Parker Bros. v. Crawford, 38997

• Decision Date: 07 December 1953
• Docket Number: No. 38997,38997
• Citation: 219 Miss. 199,68 So.2d 281
• Parties: PARKER BROS. et al. v. CRAWFORD et al.
• Court: Mississippi Supreme Court

Page 281

68 So.2d 281

219 Miss. 199

PARKER BROS. et al. v. CRAWFORD et al.

No. 38997.

Supreme Court of Mississippi.

Dec. 7, 1953.

J. Hoy Hathorn, Louisville, for appellants.

Livingston & Fair, Louisville, for appellees.

ETHRIDGE, Justice.

This case involves the question of whether the appellee school trustees abused their discretion in finding that Lundy Brothers, Inc., was the 'lowest and best' bidder on a construction contract for an elementary school and cafeteria, and in thereby denying the contract to appellants.

In 1952 the citizens of the Lousville, Mississippi, Municipal Separate School District, the boundaries of which are coextensive with those of the City of Louisville, voted to issue approximately $340,000 of bonds for the construction of an elementary school and cafeteria. The Board of Trustees of the School District, appellees J. A. Crawford and four others, employed Johnson, Jones and Reynolds, architects of Starkville, Mississippi, to prepare plans, blueprints and specifications for this project, which upon completion were approved by the Board. The Board then published notice in a newspaper inviting bids for the construction work on five separate items. One of these items was 'all labor and materials required to complete the plumbing, heating and ventilating' of the elementary school and cafeteria. Bids were to be received on November 4, 1952.

Lundy Brothers, Inc. of Philadelphia, Mississippi (hereinafter referred to as Lundy), made a bid for plumbing, heating and ventilating of $23,600. Appellants Parker Brothers, a partnership composed of Frank and James Parker (hereinafter referred to as Parker), bid on the same item $23,282, which was $318 less than the bid of Lundy Brothers, Inc. Both tendered sufficient performance bonds. These bids, along with others, were opened by the Board of Trustees on November 4, 1952, but at that time the Board announced that it would not act on any bids until its next meeting on November 10th. During the interval of time between November 4th and 10th several of the trustees made some inquiry and investigation as to the respective abilities of Parker and Lundy to perform the contract. The Board also requested the architects to get information concerning the experience, financial responsibility and other qualifications of these two bidders.

Dr. J. A. Crawford, president of the Board, testified that he and the other trustees asked about Parker as well as about Lundy; that they had hoped that they could get some recommendation on Parker but that they never did get any that they felt they could trust on a job of this size; that it was the Board's opinion that Parker could not do the job, and that the Board was afraid to risk them doing it. Crawford said that during the period before the bids were acted upon he left word for the Parkers to contact him, but that they did not; that they were at liberty at any time to present their qualifications to the Board; that the Board was advised by its architects that Lundy was well qualified from experience and financial responsibility, but that Parker was deficient on both of these factors. Crawford talked to several people in the community, including a plumber, about Parker. Most people had not heard 'too much about them.' He said that the Board felt it was its duty to get the best plumber it could get, and that of course it relied to some extent upon its architects' recommendation. Before the bids were acted upon, the Board had information that the Parkers had never had a contract of this magnitude, acting for themselves and not as employees; that their experience consisted only as employees of other people. In the Board's opinion the bid of Lundy was the lowest and best.

Roger Kilpatrick, also a member of the Board of Trustees, engaged in the building supply business in Louisville, testified that he knew the Parker Brothers, who were born and reared in Louisville, but had been in Texas for around ten years before returning home stortly before making the present bid. He asked around Louisville about them and found that they had been working mostly on small jobs. He said that Parker never did try to qualify with the Board, and that he had told Frank Parker that he hoped that they could qualify, but never did hear any more from him. He and the other members thought that Parker had too little experience as contractors on this type of job. Roger Allen and Bill Bennett, members of the Board, testified substantially to the same effect.

At the time the Lundy bid was accepted the members of the Board of Trustees had information from their architects and other sources that Lundy Brothers, Inc. was financially responsible and had had a large amount of experience in plumbing, heating and ventilating contracts similar to the one in question. There is no substantial dispute that Lundy was amply qualified to do the job, with a large staff of employees. There was some evidence that Lundy had some trouble on the plumbing in the Noxapater school, but the superintendent of that school testified that since Lundy had done repairs 'it has been a good heating system.' There was also some testimony with reference to plumbing by Lundy on the annex to the Winston County courthouse. It is not clear whether the Board knew of this alleged difficulty when it finally acted on the bid. Moreover, on that issue there was a dispute of fact as to whether the cause of the trouble was defective plumbing or other reasons, and that was for consideration by the Board and by the chancellor, which found against appellant's contention.

With this information before the Board and with the bids as previously stated, the Board met on November 10, 1952, and by order accepted the bid of Lundy, which was $318 higher than that of Parker. That order recited in part as follows: 'the Board having made some personal investigations of the reputation, experience, and ability of the various parties submitting the bids, and the Board finding that the Architects have made an extensive investigation as to the reputation and ability of the various bidders and the Board having received information, and being convinced that Parker Brothers who submitted a bid which is slightly lower than the bid of Lundy Brothers, having had no experience as contractors, and that their experience in plumbing and heating installation consists of work done as employees only, and that they have had no experience in supervision of such installation, and after having a lengthy discussion of the bids designated Plumbing and Heating Contract 'B' the Board finds, and here adjudicates that the bid submitted by Lundy Brothers, Inc., of Philadelphia, Mississippi, in the sum of $23,600 is the lowest and best bid submitted, and on motion duly made, seconded and carried by this Board the bid of Lundy Brothers, Inc., in the amount of $23,600 is hereby accepted, * * *.'

Twenty days later, on December 1, 1952, Frank and James Parker, composing the partnership of Parker Brothers, brought this action in the Chancery Court of Winston County against appellees J. A. Crawford, et al., trustees of the school district, and H. C. Earhart, Sr., City Clerk of the City of Louisville. Another complainant, and appellant, is Jody Parker, brother of the other appellants, who joined as a 'taxpayer', but this is no taxpayer's derivative suit, since other taxpayers were not invited to join as complainants. The bill charged that appellants made the lowest and best bid; and that the Board abused its discretion in accepting the bid of Lundy and in not accpeting that of appellants. Hence the bill prayed for an injunction prohibiting appellees from proceeding under the contract with Lundy, and for a mandatory injunction against the Board to compel it to execute the contract with appellants. It also sought to enjoin appellee city clerk from issuing any pay warrants to Lundy under the contract with the school trustees...