This is аn action for breach of contract brought by the appellee, Texarkana Construction Company, Inc., a general contractor. Texarkana was thе successful bidder upon a school construction job at Fort Smith. Before bidding for the job Texarkana had first obtained bids from several electrical contractors for the electrical work involved. The appellant Reynolds was the low bidder for the electrical subcontract. Texarkana relied upon Reynolds’ figures in computing its own bid for the principal contract.
Before the principal bids were opened Reynolds discovered that he had made a serious error in bidding for the subcontrаct, in' that he had overlooked the cost of the fixtures that were required. There is some dispute in the testimony, but the circuit court, sitting without a jury, was justified in finding that the Reynolds bid was not so lоw as to put Texarkana on notice that a mistake had been made, that Reynоlds failed to withdraw his offer until two days after the principal bids were opened, and thаt after the bids were opened it was too late for Texarkana to avoid entering into the principal contract upon the terms stated in its own low bid. See Bailey v. Carter,
Upon Reynolds’ refusal to perform the subcontract Texarkana was сompelled to employ another electrical contractor at a figure that was $4,997.20 in excess of the Reynolds bid. This appeal is from a judgment awarding Texarkana damages in the sum just stated.
Reynolds contends that he was not bound by his offer to undertakе the subcontract, for the reason that he received no consideration for the offer and in fact withdrew it before having been notified of Texarkana’s acсeptance.
In this situation, despite the absence of a formal acceptance, the offer by Reynolds became binding under the principle of promissоry estoppel. “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial charaсter on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Rest., Contracts, § 90. We approved this doctrine in Peoples Nat. Bk. of Little Roсk v. Linebarger Const. Co.,
Upon facts similar to those before us the better rule is that the subcontractor is bound to perform upon the terms of his bid. Drennan v. Star Paving Co., Calif.,
As a secondary argument Reynolds contеnds that his offer was revoked by a counteroffer made by Texarkana. The exaсt terms of the proposed subcontract had not been discussed by the parties whеn Reynolds submitted his bid. Later on, after Texarkana had obtained the principal cоntract, Texarkana sent Reynolds a mimeographed subcontract. Reynolds now sаys that the proffered agreement contained several clauses, such as а performance bond requirement and daily liquidated damages for delay, that he would never have agreed to. Hence, he insists, the proposal amounted to а counteroffer that constituted a rejection of his bid. Smith v. School Dist. No. 89,
The trial court may well have doubted whether Reynolds would actually have refused the subcontraсt if it had contained a price sufficient to assure him of a profit. In any event, howеver, we think the present contention to bo mi afterthought that comes too late. Reynolds rejected the proposed subcontract upon the sole ground thаt he could not do the work for the price that was offered. His conduct in that respect constituted a waiver of the objections that are now leveled against Texarkana’s proposal.
Affirmed.