Sylvan Crest Sand & Gravel Co. v. United States

• Decision Date: 30 July 1945
• Docket Number: No. 345.,345.
• Citation: 150 F.2d 642
• Parties: SYLVAN CREST SAND & GRAVEL CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

150 F.2d 642 (1945)

SYLVAN CREST SAND & GRAVEL CO. v. UNITED STATES.

No. 345.

Circuit Court of Appeals, Second Circuit.

July 30, 1945.

David R. Lessler, of Bridgeport, Conn., for appellant.

Robert P. Butler, U. S. Atty., of Hartford, Conn. (Milton Nahum, Asst. U. S. Atty., of Hartford, Conn., of counsel), for appellee.

Before SWAN, CHASE, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an action for damages for breach of four alleged contracts under each of which the plaintiff was to deliver trap rock to an airport project "as required" and in accordance with delivery instructions to be given by the defendant. The breach alleged was the defendant's refusal to request or accept delivery within a reasonable time after the date of the contracts, thereby depriving the plaintiff of profits it would have made in the amount of $10,000. The action was commenced in the District Court, federal jurisdiction resting on 28 U.S.C.A. § 41(20). Upon the pleadings, consisting of complaint, answer and reply, the defendant moved to dismiss the action for failure of the complaint to state a claim or, in the alternative, to grant summary judgment for the defendant on the ground that no genuine issue exists as to any material fact. The contracts in suit were introduced as exhibits at the hearing on the motion. Summary judgment for the defendant was granted on the theory that the defendant's reservation of an unrestricted power of cancellation caused the alleged contracts to be wholly illusory as binding obligations. The plaintiff has appealed.

The plaintiff owned and operated a trap rock quarry in Trumbull, Conn. Through the Treasury Department, acting by its State Procurement Office in Connecticut, the United States invited bids on trap rock needed for the Mollison Airport, Bridgeport, Conn. The plaintiff submitted four bids for different sized screenings of trap rock and each bid was accepted by the Assistant State Procurement Officer on June 29, 1937. The four documents are substantially alike and it will suffice to describe one of them. It is a printed government form, with the blank spaces filled in in typewriting, consisting of a single sheet bearing the heading:

"Invitation, Bid, and Acceptance "(Short Form Contract)"

Below the heading, under the subheadings, follow in order the "Invitation," the "Bid," and the "Acceptance by the Government." The Invitation, signed by a State Procurement Officer, states that "Sealed bids in triplicate, subject to the conditions on the reverse hereof, will be received at this office * * * for furnishing supplies * * * for delivery at WP 2752 — Mollison Airport, Bridgeport, Ct." Then come typed provisions which, so far as material, are as follows:

"Item No. 1. ½" Trap Rock to pass the following screening test * * * approx. 4000 tons, unit price $2.00 amount $8000. To be delivered to project as required. Delivery to start immediately. Communicate with W. J. Scott, Supt. W. P.A. Branch Office, 147 Canon Street, Bridgeport, Ct., for definite delivery instructions. Cancellation by the Procurement Division may be effected at any time."

The Bid, signed by the plaintiff, provides that

"In compliance with the above invitation for bids, and subject to all of the conditions thereof, the undersigned offers, and agrees, if this bid be accepted * * * to furnish any or all of the items upon which prices are quoted, at the prices set opposite each item, delivered at the point (s) as specified, * * *."

The Acceptance, besides its date and the signature of an Assistant State Procurement Officer, contains only the words "Accepted as to items numbered 1." The printing on the reverse side of the sheet under the heading "Conditions" and "Instructions to Contracting Officers" clearly indicates that the parties supposed they were entering into an enforcible contract. For example, Condition 3 states that "in case of default of the contractor" the government may procure the articles from other sources and hold the contractor liable for any excess in cost; and Condition 4 provides that "if the contractor refuses or fails to make deliveries * * * within the time specified * * * the Government may by written notice terminate the right of the contractor to proceed with deliveries * * *." The Instructions to Contracting Officers also presupposes the making of a valid contract; No. 2 reads:

"Although this form meets the requirements of a formal contract (R.S. 3744), if the execution of a formal contract with bond is contemplated, U. S. Standard Forms 31 and 32 should be used."

No one can read the document as a whole without concluding that the parties intended a contract to result from the Bid and the Government's Acceptance. If the United States did not so intend, it certainly set a skilful trap for unwary bidders. No such purpose should be attributed to the government. See United States v. Purcell Envelope Co., 249 U.S. 313, 318, 39 S.Ct. 300, 63 L.Ed. 620. In construing the document the presumption should be indulged that both parties were acting in good faith.

Although the Acceptance contains no promissory words, it is conceded that a promise by the defendant to pay the stated price for rock delivered is to be implied.¹ Since no precise time for delivery was specified, the implication is that delivery within a reasonable time was contemplated. Allegheny Valley Brick Co. v. C. W. Raymond Co., 2 Cir., 219 F. 477, 480; Frankfurt-Barnett v. William Prym Co., 2 Cir., 237 F. 21, 25. This is corroborated by the express provision that the rock was "to be delivered to the project as required. Delivery to start immediately." There is also to be implied a promise to give delivery instructions; nothing in the language of the contracts indicates...