¶1specially concurring:
¶2I agree, the judgment of the trial court should be reversed. I write specially only to say I disagree that the trial court was correct in finding the bid was changed without Power’s knowledge.
¶3The circuit court stated in its order “the Court finds Robert L. Smith did change and submit the bid on the South Fork job without Thomas Power’s knowledge.” I believe the trial court is wrong in that determination. Smith and Power did have a discussion concerning the particular bid, pursuant to procedures established by the parties in regard to other transactions. After the discussion with Power, Smith did prepare the work papers for the bid and did use figures lower than that discussed with Power. Smith then took the bid in hand-written form to Debbie Aiken, an employee of Power Plumbing, dropped it off to have it typed and signed by an officer or agent of Power Plumbing, who happened to be Dennis Power, an authorized officer of Power Plumbing. The bid was then returned to Robert Smith and later submitted to the South Fork Sanitary District.
¶4Power testified that he told Smith that he was going to be out of town and not be in the office the next day and after the office manager, Debbie, typed the bid, his brother, Dennis Power, would sign the bid on behalf of Power Plumbing. According to Power, when he returned to work on the Monday following the Friday when the job was awarded, he first learned that the bid had been changed. Although Power argues and testifies that the bid was $207,188 less than that approved by Power, Power cannot complain. The final form of the bid was prepared in Power’s office, by his office manager. His brother, the vice president, signed the contract. Nothing in the record indicates that Power either did not have enough time to indicate to the South Fork Sanitary District that the bid was wrong or in any way complain until after loss was incurred.