Chaplaine Realty & Construction Co. v. Philip Gruner & Bros. Lumber Co. , 137 Mo. App. 451 ( 1909 )

GOODE, J.

(after stating the facts). — The rulings on requests for declarations of law indicate the court below thought the case ought to be decided according to legal propositions which may be stated as follows: First, if a mistake occurred in making up defendant’s bid, but before the latter had withdrawn or offered to correct it, plaintiff accepted and acted on it, and under such circumstances as would have induced a business man of ordinary prudence to do so, then defendant was bound to comply with its offer; second, if before the bid was accepted plaintiff either knew, or had information to cause an ordinarily prudent man to believe a mistake had been made in the tenth item, the judgment must be for defendant; third, defendant had the right to withdraw its bid any time before acceptance, the burden was on plaintiff to prove it had accepted defendant’s offer and communicated with the latter to that effect before the offer was withdrawn and if the court found the bid had not been accepted before plaintiff was notified there was an error in it, the judgment must be for defendant; fourth, if there was a mutual mistake on the part of plaintiff and defendant about the quantity of lumber intended to be embraced in the bid, the judgment must be for defendant; fifth, the clause in the proposal which said errors in footings and extensions were subject to correction, constituted a condition in the contract and entitled defendant to correct the alleged mistake, if it occurred, provided defendant offered to do so before plaintiff had given notice of acceptance and acted on the bid. There was evidence favorable to plaintiff on the several issues of fact and the above -findings exclude from the appeal certain contentions: that defendant withdrew its bid, or notified plaintiff of error in it before the latter accepted and acted on it; also that if the miscalculation was due to carelessness on the part of defendant in not verifying the extensions, plaintiff’s own negligence contributed to the loss. The testimony was inconsistent on the first of those issues, and on the second the opinion that plaintiff’s negligence contributed to its loss is not irresistible. There was room for the court as trier of the facts, to find defendant exercised less than ordinary business care in framing its proposal, but that, the circumstances considered, plaintiff’s acceptance without recalculating the extensions did not fall below said standard. Defendant’s employee made the mistake and the proposal passed through the hands of an officer of defendant before it was submitted to plaintiff. The man who attended to the affair for plaintiff, knew lumber was estimated and sold by feet, but in passing on proposals in the form of the one in question, paid attention only to the total amounts and not to the extensions in feet opposite the items, as plaintiff based its own proposals for construction work on the lowest prices offered in the sub-bids submitted to it. What plaintiff wanted to learn from lumber dealers and what it asked for, was the total price for which they would furnish a certain number of pieces of lumber; and naturally it would attend to the amounts and not to the number of feet in the items. Moreover, defendant had the benefit of the slip on which were set down the prices per foot and the total prices of the different items of lumber, and those data were not before plaintiffs. Hence it is obvious more means of detecting the mistake were available to defendant than to plaintiff, wherefore it does not follow that plaintiff was remiss if defendant was.

It is insisted the proviso that errors in extensions and footings were subject to correction, was as much a term of the contract as any other clause, made the' sale one of lumber by the foot and bound plaintiff at its peril to ascertain whether the true number of feet in each item was given. At this point, and generally, the case is identical with Boeckler Lumber Co. v. Cherokee Realty Co., 135 Mo. App. 708, 116 S. W. 452, recently decided by us. Out of deference to the earnest brief for defendant we have gone over the question involved again, but without seeing reason to change our opinion. In the present case, as in that one, plaintiff had. asked for a round bid for various pieces of lumber of different kinds and not for a bid by feet; and on the strength of defendant’s offer, changed its position by entering into a binding contract with the Brown Shoe Company at a figure which was lower than it otherwise would have accepted. Upon requesting and receiving a lump offer like the one in hand, the offeree would have before him neither separate nor total prices whereby to correct the bid if an error was detected in the extensions, and could do nothing but notify defendant of the mistake. It is not a reasonable interpretation or one compelled by the language of the proposal considered in its entirety, to say defendant meant to impose this gratuitous task on a customer who was interested only in total prices or the latter meant to assume it. That the proviso is not intended to apply to such a bid is indicated further by the word “footings;” for bids in the form of the one in hand contain no footings, but those in which the prices of lumber per foot and total prices are stated would contain them and we think the words in question were intended to be part of a bid of the latter kind. This view is reinforced by the sentence immediately preceding, wherein parties receiving the estimates were warned to examine it with care, as defendant agreed “to furnish only the articles named therein.” This remark tended to draw attention to the articles and not to the feet and shows defendant was proposing to furnish the listed articles, not a certain quantity of feet of each. The argument that the clause in question accorded defendant the right to have the mistake corrected at plaintiff’s expense after it had changed its attitude by binding itself in a contract with the Shoe Company, implies that however negligent defendant may have been as compared with plaintiff, the latter must bear the consequent loss. Possibly defendant might have been released from its offer, even if plaintiff had become apprised of the mistake after acceptance, but before so far changing its position that it would have to stand a loss unless defendant was held bound. As to that we do not say, for the case is presented in a different phase. Counsel for defendant have directed us to some opinions which we will cite with the remark that they were given on facts unlike those at bar, either in that the party seeking to take advantage of the mistake had not acted in good faith, the mistake was called to his attention before he had altered his position, or to correct it would not put him in a less favorable situation than otherwise he would have occupied. [Hartford, etc., R. R. Company v. Jackson, 24 Conn. 513; Rowland v. Railroad, 61 Conn. 103; Gulf, etc., Railroad Company v. Dawson (Texas), 24 S. W. 560; Butler v. Moses, 43 Ohio St. 166; Mummerhoff v. Randall, 19 Ind. App. 44; Cunningham Mfg. Co. v. Rotograph Company, 30 Dist. Col. App. 524; Moffett v. Rochester, 178 U. S. 373.] Those cases, except possibly the first three, are squarely against defendant’s contentions, and in those three it did not appear the party against whom the mistake was corrected was left any worse off than he would have been had it not occurred. The following authorities are in point for plaintiff and some of them rest on facts practically identical with those before us. [Griffin v. O’Neil, 48 Kan. 117; Coates v. Early, 46 S. C. 220; Borden v. Railroad, 113 N. C. 570; Brown v. Levi, 29 Tex. Civ. App. 389; Pond-Decker Lumber Co. v. Spencer, 86 Fed. 46; Durgin v. Smith (Mich.), 94 N. W. 1044; Western, etc., Railroad v. Babcock, 6 Metc. 346; Crilly v. Board of Education, 54 Ill. App. 371; Putmans Sons v. Macleod, 23 R. I. 373, 377; Smith v. Hughes, L. R. 6 Q. B. 597; Maguire v. DeFrese, 79 Mo. App. 683; 1 Wharton, Contracts, sec. 202; 1 Paige, Contracts, sec. 79.]

The judgment is affirmed.

All concur.