Moffett, Hodgkins & Clarke Co. v. Rochester

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court. Both of the lower courts agree that there was a mistake. The Circuit Court said that the proof of it was “ clear, explicit and undisputed.” The Circuit Court of Appeals, while expressing no dissent as to the fact, said “ that one-of the alleged mistakes, that in respect to the tunnel excavation, was not a mistake in any legal sense, but was a negligent omission arising from an inadequate calculation of the cost of the work.” We do not think the negligence was sufficient to preclude a claim for relief if the mistakes justified it. This court said in Hearne v. Marine Insurance Company, 20 Wall. 488, 490, by Mr. Justice Swayne: “ The reformation of written contracts for fraud or mistake is an ordinary head- of equity jurisdiction. The rules -which govern the exercise of this power are founded in good sense and are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties' will be placed as they would have stood if the mistake had not occurred. *385 “The party alleging the mistake must show exactly in what it consists and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points. The mistake must be mutual, and common to both parties to the instrument. It must appear that both have done what neither intended. A mistake on one side may be a ground for rescinding, but not for reforming, a contract. Where the minds of the parties have not met there is no contract, and hence none to be rectified.” The last two propositions may be claimed to be pertinent* to the case at bar, even though the transactions between the parties be considered as a completed contract. There was no doubt of the mistake, and there was a prompt declaration of it as soon as it was discovered and before the city had done anything to alter its condition. Indeed, according to the testimony of one witness, the clerk of the board before the mistake was declared by complainant’s engineer expressed the thought that fifty cents per cubic yard for earth excavation was too low, “and there was some discussion about it at the time, but Mr. Aldridge (he was chairman of the board) said he (the clerk) might as well go on and read it, as the bid Avas informal.” The reading proceeded, and subsequently the board let the Avork on contract No. 1 to Jones & Son, and accepted complainant’s proposals containing the mistakes for the Avork on line “B,” contract No. 2, although complainant protested that there Avas a mistake in the price of earth excavation and also in tunnel excaAration. This Avas inequitable, even though it was impelled by Avhat was supposed to be the commands of the charter. It offered or forced complainant the alternative of taking the contract at an unremunerative price, or the payment of $90,000 as liquidated damages. We do not think such course Avas the command of the statute or the board’s duty. The rule bet Aveen individuals is that until a proposal be accepted it may be AvithdraAvn, and if this principle cannot be applied in the pending case, on account of the charter of the city, there is *386 certainly nothing in the charter which forbids or excuses the existence of the necessary elements of a contract. The charter of the city provides that “ neither the principal nor sureties on any bid or bond shall have the right to withdraw or cancel the same until the board shall have let the contract for which such bid is made, and the same shall be duly executed.” A perfectly proper provision, but as was said by the learned Circuit Court: “ The complainant is not endeavoring ‘ to withdraw or cancel a bid or bond. The bill proceeds upon the theory that the bid upon which the defendants acted was not the complainant’s bid; that the complainant was no more responsible for it than if it had been the result of agraphia or the mistake of a copyist or printer. In other words, that the proposal read at the meeting of the board was one which the complainant never intended tó make, and that the minds of the parties never met upon a contract based thereon. If the defendants are correct in their contention there is absolutely no redress for a bidder for public work, no matter how aggravated or palpable his blunder. The moment his proposal is opened by the executive board be is held as in a grasp of steel. There is no remedy, no escape. If, through an error of his clerk, he has agreed to do work worth a million dollars for ten dollars, he must be held to the strict letter of his contract, while equity stands by with folded hands and sees him driven to bankruptcy. The defendant’s position admits of no compromise, no exception, no middle ground.” These remarks are so apposite and just it is difficult to add to them. The transactions had not reached the degree of a contract — a proposal and acceptance. Nor was the bid withdrawn or cancelled against the provision of the charter. A clerical error was discoverd in it and declared, and no question of the error was then made or of- the good faith of complainant. It is true it is. now urged by counsel that there was no mistake, but that the prices were deliberately and consciously inserted for the purpose of making an “ unbalanced bid,” in which low prices in some items are compensated by high prices in others. The Circuit Court and the Circuit Court of Appeals *387 found against this view, and this court usually accepts such concurrence as conclusive. The Circuit Court of Appeals, however, found that while there was a clerical error for the earth excavation in' contract No. 2, route “B,” that the alleged mistake in tunnel excavation “ was not a mistake in any legal sense, but was a negligent omission arising from an inadequate calculation of the cost of the work.” Further, the court said: “ It is also manifest that the complainant did not intend to give the board an opportunity to correct the mistakes and award the contract on the corrected basis. There was no color of foundation for the assertion that the proposals were to be treated as a single bid for contracts No. 1 and No. 2, and that both contracts must be awarded to the complainant or neither. The position thus taken by the complainant was well calculated to excite distrust on the part of the board and induce its members to believe that the alleged mistakes were an afterthought, conceived when the complainant had become convinced by studying the proposals of its competitors that it could not profitably carry out the contract on the terms proposed.” We are unable to concur'in either of these conclusions. The mistake in tunnel excavations arose from inadvertently making the cost of one item — mere earth digging and putting the dirt into cars — the total cost without making “ any allowance for any work preparatory to it or connected -with it,” to quote the testimony of complainant’s engineer. And it seems impossible for the error to have escaped the notice of the board. Other contractors charged for the same work $12 and $15. The conclusion that the complainant did not intend to give the board an opportunity to correct the mistakes is based on a letter addressed to the board, in which it claimed unity in the contracts and bids, and demanding that “ the contract in its entirety for both sections of the work be awarded to us at- the corrected price, or that we may be allowed to withdraw our proposal and have our bid returned to us.” But before the time expressed in the resolutions of the executive board of the city for the complainant to appear and execute a contract, or it would be regarded as abandoning its intention *388 to do so, complainant filed its bill in this case, and appealed to a court of equity to determine its rights and obligations. On filing the bill and supporting affidavits, on the 18th o£ January, 1893, an order was issued temporarily restraining the officers of the city from declaring the complainant in default or from forfeiting or suing on its bond, until a motion for an injunction pendente lite could be heard. Subsequently, after hearing and argument, an injunction pendente lite was issued. Prior to its issuing, but after the restraining order, the executive board accepted the bid of Whitmore, Eauber & Yicinus, and entered into a contract with them for the construction for the riveted steel pipe conduit, thirtj^-eight inches in diameter, for route “A,” for eight thousand feet. That is on a different route and claimed to be the subject of a different contract from that awarded to the complainant. This action made a reformation of the proposals impossible— made any action of the Circuit Court impossible, except to annul the proposals or dismiss the bill and subject the complainant to a suit on its bond. If the decree was narrowed to this relief it was the fault of the city, not of the complainant. Whatever its prior claims and pretensions may have been, by submitting itself to a court of equity complainant submitted itself to abide by what that court should decree, and the alternative of a reformation of the proposals was certainly not their execution unreformed. By letting the contract to Whitmore, Eauber & Yicinus, the city, in effect, evaded the restraining order, forestalled the action of the Circuit Court, and prevented the reformation of the proposals; and by preventing that justified the decree which was entered. The decree of the Circuit Court' of Appeals is reversed arid that of the Circuit Court is Affirmed.