
    Beaver & Butt v. The Trustees of the Institution for the Blind James Griffith & Son v. The Same. Janes, Morton & Co. v. The Same.
    1. Where, under the act of April 3, 1868, “prescribing the duties of directors, trustees, etc., to whom is confided the duty of devising and superintending the erection, etc., of any State Institution,” etc.(S. & S. 637), the trustees of the institution for the blind proceed regularly in all respects in accordance with law to advertise for sealed proposals, to be filed Within a day named, for the furnishing of specified labor and materials towards the erection of a State institution for the blind, it is their duty to award the contract for the furnishing of such labor and materials to such person or persons who shall so offer the same at the lowest price and give the requisite security, provided such price is not in excess of the preliminary estimates required by said act.
    2. In such case, after the day limited for the filing of proposals, and after the same have been opened, the trustees are invested with no discretion to permit an amendment or alteration of any such proposal on account of any alleged mistake therein, unless the fact of such mistake and the requisite data for correcting the same are apparent on the face of the pro ■ posáis
    Mandamus.
    These three cases are separate petitions for a mandamus to compel the trustees of the institution for the education of the blind to execute a contract for the carpenter and joiner’s work on the new building for the erection of which provision is made by the act of May 6, 1869 (66 O. L. 128).
    The petitioners in each case claim the contract, and the three cases have been heard together, with the understanding that a peremptory mandamus may issue in the first instance -in favor of the party entitled thereto under the statute, upon -the facts disclosed in the petitions, the answer of the trustees .-and exhibits.
    The facts thus disclosed, so far as respects the rights of •these petitioners, are, in substance, as follows:
    Under the authority and by the direction of the act of May 6, 1869, above referred to, the trustees of the blind asylum, in pursuance of the provisions of the act of April 3, 1868,“prescribing the duties of directors, trustees,” etc., “ to whom is confided the duty of devising and superintending ■the erection,” etc., “ of any State institution, asylum,” etc. (S. & S. 637-8), procured to be made and approved plans, specifications, etc., for a new blind asylum, and caused public notice to be given that the trustees would receive sealed proposals “ up to or before ” the 28th day of October, 1869, from competent builders or workmen for executing and performing the several works required in erecting the new buildings, ¿in accordance with the plans, specifications, etc.
    According to these plans and specifications, etc., the carpenter and joiner’s work was made a separate branch of the works required.
    Under and in accordance with this.notice, and before the 28th day of October, 1869, sealed proposals for the carpenter and joiner’s work were tendered to the trustees by five separate persons or firms, including the several petitioners in these cases.
    These proposals were made by filling up printed blank" forms, headed: “ Tender and schedule of prices required in carpenter and joiner’s work, in the institution for the education of the blind, at Columbus, Ohio,- agreeably to drawings and specifications. All works set, perfected, and approved.”
    These forms were furnished by the trustees, and contain, among other items, the following:
    “Main entrance door and frame complete, with side windows.”
    “ Exterior doors and frames, including setting, fastenings, etc.”
    
    “ Interior principal room doors and trimmings.”
    
    
      “ Second-class doors and trimmings, etc”
    
    
      “ Bed-room and other doors, with transoms, louvers, frames, etc.”
    
    The “ Specification of works required in erecting the several buildings of the asylum for the blind ” contain headings such as these:
    “ dealing, excavating, and refilling ” — “ Concrete ” foundations — “ Brick work generally ” — “ Rubble. work and cut .stone” — “Out-stone work” — “ Carpentry and joinery ” — “Hardware, etc.” — “ Slating, tinning,” etc.
    Under the head of “ Carpentry and Joinery” in the specifications, the following is found:
    “ The windows generally to have box «frames, the sashes hung with cast-iron or cased-slag-fllled weights, lines and pxdleysP '
    
    “ The apartment doors generally framed truly, * * * the doors fitted closely, each hung with three butt-hinges, etc.”
    The bid of Beaver & Butt was $70,969.50; that of James Griffith & Son was $69,790.60; that of Janes, Morton & Co, was higher than either of these, and so irregular, that the trustees rejected it for that reason.
    The proposal of Reaver & Butt contained, among others, the following items : r
    
    
      
    
    In these items of doors and windows, Beaver & Butt, after the sealed proposals had been opened and their contents disclosed to the public, claimed to have included the hardware therefor, at the sum of $2,110.20, in the aggregate.
    Jamés Griffith & Son, and Janes, Morton & Co., expressly state, at the close of their respective proposals, that they do not include the hardware for the doors and windows.
    The other bidders, not named, included the hardware for the doors and windows in their proposals.
    It appears from the answer of the trustees that after the bids were opened “ there were persons who claimed to have been misinformed as to the rule and method of bidding, and asked further time beyond two o’clock to prepare bids, which it was agreed by the trustees they might have.”
    In their answer the trustees further say, that, on account of “ irregularity, and the fact that some of the bids for carpenter and joiner’s work excluded hardware by terms, and others included it, rendered it proper and necessary, in justice to all the bidders, to give each, time to correct or renew their bid. For that purpose, on October 29, 1869, all the bids for carpenter and joiner’s work were returned to the bidders, and they were requested to file new bids by the 5th day of November, 1869,. M.”
    The several proposals of the three firms who are now peti tioners were returned to them by mail — to Beaver & Butt at Dayton; and to James Griffith &Son, and Janes, Morton & Co., at Cincinnati.
    Beaver & Butt returned their original proposal to the trustees, after deducting the $2110.20, the amount they claimed to have included in the two items of doors and windows for hardware therefor, leaving the aggregate amount of their proposal $68,859.30. The deduction, which they call a correction, appears on the face of their original bid, as altered, in this form:
    
      
    
    It is stated in the petition of Beaver & Butt, and admitted in the answer of the trustees, that the former included and deducted the hardware-for doors and windows as stated, and made no other change or correction in their original bid. In submitting their bid as corrected, they accompanied it with a letter of explanation, in which they say: “ We were not present when the bids were announced, hence knew nothing of the irregularity until wé received your note of the 29th inst., inclosing our tender, returned for correction and also a schedule for hardware, when we saw at once that, we had made an error in the item of doors and windows; ’’ etc.
    Griffith & Son refused to make any new or amended bid, but claimed the correction of an error of $140 made in the extension of the following item in their original bid: “Trough in bakehouse, price $35; amount, $175” — and claimed the contract, as being the lowest bidders.
    Janes, Morton & Co. returned their original proposal to the trustees, with a letter, dated at Cincinnati, Nov. 4, 1869, which reads as follows: “ Gentlemen: — In reply to your advertisement, we herein make a second proposition to furnish material and do the carpenter and joiner work in strict accordance with Mr Tinsley’s [the architect’s] drawings and specification, for the consideration of Sixty-seven thousand (67,000) dollars. We offer a pro rata reduction on our schedule (first) bid, sufficient to make, or, if you please, to leave the above sum.”
    The trustees declared the bid of $67,000, of Janes, Morton & Co., to be the lowest bid; but, other bidders claiming the contract, the trustees declined to make any contract with either of them, until the question as to what bidder is entitled to the contract should be settled by judicial decision.
    
      L. J. Critchfield for Beaver & Butt:
    1. That Beaver & Butt, .under a misapprehension, included in their original bid, ih. the items of 360 doors, frames, etc., and 654 windows, the. hardware therefor, at the sum of $2110.20, and that the only correction they made in that bid was to deduct that sum for the hardware, leaving the bid $68,859.30, as originally made, excluding the hardware, are facts that are averred in the petition of Beaver & Butt, and admitted in the answer of the trustees.
    2. Beaver & Butt, in making their bid and the correction of it, acted in perfect good faith. That they made the mistake, is not only not surprising, but natural, when the blank schedules for carpenter’s and joiner’s work, prepared and submittecl to the several bidders by the trustees, are considered —- being well calculated to lead bidders to the conclusion that they would be expected to include the hardware in their bid for doors and windows, as these works were to be “ set and perfected,” etc. • This could not be done without the hardware therefor.
    2. Can such a mistake be corrected, and Beaver & Butt be allowed to stand where they would have stood had it not occurred? This must be determined by the statute. S. & S. 638.
    Sec. 3 provides that it shall be the duty of the trustees to give six weeks’ public notice of the time and place when and where “sealed proposals will be received for performing the labor and furnishing the materials necessary to the erection ” of the proposed asylum, and that “ a contract, or contracts, based on such sealed proposals wild be made”
    
    See. 4 provides that it shall be competent for the trustees, “ if for any cause they fail to make the contract or contracts, as herein provided for, on the day named in the notice, as in' this act required, to continue from day to day until such contract or contracts are made: provided that such contract or contracts shall be awarded to and made with the person who shall offer to perform the labor cmd furnish the materials at the lowest price,” etc.
    My propositions under these provisions of the statute are these:
    1. It is the duty of the trustees to award the contract to the bidder for the carpentry and joinery who submitted the lowest bid by the day fixed in the .notice, although a lower bid should be tendered after the opening of the bids on that day.
    2. If a bid submitted by the day fixed was found, on being opened on that day and examined, to cover material not required of the carpenter and joiner, the statute allows it to be corrected, by taking such material out of the bid at the price it was put in at, leading the bid, as to the work and material requi/red of the carpenter and joiner, at the price and amount the bidder originally proposed.
    
      The contract is to be made not necessarily at the amount of the bid, bnt is to be based upon it. From this I understand that the trustees are to examine the proposal, and, after ascertaining that it covers the branch of work it was intended to, and is the lowest, to make a contract according to the proposal and at its amount; but if, upon examination of bids, the trustees become satisfied that a particular proposal covers more than is required, it is the policy of the statute that the contract shall, nevertheless, be made on the basis of such bid, after eliminating from it what does not belong to it, leaving it perfect as a basis for a contract, if, thereby, it be the lowest bid.'
    This policy of the statute is a wise one, for it is to be expected that in the immense number of items that are involved in the drawings and specifications of any large public building, requiring for its construction three or four hundred thousand dollars, some confusion of items will in every case be found.
    If it be said that, conceding this to be the true construction of the statute, it does not follow that Beaver & Butt’s bid can be corrected in the way it was corrected, for the reason that there is nothing to correct by, I reply that there was something to correct by, to wit: the ad/mitted fact that they included in the two items of doors and windows the hardware therefor, that belonged to another schedule, at the price of $2110.20. They corrected those items by taking out of them that sum and no more.
    This reply must be perfectly conclusive, unless the statute prohibits any correction of a bid if it cannot' be made by something appearing on its face. I think there is no such prohibition. There is certainly none in the letter of the statute; and. its policy is fully satisfied by permitting bidders to stand upon the facts as they existed at the time for opening the bids, allowing full liberty to correct a bid according to those facts. This construction of the statute is consistent with justice to all the bidders, and also to the State; for while it gives the bidders the full benefit of all they can properly demand, it allows the State the benefit of what was, in fact, tbe lowest bid. Any less liberal construction of the statute would often defeat its object, which is to secure the lowest bid consistent with fairness to bidders.
    3. But, under the right to thus correct a bid, the statute will not allow a new bid to be substituted for the former one nor a general deduction to be made as to its amount.
    Uoadly, JacJcson & Johnson for Griffith & Son:
    1. The act of April 3, 1868 (S. & S. 637), and of May 6th, 1869 (66 O. L. 1-28), are not directory, but imperative in the requirements as to the specifications, publication, and award of contract to the lowest bidder. Sedgwick on Const. & Statute Law, pp. 368, 372-378, et seq.; Henderson v. United States, Court of Claims, Dec. Term, 1868, per Casey, C.J., pp. 75 and 83; Davison v. Gill, 1 East. 64, 71; People v. Allen, 6 Wend. 486; Briggs v. Georgia, 15 Verm. 72.
    2. On the day on which the bids were, by the advertisement, to be received, and on which they were actually received, October 28, 1868, Griffith & Son were the lowest bidders in law and fact. The clerical error as to the trough, when corrected (and it corrects itself), reduces their total bid $140.
    3. As to the attempt by Beaver & Butt to correct their bid by a pretended deduction of hardware, it cannot be allowed : 1. Because they withdrew their bid of October 28, and bid anew on Nov. .5. 2. Because “hardware” is a distinct item in the specifications, and was bid for separately and distinctly. The original bid of Beaver & Butt did not, in ■ law, therefore, include hardware, and cannot now be reduced by a deduction of what they could not have been compelled to deduct had their bid been accepted. 3. Because, admitting that “ hardware” was really included in their first bid, it results in a bid for the carpenter work on condition that the “ hardware ” item be accepted. 4. Because it is irregular, being a bid for carpenter work and hardware together. And to allow it to be corrected after the other bids had been opened and published, is against public policy, and opens wide the door for frauds.
    
      4. As to the pretence that Janes, Morton & Co. are the lowest bidders, it is covered by the proposition that the bidding of November 5th was not advertised, as required by law. To require competition, as was here done, on seven days’ notice to the original competitors, is to tempt them (who have already bid to their reasonably lowest items) to make forced deductions, with the view of making up the loss by slack work, or fraud. There is no • such difference among the bidders here as makes any special gain to the State likely. It is more likely that any such gain will be made up to the contractor in the execution of the work.
    
      O. JST. Olds, for Janes, Morton & Co., argued
    that the trustees, having failed to make the contract on the day named in the notice, they could, under the statute, continue from day to day until the contract could be made ; and that it was competent, during that extension of time, for parties who had, under the published notice, filed a bid, and which had been returned to them by the trustees for that purpose, to correct or renew their bid within the time limited by the trustees; and that Janes, Morton & Co. having done so, and their renewed bid being the lowest, they are entitled to the contract.'
   Brinkerhoff, C. J.

It is proper that I should say, in the first place, that neither in the pleadings in these cases, nor in the argument of them, is there any imputation, or insinuation even, of any want of perfect good faith on the part of either the trustees or other party to the proceedings. The questions made are questions of law, and of state policy, as indicated and declared by the law, and as such they are to be decided.

The act of April 3,1868 (S. & S. 637), the provisions of which, it is conceded on all hands, govern this case, provides as follows:

Sec. 3. That after such plans, descriptions, bills of material and specifications and estimates as are in this act required, are made and approved in accordance with the requirements of this act, it shall be and is hereby made the duty of such directors, trustees, or other officer or officers to whom the duty of devising and superintending the erection, adding to, alteration of improvement of such institution, asylum, or other improvement, as in this act provided, to give or cause to be given public notice of the time and place when and where sealed proposals will be received for performing the labor, and furnishing the materials necessary to the erection of such institution, asylum, or other improvement, or for the adding to, altering, or improvement thereof. And a contract or contracts, based on such sealed proposals, will be made, which notice shall be published weekly for six consecutive weeks next preceding the day named for the making of such contract or contracts, and in four or more daily papers having the largest circulation in the State, and shall state when and where such plan or plans, descriptions, bills, and specifications can be seen, and which shall be open to public inspection at all business hours between the date of such notice, and the making of such contract or contracts.

“Sec. 4. That it shall be competent for such directors trustees, commissioners, or officer or officers, if for any cause they fail to make the contract or contracts, as herein provided for, on the day named in the notice, as in this act required, to continue from day to day until such coutract or contracts are made; provided that such contract or contracts shall be a/warded to and made with the person or persons who shall offer to perform the labor and furnish the materials at the lowest price, and give good and sufficient bond for the faithful performance of their contracts, in accordance with the plan or plans, descriptions and specifications herein required ; which plan or plans, descriptions or specifications, shall be and are hereby made a part of such contract or contracts • and provided further, that such contract or contracts shall not be binding on the State until they are submitted to the attorney-general, and by him found to be in accordance with the provisions of this act, and his certificate thereon to that effect made.”

By scanning the foregoing statement of facts, it will be seen that the proposals called for by the advertisement and specifications under which the parties hereto claiming the contract acted, were for the carpenter and joiner work alone; proposals for furnishing all hardware for the building being called and advertised for as a separate item; and this fact was open to the knowledge of all persons who might be doubtful in respect to it, and chose to make inquiry.

Taking the proposals of the parties respectively, as each appeared upon its face at the time when they were opened and their contents disclosed to the commissioners and the public, the proposal of Griffith & Son- was the lowest, and that of Beaver& Butt next. Griffith & Son, on the face of their proposal, expressly exclude the items of hardware to be used in connection with doors and windows. The proposal of Beaver & Butt is silent on that subject. But Beaver & Butt now come in and say, that, acting on the mistaken supposition that the furnishing of the necessary hardware for the doors and windows was to be included in the proposal to do the carpenter and joiner work of - the doors and windows, they did in fact mentally include the cost of such hardware, amounting in all to $2110.20; which sum, if deducted from the aggregate of their proposal as it stood, would result in making their proposal lower than that of Griffith & Son; and this claim of mistake on their part by Beaver & Butt is admitted by the trustees of the institution'for the blind, in their answer, to be true. And it is insisted that this admission is conclusive against them, and in. favor of Beaver & Butt. We cannot accede to this proposition. Looking to the letter and the policy of the statute under which the proceedings were had, we are of opinion that it was not competent for the trustees to bind themselves officially, or the State whose interests they represent, by such an admission. 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 towards particular parties as it is the obvious policy and intention of the statute to render impossible. “The contract or contracts shall be awarded to and made with the person or persons who shall offer to perform the labor and furnish the materials at the lowest price” How offer to perform and furnish ? Through the medium of written, sealed proposals, filed within the time limited in the advertisement. The statute knows no other proposals or offers but these. The trustees are invested with no discretion in the matter; but, on the contrary, we are satisfied it is the intent and policy of the statute to withhold it, and thereby shut the door against all favoritism on the part of the trustees on the one hand, and, .on the other, to prevent such an excited, intriguing, and perhaps ruinous scramble among builders, as would be not unlikely to ensue if the proceeding were assimilated to an open auction sale of contracts. By the provisions of this statute, the State has declared her policy to be — to rely, for procuring the labor and materials for her public buildings at a reasonable price, upon the secret, sober, and unexcited estimates, inquiries, and calculations of individual builders, made with full knowledge that others are likely to be similarly engaged, and upon the provision made in the seventh section of the act, to the effect that no contract for labor or materials shall be made at a price in excess of the detailed estimates previously made by the official engineer.

And though an inquiry whether this policy is a wise or an unwise one is not necessarily an element in the question before us, yet it may not be improper for me to say, that the near approximation to the same aggregate amount exhibited by the several proposals in these casés, indicates that the several bidders have made careful and close calculations, and that the provisions and policy of the statute, if - faithfully carried out, are likely to eventuate in results fair and beneficial both to the State and to the parties with whom it may contract.

In what has thus far been said, however, we do not intend to be understood as holding that a mistake in a proposal may not be rectified in case the fact of mistake and the requisite data for its rectification are both apparent upon the face of the proposal; as if, for instance, Beaver & Butt had expressly named in their proposal the items of hardware for doors and windows, with prices annexed, or if a mistake in their arithmetic was detected: in all sitch cases we think the mistake may and ought to be rectified. It would be but just to the bidder, and would in no way contravene the provisions or the policy of the law.

We are of opinion that Beaver & Butt are not entitled to the contract which they claim ; and if they are not, then, a fortiori, Janes, Morton & Co. are not.'

A peremptory mandamus will he issued in favor of Griffith & Son for the awarding of the contract to them on the basis of their proposal, as it will he, after correcting the mistake in the extension of figures to the. amount of $140, apparent on its face.

Scott, White, and Day, JJ., concurred.

Welch, J., dissented.  