
    ALONZO DUTCH, Plaintiff and Respondent, v. JOHN HARRISON, Defendant and ApPELLANT.
    I. Contract, what sufficient to constitute.—Public policy.
    1. What sufficient to constitute.
    
    
      a. Where A., being about to put in a proposal and estimate for the work and materials to be done and furnished in and about the erection of a public school house by the board of education, B. being present, asked him .what his estimate for the roofing work was, and in being informed, told A. he would do it for a certain sum, thereupon A. told B., that if he would make the estimate, and agree to do it for that price, that he (A.) would alter his estimate, and accept B.’s, as his, B.’s, was some four or five hundred dollars lower. B. wrote it on a card, and A. then tore up his estimate, and made up another one at four or five hundred-dollars lower. The contract was awarded to A., who thereupon told B. that he had based the roofing estimate on’his (B.’s) estimate, and he should expect him (B.) to do the job, and B. said he would do it.
    Held,
    
      a good and valid contract by B. to do the roofing work at the named price in the event of A.’s obtaining the contract for the erection of the building.
    1. There is both mutuality in, and sufficient consideration for, the contract.
    3. Public policy.
    
    1. Such a contract is not void, as being against public policy.
    H. Usage.—Custom.—When evidence of not admissible.
    1. Evidence of an usage in the trade not to consider an estimate given binding, or of an usage to have a separate and distinct contract made for all work done, or of an usage as to the eSect given to estimates, is not admissible to alter or limit the legal effect of contracts.
    
    1. Therefore, not admissible in the case at bar.
    Before Moneul, Oh. J., Curtis and Speir, JJ.
    
      Decided May 2, 1874.
    Appeal by defendant from judgment entered on the verdict of a jury.
    The complaint alleged that in February, 1872, the defendant entered into a contract by which he agreed to do the trimming, cornice-work, copper gutters, tin-leaders, slatting towers, patent ventilators, tin roofing, and the other trimming work, and to furnish the material therefor, then and thereafter to be done and furnished on a public school house, then about to be erected in the city of New York, for the sum of nineteen hundred dollars, that the plaintiff had the contract therefor, and- the plaintiff agreed to pay the defendant said sum for the work so to be done and the materials so to be furnished by the defendant.
    That plaintiff requested the defendant to perform said contract on his part, and the defendant then and-there refused to and ever since has refused to* perform the same, and that in consequence thereof the plaintiff was obliged to and did employ another to do the said work and furnish the material therefor, at an increased cost to the plaintiff of five hundred and eighty dollars, over and above the sum for which the defendant agreed to do and furnish the same, to the plaintiff’s damage of five hundred and eighty dollars, with interest thereon from August 20, 1872.
    The answ-er was a general denial.
    The action was tried by the court and a jury.
    
      The plaintiff testified, that estimates had been invited for building a school house, for the carpenter’s work of which, he had estimated.
    “I had my estimate prepared and ready to deposit in the box, and as I entered the office, Mr. Harrison stepped up to me, and asked me if I had a roofer’s bill on & it; I told him I had ; he marked his figures on a piece of paper, he said, 6 Will it beat that V I asked him if that was his estimate. He told me it was. I told him that if he would make an estimate and agree to do it for that price, that I would alter my estimate, and accept his, as it was some four or five hundred dollars below my former estimate. He wrote me it on that card. I then tore my estimate and made up another one at four or five hundred dollars lower. We then waited at the office where the committee was. Mr. Harrison was there all the time while the committee was in session. They all left, the committee, after the announcement had been made, excepting Mr. Harrison and myself.
    
      “ I got the work, and told the defendant that I had based the roofing estimate on his, and that I should expect him to do the job. He said he would do it; that he would go and get his plans, and go to work.” The defendant afterwards refused to do the work, and the plaintiff had to procure others to do it.
    All the material portions of this testimony were contradicted by the defendant. He said:
    “I had no conversation : I simply was there ; I had given estimates to two other carpenters, and had made out estimates for Mr. Doyle ; I did not know Mr. Dutch only by sight; didn’t know him to speak to him even ; he came up to me and asked me if I had any objection to give him my figures ; I told him no ; that is all that occurred ; I had nothing more to say to him at all.” The difference between the defendant’s estimate for the roofing, and the sum it actually cost the plaintiff, was six hundred and thirty-three dollars and seventy-four" cents.
    Several questions put to witness by the defendant’s counsel, were excluded by the court, and the defendant excepted.
    They were as follows :
    “Q. What is the usage in regard to estimates ; are they considered binding?
    (Objected to.)
    “By the trade ?
    (Objected to.)
    “ Q. I will add to the question—Do the trade consider an estimate given binding, or is it the usage to have a separate and distinct contract made for all work done ?
    “ Q. I ask you as far as the usage and custom of the trade is concerned what was the effect of it ?
    “ Q. State, if you know the usage and custom of your trade about giving estimates for work, and the effect given to those estimates ? ”
    The court charged the jury that if the plaintiff, in pursuance of the notice from the board of education, put in his proposal to do this rooting work for a certain sum, and before the proposals were opened the defendant asked him what his .proposal was, and was informed, and then told him, substantially, that if he would withdraw it and put in another for a less sum (mentioning the sum) that he (the defendant) would himself do the work for him for that sum, and the plaintiff accepted the offer and acted upon it, it was a good contract, and the defendant would be bound by such an undertaking.
    (To which the defendant excepted.)
    That if the jury believed the statement of the plaintiff it amounts to an agreement, the defendant agreeing that if plaintiff would withdraw his proposal and put in another that he would do the work for the price mentioned in the substituted proposal, and then if afterwards plaintiff called upon defendant to do the .work it was his duty to fulfill the contract.
    To this the defendant excepted.
    The jury found for the plaintiff.
    The defendant appealed from the judgment entered on the verdict.
    
      James M. Smith, attorney and counsel for appellant. —I.
    The contract was not binding on the defendant. The plaintiff at the time of the transaction between himself and defendant had no right to contract for the reason that he had no contract with the superintendent-H the plaintiff had not received the contract from the superintendent, the.defendant could not have recovered damages of him for not awarding it to him.
    II. If plaintiff had received it he would not have been legally bound to give it to defendant. The agreement was without consideration (Burnet v. Bisco, 4 Johns. 236 ; Ford v. Adams, 3 Bard. 249 ; Convers v. Kellogg, 7 Bard. 590). (a.) The defendant had a legal right to put in his bid. If lowest he would have been entitled to the contract (Utica & Syracuse R. R. Co. v. Brinkerhoff, 31 Wend., 139; Ingraham v. Gilbert, 30 Bard., 151; Winchell v. Latham, 6 Cow., .682 ; Lester v. Jewett, 12 Bard. 502). (b.) Non-performance of a promise m ade without consideration is not a cause of action, notwithstanding the plaintiff may have sustained special damage (Thorne v. Deas, 4 Johns. 84).
    ÍII. The pretended contract or agreement was against public policy. The combination between plaintiff and defendant, as alleged by plaintiff, was in derogation of the rights "of the superintendent of common schools. He advertised for proposals that he might avail himself of the lowest bidder. The plaintiff attempted to defeat that arrangement by ascertaining if there were lower bids than his own. His conduct was a deliberate and contemplated fraud, such a fraud as the law does not recognize (Thompson v. Davies, 13 Johns. 115; Comp. 396, 6 Term Rep. 642; Harvey v. Leggell, 7 N. Y. 176; Gray v. Hook, 4 N. Y. 449 ; Brisbane v. Adams, 3 N. Y. 129).
    IY. The evidence of the plaintiff does not make out any legal contract, (a.) There was nothing said about payment, and nothing said about security. It cannot be presumed the contract was complete,, unless terms were specified. When was he to be paid 1 How was he to be paid %
    
    Y. The evidence as to. usage was proper, and should have been allowed.
    
      J). M. Porter and L. B. Gould, attorneys, and of counsel for respondent, urged :—I.
    That the question whether there was a binding agreement between the plaintiff and defendant in respect to that estimate, was submitted to the jury upon conflicting testimony, and their verdict is conclusive (Murphy v. Baker, 3 Robt. 1).
    
    II. The defendant’s attempt to prove that by custom a roofer’s estimate was not considered binding, was properly overruled (Sipperly v. Stewart, 50 Barb. 62; Wadsworth v. Alcott, 6 N. Y. [2 Seld.] 64).
   By the Court.—Mokell, Ch. J.

The testimony of the plaintiff was sufficient to authorize the assumption that the defendant agreed with the plaintiff that if the latter obtained the contract for the school building the defendant would, for a named price, do the roofing of the building.

In-accordance with such offer, the plaintiff reduced the amount of his estimate, and was awarded the contract. Upon being informed of that, the defendant said he would do the work.

I do not see why this evidence does not establish a valid contract. The jury have found the facts upon somewhat conflicting evidence, and we must assume that the contract was as testified to by the plaintiff.

First. It had the element of mutuality. The defendant was to do the work, and the plaintiff was to pay the stipulated sum. Had the defendant performed, he could have recovered, as upon an express promise to pay; and such right grew out of his own obligation to perform, and which obligation inured to the plaintiff.

Second. There was a sufficient consideration. There was both a benefit and a possible injury to the plaintiff —a benefit in being able to, successfully bid for the contract, and a possible pecuniary injury if the defendant failed to perform.

Either of these elements—certainly the concurrence of both—made this a valid contract.

It was not a" contract against public policy. The defendant was not a competitor for the building contract. His proposal was to the plaintiff, and not to the school commissioners, and had not and could not, have had any influence upon other bids, and it did not in any way interfere with the general competition for the contract.

Under an estimate, reduced in amount by the de- • fendant’s proposal, the plaintiff became bound to perform his contract with the school commissioners ; and I can see no good reason, in law or morals, why the defendant should be absolved from his agreement or saved from his default.

The several questions which were excluded were properly overruled. They called for proof of customs and usages, which, if they exist, cannot be allowed to alter or limit the legal effect of contracts.

In the view we have taken, there was no error in the charge, and the verdict should be sustained.

Judgment affirmed.

Curtis and Speir, JJ., concurred.  