Lucas Circuit Court.

determined, except in so far as it is found that the plaintiff has the only right to have this contract awarded to it. That, in substance, is the way in which the law stands with reference to writs of Mandamus.

According to the allegations of this petition the board of education was about to construct a school building, and as one of the incidents of the building, it saw fit, independent of any action upon its part as to the letting of the contract for the building, to advertise separately for bids for heating and ventilating apparatus. So far as the closet system is concerned, as included in their notice, it is not material in this controversy at all, since it is averred in the petition that the board of education decided that it would not accept any bids upon that, but would let it go over and advertise that separately; which it had an undoubted right to do. This proceeding, therefore, has to do only with the advertising of bids for heating and ventilating apparatus. The notice sets forth that the bids must be in accordance with plans and specifications on file at various points in the city, where they may be examined by those desiring to bid.

The construction which I think it is fair to place or that from the allegations of the petition, is that they are the plans and specifications of the building, including the size and extent of it, the number of rooms to be heated, but does not undertake to set forth that the board of education has agreed upon the plans and specifications for a heating and ventilating apparatus. They simply left that question open, so that anybody that had a heating and ventilating apparatus, from a gas stove up to the most complex and complicated system that might be or is devised, would have the right, under that advertisement, to bid.

It is averred-and a good deal of stress is placed upon it-that the board of education is about to let a contract to somebody who has not complied with the law. That would not be a reason why the plaintiff should have this contract. That would not furnish any reason whatever why the court should issue an order to make a contract with the plaintiff. It must be found that the plaintiff is the only one under this notice, who is entitled to it; that he is able, ready, and willing and clearly entitled to be awarded this contract, before the writ can issue. But it was argued that the bid of the person with whom the board of education was about to make a contract was informal and irregular, and the irregularity upon which the most stress is placed is that the bid of the Smead Co. does not separately state the work and labor. And we are told that the statute-section 3988-which most explicitly defines the duties of a board of education in this respect, requires that to be done. The language is as follows:

"When both labor and materials are embraced in the work bid for, each must be separately stated in the bid, with the prices thereof. None but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material which is the lowest in the aggregate for such improvement or repairs. Any part of a bid which is lower than the same part of any other bid shall be accepted, whether the residue of the bid is higher or not, and if it is higher, such residue shall be rejected."

In connection with that statute there is another which we think has some application, and that is section 794, which provides:

"When any board of commissions, board of trustees, officers, or board of directors of the state, or of any county, township, city, town, village, school or road district of the state, or of any public institution belonging

State of Ohio ex rel. v: Board of Education.

to the same. * * * who are now or at any time shall be authorized to contract or engage for the erection, repair, alteration, of any * * * school house or other public building or improvement, and who are now or hereafter may be required by law to advertise for and receive proposals for the furnishing of materials and doing the work necessary for the erection of the same, such officer, board, or other authority, shall require separate and distinct proposals to be made for furnishing the materials or doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment or business necessary to be used in making such public improvement; and in no case where more than one such trade or kind of mechanical labor, employment or business is required to furnish the materials for, and do any such work, shall any contract for the whole of the job, or any greater portion thereof than is embraced in one trade or kind of mechanical labor, employment or business, be awarded by any such officer, board, or author ity, unless the separate bids do not cover all the work and materials required."

read.

There is considerable more in this section which it is not material to

The advertisement as alleged in the petition which calls for these bids, calls simply for heating and ventilating apparatus and closet system for a school house. The bids which the petition alleges were put in by the plaintiff, which it alleges the plaintiff is entitled to have accepted, show that it proposed "to furnish all of the material and perform all of the labor necessary, for properly installing the heating and ventilating apparatus, (as provided in the duplicate contracts herewith submitted) for the new central or high school building, according to plans and specifications prepared by the architect for the following amounts," and also "to furnish all of the material and perform all of the labor necessarily for properly installing a dry or flushing closet system * * * for the following amounts." It then furnishes a bond that it will enter into a contract and give proper security for its performance; also, it sets forth duplicate contracts which it has prepared for the board of education to execute or sign with it, in which is set forth more particularly the kind of material and apparatus that it proposes to furnish. Those are described at considerable length. The apparatus is known in these contracts and in the exhibits as "The Bryce heating and ventilating apparaAnd it says that the heating and ventilating system provided for in the contract is the fan blast system, which provides for "heating the following rooms by warm air," and described all the rooms in the building, including the basement. A perusal of that is sufficient to indicate that this is a system of which this corporation owns the right, although nothing is said about patents. It is a system which it proposes to put into the building for heating and ventilating those various rooms. And from the description given in the bid of the Smead Co., and from the allegations of the petition, it is plain enough that it is also a system which it devises and of which it is the proprietor.

It is clear to the most casual observer that this is an altogether different form of apparatus from articles like furniture or any other loose articles, as the old-fashioned methods of warming by stoves, where one would go into any factory, or shop, or store engaged in that class of business, and pick it out, and then buy it at a given price; but that it is to be put into the building by the contractor, and put in working order, and agents of the school board instructed in its management and use.

Lucas Circuit Court.

All those elements enter into the particular system which they have bid to put into this school building. To say that you can separate the labor and material, in our judgment, is idle. You might exactly as well say that, in order to conform to the laws of Ohio, it was necessary to separate the cost of the raw material contained in the pieces in the furnace which they propose to supply, from the labor used in its construction, as to say that you must separate the completed article from the labor and cost of setting it up. One is as much a part of the furnace as the other is. It is not a furnace until it is in operation, it is not a ventilating apparatus until it is in the building in operation. So we are clearly of the opinion that no necessity could exist for separately stating the labor and material in any of these bids. They bid for a heating and ventilating apparatus, and that could just as well be in a lump as in any other way, to comply with this statute, since that comes within the clear statement of section 794, that is a part of a mechanical trade necessary to be used in a public improvement. It is a part of a system which all goes together. You cannot put in the furnace without putting in the heating and ventilating apparatus. One is a part of the other. They propose to do the whole thing, and put it in operation, for so much money. According to its petition, plaintiff proposes to do it for $8,200; it alleges that the other company proposes to do it for $8,030. That certainly would not allow the relator a writ of mandamus upon the single ground that it is the lowest bidder.

But in addition to that, it is alleged that the other party was not a bidder at all. It appears from the petition that the bid was put in at some time, but that it was not acted upon, or was rejected. Enough appears in the petition to show that it remained there. While that argument would have some force under certain circumstances, we do not believe that in an action for mandamus it can enter into a consideration of the right of plaintiff to have its writ; for, as I have said, the plaintiff must rely on the strength of its own right, and not on the weakness of its adversary. A case in 42 O. S. is undoubted authority that a good many things may be waived by the board or officer that enters into a contract of this kind. That would not be entirely true in an action for injunction, but it is true in an action for a writ of mandamus. They cannot claim the right to have this contract awarded to them because some bid has been irregular or informal.

But it does not occur to us that there is any serious informality in this bid. It is not alleged that this bid was an open bid, and that other people could see it. Had it been so alleged, it could not have been prejudicial to the plaintiff. It would have been information to it as to exactly what bid had been made, upon which it might have acted in making its own bid, and thereby have given it an advantage. It does not occur to us that the plaintiff has a right to complain if it had been in the office two months or six months, or if it was put in at the end of the notice published in December. We have had occasion before to say in matters of this kind, and further reflection only strengthens our opinion upon it, that this suit has not yet been so framed as that the discretion which the law has given to these boards can be controlled, either by writ of mandamus or by an injunction, when it comes to the question of selecting an apparatus that is in the control of a single individual or a single company or firm. The board, it seems to us, acted exactly right in advertising as they did advertise for bids, without any mention in the notice as to the kind of system they were going finally to adopt. They gave those inter

State of Ohio ex rel. v. Board of Education.

ested in that question an opportunity to bid on any kind of an apparatus that the individual or company owned, and to name a price to the board. The natural tendency of that kind of a notice would be to make the prices so given as low in amount as possible.

But after all, the board is not required to finally adopt a system whose owner has bid a lower sum for putting into a public building than the owner of some other system. It can leave the question of determining finally what system it will adopt for consideration after all the bids are in The question of price, manifestly, might have some influence with the board of education in determining which one it would accept, if all of them, or two, or three of them are substantially equal in merit, but it would not be binding on the board to accept one because it was the lowest bid, although they might consider it. It still has the right which the law has given it, to reserve the determination of the particular system it will adopt until after the bids are opened, especially where those systems are largely covered by patents; and we fail to see any way in which the law controls that discretion in the board of education.

It is clear that these bids are not competitive bids, in any sense of the word. To make them competitive, it must be averred that these systems are exactly alike and equally good. No averment of that kind is contained in the petition. They must have been so similar that when a party bid upon them, he was bidding upon exactly the same basis as his competitor, as in ordinary structures made of brick and stone and wood, where all contractors have an even chance to determine whether they will bid, and of estimating the cost of the material in the market to be bid upon. But for these things controlled by patents the market is not free and open. It is controlled by a single owner. We know of no way in which the law can regulate that. We do not believe that you can control the discretion of the board of education to adopt the system after the bids are in, nor do we think it would be wise to do it. So long as it is the privilege of the inventor to secure from the United States government the right to his own inventions, and so long as the law protects him in that right, we see no object in saying that because some other person has a different patent, the owner of which bids a lower sum than the owner of this one, the discretion of the board to adopt one or the other should be controlled nor do we think it can be.

For these reasons, either of which wouid be sufficient, we think this petition must be dismissed and the writ disallowed.

E. D. Potter, Attorney for Plaintiff.

C. W. Everett and C. W. Watts, Attorneys for Defendant.

Wood Circuit Court.

EVIDENCE-CHARGE OF COURT-CUSTOM.

[Wood Circuit Court, October Term, 1896.]

Haynes, Scribner and King, JJ.

*THE OHIO OIL Co. v. NANCY E. MCCRORY.

1. ADMISSION OF STATEMENTS OF EMPLOYEES.

The statements of mere employees who are charged with specific duties cannot be offered in evidence to bind the defendant, when it appears that such employees had no such control or authority as would make their admissions competent.

2. EVIDENCE AS to Whether a Gas Well PRODUCES GAS IN PAYING QUANTITIES. The question as to whether a well produces gas in paying quantities is a question for the jury to decide, and a witness cannot be called to decide such fact for them. The witness might be called to give the jury evidence of facts which would enable it to arrive at a conclusion as to what a well should produce to justify marketing, but a witness cannot be asked the very question that is involved in the litigation, for if that was so, it would not be necessary to have a jury.

3. EFFECT Of Pleading A CUSTOM IN AN ACTION UPON AN OIL AND GAS LEASE. In an action upon an oil and gas lease to which the defendant alleges that there prevailed a custom at the time of making this contract, well known to the parties and people generally, to the effect that a person operating under one of these leases would have the right to use so much of the gas produced from any well as would be necessary to operate that well: Held, that it was not error for the court to charge the jury that the burden was upon the defendant to establish it and he must establish it by a fair preponderance of the evidence and that unless defendant did so establish it the defense was not maintained.

KING, J. (orally)

The defendant in error, Nancy E. McCrory, in 1877, made a lease, known as an oil and gas lease, to one C. Underwood, by which she leased to the lessee his heirs and assigns her lands, comprising about five acres, and the right to drill and operate for petroleum oil and gas.

One of the conditions of the lease was that if oil was produced by these operations, the lessee agreed to give to the lessor the one-eighth part of the oil, and deliver the same in tanks free of expense, and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part should be three hundred dollars per annum for the gas from each well as long as it should be sold therefrom.

This lease was afterwards assigned by Underwood to The Ohio Oil Company and this action was brought in the court of common pleas by Nancy McCrory to recover from The Ohio Oil Company the amount which, she claims, is due for the use of the gas from a certain well on her premises. The amount, she claims, is six hundred dollars which would be three hundred dollars per year for two years.

The defense was that the well was an oil well essentially; that there was a little gas in it, but only about the amount that is usually found in oil wells of that character. That it had been used, so far as it had been used at all, by the defendant to operate the well. That the defendant had other wells on other properties near and adjoining, and that it had piped the gas into a common pipe and used it to operate all of the wells, but there was not more gas from this one well than enough to operate its

*This decision. as to character of wills, is followed by the same court in Taylor v. Refining Co., post, 368.