139 N.Y.S. 1057 | N.Y. Sup. Ct. | 1913
The plaintiff made a mistake in certain figures contained in a bid which it submitted to the defendant for street improvement work in the city of ¡Newburgh, and now seeks to rescind its bid and recover the sum of $500 deposited with said bid with the city clerk.
The bid consisted of several items, and plaintiff’s claim is that there was an unintentional transposition of figures as to two items as follows: The plaintiff had intended to charge ninety cents per lineal foot for blue stone curbing, and sixty-five cents per lineal foot for concrete curbing, whereas, in the bid as submitted, those figures were inadvertently transposed so that the plaintiff offered to do the blue stone curbing at sixty-five cents per lineal foot instead of ninety cents; and the city council, receiving the bid in that form, acted upon and accepted it in the absence of any representative of the plaintiff. The next morning after the plaintiff’s bid had been accepted, and the contract awarded, the mistake was discovered by plaintiff’s officers, who promptly gave
The mistake in plaintiff’s bid is admitted, at least there is no claim that the figure given for blue stone curbing was intended to be given, and as the plaintiff’s claim that it was a mistake, and that the work could not have been profitably done for that price, is not disputed under the circumstances, it would seem that justice and equity required a return to the plaintiff of its deposit, and that was my impression at the trial; but it seems that the law is the other way, and that the plaintiff cannot recover its deposit after the defendant has acted upon the bid and awarded the contract, unless there was a mutual mistake or a mistake on one side, and fraud or bad faith on the other. There is no claim that there was a mutual mistake, nor does the plaintiff contend for any fraud, deceit or had faith on defendant’s part; the mistake or error in the hid was not apparent on its face, nor was the defendant’s attention called to it until after it had been accepted, and the contract awarded.
Under these circumstances, it seems that the awarding of the work to the plaintiff made a complete contract which is binding upon both parties and from which neither may escape except upon proof of fraud or bad faith or mutual mistake. City of New York v. Seely-Taylor Co., 149 App. Div. 98.
In this recent decision the hid was more than $100,000 less than the next lowest bidder, while the lowest bid on readvertisement was $124,000 higher than the one in suit, which was $10,000, when it was intended to be $103,000.
In the case of City of New York v. Dowd, 140 App. Div. 359, cited by plaintiff’s counsel, the error appeared on the face of the hid, it being the extension of multiplications, the items of which appeared on the bid, and the city engineer at once noticed the mistakes in the extensions, before the bid was acted upon.
The defendant is entitled to judgment dismissing the complaint with costs.
Judgment accordingly.