Palmer v. Inhabitants of Haverhill

Foster, J. In order to maintain this action the plaintiff must prove a contract between himself and the town. He [489] seeks to do so by showing that he was the lowest bidder who answered an advertisement inviting proposals to build a sewer, and that by the terms of the proposals he was as such entitled to the contract. The advertisement of the selectmen refers to, and must manifestly be construed in connection with, the plans and specifications according to which the work was to be done The advertisement alone would be unintelligible, and contains no description of the dimensions of the sewer, the place where or the materials of which it was to be built. But in the specifications the selectmen expressly reserve “ the right to reject all bids if none are satisfactory.” They did, in fact, inform the plaintiff that they should not make any award to either bidder. This was plainly a rejection of his bid; and he can claim no contract under the terms of the advertisement and specifications. But he insists that the vote of the town instructing the selectmen to cause the sewer to be built contains no such reservation ; that it must therefore be struck from the proposals as surplusage; and that he is consequently, as the lowest bidder, absolutely entitled to the contract. To this position it seems to us there are several conclusive answers. In order to bind the town as its agents, the selectmen must have pursued and conformed to the terms of the authority under which they were acting, namely, the vote of the town. But the dimensions of the sewer described in the specifications varied materially from those contained in the vote ; and the selectmen had no power to contract on behalf of the town for the building of such a sewer as the one the plaintiff offered to construct. Furthermore, if the selectmen had implied authority to insert the clause reserving a right to reject unsatisfactory proposals, there is no contract, as we have already seen. If they had no such right, nevertheless the clause cannot be rejected as surplusage. In that case, its insertion was a material departure from the authority conferred upon them by the vote. An offer to award a contract absolutely, to the lowest bidder, is by no means the same thing with a proposal for bids which reserves the right to reject all if they are unsatisfactory. The reservation of such an [490] option might deter bids, and cause higher prices to be named When the selectmen inserted this clause, they did not comply with the vote; and therefore the town was not bound to accept the plaintiff’s offer. The only proposal made by him was in answer to the advertisement and under the specifications. He can insist upon no contract except in connection with them. And the clause reserving to the selectmen the right to reject unsatisfactory bids is as much binding upon him as if he had expressly inserted in his offer the statement that he made it with the understanding that they had such an option, and subject to their right to exercise it if they saw fit. As for the claim that the subsequent vote of the town amounted to a contract, we perceive no foundation for it whatever. The whole subject was referred to the selectmen, who were directed to build the sewer at the earliest possible moment. But this was no instruction that they should employ the plaintiff, or accept his offer to do the work. Far less was it an acceptance by vote of his previous offer. The plaintiff’s final claim is, that the town is at least bound to repay him for the money expended and labor performed in making estimates. There is certainly no evidence of any express promise to do so. And we are aware of no principle of law by which such a promise is implied under circumstances like the present. An obligation to pay an unsuccessful bidder for his time and trouble in making proposals would be extraordinary. The inducement to make such bids is the hope that they will be accepted, and a profitable contract thereby obtained. If the town is bound to pay this plaintiff, so it would also have been to pay every one else who had entered proposals, however many bidders there might have been. On the agreed facts there must be Judgment for the defendants,