
    M. L. SHEPARD v. THE UNITED STATES
    [No. 44724.
    Decided January 5, 1942]
    
      Mr. M. L. Shepard pro se.
    
    
      Mr. Joseph Tubridy, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
   MaddeN, Judge,

delivered the opinion of the court:

Plaintiff, pursuant to an invitation issued by the War Department, submitted a bid for furnishing coal for the Civilian Conservation Corps in Colorado and Wyoming. The invitation consisted of a printed “Short Form Contract,” and several attached sheets. On the printed sheet plaintiff offered to furnish 300 tons at $3.75 per ton, making a total price of $1,125. On sheet ten of the attached papers, plaintiff filled in the prices as shown below:

Bid II, Truck Delivery Mine to Destination
D. Cost per net ton F. O. B. mine (less excise tax)_$2.09
E. Cost per net ton for trucking (mine to destination)_ . 75
F. Cost per net ton at destination (D & E)- 2. 75

The last two of these figures were inserted by error by plaintiff’s lawyer, who prepared the papers for plaintiff. Plaintiff signed both the printed sheet and sheet ten, not noticing the erroneous figures on sheet ten.

The District Quartermaster looked at the price shown on sheet ten as was his practice, and did not notice the price shown on the printed sheet. On March 11, 1939, he sent a telegram awarding the contract to plaintiff, but making no mention of price, which he thought to be $2.75 per ton and plaintiff thought to be $3.75 per ton. On March 23,1939, the quartermaster sent plaintiff a written delivery order showing that the price was $2.75 per ton. By this time 150 tons of the coal had been delivered.

After the misunderstanding had been thus revealed, plaintiff claimed that he was entitled to the $3.75 rate, but completed his deliveries of the rest of the coal contracted for. The defendant paid plaintiff at the rate of $2.75 per ton. Plaintiff sues for $300.45, which would give him $3.75 per ton, the price he wrote on the printed sheet.

The misunderstanding here was due to carelessness on both .•sides, as a result of which the minds of the parties did not meet on the vital subject of price. But the defendant received the coal, and is, under the circumstances here shown, bound to pay for the benefit it has thus received. A ready measure of that benefit is available, since the lowest unambiguous bid for the same contract was to furnish the coal .at $3.50 per ton.

Plaintiff is entitled to recover' $225.34. It is so ordered.

Jones, Judge; Whitaker, Judge; Littleton, Judge; and .Whaley, Ghief Justice, concur.  