The times and democrat. [volume] (Orangeburg, S.C.) 1881-current, 1904-02-24

plans, specifications or written contract
of the use or ownership OF the "old 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
+, that is now on the ground, and such
parts of the present roof that conform
| to these plans and specifications: but it
| is understood that the marble now on
the grounds is not included. This only
J 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"
| 9. Before bidding on the work Nc
Twain -Unkefer company, as we'll as
d! other competitive contractors, called
upon the architect, F. P. Milburn, for
ain Interpretation of the clause quoted,
concerning which they were in doubt.
| g. 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 Milburn's 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" to them,
put in their bid for the contract, and
was duly accepted by the commission.
S. One Mr.. Garfunkel, a junk dealer,
submitted to the commission a PROPOSE
ton to buy the copper and Ole iron
/ then in the old roof. and the commits
! sion, upon accepting McIlyain-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
! "rold material was at the disposal OF
/ the latter.
The clause Quoted for the specifica-
! tions 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 a show Of reason, the title
to the "old material in question, anu
inasmuch as the paper containing the
clause was prepared for and In behalf
of the commission, and the law would,
as I understand it, construe the cor
| tract strictly against the commission
and in favor Of the bidder, for one ref-
son. among others, that in cases Oh
doubt, the construction by the con-
tractors must be given the benefit or
| the doubt. inasmuch' as the commls-
sion. as the author of the specitlca-
tions. must suffer. if either party must,
on account Of ambiguity.
But I think that up to very recent
date II had been the understanding on
| all sides that the contractors should be
the owners of the old material, and
! 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 commits
sion, the known conduct Of the con-
tractors, based upon Milburn's inter.
| pretation, the acceptance OF the DIG
based upon the supposed ownership by
the contractors of the "old material,
and the declinatior to treat with pro
posed purchaser fer the sale OF the olo
! material, and the reference OF his DID
to \McIlvaine-U -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,
(Siened) G. Duncan Bellinger,
Attorney General.
Upon motion of Mr.. Mower the opln-
ion of the attorney general was ap-
proved by vote taken viva voce, MT
Marshall voting against 1t.
EXHIBIT l.
Columbia. S. c.. Feb. l5,l9O4
This certities that in the fall or l9ul
I bought from J. 3. Garfunkel, Tor the
use of the State hospital for the insane
for the amount of $500 lot OF gal
,.oni,ed 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.