The herald and news. [volume] (Newberry S.C.) 1903-1937, 1904-02-23

i plans, specifications or written contract
! Of the use or ownership Of the 'o!d ma
terial' in question is to be found in
the specifications. in the following
words: The successful contractor will
be permitted to use all old material
parts Of the present rooc that conform
Ito these plans and specifications: but il
+, is understood that The marble now on
: the grounds 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. If in doubt con-
; suit the architect on this subject be-
fore making bid.
!! >. Before bidding on the work Nc
! Ilvain-J JEkeicr company. as well as
other competitive contractors. called
upon the arci!itec;. F. T. Milhurn. for
an Interpretation nj the clause quoted
. concerning which they were III doubt.
! 3. The architect Informed the con-
! tractors that the contractors bidding
! fo1. the work would get such old ma
teral. and would De permitted TO use
such old parts as would conform with
the new plans and specifications
/ tSee Nlilburrs letter. July 81. l90lo
| +. Acting upon the Interpretation
given by the architect, Mc1lValn-C nike
fer company. after making allowances
! for what was conceived to be the
value OF the old material to them
put in their bid for the contract. and
was duly accepted by the commission
>. One Mr.. Garfunkel. junk dealer
submitted 10 the commission PROPOSE
ton TO buy the copper and old iron
/ then in the old roof. and the commls-
sion, upon accepting McIlvain-CnkefeI
! company's bid. ordered that the com
I n1unication OF Mr. GarfuGkel be tuIntd
over to the successful bidding con
tractor. upon the ground tnat the Salo
/: old nlatarial' was AT the disposal Cl
the latter.
The clause quoted for The specific2-
g.. tions bears internal evidence OF con-
sc;ouS ambiguity. and tie conflicting
! interest is susceptible Of various m
! terpretations. 1t is easy to CONCEIVE
that the bidding contractors could
; claim with show of reason. the title
10 the old material' in question. and
: inasmuch as the paper containing the
! clause was prepared for and in behalf
i OF the commission. and the law Woulc'
/ as | underS:a il. conStrue the coz
! tract strictly against the commission
! and in favor Of the bidder. for one rea-
son. among others. that IN cases ol
! doubt. the construction by the con-
tractors must he given the benefit OIL
the doubt. iHaSmuch as the comnllS-
sion. as the author of the specihca-
/ tons, mus: suffer. if either party must
on account Of ambiguity.
! But I think that up to 4 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 archl-
| tect. SDeaking on behalf OF the commlS-
sion. the known conduct OF the con-
tractors. based upon Milburn's inter-
pretatOn, the acceptance OF the DIG
, based upon the supposed ownership px
the contractors of the "old materlal.
and the declination to treat with pro,
| posed purchaser f,r the sale Of the Ola
! material. and he reference OF MS olu o,
TO NcIlyaine-U -Unkefer company. all
estop the commission from claiming
! the '.old material in question.
! HoDins that this will meet with your
approval. I am.
Very truly yours.
(Signed) G.. Duncan Bellinger,
! Attorney General.
I;pon motion of Mr. Mower the opln-
ion of the attorney general was ap-
proved by a vote taken viva voce, Mf.
Marshall voting against II.
EXHIBIT !.
Columbia. S. c.. Feb. io,l9O
This certifles that in the fall OF 1901
,, I bought from ]. B. Garfunkel, 1oT the
use of the State hospital for the insane,
for the amount Of $500 lot OF gal
yanized iron railing and that ne
threw in as worthless. aslot or meta!
ceiling, which he said we might nave
for hauling off. The ceiling IS now ~,
ing in q rubbish heap in the back yard
of the hospital.