
    MUNICIPAL CORPORATION — INJUNCTION.
    [Cuyahoga Circuit Court,
    May 19, 1899.]
    Caldwell, Marvin and Hale, JJ.
    Frank B. Many v. Cleveland (City) et al.
    1. Bid for Lighting — Contract—Injunction.
    ■When it is provided that a bid for lighting shall be accompanied with a lamp corresponding with the specifications, and such lamp does not so correspond, the parties will not be enjoined from entering into a contract on this ground, when the contract itself embodies the specifications, inasmuch, as the lamp is only the bidder’s interpretation of the contract.
    2. Effect in not Accepting Bid Immediately.
    The fact that the bid was not immediately accepted, does not invalidate it.
    3. Quaere as to Proper Time when Injunction Proceedings Should be Brought.
    Whether the proper time to bring injunction proceedings where a party has failed to comply with his contract, is when the municipal authorities attempt to pay on the contract, rather than when the contract is pending: Quaere.
    
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The case of F. B. Many v. the city of Cleveland and Geo. R. Warden, director of Public Works, Albert G. and Mark R. Daykin, partners, doing business under the firm name of Daykin Brothers, is here on appeal. The plaintiff is a taxpayer of the city of Cleveland. He applied to the director of law to have this suit brought, and that officer declined to bring it; hence it is brought by this plaintiff. What he seeks to do is to have an injunction allowed, restraining the defendants from entering into a contract for the furnishing of a certain number of street lamps for ithe lighting of streets in this city.

On December 30, 1898, by and through Geo. R. Warden who was the director of public works, the city advertised in one of the'newspapers of this city, for bids for the furnishing of these lamps. The advertisement stated that specifications for the lamps were on file in the office of the director of public works and that to those specifications bidders were referred. Bids were to be furnished on or before twelve o’clock noon, on January 26, 1899. There were at least two bidders. One of the two bidders filed a bid signed “Daykin Brothers, A. G. Daykin.” the - petition alleges that that bill will be or, perhaps has been accepted, that a contract will be entered into with Daykin Brothers or A. G. Daykin, unless an injunction is allowed.

The petition sets out that the bid was not in conformity with the statute which provides that the names of all the partners in a partnership which makes a bid and, in all cases, all persons interested in the bid shall be given in the written porposal or bid.

It is said that the bid was made by A. G. Daykin and M. R. Daykin, partners, as Daykin Brothers. That it does not disclose any other person interested in the bid, except A. G. Daykin. We are satisfied from the evidence, that nobody else is interested in the bid. Daykin says that he alone constitutes the proprietor of the business which is known by the name of Daykin Brothers; and nobody disputes him.

We are satisfied that the bid is not bad for failure to disclose the names of all those interested. From the evidence, it does disclose the name of A. G. Daykin, and, from this evidence, nobody else was interested.

But it is said that Daykin’s bid did not comply with the specifications. One of these specifications is, “Each bid shall give the make and style of burner, and candle-power, and shall be accompanied by a lamp completely'equipped with sample burner and all necéssary appliances for separating the burner,” ect.

The evidence shows that at the time of Daykin’s bid, he had present in the office of the director of public works, a lamp, that is he had a lantern together with a burner which together, as we understand it, constitutes the lamp. ,

That lamp did not, in all its details, correspond with the specifications, which, among other things, contained the following: “The lanterns whether square or cylindrical in their cross section, must be provided with glass or other transparent bottums and surmounted with a top or dome of iridescent and light-reflecting material, and said top or dome provided with a ventilating cap of heavy copper, to assure perfect ventilation and prevent the ingress of insects, and the entire construction to be such as not to be affected in any manner by air currents or high winds.”

The testimony was somewhat conflicting as to whether the lamp which.was submitted by Daykin at the time his bid was made, had the right kind of a top; whether it was provided with such a device as would prevent insects from getting within the lantern; and whether it was so constructed as that air currents would not disturb the light.

The evidence shows that if the contract is entered into, it is not expected that exactly such a lamp as that which was present at the bidding and furnished by Daykin, is to be used; but the contract which will be entered into if this injunction is not allowed, is in evidence before us, and that contract has, as a part of it, all the specifications which were on file in the director’s office. So that, if this injunction is allowed, it will prohibit the city from entering into a contract in which the party with whom it is to contract, agrees to furnish everything which the specifications require.

It, would seem as though, perhaps, a proper time to seek to enjoin, would be when the authorities undertake to pay for lighting, where one has failed to comply with the contract, for every item of the specifications which is upon file, is a part of the contract. But, however, that may be, we are not satisfied that the lam'-' that was at the office of the director at the time the bids were received, «.nd that was furnished bv Dayk’n. did not substantially, so far as every part of it except it be the bottom is concerned, correspond with the specifications.

Mr. Daykin testified that he understood the bottom to include all that part of the lantern which would be below what might be designated the top, that is, all below the rail; at the top of the glass is a metallic frame which was designated by Mr. Daykin as the rail, whereas it is urged on the other side and testified to by several witnesses that the bottom is that part which an ordinary person would understand to be the base and on which the other parts rest. The lantern which, however, Daykin, as the evidence shows, is to furnish if the contract is entered into, is cylindrical in form and contracts toward the bottom where it rests, so that the part which is directly beneath the top is transparent, and the base on which it rests, is not transparent; the purpose of the city is to have each lamp of 70-candle power and, evidently, the purpose of having the transparent bottom is to have it lighted about the lamp base; and the construction of that lamp, as sh'own here, as shown to us, is such as will do that. It seems to us it would be very technical to say that because the base upon which it rests is not transparent it fails to materially to conform to the specifications as to justify an injunction to prevent its being contracted for. But as already said, the contract, if entered into, the one here, requires every thing in the specifications to be done. But it is said that the lamp that accompanied the bid. — there must have been a lamp accompanying the bid, and that lamp must be the one that corresponds in all respects with the specifications, and the one for which the city must contract, if it contracts at all.

We were cited to the case of Jeriney v. Des Moines, et al., 130 Iowa, 347, in which, among other things, this is found in the syllabus, third clause: “The requirement in the specifications for a public improvement that each bidder shall submit with his bid “strain sheet and full detailed plans,’ does not affect the validity of the word of the contract where the bids were made upon the plans and specifications furnished by the city, and the detailed plans furnished by the bidders were merely to advise the authorities of the bidder’s interpretation of the plans and specifications and their method of execution.” This was where advertis-ments for the building of a bridge were made; and it- was required that strain sheet and fully detailed plans should be filed with the bid. The bidder did not file any strain sheet and fully detailed plans; hut the court said that that did not invalidate his bid, because it would be only his interpretation'of the specifications, if it had been filed, and the specifications would govern, and he bid under the specifications.

Our own Supreme Court, in a case cited by plaintiff, Beaver & Butt v. Trustees, etc., 19 O. S., 97, use this language in the opinion on page 108: “The proposals are to be in writing and sealed; and the action of the trustees is to be taken on the basis of what those proposals are found to be when opened, and not on what they may have been intended to be, but are not. To hold otherwise would be to nullify or reverse the evident policy of the statute, and to render possible and easy the exercise of such favoritism by the trustees toward particular parties as it is the obvious policy and intention of the statute to render impossible.”

Now, whatever may have been outside of the proposals, the proposals that are made, are sealed. When they are opened, they show what the proposal is. The proposal that was filed by Daykin, which was to correspond with the specifications, showed what he was to do, and whether the lamp corresponded or not, would only be his interpretation of the specifications; but, if he enters into the contract, by which he undertakes to carry out the specifications in full, we think the party ought not to be enjoined from making such contract.

Wilcox, Collister, Hogan & Pinney, counsel for plaintiff.

Minor G. Norton et al., Director of Law, counsel for defendant.

It was urged, on the hearing, that the authorities to whom the bid was submitted, rejected, in the first place, the bid and had negotiations later by which they accepted it as modified. It appears they did accept it as modified. The specifications show they did not immediately accept; but we do not think that invalidates the bid. And the petition is dismissed.  