Interstate Vitrified Brick & Paving Co. v. Philadelphia, Mack Paving Co.

• Decision Date: 29 October 1894
• Docket Number: 200
• Citation: 164 Pa. 477,30 A. 383
• Parties: Interstate Vitrified Brick & Paving Co. v. Philadelphia, Mack Paving Co., et al., Appellants; John Atkinson et al. v. Philadelphia et al
• Court: Pennsylvania Supreme Court

30 A. 383

164 Pa. 477

Interstate Vitrified Brick & Paving Co. v. Philadelphia, Mack Paving Co., et al., Appellants;

John Atkinson et al. v. Philadelphia et al

No. 200

Supreme Court of Pennsylvania

October 29, 1894

Argued October 10, 1894

Appeals, No. 200 and 201, July T., 1894, by defendants from decree of C.P. No. 4, Phila. Co., June T., 1894, Nos. 496 and 497, awarding injunction. Reversed.

Bill to restrain awarding of contract.

From the proofs it appeared that the Department of Public Works of the City of Philadelphia was authorized by ordinance to pave and repave certain streets with vitrified clay bricks, and the Director of Public Works accordingly advertised for bids for said paving and repaving. A schedule was prepared for the proposed bidders, showing the streets to be paved and repaved, and containing the specifications as to the character of the work, etc. These specifications were printed and were furnished to the bidders by the Department of Public Works, and, among other things, required that samples of vitrified bricks or blocks, properly labeled, should be submitted at least one day before the bids were opened and receipted for by the clerk in the Bureau of Highways. On May 29, 1894, the bids were opened by the Director of Public Works, and were scheduled, as is the custom. Among the bidders were the Mack Paving Company, one of the defendants and appellants, and the Interstate Vitrified Brick & Paving Company, plaintiffs and appellees.

When the bids were opened publicly by Director Windrim on May 29 1894, it was found that the Interstate Vitrified Brick &amp Paving Company were the lowest bidders for almost all of the paving and repaving advertised for. Both the Mack Company and the Interstate Company offered to do the paving and repaving with shale brick as well as with fire-clay brick. The Interstate Company furnished a sample of shale brick which the director said would be satisfactory if the company would repress and bevel-edge it. The brick was changed as suggested, and the director expressed himself as satisfied with it. One of the employees of the department communicated these facts to the Mack Paving Company. The evidence on behalf of the plaintiff tended to show that the Mack Paving Company then presented a sample of a shale brick, and represented to the director that it was taken from one of the samples in the boxes which were required by the specifications to be submitted with the bids of the Mack Paving Company. Plaintiff alleged that this representation was false. The director awarded the contract to the Mack Paving Company.

The case was heard on bill, answer and proofs.

The court, on the authority of Gutta Percha Co. v. Stokely, 11 Phila. 219, granted a preliminary injunction, in an opinion by ARNOLD, J., 3 Dist. R. 544.

Error assigned was decree, quoting it.

The decree of July 9, 1894, granting an injunction, is reversed and set aside, and the injunction dissolved at the cost of the appellee.

James Alcorn, assistant city solicitor, Charles F. Warwick, city solicitor, with him, for the city of Philadelphia, cited: Act of May 23, 1874, P.L. 230; Douglass v. Com., 108 Pa. 559; Com. v. Mitchell, 82 Pa. 343; Findley v. Pittsburg, 82 Pa. 351; Paving Co. v. Wagner, 139 Pa. 623; act of May 13, 1856, § 26, P.L. 573; Conner v. Board of Health, 7 Phila. 629.

E. O. Michener, for the Mack Paving Company, cited: Com. v. Mitchell, 82 Pa. 343: Brown v. Phila., 41 Leg. Int. 242.

Alfred Driver, J. Warren Coulston and John G. Johnson with him, for appellees: In the cases cited by appellants it was held that, in exercising his discretion as to the responsibility of a bidder, the municipal official could only consider the character of the latter. No idea was suggested that he could accept goods in excess of the standard specified, and could disregard the bid of a lower responsible bidder. Such a construction would prevent competition and defeat the purposes of the act.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE FELL:

The learned judge of the common pleas, upon the hearing of the application for a preliminary injunction, distinctly found that the Director of the Department of Public Works of the City of Philadelphia "had acted for what he considered the best interests of the city" in awarding the contract for paving to the Mack Paving Company. A careful examination of the testimony has satisfied us that this finding was...