
    The City of New York, Appellant, v. Dowd Lumber Company and Others, Respondents.
    First Department,
    December 30, 1909.
    Contract — mistake in bid on municipal contract — trial — erroneous dismissal of complaint — merits of counterclaim not determined.
    Where a city sues a bidder on a municipal contract who refused to execute the same and the surety who guaranteed that the bidder would execute the contract if awarded to recover damages occasioned by reletting the contract, the complaint should not be dismissed merely because of a mistake iu multiplying the number of certain items by the price per unit hid, where there is no proof that the figures were inserted by mistake and no claim of mistake was made until the bids were opened and it became apparent that even with the amounts corrected the bid would be the lowest.
    Where an action is brought on a formal written contract the defendant must establish a state of fact which will relieve them from their apparent liability before they are entitled to a dismissal of the complaint.
    Where there was no proof to warrant the. dismissal of a complaint on the ground that the contract sued upon was made by mistake, the appellate court will not consider the sufficiency of a counterclaim asking a reformation of the instrument.
    Appeal by the plaintiff, The City of Yew York, from a judgr ment of tile Supreme Court in favor of the .defendants, entered in the office-of the clerk óf the county of Yew York on the 8th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Yew York Trial Term.
    
      Terence Farley [Theodore Connoly with him on the brief], for the appellant.
    
      Thomas Gilleran [Moses Jaffe with him on the brief], for the respondents.
   Laughlin, J.:

The department of docks and ferries of the city of Yew York, pursuant to the provisions of section 419 of the revised charter (Laws of 1901, chap. 466, as amd. by Laws of 19.06, chap. 598),. duly advertised for bids for furnishing to said department certain labor and material, including various kinds of lumber. It was expressly provided in the advertisement for proposals as follows: “ The bidder will state the price of each item or article contained in the specifications or schedules herein contained or hereto annexed, per pound, ton, dozen, gallon, yard or other unit of measure. The extensions must be made and footed up, as' the bids will be read from the total for each class and awards made to the lowest bidder on each class.”

The defendant lumber company submitted a proposal pursuant ' to the advertisement for bids, iii which it was recited, in effect, that it would furnish all the material required in “ Class III ” of the supplies, which embraces the lumber for the sum of ten thousand seven hundred seventy-six 50/100 dollars ($10,776 -50/100),” which was the amount shown by the extensions and footed up on the proposal before the same was" submitted. Pursuant to the requirements of the advertisement, the bidder submitted with its proposal a bond, executed by the defendants Hollender and Ever-hart, as sureties, conditioned that if the contract should be awarded to the bidder and it should omit or refuse to execute it within five days after written notice that it was ready for execution, the defendants would pay to the plaintiff, without proof of notice or demand, in substance, any difference between the amount of the bid and the sum which the city should be obliged to pay for the material on a subsequent letting. On opening the bids, that of the defendant lumber company was found to be the lowest and the contract was duly awarded to it. The company, on due notice, failed to execute the contract, and the city readvertised for the material and let the contract to the lowest bidder on such readvertising, and was obliged to pay the sum of $4,467 in excess of the amount of the defendant lumber company’s bid: The action is on the bond to recover that amount. Dp on the trial theplaintiff gave evidence tending to establish these facts and sufficient to warrant findings thereon in its favor. At the close of the plaintiff’s case its complaint was dismissed. The only theory for the dismissal disclosed by the record is the fact that the lumber company and its sureties answered separately, and each pleaded that a mistake was made by the bidder in the proposal in carrying out the total price of spruce lumber, by which the gross amount for which the bidder offered to furnish the material was reduced by the sum of $4,466 below the amount intended. This mistake was claimed iñ five of the twenty-eight items contained in the proposal. In about the middle of the proposal, under the heading • “' No. of Pieces,” there were five items calling for spruce lumber of different dimensions, the first calling for “3000 pieces,” and opposite this was “.35c under the heading “ Price Per Unit,” and carried out on the same line under a heading “ Extension ” were 'the' figures “ 105-.” In getting at the total of the bid, the amounts under the heading “ Extension ” were added. It is claimed that it was apparent that this was a clerical error and that it should have been $1,050, which would be the cost of 3,000 pieces at thirty-five cents per piece. The alleged mistake with respect to the other four items is of the same natnre, it being claimed that the figures “189,” “ 99” and “40” in the extension column meaning dollars should haye been respectively 1„890, 990 and-400, which would be the figures if it was intended- to compute the price on the basis of the figures given for the material in the column headed “Price Per Unit.” There is no proof of the fact that these figures were thus inserted by mistake. It does appear that after the proposals were opened and before the contract was awarded, a representative of the Dowd Lumber Company claimed that a mistake had been made in this regard and pointed out these items. If the lumber company’s bid were changed in accordance with what the defendants now claim it was intended to be, it would be -for $15,243.50, which would be just $19.83 less than the next lowest proposal received at the time. It appears that no claim with respect to a mistake was made until after the bids were opened, when it could be determined that the bid of the Dówd Lumber Company, even on its claim with respect to the mistake, would have been the lowest. Whether the Dowd Lumber Company would ' have insisted upon the-alleged mistake, if correcting it would have made its bid higher than the next lowest bid, so that it would not have been entitled, to the contract, does not appear and probably it would not be competent to show that fact, but it is well known that this is a method frequently resorted to by contractors for the purpose of securing a contract in any event.

The' plaintiff «brings this action on a formal contract in writing, made by the defendants, and it is necessary for them to establish a state of facts which will relieve them from their apparent liability thereon before they are in a position to ask for a dismissal of the complaint. Inasmuch as it was assumed, without proof,'that there was a mistake in the proposal, no question is presented for decision with respect to the sufficiency of the counterclaim interposed by the defendants for a reformation of the bid, or as to whether they. may, in any event, become entitled to such relief.

It follows, therefore, that,the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingbaham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.'  