There was sufficient evidence to warrant the finding that the members of the committee on building, who were present at the conference of March 15, 1890, purported to make a contract on behalf of the defendant, by which they agreed to .accept the lowest bid, in case the building was built substantially in accordance with the plans and specifications submitted, without reserving the right to reject bids in that case. The presiding justice, in his charge to the jury, called attention to the distinct difference in the testimony introduced on the one side and on the other. Five different builders had been selected by the architects and the building committee of the defendant, to whom written notices had been sent requesting bids for the defendant’s proposed new building. To each of these a copy of the specifications was afterwards delivered, to which was attached a “ Notice to Bidders,” containing the terms of the bidding. After an examination of these documents, four of the selected builders declined to submit bids. A conference was thereupon invited and had between the builders and the building committee, at which there was a full discussion, and certain changes from the terms of the notice to bidders, and from the specifications, were agreed upon ; and the builders agreed to submit bids. In respect to one particular, which has become material, the testimony is somewhat at variance respecting the result of this conference. The notice to bidders contained the two following provisions: “ The work to be let to the lowest and best bidder, upon his executing to the Boston Chamber of Commerce a good and sufficient bond,” etc. “ The building committee of the Chamber of Commerce reserves the right to reject any and all bids.” These provisions were the subject of discussion at the conference. . All the witnesses agree that the words “ and best ” were to be struck out of the first clause. The plaintiff contends that the last clause was modified by an agreement
There can be no doubt that it was competent in law for the parties by an oral agreement to vary the terms of the notice to bidders. This would be so, even if that notice had expressed the terms of a concluded contract. Bartlett v. Stanchfield, 148 Mass. 394. But it was only a proposal, which was never accepted as it originally stood; and it is not contended that there was anything in the nature of it to make it legally impossible for the final contract between the parties to be expressed and represented partly by the writing, and partly by additions or changes orally agreed to.
The defendant, however, contends that an examination of the evidence shows clearly that both parties to the conference understood that the terms on which bids should be invited were to be expressed in writing, and that they were then and there undertaking to do no more than to settle the terms in which a future invitation should be expressed; so that the notice to bidders, subsequently sent, must be taken to embody all the terms upon which the bids were to be made. This proposition is controverted by the plaintiff, and it does not seem to us that it can be said to be clearly established. No witness testified that there was to be a new written or printed notice embodying the new terms which had been settled upon. No one of the builders testified that he accepted the new notice as having the effect contended for by the defendant. On the other hand, the plaintiff testified that he did not think he read it, but did not remember. The specifications attracted his chief attention. Mr. Woodbury
The defendant further contends, that the building committee were joint agents of the defendant, and that the four members who were present at the conference of March 15 could not execute the power which was delegated to the whole committee, consisting of five members, jointly. It does not clearly appear that this point was taken at the trial, and it is not noticed in the charge of the presiding judge; but we have considered it. Where special agents are appointed to act jointly in the execution of a particular power, it has often been held that the action of all is necessary, in order to execute the power properly. This rule, however, is subject to many qualifications or exceptions. It is well understood that public agents may usually act by a majority. So also it has been settled that a majority of the directors of a corporation constitute a quorum, and a majority of the quorum
Generally speaking, a committee of a corporation is subject to the same rules as the directors. State v. Jersey City, 3 Dutch. 493. Junkins v. Union School District, 39 Maine, 220. It would be very inconvenient in practice if a committee of this character, whose duties involve many acts in carrying out the general purpose of their appointment, could do nothing if a single member should be absent. There is sufficient precedent for holding that a majority may act, and such is the better rule. Kupfer v. South Parish in Augusta, 12 Mass. 185. Damon v. Granby, 2 Pick. 345. Hayward v. Pilgrim Society, 21 Pick. 270, 275, 277. Haven y. Lowell, 5 Met. 35, 42. Weymouth & Braintree Fire District v. County Commissioners, 108 Mass. 142. Moreover, there was evidence from which the jury might infer the assent of Mr. Speare, the absent member of the committee, to what was done by his associates. He went away, temporarily, to New Orleans, leaving the business in their hands. But on his return it expressly appears that he had a conference with them, or with some of them, and that they undertook to tell him what had been done. He denies, to be sure, that what they told him was in accordance with what the plaintiff contends, and what the jury have found to be the fact. The significant fact, however, that they undertook to tell him the result of the conference in respect to the right of the committee to reject any and all bids, is testified to by Mr. Speare. He says, “ They told me they had expressly reserved that.” If, in point of fact, the reservation of this right was accompanied with the qualification that they would accept the lowest bid in case they should build substantially in accordance with the plans and specifications submitted, the jury might think it a natural inference that at that time, before any controversy had arisen as to accepting the plaintiff’s bid, Mr. Speare’s associates told him all that had been agreed to on this head, though Mr. Speare had forgotten a part of it at the time of testifying. Mr. Lothrop’s testimony tends to support such an inference. He said, “ Before the meeting, I stated to Mr. Blaney (a member of the building committee) and Mr. Speare, that in my opinion the right to reject any and all bids passed [ceased ?] after they had selected five
The remaining questions are whether there was sufficient evidence to warrant the second and third findings, or either of them, that such contract, if made by the committee, was approved by the directors, and was within the ostensible authority of the committee. If either of these was supported by the evidence, it is enough for the plaintiff’s purposes, and most, if not all, of the evidence relating to the second finding bears also upon the third. The plaintiff contends that it was within the ostensible authority of the committee to fix the terms upon which it would receive bids, and to make the agreement which is embodied in the first finding of the jury without any reference to an approval by the .directors. He urges that this was within the ordinary province of a building committee; and that in this instance the directors knew that there was to be a competition for bids, that this competition was to be limited to five selected builders, and that the committee would fix the terms of it; that the directors were well aware that the committee was going on to attend to all these matters; that a vote had already been passed by the directors, authorizing the committee to make leases in the new building; that they also knew that the architects had been selected ; that the plans were hanging up in the office; that the erection of the new building was the most important subject which the board of directors or the Chamber of Commerce had under consideration during this period; that it was a subject of constant talk;- and that no director ever objected to the committee’s undertaking to fix the terms of the competition among the builders, or questioned its power to do so, till after a letter from the plaintiff’s attorney threatening an action at law. There was testimony in support of these various propositions. So far as appears, no one of the bidders doubted the power of the committee to act in the matter. The committee assumed to make changes in the terms of competition at its own will. There is nothing to show any suggestion to any of the bidders in respect to the need of consulting the directors, except in Mr. Speare’s testimony, already referred to, of his conversation with Mr. Lothrop. The notice to bidders held out the building committee as having the power to act in the premises. No mention of the
Without dwelling further upon details of evidence, the jury might properly find that the committee itself believed that it was authorized to go on, as it did, without consulting the directors as to the details, and that the directors were aware in a general way of what the committee was doing. It seems to us that the jury, as a result of the whole testimony, might properly come to the conclusion that the contract was within the ostensible authority of the committee, and that the bidders had a right to assume that the defendant would be bound by the contract of the committee as to the terms of the bidding.
The doctrine as to ostensible authority is thus stated in Bronson v. Chappell, 12 Wall. 681, 683: “ Where one, without objection, suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exist, in all respects as if the requisite power had been given in the most formal manner.” Circumstances may warrant an inference that acts of a committee, openly done and extending over a considerable period of time, were known and assented to by those who appointed the committee. The directors represented the corporation, and if
The result is, that there should be,
Judgment for the plaintiff on the finding.