"That heretofore, on and prior to July 3, 1900, the plaintiff was, and he now is, a contractor and builder, engaged in the business of erecting buildings for persons in the state of Texas and elsewhere, and in furnishing the material and builders' supplies entering into the construction of such buildings. That on the ____ day of June, 1900, and prior to July 3rd, 1900, the defendant advertised the fact that he would receive at Marlin, Texas, until 3 p. m. Tuesday, July 3, 1900, sealed proposals for the erection of a hotel building at Marlin, Texas, in accordance with certain plans and specifications referred to in said advertisement, requiring therein that each bid or proposal for the erection of said building should be accompanied by a certified check for the sum of five hundred dollars, payable to said defendant, to be forfeited by the accepted bidder, should he fail to make satisfactory bond in ten days from the acceptance of his bid. That, in response to said advertisement, plaintiff came to Marlin, and on said July 3rd, 1900, and within the hours permitted under said advertisement, made, submitted and delivered to defendant his said sealed proposal for the construction and erection of such hotel building as described in said plans and specifications for the sum of $64,000, accompanying his said proposal with a
certified cashier's check on the South Texas National Bank of Houston, Texas, of date about June 28th, 1900, for the sum of five hundred dollars, payable to plaintiff, and by plaintiff indorsed to defendant, a better description of which said check plaintiff is unable to give at this time, for the reason that the same has been paid and is held by said bank, and said bank declines to surrender the possession of the same to plaintiff that he may obtain a better description thereof; that plaintiff's said proposal for the construction and erection of said buildings was accepted by defendant, and the contract for the construction and erection thereof awarded to plaintiff on his bid of $64,000. Plaintiff shows to the court that there was a number of other contractors and builders who submitted proposals to defendant at the same time, for the erection of said building, and each of said contractors, as well as plaintiff, had to use one set of the plans and specifications for said building in making his calculations as a basis for his proposal to be submitted to the defendant; and that no two could use said plans and specifications at one and the same time; and that, by reason of the premises, plaintiff was unable, by the exercise of all proper and reasonable diligence, which he alleges he did use, to obtain possession of said plans and specifications in order to make his calculations on the amount of labor and material, and the cost thereof, necessarily entering into the construction and erection of said building in accordance with said plans and specifications, until a few hours prior to the time fixed and limited in which proposals for the erection of said building could be submitted; that the said plans and specifications were very voluminous and specific, entering largely into minute details as to the character and kind of material which should be used in said building, and required a calculation to be made as to the cost of each general item entering into the construction of the said building, in order that the bidder might submit an approximately safe and conservative bid; that, in making his estimate and calculations as a basis for his proposal for the erection of said building, plaintiff figured and estimated the cost of the various kinds and quantities and qualities of labor and material required by said plan and specification to be used in said building, and set down opposite to each general item so entering into its construction his estimated cost of the same, considering the quality and quantity required of it; that in his haste in adding up the sums of said several items so estimated by him he made a mistake of $10,000 in his addition, making said items foot up in the gross the sum of $64,000, when the same, correctly footed and added up, would and will amount to the gross sum of $74,000, thus making the bid really intended to be submitted by plaintiff the sum of $74,000 instead of $64,000; that plaintiff did not detect his said error in his said addition until after his said bid had been accepted by the defendant, and said contract for the erection of said building awarded to him at said sum of $64,000; that within a reasonable time after detecting his mistake, to wit, on July 4th, 1900, and before defendant had changed his position in any way to his disadvantage, plaintiff notified defendant of his mistake, pointed the same out to him, and requested that the same be corrected, or, that being denied, that plaintiff be permitted to withdraw his said bid and proposal, both of which requests the defendant refused, and immediately on said July 4, 1900, and before the expiration of the ten days from the acceptance of his said bid allowed him by the terms of said advertisement and his accepted proposal in which to make bond as provided in said advertisement, declaring plaintiff to be in default, indorsed said check, presented it to said bank for payment, received payment therefor, and converted said check and said five hundred dollars to his own use and benefit, to plaintiff's damage the said sum of $500; that, by reason of said mistake, said proposal as submitted by plaintiff did not truly reflect and submit plaintiff's proposal for the erection of said building; and to permit defendant to reap the advantages of such mistakes, declare plaintiff in default, as aforesaid, and retain the proceeds of plaintiff's said check, obtained as aforesaid, and thus converted and appropriated, would be unconscionable and unjust; that correcting said mistake, and making plaintiff's proposal the true amount which a correct addition of the estimated cost of the several items...
