
    RICHARD DEEVES, Respondent v. RICHARDSON & BOYNTON COMPANY, Appellant.
    
      Contract, obligatory upon both parties—Mistake by one party in estimates that were the basis, does not change nor affect the contract-
    
    
      Held, that, in this case, there was a contract made and accepted, and obligatory upon both parties.
    After its execution defendant endeavored to withdraw the estimate on the ground that there had been a mistake, on its part, in calculating the number of feet of pipe that was to be furnished. The attempt of defendant to withdraw after the acceptance was ineffectual. The mistake did not refer to the form or terms of proposal and acceptance, but as, to the calculations of defendant in regal'd to the number of feet of pipe that it required, which was less than it had contracted for. If a mistake, it was not induced nor participated in by the plaintiff. Such a mistake is not good cause or ground for equitable interference, and the only question in the case is that of damages that the plaintiff is entitled to recover. Held, that the damages were incorrectly estimated and allowed in the .court below, and for that reason a new trial is ordered.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided May 4, 1891.
    Appeal by defendant from judgment entered on a verdict for plaintiff, and from an order denying motion for new trial.
    
      Arnold & Greene, attorneys and of counsel, for appellant, argued :—
    '• I. The trial judge erred in refusing to allow the defendant to show that the plans upon which the defendant’s estimate was based were so materially changed that the defendant’s agreement with the plaintiff could not be performed. The defendant’s contract ivas to furnish and set sixty-three lines of pipe of certain dimensions; its letter specified with great particularity exactly what it would undertake to do, and its offer was accepted as made. Under this contract the defendant could not be called upon, and was not bound to do anything different from what was specified in its letter. Cunningham v. Judson, 100 N. Y. 179, 189 ; Hill v. Blake, 97 Ib. 216; Welsh v. Gossler, 89 Ib. 540. It is of no consequence that the variation required might seem unimportant, or that it might involve less expense or time than the original arrangement. Giles v. Crosby, 5 Bos. 389; Cunningham v. Judson [supra). The principle of law applicable to this subject is very clearly decided in Giles v. Crosby [supra). In that case a bond was given by several persons by the terms of which they bound themselves to pay $10,000 on the completion of the opening of Canal street, and the widening of Walker street according to the plan now in the hands of the commissioners, etc. The plans were subsequently changed without the consent of the obligors in certain apparently unimportant respects, and the work was completed in accordance with the modified plans. It was held that the obligors were not liable on their bond, and that the question of their liability was not affected by the fact that the change of plan made the improvement less expensive. In the present case it appeared that the plans had been changed without the defendant’s knowledge or consent, so that it could not and was not permitted to carry out the contract as made, and it then rested entirely with the defendant to say whether or not it would do the work as modified, and, if it consented, for what price it would undertake it. It cannot surely be said, as a matter of law, that the substitution of 41 lines of pipe for 63 lines of different dimensions is an immaterial variation; on the contrary, the changes shown to have been made, of themselves, justified the defendant in withdrawing its estimate. The defendant, without its fault, was prevented from carrying out the contract that it made, and it cannot be held liable in damages for * not performing wholly different work which the plaintiff substituted.
    II. The defendant did not refuse to do the work that it agreed to do. The trial judge placed his refusal to admit evidence of the change in the work upon the ground that the defendant, previous to any change, had refused to carry out its contract. His ruling in this respect proceeded evidently upon the theory that the defendant, in the first place, absolutely and finally refused to perform its contract; that the plaintiff, in the next place, in consequence of this refusal, made a contract with the Mott Company to do the same work, and that after that, the requirements were changed and assented to by the Mott Company. But this theory is erroneous. The defendant did notify the plaintiff that, in consequence of a mistake in figuring upon the price, it withdrew its estimate, but on the same day, December 19, after receiving plaintiff’s letter, in which he said that he had made a contract based upon that estimate, and that he could not permit the withdrawal of the contract, and should want the pipes in two days, the defendant sent to the architects for the plans in order to begin the work, and then was informed that the plans were changed, but that the revision of the plans was not then ready. As the defendant’s representative did not then see the revised plans, he could not tell whether or not the changes were material; but two days after-wards he again called upon the architects, and then, for the first time, discovered the materiality of the changes. It was not until after this that the defendant sent its letter of December 21st, withdrawing all its estimates on the ground of a material change in the work required ; and it was after the receipt of this letter that the plaintiff applied to the Mott Company for an estimate, not of the work that the defendant had agreed to do, for that could not be carried out, but of the work specified in the plans as changed. This change had been made before the Mott Company made its estimate, and therefore that company, could not have assented to the change, as the trial judge supposed. The fact is that the Mott Company from the first, was asked to and did estimate upon wholly different work from that which the defendant agreed to, and the work that the defendant contracted to do was never done. The letter of defendant of December 19, taken in connection with the facts of the case, cannot be construed as a refusal by the defendant to perform its contract. The contract called for work and services to be rendered in the future. On the 19th of December the plans were not ready and the work could not be begun. The plaintiff refused to accept the defendant’s withdrawal of his bid, and notified it that he should expect it to go on with the contract, and thereupon the defendant did apply to the architects for the plans to enable it to proceed with its work, but was furnished with plans calling for materials and work materially different from those specified in its agreement. The plaintiff, or his agents, the architects, had, by changing the plans, made it impossible for the defendant to fulfill its contract, and it was then fully justified in withdrawing from the work. Dubois v. Hudson Canal Co., 4 Wend. 290; Crist v. Armour, 34 Barb. 378.
    
      Thornton, Earle & Kiendl, attorneys, and David Thornton of counsel, for respondent, argued :—
    I. The proof of the making and the acceptance of the contract sued on was very clear. It was in writing ; defendant admitted making the estimates; there was no dispute as to the terms of the coiitract. The defendant sought to show by way of defence : (1) A mistake on its part, a one-sided mistake not in any sense mutual, in making up its estimate. (2) That the plaintiff, because of the business in which he was engaged, knew, or should have known, the value of the pipe on November 21, 1889.. (3) That after the making of the contract by plaintiff with the Dispensary, based on defendant’s own estimate, and after the making of the contract by plaintiff with J. L. Mott Works, to put in 63 lines of pipe for $614, a change was made by the owners of the building or architects of the Dispensary, and 41 lines of pipe were put in the building in lieu of 63 lines. On these theories defendant claimed that no recovery could be had against it.
    II. The defence of mistake on the part of defendant is not available. It put in a bid for $208 at first, but corrected it the same day, and increased it to $248, before it was acted on by defendant. This latter bid being relied on by plaintiff, used by him in making his estimate, the contract to erect the building having been awarded to. him, and he having accepted the bid for $248, without any notice to him that there was any mistake, he had a right to rely upon it, and he having become bound by it, defendant must be bound. Otherwise, pretended mistakes by one party to a contract could and would be pleaded in making all contracts, and it would be useless to attempt to enforce any. The case cited by defendant’s counsel on the trial, in 4 Lansing, page 41, as bearing out his theory, had no application to this action. That was an action in equity, brought to relieve from a contract, on the ground of mistake of a material fact by one of the parties. The court, held that, no one being misled or injured by the mistake, it might be rescinded. But in this case it is undisputed that the plaintiff had used the defendant’s bid, made his own estimate based on it, had been given and entered into a contract, and had accepted defendant’s bid before he had any notice of any pretended mistake.
    III. It was clearly shown by the defendant that the plaintiff did not know the value of the pipe, November 21, 1889. Therefore on defendant’s own showing, even assuming such knowledge was a defence (which is denied), this line of defence failed.
    IV. The fact that only 41 lines of .pipe were put into the building, and size of pipes slightly lessened in some instances, in order to give better draft in flues, in place of 63 lines, the number plaintiff contracted to put in, the number he contracted with the Mott Works to put in at $614, and the precise number bid on by defendant for $248, the amount of the bid accepted by plaintiff, is immaterial. The plaintiff had nothing to do with this. It was nowhere shown that plaintiff consented to it. If the owner of the building or its architect did it, it was done to get better draft in the flues and was merely different construction. There is no evidence that the cost of doing it was more or less, or that plaintiff did not pay the Mott Works the full contract price for the sixty-three lines of pipe he had contracted with the owners to put in, and had agreed with the Mott Works to pay therefor, viz., $614. Even if it were less, then the amount of defendant’s bid of $248 for sixty-three lines would be lessened in the same way. The defendant would not be relieved from its contract. On the contrary, the proof offered by the defendant, by introducing the contract between plaintiff and the owners, expressly requires plaintiff to make to the owners an allowance for any diminution of the work or materials. Therefore he may be called on by the owners, when the building is finished, to make an allowance from his contract price for the number of pipes riot put in; in which case, if he has paid the Mott Works at that time in full $614, he will have suffered. If not paid in full, then the value, if any, for the change in the contract made by the owners, would be deducted by them, and plaintiff would be deprived of it. The fact that the Mott Works made a double bid, based on 41 and 63 lines of pipe, is immaterial. The 63 lines plaintiff had previously contracted with the owners to put in, and he in turn" had agreed with the Mott Works that they should put in the same number of lines for $614, and he was bound to them for this amount.
   Per Curiam.

The plaintiff was a mason-builder. He was about to make a bid for the building of the Eastern Dispensary. Before putting in that bid he procured from the defendant a proposal as to furnishing 61 lines of hot-air pipes to the building and setting them in its walls. The defendant wrote to the plaintiff that it would furnish and set hot-air pipes in the wall of the Dispensary for $208, which was after-wards competently changed to $248. Upon receiving this proposal the plaintiff accepted it in writing.

The defendant, for the purpose of making the proposal, had been referred, in order to know the quantity of work that was to be done, to plans and specifications, made by architects, for the building. When the proposal was made it was understood that 63 lines of' pipe were to be furnished.

After the acceptance of the plaintiff, the defendant endeavored to withdraw the estimate on the ground that there had been a mistake on its part in calculating the number of feet of pipe that was to be furnished.

There can be no doubt, that upon the plaintiff accepting the proposal, there was a contract obligatory-on both parties. The attempt to withdraw the estimate by defendant after the acceptance was ineffectual. If there was a question on this point the defendant did not ask that it be decided by the jury.

The defendant made a defence that the contract was to be set aside because of a mistake, made by it, in framing its proposal. The mistake did not refer to the form or words of the proposal, but in calculating, as asserted, the number of feet of pipe. Several things might be said of this. It may be sufficient to say that the so-called mistake was the result of inexcusable negligence which the plaintiff did not induce or participate in. Such a mistake is not the ground of equitable interference. The defendant withdrawing the estimate, and not performing, as they did not, the question remains as to the damages the plaintiff was entitled to recover.

The contract was special in its character and not one of purchase and sale.- This was known to both parties. The pipe was not to become the- property of the plaintiff, and it would become, when the contract was performed, the property of the owners of the dispensary. The benefit, as disclosed by plaintiff’s evidence, would be such as would accrue to the plaintiff, from his making his bid in part upon defendant’s estimate, and the bid being accepted by the dispensary, his being able to perform that part of the work at the expense of paying the sum fixed by defendant’s contract.

The plaintiff testified that, upon the defendant’s estimate, in part, he made his bid for the contract which was afterwards awarded to him.

The contract provided that the owner should be at liberty to make any alteration, addition or omission, in, to, or from the contract, and the same should in no way avoid the contract but would be added to or deducted from the contract by a fair and reasonable valuation.

The plaintiff recognized that what was furnished was to be furnished according to the architect’s plans and specifications. In accepting defendant’s estimate, he wrote, “ I hereby accept your estimate, etc., all to be done according to plans and specifications as made by Messrs. Rose & Stone, Architects, and to their satisfaction.”

From the nature of the benefit the plaintiff was to receive from defendant’s contract, it is manifest that if the work were done for a less sum than he was to pay the defendant, there would be no loss or damage, or if the work cost a greater sum, he would be compensated by receiving the excess of it beyond that to be paid to defendant. He was obliged to pay a greater sum, which entitled him to a recovery, but not for the sum of the damages awarded below.

After defendant’s breach the plaintiff procured the following estimate from the Mott Iron Works. “We will furnish for Eastern Dispensary, etc., 41 lines of square heating pipe, etc., as per flue section submitted by Róse _& Stone, Architects, for $402. If dispensary should be piped as per specifications of Mr. Richard Deeves, calling for 63 lines of pipe, the estimate will be $614.” In fact the architect had changed the plans so as to call for only 41 lines óf pipe, and these were furnished and set by the Mott Iron Works at a cost to plaintiff of the sum named in the estimate $402. He was, therefore, damaged only in the difference between this sum and the amount of defendant’s bid, viz., $248, and a due compensation to be assessed by the jury for trouble and work in obtaining the new bid. He was not entitled to a recovery on a basis of a cost of $614, made upon the specifications of the plaintiff by the Mott Iron Works. The sixty-three lines of pipe were not called for by reason of a, change made in the architect’s plans, as permitted by the clause of the plaintiff’s contract with the owners that has been cited. And the fact that defendant agreed to furnish more pipe than was actually used, and did not furnish it, did not injure plaintiff, for it did not affect the sum plaintiff received for building. It did not cause plaintiff to change his bid, and there was no proof of the effect, under the clause allowing the owner to change the work to be done, of 41 lines of pipes being used instead of 63 lines.

By the contract in suit, the pipes that might be furnished and set, or those not used, were not to be delivered to the plaintiff and to be his property. If the phrase in plaintiff’s acceptance “ all to be done according to plans, etc., of Messrs. Bose & Stone, Architects, and to their satisfaction,” were not inconsistent with defendant’s promise to furnish and set 63 lines, then the implication was that the plaintiff would see that an opportunity was given to the defendant to set 63 lines of pipe. An omission so to provide would be a breach by plaintiff. The change in the number that was made, was made, as we have seen, by a contract that existed at the time of plaintiff’s acceptance. The plaintiff cannot claim a loss on account of something that would be a breach on his part. That is, the defendant could not have set the excess of 21 lines of pipe by reason of [.he breach of the condition precedent to furnish a place and opportunity for them to be set.

For these reasons the plaintiff was not entitled to recover the difference between defendant’s bid and-.-$614, Nothing was lost by defendant’s breach beyond tile, difference between the bid of $248 and the bid of the Mott Iron Works, $402. The amount he would receive on his contract,. which comprised his whole interest, was not lessened except this difference.

As the contrary view was upheld at the trial there should be a reversal.

Judgment and order appealed from reversed and new trial ordered, with costs to abide the event.  