The Plymouth tribune. (Plymouth, Ind.) 1901-1911, 1910-05-05


First, Ness conterded that he
was the lowest responsible bid
der and should have been awar l.
ed the contract. The Court holds
that Nesss bids should not have
been received by the Board of
Commissioners, because he had
not made and filed the proper
non-collusion affidavit with his
bids, and that all the other bid
ders, except O'Keefe failed on
that point, and that for that rea-
son alone other bids were proper
ly rejected.
The holding is that O'Keefe
was the only bidder who COM
! piled with the law in that regard.
Second, Another contention OF
Ness and his attorneys was that
the plans and specifications were
so worthless and defective that
no part OF the contract was valid
and lawful, but the Appellate
court holds with Judge Larry that
the plans and specifications were
sufficiently definite and certain as
to all parts of the work except
the fancy decoration of the court
room, which part OF the contract
was ei1joined by Judge Larry.
Third. Another contention OF
Ness and his attorneys was that
the notice of letting was insuffi-
cient and defective, but the APP
pellate court holds that the no.
tice was properly given under the
proper section of the statute.
| Fourth. Still another conten-
tion of Ness and his attorneys
was that because the county
council did not specially mention
the fitting up of the County Sur
veyor's office in the ordinance of
appropriation, that the entire con-
tract for all the work was illegal
and void.
This point the court say it is
unnecessary for us to determine.
AS both the Appellate court and
the Supreme court of Indiana
have frequently decided that a
contract may be valid in part,
there is no possible doubt that,
had the Appellate court passed on
the point, it would have been
against the contention of NeSs's
attorneys and in accordance with
the decision OF Judge Larry.
1t therefore appears that the
cause was reversed on a point
that must strike the ordinary OBJ
server as purely technical, and in
no manner affecting the merits OF
the case. 1t is surprise to every
body, and no doubt the greatest
kind OF surprise TO NesS's law
yers, who all along made their
fight on points that were not sus-
tanned by the higher court.
The point on which Ness
fought the case mainly, was that
he was a bidder at the letting and
that he was the lowest responsible
bidder. yet the court in effect de-
cides that he was not bidder at
all.
So strong was the belief OF Ness
and his attorneys that the con-
tract ought to have been award
ed to him, that he brought a
mandate suit the same day he be-
gan the injunction suit, to COM
pei the Board of Commissioners
to give the contract to him. which
suit is yet pending on the dockets
OF the Marshall Circuit court.
| Another peculiar thing about
the decision OF the Appellate
court is that the court say that
the plans Zand specifications, as
the court construes them contem-
plated -four different contracts,
instead OF two contracts. All the
parties and attorneys and Judges
in the circuit court, seemed to
take a different view OF the mat
ter, and that the plans and spe-
cifcations contemplated but two
contracts, namely, the general
contract, and the contract for the
electric wiring, plumbing and
heating.
1t looks as though the Appel
| late court mistook the record Oh
the case. and O'Keefe and the
Board will probably apply for a
rehearing of tht case. On the the
ory OF two contracts, the condi-
tions annexed to the bids could
cut no figure, because they would
not change the meaning OF effect
OF O'Keefe's bids. The decision
is quite lengthy, and will give
below that part on which the case
Is made to turn.
1t is now insisted that the bid.
of appellant Ness and the Other
bidders, except O'Keefe, were
properly rejected, for the reason
that a proper non-collusion aft.
davit was not filed. Seton 5S9,
Buns 1908 being Section ) OF ar