Bd. of Sch. Com'rs of City of Indianapolis v. Bender

• Decision Date: 11 October 1904
• Docket Number: No. 5,012.,5,012.
• Citation: 72 N.E. 154,36 Ind.App. 164
• Parties: BOARD OF SCHOOL COM'RS OF CITY OF INDIANAPOLIS v. BENDER.
• Court: Indiana Appellate Court

36 Ind.App. 164

72 N.E. 154

BOARD OF SCHOOL COM'RS OF CITY OF INDIANAPOLIS

v.BENDER.

No. 5,012.^*

Appellate Court of Indiana, Division No. 2.

Oct. 11, 1904.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Conrad Bender against the board of school commissioners of the city of Indianapolis. From a judgment for plaintiff, defendant appeals. Affirmed.Albert Baker and Edward Daniels, for appellant. A. F. Denny, for appellee.

WILEY, J.

This cause was transferred from the Supreme Court. Appellee was plaintiff below, and his complaint was held good on a demurrer for want of sufficient facts, and the only question presented by the assignment of error is the sufficiency of the complaint.

The substantial averments of the complaint are: That appellant had advertised for competitive bids for the erection of an addition to one of its school buildings. That the notice published for such bids contained the following clause: “Each proposal must be accompanied by a certified check for the sum of $300 as a guaranty that the bidder will enter into a contract and file a satisfactory bond with the board of school commissioners of the city of Indianapolis, within the time specified. A failure on the part of the contractor to enter the contract will forfeit the said amount or amounts deposited.” It was further averred: That all bids and proposals should be at the office of appellant on or before 4 o'clock p. m. of February 25, 1902. That the appellee did not see the notice as published, but that after its publication appellant's architect notified him to make estimates, and to make a bid and proposal for the work according to the plans and specifications. That on the 22d day of February, 1902, he furnished appellee such specifications, and informed him that his bid must be accompanied with a certified check for $300, and must be in at or before 4 o'clock p. m. of February 25, 1902. That the plans, specifications, and addenda to the specifications for the construction and erection of said building contained the following provisions, to wit: “Notice to Bidders. Sealed proposals will be received for an addition to school building No. 33, corner Sterling and Twelfth streets, until 12 o'clock noon, the 25th day of February, 1902, at the office of the board of school commissioners (Library Building) of the city of Indianapolis, Indiana.” That the addenda to said specifications were prefixed hereto, and contained on the first page thereof the following, to wit: ‘Bids to be opened 8 p. m. Feb. 25, instead of noon, as specified.” That appellee examined said specifications for no other purpose than to ascertain the description of the materials and of the work required, and that he did not read at any time the provisions in the specifications and addenda above quoted as to the time of opening said bids. That he did not know until after the 25th day of February that he might have had until 8 o'clock p. m. of said day in which to prepare and present his bids and proposals as aforesaid. That appellee did examine the plans and specifications, and made his estimate for all the work and material, and returned the same to the architect on said 25th day of February, 1902, after having carefully placed his estimates in his book, known and designated as his “estimate book.” That the plans and specifications further provided that bidders should make several and separate bids on certain work and material, which would be obligatory and peremptory on the bidders and appellant, and were afterwards described by appellant as “general or regular bids,” and on certain other material and work therein specified, which was designated therein as “alternate basement and foundation plan”; the adoption and use of bids last aforesaid to be optional with appellant. That the material and work described in said “alternate and foundation plan” was not to be required of the bidder, except at the option of appellant. That on the 25th day of February, 1902, exactly at 4 o'clock p. m., he delivered his bid in writing, signed by him, to appellant at the place designated in the notice, which bid was in the following words and figures, to wit: “Indianapolis, February 25th, 1902. Board of School Commissioners: I, the undersigned, propose to build addition to No. 33, according to plans and specifications, for the sum of $11,337. Also, additional for alternate, $3,349.”

The complaint further avers that appellee relied upon and believed the architect's statement aforesaid that said bids must be in at or before 4 o'clock of said day; that in making his said bid and proposal he intended to include therein his estimates for all material and work, including that which was optional, as well as that which was obligatory, and that he made and placed in his “estimate book” all such estimates accordingly; that the placing of his bid and estimate was delayed without any fault or negligence on his part, but solely through the delay of two of his sub-bidders, until the hour of 3:30 p. m. of said day, and that in order to get his bid and proposal filed at 4 p. m., as he understood was requisite, there was no sufficient opportunity for verification of his bids; that he erroneously submitted his bid as aforesaid for the obligatory and peremptory part of said work; that his bid and proposal, in order to cover and include all of said work and material, should have embraced, and was intended to embrace, his estimate for the obligatory and peremptory material and work, as aforesaid, the sum of $3,349, and the further sum of $1,064, each of said amounts being on separate pages of his “estimate book,” in addition to said sum of $11,337, which was on a separate and distinct page thereof; that appellee's bid and proposal, in order to embrace all the material and work, should have been in the sum made up of the three amounts last aforesaid, to wit, $15,750. It is further averred that appellee's estimates for his bid on the optional and alternate work and material aforesaid were in said “estimate book” on a fourth and distinctly separate page, and that his bid on said branch of said erection was intended by him to have been, and should have been, in the sum of $1,172, instead of the sum of $3,349, as aforesaid. It is then averred that, in putting into writing his form of bid and proposal, owing to the limit of time as he understood it, it was necessary that said bid and proposal be forwarded and delivered in great haste, and that he, in so hastily making up said bid, mistook the totals on the first page of his “estimate book,” to wit, $11,337, as and for his estimate for all the obligatory work and material, or, in other words, in the sum of $4,413 less than his estimates, and in that amount less than he intended and understood. It is further averred that in his haste in drafting and submitting his bid and estimate appellee mistook the amount, $3,349, which was a part of his estimate on the work and material of the obligatory part of such erection, for the amount of his estimate on said “alternate basement and foundation plan,” optional with appellant, and erroneously made his bid and proposal...