Meyer Bank v. Board of Education

Per Curiam. The plaintiffs bring this action in fraud and deceit to recover increased costs and expenses over a fixed fee in completing a contract for electrical work in a school building. The defendant advertised for bids on (1) general construction, (2) plumbing and drainage, (3) heating and ventilating, and (4) electrical Avork and fixtures. It appears that the plumbing and heating contracts were not let at the same time as the contracts for general construction and electrical work. The gravamen of the plaintiffs’ complaint is that the defendant impliedly represented that all four contracts Avould be awarded at the same time, that the plaintiffs relied on such representation, that the defendant failed to award all four contracts at the same time or advise the plaintiffs that the contracts Avould not be simultaneously awarded, and that the plaintiffs were deceived thereby and suffered damage by Avay of increased costs and expenses in the performance of their contract Avith the defendant. The jury returned a verdict in favor of the plaintiffs. We think, however, that the plaintiffs failed as a matter of laAV to establish actionable fraud on the defendant’s part. There was no representation that all contracts Avould be let [60] at the one time. The total bids exceeded the estimate of costs and appropriation for the project. The failure to award all contracts simultaneously or to advise the plaintiffs of inability to grant the same until additional funds were available cannot support a claim of fraud and deceit. No contract can be let in the absence of a specific appropriation sufficient to pay the estimated expense. (See New York City Charter, §§ 221, 224, 891, and Administrative Code of City of New York, §§ 93e-3.0, 223-1.0, 891-1.0.) Further, the instructions to bidders in this case gave notice to the plaintiffs that the defendant reserved the right to reject any and all bids. We also think that no causal connection ivas established between the alleged fraudulent representation and the increased cost to the plaintiffs in fulfilling their contract. The defendant in no way delayed or interfered with plaintiffs’ work. The delay was occasioned by the general contractor’s inability to obtain a delivery of the necessary steel as scheduled, not by the defendant’s failure to award the plumbing and heating contracts simultaneously with the contracts to the plaintiffs and the general contractor. The plaintiffs could not start their part of the job until the general contractor had completed his preliminary work. This was the situation regardless of when the other contracts were let. All the mechanical contractors (including the plaintiffs) were able to commence their work promptly after the general contractor had completed the erection of the steel work. The judgment appealed from should be reversed, with costs to the appellant, and the complaint dismissed, with costs.