Ex parte Perusini Const. Co.

• Decision Date: 16 April 1942
• Docket Number: 7 Div. 669.
• Citation: 242 Ala. 632,7 So.2d 576
• Parties: Ex parte PERUSINI CONST. CO.
• Court: Alabama Supreme Court

7 So.2d 576

242 Ala. 632

Ex parte PERUSINI CONST. CO.

7 Div. 669.

Supreme Court of Alabama

April 16, 1942

Boutwell & Pointer, of Birmingham, and Karl C Harrison, of Columbiana, for petitioner.

L.H. Ellis, of Columbiana, and Borden Burr, of Birmingham, for respondent.

LIVINGSTON Justice.

The petition seeks a writ of mandamus directed to Hon. W.W Wallace as Judge of the Circuit Court of the Eighteenth Judicial Circuit of Alabama, commanding him to vacate and set aside an order and judgment overruling petitioner's motion to transfer from the law to the equity docket of that court that certain cause pending on the law docket, in which petitioner is defendant and the County Board of Education of Shelby County, Alabama, is plaintiff, and to forthwith transfer the cause in accordance with the prayer of the motion.

The suit at law seeks to recover damages for the defendant's (petitioner here) failure or refusal to fulfill its bid to construct and alter certain school buildings in Shelby County, Alabama.

In substance the complaint alleges that in answer to an advertisement for bids the defendant submitted its bid to perform certain work to the Shelby County Board of Education that defendant's bid was the lowest submitted and the contract was awarded to petitioner on December 7, 1938; that a contract prepared in accordance with the bid and its acceptance, was submitted to petitioner for execution on December 12, 1938, but that on December 16, 1938, petitioner refused to execute the contract and to fulfill its bid; that thereafter, a contract was awarded to another for the sum of $8,800 in excess of the bid of petitioner.

Petitioner's motion to transfer the cause from the law to the equity docket rests upon the following facts, which we quote:

"The plaintiff prepared said plans and specifications for the building and improving of twelve buildings divided into Group A consisting of six buildings and Group B consisting of six buildings and requested that bids be submitted for the building of said buildings according to said plans and specifications. That said bids were to be submitted to the plaintiff in Columbiana, Alabama, on a day certain to-wit: on the 7th day of December, 1938, at 2 o'clock, P.M. The defendant had in its employ one George H. Temme who was employed as an estimator and whose duty was to estimate the cost of all jobs upon which the defendant proposed to bid and upon whose estimates the defendant relied in fixing the amounts of all of its bids. The plans and specifications for the twelve buildings above referred to were delivered to the said George H. Temme approximately one week prior to the date when said bids had to be filed and submitted. In the normal and usual course it would take approximately three weeks for said estimator to properly estimate the cost of said twelve buildings, but he had only one week within which to make his said estimations. Because of the short time within which to make said estimations on these buildings the estimation for said buildings was far from complete the day before the said bids had to be filed and submitted in Columbiana, Alabama. Therefore, the said George H. Temme after having worked continuously and long hours for a week was forced to work all night the night before the day when said bids had to be filed, and, in fact, until within forty-five minutes prior to the time when said bids had to be filed. The said estimates and bids were completed only forty-five minutes prior to the time for filing in Columbiana, Alabama, and had to be transmitted to Columbiana within that period. The estimate on No. 877, the Calera School Addition was the last building figured by the said estimator and the estimate for this building was compiled and completed the morning the said bid had to be filed after the said estimator had worked continuously the day and night preceding and had worked for long hours during the week prior thereto. At the time the estimate was completed on the Calera School Addition, the estimator was weary and exhausted in body and mind and his mental faculties were not alert. The method used by the said George H. Temme in estimating said jobs was to set out in one column the estimated cost of labor, to set out in another column the estimated cost of material, and to set out in another column the estimated cost of all subcontracts and total costs of labor, material and subcontracts and to add thereto a reasonable sum for overhead and profit. After having completed the estimate on the Calera School Addition, said George H. Temme, because of his mental and physical condition inadvertently set out the figure for the total estimated cost of materials as the total estimated cost, thereby erroneously...