O. C. Kinney, Inc. v. Paul Hardeman, Inc., 19969

• Decision Date: 11 March 1963
• Docket Number: No. 19969,19969
• Parties: O. C. KINNEY, INC., a Colorado corporation, Plaintiff in Error, v. PAUL HARDEMAN, INC., a corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 628

379 P.2d 628

151 Colo. 571

O. C. KINNEY, INC., a Colorado corporation, Plaintiff in Error, v. PAUL HARDEMAN, INC., a corporation, Defendant in Error.

No. 19969.

Supreme Court of Colorado, In Department.

March 11, 1963.

Stevens Park Kinney, Stevens Park Kiney, II, Denver, for plaintiff in error.

Grant, Shafroth, Toll & McHendrie, Charles H. Haines, Jr., Denver, Arnold M. Schwartz, Los Angeles, Cal., of counsel, for defendant in error.

SUTTON, Justice.

We shall refer to plaintiff in error as plaintiff as it appeared in the trial court, and to defendant in error as defendant.

Plaintiff seeks reversal of an order of the district court granting defendant a summary judgment.

The entire dispute revolves around the question of whether defendant was required to accept plaintiff's bid for certain sheet metal and related work for the construction of a missile site at Lowry Air Force Base near Denver.

Plaintiff sued on an alleged contract, its complaint stating in pertinent part that '* * * Defendant requested the Plaintiff among others to bid * * *' and 'That the Defendant represented to the Plaintiff and all other bidders that said contract for such work would be awarded to the lowest bidder for such.' Plaintiff then alleges it acted in reliance on the above representation, expended time and money preparing its bid which was the lowest one submitted, but that defendant thereafter entered into a contract for the work with a higher bidder. $75,000.00 was sought in damages, together with costs.

Defendant's answer denied the material allegations of the complaint and moved its dismissal on the ground that it failed to 'state facts sufficient to constitute a claim * * * upon which relief can be granted.'

Thereafter three depositions were taken, two for defendant and one for plaintiff. The first one was of Everett L. Krieger, plaintiff's general manager at the time in question and the man who prepared plaintiff's bid and negotiated with defendant. The second was of Stevens Park Kinney, Secretary of plaintiff corporation. The third was for plaintiff of Erwin Solloway, defendant's bid estimator, who dealt with Krieger. These depositions can be summarized as disclosing the following undisputed facts:

(1) Defendant did not seek bids from plaintiff, Krieger stating that he heard of the proposed work elsewhere. He thereupon secured bidding data from the federal government and first submitted an erroneous telephone bid on one site to Solloway. This bid was later corrected, reduced to writing and mailed to defendant. Defendant did not reply thereto. It appears that plaintiff's final bid was for $262,809.00.

(2) That defendant, before accepting a bid on this job, was awarded a contract for a second nearby missile site.

(3) That several other subcontractors submitted bids among them Sam Fox Sheet Metal Company which submitted a bid of $299,451.00 on one site and $549,000.00 for the two sites. Defendant accepted the two site bid.

(4) That no direct representations of any kind were ever made by defendant to plaintiff as to how the defendant would determine the successful bidder.

(5) That plaintiff hoped to gross 'About $50,000.00' on the job if its bid were accepted.

(6) That plaintiff was a relatively new company in this field and never had had a job this large; that it was quite certain it could procure a performance bond but had not tried to do so in connection with this job because it was waiting to see if it would be awarded the contract.

It appears that after suit was begun defendant procured an affidavit of Glenn E. Loveless, plaintiff's successor manager to Krieger, by which it was shown that after plaintiff's bid was submitted it merely 'hoped that the prime contractor would wish to divide the work up between sheet metal companies, and at the conference (with one of defendant's representatives at a later date) I requested that the subcontract for the first site be awarded to O. C. Kinney, Inc. This possibility was discussed. The representative of Paul Hardeman, Inc. made no representations or promises that the contract would be awarded to O. C. Kinney, Inc. I knew * * * (defendant and its associates) would consider all bids on both projects.'

Armed with the affidavit and the three depositions defendant sought relief by 'MOTION FOR SUMMARY JUDGMENT' which was granted and judgment entered thereon.

Plaintiff seeks reversal urging in substance that it was error to grant the summary judgment because:

(1) No specific agreement had to be entered into under these facts before defendant would be bound;

(2) That a representation had been made to a class of subcontractors, including plaintiff, which would bind defendant; and,

(3) That the custom in the trade was to accept the lowest bid and since plaintiff's was the lowest a contract was created by making its bid.

Under the facts disclosed here we conclude that the trial court was eminently correct in its decision. R.C.P. Rule 56 permits a motion for a summary judgment with or without supporting affidavits. And 'judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the...