122 Mo. 61 | Mo. | 1894
Plaintiffs appealed from a judgment based on a ruling sustaining a demurrer to their petition.
Plaintiffs are copartners in the business of building. Defendant is a corporation, having charge and control of the public schools and school property in the city of St. Louis.
The defendant had a well known rule in regard to buildings by which it was provided that all new buildings, etc., should be “let by contract to the lowest and best bidder.”
Defendant, being desirous of erecting a large school building to be known as the new high school, duly advertised for bids for the erection thereof. The advertisement was this:
“PROPOSALS POR THE ERECTION OP THE NEW HIGH SCHOOL BUILpiNG ON GRAND AVENUE.
11 Office of Board of President and Directors of the 'St. Louis Public Schools.
“St. Louis, August 28,1891.
“Sealed proposals will be received at the office of the secretary on or before Monday, September 7, 1891, at 4 p. m. for the erection of the New High School on Grand Avenue.
“All bids are to be addressed to John W. O’Connell, Esq., chairman building committee, and must be accompanied by a certified check, payable to the order of ‘Board of President and Directors of the St. Louis Public Schools,’ or cash, amountingto $2,500, which is to be forfeited by the successful bidder if he fails or refuses within five days after the award of contract by this board, to enter into written contract, and furnish good and sufficient security for the faithful performance of the work.
“Plans and specifications can be seen at the office of Furlong & Brown, the architects, room 38, southeast corner of Broadway and Olive street.
*65 “The board reserves the right to reject any or all bids. 0. L. Hammerstein,
11 Secretary Building Committee.”
Plaintiffs submitted a bid (in accordance with the above advertisement) to build the proposed high school for $196,965. Defendant refused to accept the bid of plaintiffs; but “without cause, arbitrarily, and capriciously, through favoritism and bias,” rejected it, and then accepted the bid of another for $197,000.
Plaintiffs alleged a loss of profits in the sum of $15,000, and prayed judgment, etc. _ .
The above is a'sufficient outline of the facts on which plaintiffs rely.
It is claimed by defendant, in support of the demurrer and of the judgment in the trial court, that, as the plaintiffs’ bid related to public work, no action can be maintained for the refusal to allow plaintiffs to execute such work. The contention is that bids for public work are not governed by the general principles of the law of contracts.
We do not consider it necessary to examine into the soundness of that'contention, as we think the ruling of the trial judge was obviously correct, even conceding to plaintiffs that the transaction should be treated as an ordinary one between individuals irrespective of the supposed public nature of its subject-matter.
That binding obligations can originate in advertisements addressed to the general public, may be assumed as settled law to-day.
But the effect to be given to such an advertisement as the basis of a contract depends entirely on the intent manifested by its terms.
A public proposal of that nature may be so expressed as to need but an acceptance, or the perform
While on the other hand, the proposal may amount to nothing more than a suggestion to induce offers of a contract by others. The latter sort of proposals have some resemblance to (though they impose a still lighter obligation than) the class of promises desci’ibed by Pothier as those in which the intent is exhibited (either by the words employed, or by the circumstances, or in some other manner) not to give to the person to whom they are made, - the right of demanding their performance. Pothier, Obligations [Evan’s Ed.], Part. 1, * p. 3.
Proposals of contract by advertisement have a place in the modern common law of England and of this country, though they have not been so definitely classified in our jurisprudence as in that of some continental nations. Mr. Pollock in his valuable treatise on the Principles of Contract, remarks on this point: “We have no special term of art for a proposal thus made by way of general request or invitation to all men to whose knowledge it comes.” [4 Ed. *p. 13.]
Still less have we any scientific nomenclature for that subdivision of the class of public proposals with which we have now to deal, namely, that class in which is disclosed the intent to invite mere offers of a contract as distinguished from an intent to propose a contract for direct acceptance by whom it may concern.
But the principles to be applied by our law to such proposals are not, on that account, uncertain or obscure. When the intent expressed in the advertised proposal, is reduced to certainty by interpretation, our system of administration of law is fully capable of giving effect to that intent.
In the case in hand, the advertisement has the following caption: “Proposals for the erection of the
If there was otherwise any doubt on this point, it is set at rest by the last sentence, viz.: “The board reserves the right to reject any or all bids.” That language demonstrates the nature of the advertisement, as a mere invitation for offers for a contract. As such it did not lay the foundation of a completed contract. It was merely the opening of negotiations for a contract. The plaintiffs’ bid was a proposal to build, which the defendant by the terms of its statement had the right to reject.
The facts in judgment are wholly unlike those considered in McNeil v. Boston Chamber of Commerce (1891), 154 Mass. 277, cited on behalf of the plaintiffs. In that case it was found as a- fact that the defendant had agreed with the bidders to accept the lowest bid, and accordingly was held liable for a breach of that agreement. But in the present appeal that essential fact is wanting. The judgment of the supreme court of Massachusetts- proceeds throughout on the assumption that that fact is an essential premise to the conclusion reached, and we think the principles declared by that learned court in that opinion are in no' respect discordant with the judgment we are about to pronounce.
No claim is advanced in the petition looking to a recovery for fraud or deceit in making the proposals for bids. It is indeed asserted that the defendant rejected plaintiffs’ bid, “without cause, arbitrarily and capriciously, through favoritism and bias.” But if defendant had the absolute right to reject any and all bids, no cause of action would arise to plaintiffs
There is no suggestion that the offer was not made-in good faith. f
On the facts stated we see no just ground on which the defendant can be held liable.
We think the learned trial judge was right in sustaining the demurrer to the petition. The judgment is affirmed.