
    STATE ex WOLFE v ATCHERSON et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2159.
    Decided Feb 23, 1932
    Joseph A. Shearer, Columbus, for plaintiff.
    Ralph A. Bartlett, Columbus, and George A. Jackson, Columbus, for defendant.
   BY THE COURT

This action was brought by a taxpayer and involves the regularity and validity of a contract for the construction of a heating plant for the Court House and the balance due upon the construction contract.

The case was tried in the Court of Common Pleas where a judgment was rendered in favor of the defendants. Judge Reynolds of the Court of Common Pleas decided the case by a written opinion.

The case was then appealed to this court by the plaintiff. The case has been submitted here on the pleadings, the evidence and the argument of counsel. We have carefully considered the questions presented and also the written opinion of Judé'e Reynolds.

Two main questions are presented. First, as to the question of the construction of the equivalent of the stoker; second, as to the testing of number one quality of brick. We are clearly of opinion that the equivalent provided as to the stoker is within the scope of the contract and so long as there is no sufficient divergence as to justify the inference of interference with the competitive bid proposition we think there is nothing to justify the interference of a court of equity.

As to the second proposition we reach the conclusion that the testing of the brick indicating that the brick falls within quality number one although testing 31 instead of 33 is not such a departure from the original contract as to justify interference in this action. Had the suit been brought immediately before the work was done there might be justification for interfering, but when all the work is done and a suit is only begun to enjoin payment to the contractor, we are clearly of opinion that this court is not required to interfere upon that ground. Upon the whole we agree with the written opinion of Judge Reynolds.

The petition is therefore dismissed.

ALLREAD, PJ, HORNBECK and KUNKLE, JJ, concur.  