Leonard v. Howard

135 P. 549 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1, 2. We conclude from the evidence that the plans submitted to Howard were identical with those signed by Barger, and that the discrepancy probably arose from the failure of Howard to properly check up his work when he examined them. For this carelessness or mistake plaintiff cannot be held accountable, the mistake not being mutual, and no fraud on the part1 of plaintiff being charged or proved: 20 Am. & Eng. Ency. of Law (2 ed.), 813, 824, 825. We cannot assent to the proposition that by reason of the mistake made by Howard there was no “meeting of minds” upon a contract. The subject of the contract, the thing to be done, was the plumbing in the Goode Building. As a detail of this a certain number of toilets, lavatories, and sinks were sketched upon the plans submitted to the defendants. They bid upon the contract! but by inattention overlooked some of the details, and! bid too low. The case is not different from what it would have been had they correctly counted the articles to be furnished, and by some mistake or oversight miscalculated the cost of them, and thereby been misled into making an unprofitable bid. Had a fraudulent plan been furnished defendants, or had they by any wrongful act or neglect of plaintiff been induced to make the bid, the case would have been different; but in our opinion the evidence shows that the low bid made by them was the result of a mistake, and this mistake the result of Howard’s careless examination of the plans. Under such circumstances neither law nor equity will help them: Brown v. Levy, 29 Tex. Civ. App. 389 (69 S. W. 255); Steinmeyer v. Schroeppel, 226 Ill. 9 (80 N. E. 564, 117 Am. St. Rep. 224, 10 L. R. A. (N. S.) 114); Crilly v. Board of Education, 54 Ill. App. 371. There is no such discrepancy between the bid submitted and the next higher bid as would justify us in saying, as a matter of law, that plaintiff was thereby put upon notice that Howard had made a mistake. ["That bid was $1,852 higher, and another bid was $1,900 \ higher than that. We are not aware of any rule of llaw or morals that requires a person soliciting bids 'for services to be performed to warn the bidder that jhis bid is so low that he may lose money by complying |with its terms.

'• 3, 5. The objection most strenuously urged by defendant is that the agreement is unilateral, and that, plaintiff not being bound, neither party is bound. The contract or order is signed as follows: “Leonard Construction Co., Not Inc. CAF-JH. By Chas. A. Fin-gal. Accepted Nov. 11th, 1911. By P. Barger. Howard Plumbing & Heating Co.” All the matter above specified was typewritten, except the signature of Chas, A. Fingal, the date “Nov. 11th,” and the signature of Barger. It is now claimed that there is no proof pf Fingal’s authority to sign the paper, and that the construction company is not bound by his signature. The paper seems to have contemplated a signature by both parties, although the contract was complete by that of “the party to be charged” and the oral acceptance by the other. Bnt in the case at bar there was evidence that Fingal had signed other contracts with subcontractors, that the contract was prepared in the office of the plaintiff, and approved by its general manager and agent, and these facts were sufficient to go to the jury as evidence of Fingal’s authority to sign. Plaintiff could not have repudiated the contract for want of sufficient execution, even if his signature had been necessary.

6. The fact that plaintiff was doing business under the name of Leonard Construction Co., Not Inc., is no defense to this action. Aside from statutory provisions which did not exist in this state at the time this contract was entered into, there is nothing to prohibit a person from transacting business under any name or style he sees fit: 29 Cyc. 270, and cases there cited. It is not alleged nor shown by the testimony that the firm name was assumed for any fraudulent purpose, or that the plaintiff was insolvent, or that defendants in any way were placed in any worse position by reason of dealing with plaintiff under a partnership name. The practice is not uncommon in this state. The writer recalls the case of a banking institution with a state-wide reputation for solidity, which, while owned and controlled by a single person, has been carried on for years in the name of a .partnership long since dissolved, and this is only one of many instances that might be mentioned.

In the view that we have taken of the law in this case, the rulings of the lower court are correct and the judgment should be affirmed. Affirmed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.