
    The State, ex rel. Uible, v. Harlan, Aud.
    (Decided May 12, 1930.)
    
      Mr. P. P. Boli, for plaintiff in error.
    
      Mr. Benjamin F. Primmer, for defendant in error.
   Ross, J.

This is a proceeding in error from the court of common pleas of Butler county, wherein plaintiff in error sought a writ of mandamus, which was refused.

The county commissioners of Butler county, desiring to reconstruct the Lebanon, or Coles, road, took the necessary proceedings, terminating in a contract with C. J. Uible, the relator.

The specifications contained the following clauses:

“Lump Sum Bid: The quantities embodied in the estimate are approximate although the results of calculations and the bidder must be held responsible for Ms own data on wMcb to base Ms bid. He shall not be entitled to any claim for damages in case the quantities actually obtained in the work be greater or less than the said estimated quantities. Unit prices are asked for, so that a basis for partial estimates may be had, although the work will be awarded on a lump sum, after the bids have been tabulated by the surveyor.”
“Estimates: Estimates to the amount of eighty (80) per cent of the completed work will be paid monthly. At the completion of construction the total cost of construction will be paid, same being based on actual work performed at unit prices bid. Quantities for final estimate will be determined from inspectors’ daily reports; also bills of material which the contractor shall file with the county surveyor before final estimate is filed.”

■ The relator submitted a lump sum bid of $33,000 for the work, after he had been assured by the county surveyor that the contract, by reason of the character of the work, was to be on a unit price basis. The contract was awarded June 21,1927. The specifications were made a part of the contract.

A supplemental* contract for material additional to the requirements of original specifications was let to relator. Payment was made upon both these contracts by the commissioners.

As the work progressed, it was discovered that the estimate of the amount of gravel or crushed rock was wholly inadequate to finish the work in accordance with the specifications. The county surveyor again assured the contractor that the work was on a unit price basis, and the necessary quantity of gravel or crushed rock was secured and put into the road by the contractor. The cost of this gravel, 1,873.65 tons, according to the rate provided for in the contractor’s bid, amounted to $5,620.95. There is no dispute that the amount of material in question was actually put into the work, and that the county received the benefit of this material and the extra labor in placing it, and the road was ultimately accepted by the county commissioners.

All of the necessary county officers approved the extra charge, except the respondent, the auditor of Butler county, who refused to issue his warrant therefor.

The county commissioners then attempted, on February 14, 1928, to cover the excess charge by supplementary legislation, resulting in a new contract for $4,122.09. The difference between this amount and $5,620.95, the actual cost of the excess material, was accounted for by certain credits due to the county for unfinished work, but the purpose of the supplemental legislation and contract was to permit recovery by the contractor for the extra material furnished. The respondent still refused to issue his warrant.

Thereafter, in 1929, the Legislature of Ohio passed Senate Bill No. 187 (113 Ohio Laws, 102), which contains the following provision, at page 105: “The intent and purpose of this act is to authorize the payment of, and to authorize and require the certificate provided for by Section 5625-33 of the General Code from receipts for the calendar year 1929 with respect to, all sums found to be due on contracts made or sought to be made or obligations created or sought to be created prior to the 31st day of December, 1928, and with respect to which the defects and irregularities hereinbefore described may exist, in taxing districts desiring to avail themselves of the provisions of this act, and with respect to which the bureau makes the investigation and the auditor of state the finding and certificate herein-before provided for.” Section 5.

The necessary steps under this legislation were taken by the county commissioners, resulting in an appropriate measure for the excess amount of $5,620.95. The respondent still refused to issue his warrant, and proceedings in mandamus were instituted by the relator to compel him to do so.

The position of the auditor is sought to be sustained upon the following premises:

1. That the contract, under the provisions of Section 6945, General Code, was a lump sum contract, the county commissioners having failed to “order that the same be let upon the basis of unit price bids. ’ ’

The pertinent portion of Section 6945, General Code, is: “ The contract shall be let upon the basis of lump sum bids, unless the commissioners order that the same be let upon the basis of unit price bids, in which event it shall be let upon such basis. ’

2. The supplemental contract by which it was sought to cover the excess material furnished waE void for want of consideration.

3. Although all the county officials, including the county surveyor and commissioners, were ready tc testify that it was understood by all that the contract was let upon a unit price basis, this evidence was properly excluded by the trial court, upon the theory that a written contract cannot be varied by parol testimony, and it is beyond the power of any county officer to enlarge the contract in the face of the section of the statute quoted.

4. The act of the Legislature permitting the payment of the moral obligations of the county is void.

The facts presented by this case are of such a nature as to appeal strongly to a sense of justice. It is manifest that all the parties involved proceeded under the assumption that the contract was upon a unit price basis, and that this conception continued until the auditor insisted upon a strict application of the provisions of Section 6945, General Code.

The county received full value for the excess material, the value of which is now sought to be secured by the relator through the process of mandamus. The contract itself uses language clearly indicating that unit prices were contemplated as a basis for estimates, at least.

The previous section in the contract, quoted hereinbefore, under the well-known rules of construction, must be determined to have been modified by the latter section quoted, which contemplated unit prices. Certainly an ambiguity existed which common justice should resolve in favor of the contractor under the circumstances outlined above.

The statute permits the commissioners to “order” the contract let upon either a lump sum bid or unit price bid. The resolution of the commissioners shows no reference to either lump sum or unit price, except that a lump sum of $33,000 is mentioned in the resolution, it being obviously necessary to have some figure approximating the cost of the improvement.

It would seem strange that when all the county officers openly admit the mutual understanding that the contract was to be let upon a unit price basis, and there is not the slightest question that the county received full value for the excess amount requested, and there is not the slightest hint of fraud in the whole transaction, the county should not in all justice pay for what it received and not be permitted to take advantage of an ultratechnical construction of Section 6945, General Code. We cannot conceive that the Legislature intended any such result in enacting this provision. However, the act of the Legislature in 1929, quoted hereinbefore, furnishes ample authority for the supplementary proceedings of the commissioners in doing justice to the relator. We consider the case of Spitzig v. State, ex rel. Hile, 119 Ohio St., 117, 162 N. E., 394, controlling on all the objections urged by the respondent as against this legislation. Such being the case, the judgment of the court of common pleas will be reversed, and, there being no dispute as to the facts involved in the case, the cause will be remanded to the court of common pleas of Butler county, with instructions to grant the writ of mandamus, as prayed for.

Judgment accordingly.

Cushing, P. J., and Hamilton, J., concur.  