182 A. 518 | Pa. | 1935
Argued December 3, 1935. On September 17, 1930, January 6, 1931, and August 20, 1931, respectively, contracts were executed by Schuylkill County, acting by the county commissioners, and the Poole Engineering Machine Company, a corporation, for the sale by that company to the county of the voting machines described in the contracts. The machines were delivered but have not been paid for; fifty-five of them were used at the Primary Election held September 30, 1931.
On December 10, 1931, a taxpayers' bill was filed which was several times amended before the hearing1 that ended in the decree now complained of. The defendants named in the bill were the three county commissioners, the county controller, the county treasurer and the receivers of the Poole Engineering Machine Company. For convenience both the corporation and the receivers will be referred to as the Poole Company in the course of this opinion.
On averments of certain infirmities in the contracts, and certain failures in performance, plaintiffs prayed for a decree declaring the contracts void, restraining the *31 county from keeping and using the machines, and requiring the Poole Company to take them back. On April 5, 1933, two of the commissioners, Adamson and Brownmiller, describing themselves "as the majority of the Board of Commissioners2 of said county," filed an answer entitled, "Answer of the County of Schuylkill," admitting all the averments in the bill, and adding an averment that the commissioners on January 13, 1932, had passed a resolution declaring the contracts void. The Poole Company filed a responsive answer putting in issue the averments of the bill, asserting laches, and asking affirmative relief (Equity Rule 52). The third commissioner, Kirchner, filed an answer raising issues and in substance averring the validity of the contracts and performance by the Poole Company. The case was tried before the learned President Judge of the court below; he filed an exhaustive adjudication that will be found reported in 34 Schuylkill Legal Record 19 and in 1 Schuylkill Register 334. The court in banc heard argument on exceptions to the adjudication. By final decree the bill was dismissed; the Poole Company was ordered to make certain changes in the machines (a subject to be dealt with later) and the county was ordered to pay the contract price to the Poole Company when the changes were made. It was in accord with a prayer for payment contained in the answer of the Poole Company that the county was ordered to pay. The plaintiff taxpayers and the county have appealed. *32
Appellants' objections are of two classes: (a) of procedure, (b) of substance. The county contends that the learned court below erred in decreeing that one defendant (the county) make payment to a party (the Poole Company) also named as defendant; or (restating it) that there was error in treating one defendant, the county, as a plaintiff and making a decree, as on a counterclaim in assumpsit, that this party pay the counterclaiming defendant in accordance with its prayer for relief.
There is no doubt about the right of a chancellor to treat the parties to a suit as the identity or diversity of interests may require for the purpose of comprehensively administering equity in the particular case. It is a principle of equity practice (Schwab v. Miller,
On this record we cannot sustain the objections of substance presented on behalf of the appellant county. They cover a wide range and are repeated in various forms: for example, it is said that (a) there was a burden of proof on the Poole Company which was not met; (b) the conditions necessary to the making of valid contracts do not appear; (c) the machines did not comply with specifications and with the statutes and were structurally defective in important particulars; (d) the county was deprived of its right to trial by jury.
The appellee replies that the county is not entitled to review on a theory not supported by the record and not presented below; it asserts that the proof of facts in issue is adequate; that the machines complied with the specifications, and were not structurally defective; that the county was not deprived by the court of any right; that, on the contrary, the case required the application of the rule that equity having taken jurisdiction would "proceed to round out the whole circle of controversy between the parties by deciding every contention connected with the subject-matter of the suit," in order to avoid other suits dealing with the same subject between parties already at issue in this case: McGowin v. Remington,
In considering these divergent contentions, we must apply the fundamental rule of appellate review applicable in such appeals: "Where no question is raised as to the form of the action or the nature of the proceedings in the court below to obtain relief, the defendant will be regarded as having waived the objection and will not be permitted to raise it for the first time in the reviewing court": Ehmling v. D. L. Ward Co.,
Appellant suggests that in this case the rules of pleading, ordinarily applicable, should be relaxed and the county be permitted to insist that the Poole Company must prove all the facts (though not put in issue by the pleadings) necessary to justify recovery that it would have been obliged to prove if it had brought an action of assumpsit against the county for the price of the machines and if, in that action, the county had put all such facts in issue. The Poole Company should of course not recover unless the record shows performance of valid contracts. The county complains that the Poole Company was not required to produce such evidence.6 The suggestion must be rejected for several reasons. To disregard the issues made by the pleadings, save by express or implied consent, would generally lead to intolerable confusion, uncertainty, waste of time and public expense. The liberal construction of the statutes allowing amendments (and of Equity Rule 56) protects against possible hardship. When these parties went to trial, the frequently amended pleadings clearly advised that the county, in the joint answer filed by two of the commissioners, insisted on the invalidity of the contracts for specified reasons and the right to reject the machines on specified grounds, while the Poole Company and the third commissioner asserted the validity of the contracts, adequacy of performance, and consequent right to recover the contract price on the basis of the issues pleaded. Later, in the course of the trial, when the county announced its formal alignment with the plaintiff taxpayers, it acted with knowledge of the issues raised and without proposing further amendment; it knew that *36 after a change of membership among the commissioners,7 a majority of them on January 13, 1932, had repudiated the contracts made by their predecessors, and, by their answers, had declared their legal position to be the same as that pleaded in the bill. The case was tried accordingly and on that theory the appellee is entitled to have the record reviewed.
In dealing with appellants' argument on objections of substance, we all agree that no reversible error has been shown. There is no doubt about the general rule that (in the words of appellants' brief) "when a corporation sues on a contract entered into with a governmental board, or seeks to enforce payment to it for goods delivered or services rendered under the contract to such a body, the claimant must prove and establish its case, and if certain steps, acts or doings are required preliminarily to the making of the contract in question, the fact that such steps have been taken, such acts performed and such doings occurred must be shown by evidence produced at trial." But it is equally well settled that proof need only be made of relevant facts put in issue. The ultimate inquiry was whether the contracts were invalid in the respects averred or whether they were valid with the resulting obligation to pay as agreed. That is to be determined by the record as now presented, without regard to which party presented the evidence of the issuable facts. The learned court below concluded that neither violation of statute nor failure to comply with specifications appeared; that it necessarily followed that plaintiffs, including a majority of the commissioners acting for the county, had failed to make good their averments of invalidity; and that, no infirmity appearing, the county was not justified in withholding payment. The findings of fact, resulting in the conclusions adopted, *37 are supported by evidence, and, on familiar principles, must be accepted.
Prima facie, the appellee and commissioners who made the contracts are entitled, as the case was presented below, to rely on the "presumption that official acts or duties have been properly performed, and [that] in general it is to be presumed that everything done by an officer in connection with the performance of an official act in the line of his duty was legally done": Falkinburg v. Venango Twp.,
Appellants' criticism that there was no proof that the contracts were awarded on a "common basis or standard of bidding" (a necessary element, of course: Page v. King,
The brief filed on behalf of the taxpayer, Dr. Fleming, appellant in No. 9, asserts there was abuse of discretion because the Poole Company was not "one of the approved manufacturers." The 14th finding of fact is that the proposal was to furnish an "American Voting Machine, " which, in the 10th finding, was found to have been approved by the Secretary of the Commonwealth April 9, 1930. Neither finding was excepted to; the statute did not require the Secretary to approve the manufacturer.
Complaint is also made that the time of delivery was subsequently extended by the commissioners and that when the second and third contracts respectively were awarded the Poole Company was behind in its deliveries on the prior contract. This also is relied on as abuse of discretion. In rejecting the argument, it is sufficient to say that no fraud or collusion was alleged or sought to be proved; and that no reason for differing from the learned court below on this phase of the case has been suggested: compare McKallip v. Altoona,
We shall not refer specifically to other averments suggested as possible support for the argument of abuse of discretion. The subject is dealt with at length in the reported opinions of the learned court below already referred to. To the suggestion that a bank cashier's check accompanied the proposal instead of a certified check, as the specifications required, it is perhaps sufficient to *41
say that the refusal to sustain exceptions to the findings of fact on the subject is not assigned as error. But it may be added that the learned chancellor pointed out that the requirement of the specifications was made by the Commissioners and was not a requirement of the statute, thus distinguishing cases cited in which the provision is statutory and must be complied with. Immaterial departures are not ground for setting aside the contracts: Brener v. Phila.,
To support their argument that the machines did not meet the specifications, appellants say that the direction in the decree requiring the Poole Company to make certain changes or additions to the machines is "so manifestly inconsistent with the findings of the chancellor as to show error therein." Harris, one of the custodians of voting machines for the county, testified that when they were delivered, he examined them and checked the accompanying equipment and that no parts were broken or missing. After their delivery, the Secretary of the Commonwealth again had them examined by his examiners on December 2, 1931, and required certain additions, as he was empowered to do by the Voting Machine Act of 1929 as amended June 23, 1931, after these machines had been delivered. He again issued a certificate supplemental to that which he had originally issued. The Poole Company promptly indicated a willingness to make the suggested changes at its own cost (cf.Glover v. Phila., supra). The fact that changes or additions were required by the decree does not, as appellants contend, determine that the machines delivered were not in accord with the contract and specifications. Machines once delivered (though approved) were subject to reëxamination. The statute authorized the Secretary of the Commonwealth to reëxamine voting machines throughout the State and to require changes, etc., of the character specified in the statute; the Secretary's power *42 originally conferred was enlarged: Act of June 23, 1931, P. L. 1185. The findings of fact require the rejection of appellants' contention on this phase of the case. Among them was a direct finding (the 49th) that all the machines delivered had the approval of the Secretary when the contracts were awarded, when they were executed and when the machines were delivered. There is also a finding (the 93d) that after the machines were delivered, the Secretary, on January 12, 1932, notified the Poole Company that the machines furnished were defective "under the terms of a new certificate issued by him on December 2, 1931," and requiring them to "be reconditioned in accordance with said certificate which was based not only upon the requirements of the Voting Machine Act of 1929, but also the amendatory [Act] of June 23, 1931." On this subject the decree ordered the Poole Company "(1) To proceed with all expedition and without delay or excuse and recondition, without cost or expense to the County of Schuylkill, the 245 American Voting Machines, purchased by the County of Schuylkill from the Poole Engineering and Machine Company, in full conformity with the following requirements as contained in the re-approval certificate of the Secretary of the Commonwealth of Pennsylvania under date of December 3, 1931, to wit: (a) Directions for resetting the ratchet at the left end of the machine must be printed and pasted on circular cover so as to be available to the Judge of Election, or other person authorized to remove same when it becomes necessary when machine fails to function when operated manually. (b) A hook used during electrical operation of the machine, which fell causing damage and delay, must be so held in place that possibility of such occurrence is negative. (c) Lock washers must be provided to prevent screws holding voting buttons from backing out. (d) A 'T square' or other similar suitable device must be furnished as part of the equipment of each machine to be used in identifying irregular ballots on the irregular ballot sheet. (2) In like *43 manner to furnish and attach dashpots to each of the said 245 American Voting Machines, at the top of each candidate column or row in the vote wedge rack."
Quoted, above, is the statement of the learned chancellor that, if called upon to consider alleged failure to comply with specifications, in a number of respects stated, he would have been obliged by the evidence to find that the complaints were not well founded. Objections are also based on testimony of election officers that, out of 55 machines used, some did not work, as they were expected to, at the Primary Election; it was agreed that some of them worked satisfactorily. But the following findings are conclusive: "81. The voting machines purchased by and delivered to the County of Schuylkill will perform efficiently the intended use and purpose at elections if properly adjusted and rightfully used according to the printed instructions for the use, care and preparation of the machines for election purposes." "82. The tests and manipulations of the two machines in court by the plaintiffs' expert as well as the evidence of difficulty in the use of the machines at the polls in the Primary of 1931, did not exhibit structural defects and faulty design, but maladjustments and wrongful operation." "70. The machines meet the requirements of subdivision (o) of the general specifications in that when they are properly operated they register or record correctly and accurately every vote cast." "78. The electrical equipment of the voting machines functioned when properly adjusted."10 In referring to alleged failures *44 of machines in the Primary Election of 1931 he added: ". . . each . . . [failure] is conclusively shown to be due to wrongful preparation or adjustment of the machine for election purposes and failure on the part of the voter to follow the instructions for operation provided by the manufacturers. The demonstrations of plaintiffs' expert were possible through purposed maladjustment, intentional lack of machine preparation, violent interference with the mechanism, and an expert's design to interrupt the normal functions of the machine or misuse some parts of the voting mechanism." These conclusions are supported by evidence. While we have some difficulty in appreciating from the printed record the exact significance of portions of the evidence of the experts' demonstrations of the working of the machines as exhibited at the trial, we know that the learned chancellor witnessed the demonstrations, had the machines before him and participated in the examinations; he is therefore more qualified than we are to pass on the character and result of the examinations and the prejudice and credibility of the expert witnesses, and as nothing has been shown in argument to require otherwise, we accept his conclusions.
Other contentions were presented which we have considered in the light of the arguments presented, but deem it unnecessary to set forth at length; we find nothing reversible. In view of the conclusion already reached *45 on the merits, it is unnecessary to refer to other grounds relied on by the appellee.
The decree is affirmed, costs to be paid by Schuylkill County, as the court below has ordered.
