Reed Bros. v. Bluff City Motor Co. , 139 Miss. 441 ( 1925 )

^* Headnotes 1. Appeal and Error, 4 C.J., section 2709; 2. Contracts, 13 C.J., section 86 (1926 Anno.); 3. Contracts, 13 C.J., section 746 (1926 Anno). Appellants, Reed Bros. brought this action in the circuit court of Adams county against appellees, Bluff City Motor Company, both being partnerships, to recover the sum of three thousand dollar damages alleged to have been suffered by appellants who were building contractors for an alleged breach of contract between them, by the appellees for the construction of a brick building in the city of Natchez for the handling of automobiles. At the conclusion of appellants' evidence on motion of appellees, appellants' evidence was excluded and the jury directed to return a verdict for appellees, which was accordingly done and judgment entered thereon, from which judgment appellants prosecute this appeal.

The only question therefore in the case is whether or not the trial court erred in directing a verdict for appellees. In determining that question every material fact which the evidence tended to establish either directly or by reasonable inference must be treated as established. So viewing the evidence appellants made the following case: They were building contractors in Natchez. Appellees desired to construct a brick building in Natchez for the purpose of handling and selling automobiles. To that end appellees had plans and specifications prepared therefor and advertised for sealed bids for the construction of the building. All persons desiring to bid, including appellants, were furnished copies of the plans and specifications. Under the terms of the proposal by appellees, all bidders were required to accompany their sealed bids with a certified check in the sum of five hundred dollars to insure good faith in bidding. On the day appointed by appellees for the opening of the sealed bids it was found that appellants were the lowest bidders at seventeen thousand and nine hundred dollars. Their bid and certified check for five hundred dollars were retained by appellees, while the certified checks of all the other bidders were returned to them. One of the other bidders was R.E. Bost.

Appellees were the agents at Natchez for the handling of Ford cars. The building was to be constructed for that purpose. When appellees retained appellants' certified check for five hundred dollars and announced that they were the lowest bidders and returned the certified checks of all the other bidders, they stated in substance that appellants were to have the contract provided the building was constructed; that the Ford Agency at New Orleans, which was the appellees' principal, was insisting that appellees carry with their Ford cars the Lincoln car; that if appellees were required to do this it would necessitate such a financial outlay that they might not construct a new building; that they would know in a day or two whether the building would be constructed or not. Two or three days after the opening of the sealed bids and the making of that statement by them, one of appellees' firm handed to the little son of one of appellants' firm out on the street appellants' bid and certified check. Thereupon one of appellants' firm approached appellees to know what they meant. Appellees informed him that Mr. Bost, who had been one of the unsuccessful bidders at the general bidding, had advised them that he could save them money and that they had let the contract to him. Appellees kept the Ford Agency and Mr. Bost erected the building.

As we view the evidence it tended to show that appellees accepted appellants' bid upon a condition that was afterwards met. In other words, when the sealed bids were opened appellees simply said to appellants that the contract was theirs provided the building was constructed. The contract provided that appellees should have the right to reject any and all bids, and appellees rest their defense upon that provision in the contract. But that does not mean that appellees had the right to accept appellants' bid and then afterwards reject it. In other words, the right to reject any and all bids could not be exercised after one of the bids had been accepted. Appellants' bid was accepted provided appellees did not decide to abandon the plan to construct the building. The building was constructed as stated. We are of opinion that this evidence was sufficient to go to the jury on the proposition that appellants' bid was accepted. 1 Elliott on Contracts, section 60; Lane v. Warren,53 Tex. Civ. App. 122, 115 S.W. 903.

Appellees argue however that appellants are not in a position to sue for the alleged breach of the contract, because appellants failed to tender the contractor's bond required by the plans and specifications put into the hands of bidders by the appellees. It is true that appellants did not tender the required bond, but under the law they were excused from so doing. They were not required to do a vain thing. Appellees informed appellants that they had let the contract to another and that they would not contract with them. It would have been utterly useless therefore for appellants to tender the bond and propose to enter into the formal contract provided by the plans and specifications. Appellants were not required to put appellees in default. Appellees had already put themselves in default in awarding the contract to another.

Reversed and remanded.