64 F.2d 344 (2nd Cir. 1933), 330, James Baird Co. v. Gimbel Bros., Inc.

Docket Nº:330.
Citation:64 F.2d 344
Case Date:April 10, 1933
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 344

64 F.2d 344 (2nd Cir. 1933)




No. 330.

United States Court of Appeals, Second Circuit.

April 10, 1933

Page 345

Appeal from the District Court of the United States for the Southern District of New York.

Campbell, Harding, Goodwin & Danforth, of New York City (Garrard Glenn and William L. Glenn, both of New York City, of counsel), for appellant.

Chadbourne, Stanchfield & Levy, of New York City (Leonard P. Moore and David S. Hecht, both of New York City, of counsel), for appellee.

Before MANTON L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff sued the defendant for breach of a contract to deliver linoleum under a contract of sale; the defendant denied the making of the contract; the parties tried the case to the judge under a written stipulation and he directed judgment for the defendant. The facts as found, bearing on the making of the contract, the only issue necessary to discuss, were as follows: The defendant, a New York merchant, knew that the Department of Highways in Pennsylvania had asked for bids for the construction of a public building. It sent an employee to the office of a contractor in Philadelphia, who had possession of the specifications, and the employee there computed the amount of the linoleum which would be required on the job, underestimating the total yardage by about one-half the proper amount. In ignorance of this mistake, on December twenty-fourth the defendant sent to some twenty or thirty contractors, likely to bid on the job, an offer to supply all the linoleum required by the specifications at two different lump sums, depending upon the quality used. These offers concluded as follows: 'If successful in being awarded this contract, it will be absolutely guaranteed, * * * and * * * we are offering these prices for reasonable' (sic), 'prompt acceptance after the general contract has been awarded.' The plaintiff, a contractor in Washington, got one of these on the twenty-eighth, and on the same day the defendant learned its mistake and telegraphed all the contractors to whom it had sent the offer, that it withdrew it and would substitute a new one at about double the amount of the old. This withdrawal reached the plaintiff at Washington on the afternoon of the same day, but not until after it had put in a bid at Harrisburg at a lump sum, based as to linoleum upon the...

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