` HAMILTON WOOLEN OO. Us MOORE. 5
right to How said three feet for the sum of $150 per foot, measuring
from the top of the plank forming the bottom of the casing of the
lower wheel at said privilege, and for the conveyance to him by the
plaintiff of one-half of the privilege known as the “Weld privilege."
It was agreed that papers should be drawn in accordance withrthis
agreement. Subsequently a contract was drawn, but said Back de-
clined to sign it, because he was not satisfied with the name of a'
referee in regard to land damages, a matter which is not now im-
portant, because there were and are no land damages to his land.
In a day or two after, and on or about November 28, 1865, said-
Ballard requested said Back to sign a bond, a copy of which marked
“Exhibit G"‘ is annexed hereto, aud which had been prepared at
said Ballard’s instance. Said Back declined, ostensibly because it
did not contain the actual parol agreement, the difference being that
the number of feet to be flowed was not specified or limited in the
bond. I think that the real reason why he made no effort to have
the agreement carried into effect was because he desired to sell the
entire property rather than sell the right of flowage. Said Ballard ‘
presented no other papers to said Back. Subsequently, and on or ·
about December 20, 1865, at the request of said Ballard, said Back
named $1,300 as the price for which he would sell the plaintiff his
entire estate connected with said mill. Ballard declined to buy at
that price.
On the evening of December 20, 1865, at the store of William M.
IEXHIBIT G.
Know all men by these presents, that I, Albert Back, of Union, in the state of Con-
necticut. am holden and stand firmly bound and obliged unto Joshua Ballard, Jr.,
treasurer ofthe Hamilton Woolen Company, a corporation duly established_by law, at
Stockbridge, in the state of Massachusetts, and his successors in that office, in the full
and just sum of twelve hundred dollars, stipulated and liquidated damages, to be paid
unto the said treasurer, or his successors in that office, or assigns. To the which pay-,
ment, well and truly to be made, I bind myself and my heirs, executors, and adminis-
trators, firmly by these presents. ·
\Vitness my hand and seal.
Dated the twenty-eighth day of November, in the year of our Lord one thousand eight
hundred and sixty-five.
The condition of this obligation is such that, whereas, the said Back has agreed to
convey. by good and sutlicient deed. to said corporation, or any person or corporation
said treasurer or his successors in ofiice shall request, the right to flow his water-power
and privilege situated in the village of Mashapaug, in said Union, or " Mill Pond," so
called, and on the northerly side of the road leading from said village to Union afore·
said, by water in the reservoir now being constructed in Holland, raised by the dam
built on the " Monroe Place," upon the said treasurer, or his successors in that office,
delivering to the said Back a deed of one undivided half of the Weld power and priv-
ilege, so called, upon the same pond in Mashapaug aforesaid; and, 1u consideration
thereof, and further, the said treasurer, and his successors in that oflice, as a considera-
tion for said right to How. agree to ay to said Back at the rate of one hundred and
nfty dollars per foot of fall so flowedi measuring upward from the upper side of the
plank forming the bottom of the casing of the lower wheel at said privilege, as soon as
the height of such flowage can beproperly ascertained.
Now, therefore, if the said Back shall deliver to the said corporation, or any person
or corporation the said treasurer or his successors in that office shall request, a good
and sufficient deed of the right to flow his power and privilege as aforesaid, upon the
said treasurer, or his successors in oflioe, tendering or delivering to the said Back a .
deed of one undivided half of the Weld privilege as aforesaid, then this obligation shall
be null and void, and otherwise it shall remain in full force and virtue. .
Signed, sealed, and delivered in presence of ———·--—- [Seal.]