vertently, and by mistake, and without having its attention directed thereto,” and prays that an order may be passed "so drawn as to correct said error and mistake in the aforesaid auditor's report and order of confirmation of said audit, and to modify the same so that your petitioner may receive her several arrearages and annuities." Notice was given by order of publication to all persons claiming an interest in said sum of $43,984.67 to show cause, if any they had, before November 14, 1907, why the prayer of said petitioner should not be granted. On November 11, 1907, Richard Y. Cook and George H. Earle, Jr., assignees of the Chestnut Street Trust & Saving Company, and George H. Earle, Jr., receiver of the Chestnut Street National Bank, parties to the above-consolidated causes, filed their answer to said petition, in which they alleged substantially as follows: That in the proceedings which led to the decree in these consolidated causes, said respondents denied absolutely the validity of the petitioner's mortgage upon said Providence Mill, and claimed their mortgage thereon to be a valid first lien thereon, and therefore to be a first lien upon said fund of $43,984.67, and that an issue of fact was thus raised as to the rights of said parties, and that in settlement of all disputes as to said rights an agreement of compromise was entered into by all the parties to said consolidated causes, and was executed by all of them. That this agreement was presented to the auditor and court, but has since been lost or mislaid. That by said agreement it was provided: "That the lien of said mortgage in which the petitioner was interested upon the Providence Mills should be recognized as valid; that, if the net proceeds of foreclosure of said mortgage should amount to as much as $100,000, she (the petitioner) should receive the interest thereon during her life; but that, if said net proceeds should be less than $100,000, she should receive the interest of said fund, and the same should be paid to her for life; that after her death it should be distributed to the bondholders, including said respondents, under their mortgage on said Providence Mills; and that, by virtue of the terms of said agreement thus executed, the whole interest of Mrs. Robinson therein became and was limited to her right to receive interest thereon during her life." And that by virtue of said agreement, followed by the decretal order ratifying said auditor's account and report, based on said agreement, the petitioner is debarred from claiming any other right or interest in said fund. The said answer further alleges that, even if there had been no such agreement, said decretal order finally determined the rights of all the parties, which cannot now be revised, altered, modified, or annulled. On November 27, 1907, the petitioner filed no other cause having been shown by any other parties why the prayer of the petition should not be granted, the court on November 29, 1907, passed an order referring the proceedings to the auditor to take such testimony as should be produced to him, on giving the usual notice, and to state such accounts as the parties should request on or before February 15, 1908. This time was extended upon petition, and on July 8, 1908, the auditor returned the testimony taken, and on July 15th filed a second account and report, made at the special instance and request of the petitioner, in which he has awarded the whole $43.984.67 to the arrearages of the petitioner's annuity as per statement filed with said report. Messrs. Earle & Cook have excepted to the ratification of this account and report upon the grounds already sufficiently stated in their answer to said petition. On July 28, 1908, the circuit court for Cecil county ordered and decreed that the said audit be rejected, and that the petition of Elizabeth Robinson, filed September 12, 1907, be dismissed with costs, at the same time filing a clear and able opinion, setting forth its reasons for such decree. From this decree an appeal was entered by the petitioner on September 21, 1908. Inasmuch as the question of fact involved goes to the merits of the case and is decisive of it, we think it unnecessary to discuss the question of pleading as to whether the procedure should have been by bill of review, or original bill, rather than by petition, the method pursued. We have read the record with care. We have considered the strong and able presentation set forth in the brief of the appellant. We have felt that the petitioner, who improvidently surrendered her first security for the payment of the annuity due her under her father's will, was entitled to the utmost consideration; but we have been unable to reach any conclusion on the question of fact involved different from that of the learned court below, and we might well rest our conclusion upon the clear and comprehensive opinion of that tribunal, did we not consider it our duty to discuss some of the points raised in the argument for the appellant. In doing this we shall find it necessary to go over with some detail the testimony in the record, as well as to consider the inherent probabilities of the case. Although on the face of the petition, and some of the papers on file in the case at the time of its date, it appears that the complainant has been wronged, yet the real merits of the controversy depend upon the agreement of compromise alleged to have been executed by all the parties to the suits, and which is stated in substance in the answer of the respondents hereinbefore quoted. We are therefore called upon to determine as to whether such an agreement was actually executed and filed in the case by the as to whether its loss and contents have been proved by legal and competent evidence. In the first place, it must be conceded that the record testimony does not disclose that the alleged agreement was ever filed in the case, there being no docket entry of such filing, nor was it copied by the clerk of the court in the record of the proceedings, nor could it be found among the papers in the case, at the time of or since the institution of the present suit, although diligent search was made for the same. On the other hand, the preponderance of oral evidence points the other way. The most important witness on this subject, whose recollection seemed to be clear, was Wm. T. Warburton, Esq., one of the three original trustees for the sale of the property, and afterwards sole trustee for the care and investment of the fund in controversy, and who was also the attorney for Mrs. Robinson, the petitioner, in the original proceedings. He testified in a positive and definite manner, unshaken by crossexamination, that such an agreement was executed by all the parties in the case, including Mrs. Robinson and her husband, both of whom signed it in his office, and who fully understood its contents. He further testified that this paper was executed prior to the agreement of counsel at the time of the submission of the case for decree, but that both papers were filed at the same time. "The agreement provided that the property should be sold under a decree of the court: That Mrs. Robinson's mortgage should be declared a valid first lien, and that the net proceeds of the sale of the Providence Mill property, upon which her mortgage was a lien, to the amount of $100,000, should be invested under the order of the court; the interest to be paid to her during her life, and at her death the corpus of the fund was to be paid into court and distributed to the bondholders. The agreement also providedand the portion of which I now speak was suggested by Mr. Wirt-that, if the net proceeds of the property were less than $100,000, whatever they might be, it was to be invested under the order of the court; the interest to be paid to Mrs. Robinson during her life, and the corpus of the fund at her death to be brought into court to be distributed to the bondholders. Mr. Constable and I agreed to that proposition, and no one at that time had any idea that the net proceeds of the sale of the Providence Mill would be less than $100,000. When the court passed the decree in the case, it fixed as a minimum price for the Providence Mill the sum of $200,000. That agreement, as I have stated, was signed by the respective parties to the litigation, and there was a written submission for a decree signed by the solicitors of the respective parties and was filed in the court." He also stated that the agreement provided for the payment of arrearages of the annuity up to a certain date. He fur agreement it was among the papers filed in the cause at the time Judge Brown appointed him sole trustee, and that Judge Brown then went over all the papers in the case with him and examined them in the clerk's office for an hour or more. This was January 12, 1905. He further testified that he had searched through all the papers in the case in the clerk's office, as well as every paper in his own office, and could not find the agreement. Richard Y. Cook, one of the respondents. stated that he signed an agreement in the office of the Guarantee Trust & Safe Deposit Company, and that to the best of his recollection the signatures of Dr. and Mrs. Robinson were at that time attached to the paper. He also corroborated Mr. Warburton as to the substantial features of the agreement, and contradicted him in no particular, though his recollection was not so full as to all the details of the paper. George H. Earle, Jr., another of the respondents, testified that he signed the agreement, and that his signature completed the contract, while his testimony as to the contents was that the income from the fund was to go to Mrs. Robinson for life, and upon her death it was to be paid to the receivers and assignees. He said: "The corpus was to be kept intact and turned over to us. That made a deep impression upon my mind." Mrs. Robinson, in rebuttal, testified that she did not sign the agreement and never heard of or saw such a paper, and stated that her reason for postponing so long to call for the payment of the arrearages of her annuity out of the fund was because she was waiting for the sale of the Broad street house in Philadelphia out of which she expected to be paid. She stated, further, that Mr. Warburton never explained to her the contents of the paper, and that she had never relinquished her claim to the corpus of the fund, though she admitted that she understood that she was to receive the income from the fund, which was estimated at $2,000 to $2,200 a year. Omitting a recital of any further evidence, as being superfluous, if admissible, we have here a preponderance of three witnesses to one in favor of the existence of an agreement, though the fact of its having been filed in the case stands upon the evidence of Mr. Warburton alone. If we should hold, in the absence of any docket entry showing the filing of such a paper, that such testimony was unsatisfactory, yet our doubts would be dispelled when we come to consider and to weigh the probabilities of the case. In the first place, looking at the situation of the parties at the time the alleged agreement was made, we find that the validity of Mrs. Robinson's mortgage was being seriously assailed, and that after many contents have not been properly proved by the respondents. One objection made is that the testimony does not show that sufficient search was made for it in order to admit of secondary evidence of its contents. Without rehearsing the testimony on this point, and conceding that when a missing paper is very important and its absence is attended with suspicion that the search should be more diligent than under ordinary circumstances, yet it is the rule that the question of diligence in search, so as to open the door to secondary proof, is one that lies in the sound discretion of the trial court and is not reviewable here, unless the discretion had been abused. Wigmore on Evidence, vol. 2, § 1194; Taylor on Evidence, 3589. Again, it is contended that there are degrees in secondary, as in primary, evidence, and that the best secondary evidence obtainable, for instance, a copy, should have been offered in the first place, or the impossibility of producing it established to the satisfaction of the court. An examination of authorities shows that there is no settled distinction between what is known as the "English rule," holding that there are no degrees in secondary evidence, and the “American rule,” holding that there are such degrees. The courts of this country seem to be divided upon the point; but the better rule, we think, is thus stated in Doe v. Biggers, 6 Ga. 188: "Where there is no ground for legal presumption that better secondary evidence exists, any proof is received which is not inadmissible by the rules of law, unless the objecting party can show that better evidence was previously stopped by the consent of all the parties to the passage of a decree. If the agreement of counsel embodied the entire understanding of the parties, then there was in reality no compromise whatever, as Mrs. Robinson obtained practically all that she was contending for, and the protracted litigation resulted in no benefit to the respondents. Moreover, we find strong corroboration of the existence of the lost agreement in the decrees passed in the cause, although the petitioner argues earnestly that the decree of April 1, 1899, is inconsistent with it. There has not yet been filed in the case a decree embracing the whole subject and finally disposing of it. The decree of April 1, 1899, was primarily for the sale of the property, and the decree of May 8, 1900, ratifying the auditor's report, was for the temporary distribution of the proceeds of sale; but it will be necessary upon the death of Mrs. Robinson for the court to pass still another order or decree disposing of the corpus of the fund. These successive decrees are not inconsistent with each other. So far as they touch upon the same points, they are harmonious; but the decretal order of May 8, 1900, passed while the facts were fresh in the minds of all the parties and when the petitioner was represented by counsel, adds an additional term to the decree of April 1, 1899, indicating in our opinion that there must have been such an agreement as alleged in the case, other than the agreement of the solicitors, which the parties, the counsel, the auditor, and the court, unless we should hold that all of them were negligent in their duties, had before them in determining the sale of the proper-known to the other and might have been proty and the disposition of the proceeds, and duced." Greenleaf on Evidence, vol. 1, § 84, which will control the court in its final de- note. cree in distributing the corpus of the fund. Standing as at present, there is a lack of consistency in the proceedings; but with the agreement, as established by Mr. Warburton and others, added to the papers in the case, the proceedings and successive decrees become clear and harmonious. Nor does 1 seem plausible to us that Mrs. Robinson for so long a period as seven years would have acquiesced in the payment to her of the income from the fund if she were entitled to take from the corpus to meet any deficiency in her annuity of $6,000. From such long acquiescence we are constrained to make an inference adverse to her present claims, which is not mentioned in any of the letters passing between her and her trustee about the collection and payment of interest due her. We think the foregoing sufficient reason, without adverting further to the extreme negligence that could be imputed to her counsel, the auditor, and the court, for us to conclude that the alleged agreement was executed by the parties and filed in the case, and that it was of controlling importance in guiding the action of the court. But it is urged that, conceding the exis As to the objection that the evidence does not give all the contents of the missing document, nor its language, we do not think it lacking in that completeness which is necessary for the purposes of a settlement of the matter in controversy. The testimony of Mr. Warburton really purports to give all the contents of the lost document, but it is certainly full and definite upon the matter in litigation. It is only necessary to prove the substance of the material facts, and while mere conversations, discussions, or indefinite and vague statements would not be sufficient to establish the contents, yet verbal precision cannot be insisted upon, as such a rule would practically exclude parol proof. Wigmore on Evidence, vol. 3, § 2105. In Thompson v. Thompson, 9 Ind. 333, 68 Am. Dec. 638, the court says: "Proof of its (referring to a deed) contents is necessarily addressed to the jury, but under the direction of the court that, on the one hand, vague and uncertain recollections will not do, and, on the other, that a degree of precision which the memory never retains is not required." It is also in evidence that the document was signed by all the parties. It was not acknowledgment in order to give it validity, | titioner's application therefor. A statement and the statement that it was duly signed is sufficient to indicate its proper execution. Holding that the testimony adduced was legally admissible, so far as we have discussed it in support of our conclusion, we do not deem it necessary to discuss the numerous exceptions to the evidence filed by the petitioner. Finding that there is sufficient evidence to establish the existence, the loss, and the contents of the agreement of the parties, it follows that the decree of the lower court, in dismissing the petition, must be affirmed. Decree affirmed, with costs above and below. (110 Md. 397) of the facts will be necessary for an understanding of the case. By ordinance No. 258 of the mayor and city council of Baltimore, passed on the 9th day of April, 1907, the city engineer was authorized and directed to have all that part of Monroe street, from the southeast side of the Baltimore & Ohio Railroad tracks to the northwest side of Columbia avenue, graded and paved with Belgian blocks and curbed, or recurbed, where necessary, with 6-inch granite, gneiss, armored concrete or other curb approved by the city engineer. All of said work was to be done in accordance with specifications to be prepared by the city engineer, who should advertise for proposals for doing the work. On the 4th of March, 1908, Mr. Fendall, the city engineer, published in the Baltimore Sun the fol MARYLAND PAVEMENT CO. OF BALTI-lowing advertisement, calling for proposals: MORE CITY v. MAHOOL, Mayor, et al. (Court of Appeals of Maryland. March 22, 1909.) 1. MUNICIPAL CORPORATIONS (§ 336*)-PUBLIC IMPROVEMENTS— - CONTRACTS ANCE OF BIDS. -- - ACCEPT An advertisement for bids for certain street improvements reserved the right of the board of awards to reject any bids, and the specifications stated that each bidder must deposit with his proposal a sample concrete block, stating at what quarry it was manufactured, and agree, if the contract was awarded to him, to furnish such blocks, made at such quarry, and equal to the sample. Petitioner's bid was the lowest, but it did not comply with the requirements as to the deposit of a sample block, together with the necessary statement and agreement contained in the specifications. Held, that petitioner had no right to have its bid considered, as the reasonable requirements of a proposal for bids must be complied with. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 862; Dec. Dig. 8 336.*] 2. MANDAMUS (§ 92*) — ACTIONS OF CITY BOARD-ACCEPTANCE OF BIDS. The duty of public officers intrusted with the letting of contracts for public improvements to the lowest bidder involve the exercise of such a degree of official discretion as to place them beyond the control of courts by mandamus, in the absence of fraud or collusion. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 199; Dec. Dig. § 92.*] Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge. Action by the Maryland Pavement Com "Department of Public Improvements. Subdepartment of city engineer. Baltimore, March 4, 1908. Separate sealed proposals, addressed to the board of awards, care of the city engineer, will be received by the city register, at his office, city hall, until 11 a. m. Wednesday, March 18, 1908, to grade, curb With beland pave the following streets: gian blocks, Monroe street from the southeast side of the B. & O. R. R. tracks to the With northwest side of Columbia avenue. vitrified brick, Lakewood avenue from the south curb line of Eastern avenue to the north curb line of Canton avenue. Specifications and proposal sheets will be furnished upon application to this office. The board of awards reserves the right to reject any and all bids. A certified check on a clearinghouse bank for an amount as recited in the specifications, made payable to the mayor and city counsel of Baltimore, must accompany each bid. B. R. Fendall, City Engineer. Approved: J. Barry Mahool, President Board of Awards." The specifications, which were subsequently presented to the bidders, contained this provision: "None but the best materials of the several descriptions shall be used, and all material shall be equal in every tions and to the samples furnished. respect to the requirements of the specificabidder must deposit with his proposal a sam Each was manufactured, and agree if the contract is awarded to him to use only blocks made at said quarry and equal to the sample." pany of Baltimore City against J. Barry Ma-ple granite block, stating at what quarry it hool and others. From an order refusing mandamus and dismissing petitioner's application therefor, petitioner appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ. Wm. S. Bansemer and Richard B. Tippett, for appellant. Sylvan H. Lauchheimer, for appellees. It appears there were three bids submitted to the board of awards, and the contract, for the paving of the street was on the 25th of March, 1908, awarded to P. Flanigan & Sons. The report of the city engineer stated they were the lowest bidder, who had complied with the specifications. While, it will be seen, that the appellants bid was the lowest in amount for the paving, it did not comply with the requirements of the specifications that each bidder must deposit with his proposal a BRISCOE, J. This appeal is from an order of the superior court of Baltimore City, refusing a mandamus and dismissing the peFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes sample granite block, stating at what quarry | pressly provided that "the board of awards it was manufactured, and agreeing, if the reserves the right to reject any and all bids." contract was awarded to it, to use only blocks In Chicago Sanitary Dist. v. McMahon, 110 made at said quarry and equal to the sample. Ill. App. 510, it is distinctly held that it is The case was heard in the court below, upon not unlawful, where the lowest bidder has petition, answer, traverse, and joinder of issue not conformed to the advertised requireto the defendant's answer to the paragraphs ments, to let the contract to the next lowest of the petition and proof. The court rejected bidder. Louchheim v. City of Philadelphia, the prayers on behalf of the petitioner and 15 Pa. Dist. R. 311; State v. Cincinnati Bd., granted the prayer on behalf of the respond- 4 Ohio Cir. Ct. R. 76. While the requireent, to the effect that no evidence has been ment of a charter that a contract be awarded offered legally sufficient under the pleadings to the lowest bidder is mandatory, yet the to entitle the petitioner to the writ of man- authorities are uniform in holding that, in damus, and that the verdict of the court sit- determining who is the lowest responsible ting as a jury must be for the defendant. bidder, the municipal authorities have a wide discretion, will not be controlled by the courts except for arbitrary exercise, collusion, or fraud, and they need not be guided in this determination solely by the question of the pecuniary responsibility of a bidder, but may consider his ability to respond to the requirements of the contract and his general qualifications to properly execute the work. 28 Cyc. 1031; Keogh v. Wilmington, 4 Del. Ch. 491. The questions presented for our consideration by the rulings of the court upon the prayers and necessary for the determination of the case, on this appeal, practically come to this: (1) Was the failure of the appellant to comply with the specifications and proposals a sufficient reason for the refusal of the appellees to award the contract, on the bid presented by it? (2) Is not the letting of contracts by the board of awards, like the one in question, to the lowest bidder, in the absence of fraud, absolutely final and beyond the control of the courts by mandamus? As to the second proposition, but little need be said. The subject has been frequently considered by this court, and all the cases hold that, when the awarding of a contract like the one here in question has been com collusion, its decision is final and conclusive and cannot be controlled by the courts. The case of Madison v. Harbor Board, 76 Md. 395, 25 Atl. 337, is directly in point and is decisive of this case. The better doctrine, however, as to all cases of this nature, and ene which has the support of an almost uniform current of authority, is that the duties of officers intrusted with the letting of contracts for works of public improvements to the lowest bidder, are not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of courts by mandamus. Devin v. Belt, 70 Md. 354, 17 Atl. 375; Baltimore, C. & Pt. R. R. Co. v. Latrobe, 81 Md. 246, 31 Atl. 788; Henkel v. Milliard, 97 Md. 30, 54 Atl. 657; Baltimore City v. Flack, 104 Md. 143, 64 Atl. 702; 28 Cyc. 663; 20 Encyc. of Law, 1169. Now, in answer to the first inquiry, it is only necessary to say that it is a rule of very general application, where reasonable require-mitted to a board, in the absence of fraud or ments have been prescribed as to the manner of bidding, such requirements must be complied with, in order that a bid shall be entitled to consideration. While slight irregularities in a bid not affecting its substantial characteristics may be disregarded, yet the bid may be rejected for such reason, and the court will not interfere, in the absence of fraud or collusion. 20 A. & E. Ency. of Law, 1167, 1168; Weed v. Beach, 56 How. Prac. (N. Y.) 470; People v. Croton, 26 Barb. (N. Y.) 241; Wiggin v. Phil., 2 Brewst. (Pa.) 444. There is no evidence in this case to show chat the requirements in the proposal that each bidder should deposit a sample granite block, stating at what quarry it was manufactured, etc., was an unreasonable requirement. On the contrary, it appears from the testimony of Mr. Fendall, the city engineer, that this provision in the specifications was not only a reasonable one, but was inserted for the benefit and for the protection of the best interest of the city. It is conceded that the appellant did not comply with the conditions of the specifications prepared and published by the city engineer in this respect, and, failing to so comply, we are of the opinion it had no right, under the authorities cited, to even have its bid considered by the board of awards. 28 Cyc. 559; Smith v. City, 2 Brewst. (Pa.) 443; Case v. Trenton (N. J. Sup.) 68 Atl. 58. But, apart from this, the advertisement in this case by the city engineer ex There is no allegation or suggestion of fraud in the awarding of the contract in this case, and, without prolonging this opinion, by a discussion of well-settled principles of law, we will affirm the order refusing the mandamus and dismissing the petition. For the reasons stated, there was no error in the rejection of the petitioner's prayers, and in granting the respondent's prayer that no evidence had been offered legally sufficient under the pleadings to entitle the petitioners to the writ of mandamus. Order affirmed, with costs. |