Evening journal., 1912-07-17
CONTRACTORS
AGAIN LOSE
ON MANDAMUS
For Second Time Court Rules
Against Mccormick ct al
in Garbage Suits
JUDGE WOOLLEY
DISSENTS THIS TIME

Chief Justice Pennewnl and Asso- I
ciate Judges Woolley and Rice in
Superior Court early this afternoon I
handed down a decision i'm the cases
brought by Daniel Mccormick and
others TO try TO compel Mayor How
ell and the Council of Wilmington to
approve the bond executed by Nc
Cormick. the other garbage contrac-
tors and their securities for the
faithful performance of their duties.
Chief Justice Pennewill and Judge
Rice ruled that as a written contract
had not been reduced to writing and
no such contract was executed, the
court dismissed the petition of Nc
Cormick and the other contractors.
! This means that the contractors who
we're declared by the old Board OF
Health TO be the successful bidders.
and the awards 10 whom We're re-
scinded by the new Board of Health.
lose their suits. Judge Woolley dis
sented on one point from the ma
iority of the court he contending
! that there had ben a sufficient writ
ten contract inasmuch as the adver-
| tisement for proposals and the award
were in writing.
The case is the second one the old
contractors have lost Several weeks
ago they asked the court for rule
on Mayor and Council TO compel them
10 approve their contracts and when
this mandamus was refused, Robert
G. Harman brought the suit which
was decided to-day The action q is
thought involved every question Of
law in the litigation and is regarded
as a final settlement Of the differences
between the contractors and the pres
ent Board of Health. which after go
ing into office cancelled the McCor-
mick and other contracts and award
ed the contracts to new contractors
at a saving TO the city of about Sl5,-
600
City Solicitor Hastings represented
the city in both cases
I'M the course Of the opinion cf the
court, Chief Justice Pennewill said
"We do not understand It 10 be con-
tended by the defendants (the Mayor
and CounciD, that the sureties IN
said bond are not sufficient but they
do contend that they are not re-
quired to approve the bond until the
contract made by the city with the
relator, Mccormick and others)
thdough the Board Of Health is re.
duced to writing so that II MAJ h'
known for what the bonds are
given
"In othsr words. the defendant
contend that the contracts was no
complete upon the adoption Of
1 resolution by the Board Of Healt
-. hr al
2 because the law contemplates the re
duction OF such agreement to writini
before IL can be regarded as a com
: plete and binding contract
Further on. after quoting authori
ties, the court said I'VE think d
, clear G) That the law contemplatel
that a contract for the collection and
removal of garbage shall be reduced
TO writing; and t2) That the parties
themselves understood that IT woulC
be reduced to writing.
, THE provision in the ordinance re-
2 quiring that the bidder shall furnish
certified check for 5000 to guaran
tee the execution Of the contract coult
b have no purpose or meaning If
, written contract was not required I
4. will be observed that such check fl
not demanded TO guarantee the per
formance of the contract. A bonl
b must be given for that purpose TIT
g. expressed purpose Of the check Il
p TO secure the execution Of the con
e tract The control meant is the con
T, tract awarded by the Board OF Health
] and manifestly the contract TO b.
- executed is a written contract" II
conclusion the court says:
z "Inasmuch as a written contract
T was contemplated by the ordinance al
4 we'll as by the parties and no such
z contract was executed we are Of the
[ opinion that this court could not di
rect the defendants TO approve th'
D bonds in question. and the petition be
{ fore the court is therefore dismissed.