
    North-Eastern Construction Company, Plaintiff, v. The Town of North Hempstead and Others, Defendants.
    Second Department,
    July 23, 1907.
    Contract—bids for construction of highway bridge—meeting of minds —withdr awal of bid.
    Although a bid for the building of a highway bridge according to alternative plans has been accepted by resolution of the board of highway commissioners-in joint session with the town board, “ conditioned upon leave being granted by the board of supervisors to issue bonds of the town.” which condition .was not prescribed when the plans were submitted,; the contractor may withdraw his bid and recover the amount' of. his deposit, for the acceptance was not absolute but based upon á contingency not contemplated'when the bid was asked.
    Moreover, as' two plans were submitted although but one bridge was to be built, a general resolution of acceptance of the plaintiff’s bid was not'amontract for tie construction under either plan but should merely be construed -. as a notification that both bids were lower than .those of others.
    Submission of a controversy ujmn an agreed statement of facts pursuant to-section 1279 of the-Code of Civil'Procedure.
    
      Ernest A. Cardozo [Michael H. Cardozo, Jr., with him on the brief], for the plaintiff.
    
    
      George B. Stoddart, for the defendants.
   Woodward, J.:

The parties to this action have submitted an agreed’statement of facts, .under the provisions of sections 1279 to 1281 of the Code of Civil Procedure, and must be deemed to have waived all technical questions and to have asked tlié court for a determination of. their. rights under the facts as thus stated. The board of highway commissioners of the town of North Hempstead on or about tile 10th day of June, 1906,. published a notice requesting the submission of bids for the erection of a concrete steel bridge over Udall’s mill pond at Great Neck, Nassau county. The notice stated among other things wbere the plans .and specifications could be found, and that a certi-' lied cheek for the sum of $1,000 must be delivered with each bid. The plaintiff procured a copy of' the plans and specifications which included, in fact, two plans, one for a four-spanbridge and the other for a fiv'e-span bridge, and with these plans, and specifications before ■ it oil the 3d day of July, 1906, wrote and forwarded a letter, the, material' portion of which reads as follows: “ -For the' sum of twenty-three thousand, nine hundred and fifty-nine dollars ($23,959) we will furnish all materials and labor .and build complete a Concrete Steel Arch Bridge of five spans across ’Udall’s Mill Pond,” etc., and “For.the sum of twenty-two thousand, two' hundred.dollars ($22,200) we will furnish all materials and labor and build a four-span Concrete Steel Arch Bridge across Udall’s Mill Pond.” With this , letter was a certified check for the sum of $1,000.. On the same • day the said board of highway commissioners in joint session with the town board of the town of North Hempstead adopted a resolution that the secretary notify the North-Eastern Construction Co. that their bid for construction of the bridge across Udall’s Pond, Great Neck, be accepted, conditioned upon leave being granted by the Board of Supervisors to issue bonds of the Town in the sum of $20)000.”

On the morning .of the fifth day of July, and before the defend-' ants had taken any steps to communicate this alleged acceptance to the plaintiff, the latter sent a telegram to one of the members of the board of highway commissioners and to the engineer of such board not to consider the bid, saying that a letter would follow, and subsequently a letter was duly sent- and received by the commis-. sioners, in which the plaintiff claimed to have made an error in each of the two bids aggregating $10,000 and withdrawing the bid. The plaintiff refusing to abide by its bid, the contract was let to the next lowest bidder at a price considerably higher than that of the plaintiff, and the defendants then procured the certified check to be cashed and they have refused' to return the same to the plaintiff though the same has been demanded. ■ The plaintiff seeks to recover the amount of the check, with interest.

We are of the opinion-that'the plaintiff is entitled to a return of the deposit. The defendants did not absolutely accept the plaintiff’s bid; the acceptance depended upon a contingency which the plaintiff was not asked to consider in making its bid. The defendants were not bound to take any steps to bring about the action of the board of supervisors, and if they had refused or neglected to have done so or if the board, in the exercise of its discretion, had refused to grant the right the defendants could not have been held to any degree of liability. to the plaintiff and it is elementary in contract law that both parties must be bound. So that at the time of the plaintiff’s telegram and at the time its letter was written there was no valid or binding contract, and so long as there was not a valid contract the plaintiff was free to withdraw its proposition, without sacrificing the deposit which it had been compelled to make as a condition of bidding. But beyond this, it is difficult to understand how the plaintiff could be said to have been bound. Two bids were asked for, two bids were made, and there was but one bridge to be constructed. . The general resolution of acceptance of the plaintiff’s proposition was not entering into a contract for the construction of a four or five-span bridgeit was'- merely a notification that both of the biffs were lower than other bids, but the contract Was yet to follow, and this was clearly contemplated by the form which was.given out for such a contract, in company with the plans and specifications. In justice and equity the plaintiff is entitled to a return of its money under the facts disclosed, and judgment should be entered accordingly.' , ’

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment for plaintiff on submission of. controversy, with costs.  