; poles to be set in streets and alleys to points hereinafter named at intersection of Grand Traverse and Warren avenue, unless permission is granted to set them on private property, or to cross same with wire. One pole to be set at intersection of Grand Traverse street with Warren avenue; thence along Warren avenue

to Hemlock street; thence along Hemlock street to River street; thence along River street to Maple street; thence across Maple street to alley between Stewart and Ives avenue; thence southerly along to Elm street; thence to court-house tower.

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"All work to be done in a good and workman-like manner, and work done and contract to be performed within 40 days from the date hereof. The tone of bell to be second A below middle C on the organ. Said first party to have 30 days after contract is completed to test bell and working apparatus, and, in case same is satisfactory as per contract, then they agree to pay said second party the sum of $1,248 therefor, or as per specifications as to weight, &c. Said first party agrees to furnish and put in ceiling and floor in tower."

In pursuance of said contract plaintiff put in for the defendant a fire-alarm, including a bell weighing 3,206 pounds, and the total amount of the plaintiff's demand against the city for the fire-alarm system, including the bell, is $1,294.99. The bell was put in the court-house tower, and the tone of the bell is about E flat.

On September 24, 1887, plaintiff notified the common council that the system put in by it was complete, and requested the council to fix a time when they would test the same, and the council fixed October 1, 1887, at 9:30 o'clock A. M. as the time when such test would be made. The common council assembled accordingly for the purpose of testing the fire-alarm, and the plaintiff, by its secretary, S. A. Chase, made a thorough test of the working of said fire-alarm system, and the tone and volume of sound of said fire-alarm bell then in the courthouse tower. The members of the council also tested the tone and volume of the bell from the different firealarm boxes. Another test of the fire-alarm was afterwards made in the night-time, by turning in an alarm from one of the boxes, said council being then in session in their council chamber, and listening thereto. A still

further test was made on October 9, 1887, it being on the occasion of a fire in the city.

On October 10, 1887, the council considered the question whether the said fire-alarm system and said firealarm bell were satisfactory to said common council, and whether said common council should accept and pay for the same, and took action thereon, and then and there considered that said fire-alarm system and bell were not satisfactory to said common council, and they refused to accept the same, or any part thereof, for and in behalf of the city, and they then and there caused a record of their determination to not accept the same, and directed the recorder of the city to notify the plaintiff of such action. The recorder sent to the plaintiff by mail the notice following:

"BIG RAPIDS, October 13, 1887. "ELECTRIC FIRE-ALARM Co.,

"Evart, Mich.

"Gentlemen: At a meeting of the common council last Monday night they rejected the fire-alarm bell as not satisfactory. Yours, etc.,

"S. A. STAMBAUGH, Recorder."

The notice was received by the secretary of the company on October 15, 1887, at Evart, Michigan, and on the seventeenth of the same month the common council adopted the following resolution:

"Whereas, the city of Big Rapids has made a contract with the Electric Fire-alarm Company of Evart, Michigan, the condition of such contract being that said firealarm company furnish a bell weighing 3,000 pounds, and all apparatus for striking the same, material and work to be satisfactory to the city: Therefore, resolved, by the common council of the city of Big Rapids, that the tests of the same have not been satisfactory; and it is further resolved that we do not accept the same, as it is not satisfactory according to contract."

The common council of the city has never in fact

accepted said fire-alarm system, and said fire-alarm bell which is a part thereof, and the city has not used the same for any purpose whatever. The fire-alarm bell is not suitable for the purpose of a fire-alarm for the reason that its tone and volume of sound is such that said bell cannot be heard easily by the firemen when within their houses or places of business, or when engaged in anything demanding their attention in any part of the city.

The court further found that the bell put up by the plaintiff was the exact kind of a bell contracted for by the defendant, except as to the tone thereof; that the firealarm system furnished by the plaintiff for the defendant, and all work done by it in putting up said fire-alarm system, and the materials furnished therefor, were furnished and done in accordance with the terms of said agreement, except the tone of the bell, which was about E flat, instead of second A below the middle C on the organ; that defendant never objected to the bell on account of the difference in tone; that the bell was properly manufactured, was of the best bell metal, had been properly tested by competent experts before it was put up by the plaintiff, and was in every respect a first-class bell; that bells of the weight of the one in question are not manufactured of the tone mentioned in said agreement, but neither one of the parties knew this fact at the time said agreement was made; that as soon as the plaintiff found it out he notified said C. W. Comstock, who was the chairman of the committee on water-works of the common council, which said committee had in charge the matter of said fire-alarm system, and who, upon receiving said notice, notified the plaintiff to do the best it could in regard to the tone of the bell, which it did.

The circuit judge also found that the common council, acting in good faith, made a thorough and fair test of the working of said fire-alarm, and that they refused to