The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1904-02-25

plans specifications OF written contract
OF the Use OF ownership of the old ma
teriaI in question is 10 be found in
the specifications. III the following
words: The successful contractor Will
De permitted to use all Old material
that is now on the ground, and such
parts of the present root that conform
to these plans and specifications: but it
is understood that the marble POW on
the grounGs is not included. This only
covers the granite columns. balusters,
old iron. bracing. granite: etc, in the
roof that is suitable, and the proper
size that is called for II in doubt con-
suit the architect on this subject be-
fore making bid
2. Before bidding on the work Nc
Twain Unkefer company, as we'll as
other competitive contractors, called
upon the architect. f. p. Milourn. for
an Interpretation Of the clause quoted.
concerning which they were in doubt.
8. The architect Informed the con-
tractors that the contractors bidding
for the work would get such old ma
/! terial, and would be permitted to use
such old parts as would conform with
the new plans and specifications
(See Milburns letter. July 81, 1901)
4. Acting upon the Interpretation
given by The architect. McIlvain- -Unke-
fer company, after making allowances
for what was conceived to be the
value of the "old material" 20 them,
put in their bid for the contract, and
was duly accepted by the commission
5. One tMr. Garfunkel, a junk dealer,
submitted to the commission a PROPOSE
ton to buy the copper and old iron
then in the old roof. and the commits
sion. upon accepting Mc1lvain-Unkefer
company's bid ordered that the COM
munication Of Mr.. Garfunkel be turned
over to the successful bidding con-
tractor. upon the ground that the said
.old material" was at the disposal Of
the latter.
The clause quoted for the specifica-
tiol:s bears internal evidence Of con-
scious ambiguity. and the conflicting
interest is susceptible of various in
terpretations. It is easy to conceive
that the bidding contractors could
claim with show of reason, the title
to the "old material in question, and
i..asmuch as the paper containing the
clause was prepared for and in behalf
of the commission, and the law would,
as l understand it, cOnstrue the con-
tract strictly against the commission
and in favor of the bidder, for one rea-
son, among others, that in cases of
doubt, the construction by the con-
tractors must be given the benefit OF
the doubt. inasmuch as the commls-
sion. as the author Of the specif1ca-
tions. must suffer. if either party must,
on account OF ambiguity.
But I think that up to a very recent
date it had been the understanding on
all sides that the contractors should De
the owners Of the old material, ana
the facts as found seem to me to pre-
clude any other conclusion.
The statement of Milburn, the archi-
tect, speaking on behalf of the comVls-
sion. the known conduct of the con-
tractors, based upon Milburns inter-
pretation, the acceptance OF the DIG
based upon the supposed ownership by
the contractors Of the "old material,
and the declination to treat With a pro
posed purchaser for the sale OF the oid
material, and the reference of his Did
to McIlvaine- Unkefer company, all
estop the commission from claiming
the "old material in question.
Hoping that this will meet with your
approval, am,
Very truly yours,
(Signed) G.. Duncan Belilnger,
Attorney General.
Upon motion of Mr. Mower the opin-
ion of the attorney general was ap-
proved by vote taken viva voce, Mr.
Marshall voting against it.
EXHIBIT T.
Columbia, S. c.. Feb. 15,1904.
This cerrihes that in the fall OF 1911
I bought from J. B. Garfunkel, Tor the
use of the State hospital for the insane,
for the amount of $500 lot OF gal
vanized iron railing and that he
threw in as worthless, lot of metal
ceiling. which he said we might have
for hauling off. The ceiling is now ly-
ing in rubbish heap in the back yard
of the hospital: