Frederick Raff Co. v. Murphy

• Decision Date: 07 November 1929
• Court: Connecticut Supreme Court
• Parties: FREDERICK RAFF CO. v. MURPHY ET AL.

147 A. 709

110 Conn. 234

FREDERICK RAFF CO. v. MURPHY ET AL.

Supreme Court of Errors of Connecticut.

November 7, 1929

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Action by the Frederick Raff Company against James J. Murphy and others to recover damages for an alleged breach of contract to furnish and install plumbing, tried to the court. Judgment for plaintiff, and defendants appeal. No error.

David A. Wilson, of Hartford, for appellants.

William M. Harney, of Hartford, for appellee.

Argued before WHEELER, C.J., MALTBIE, HAINES HINMAN, and BANKS, JJ.

MALTBIE, J.

This is an action brought to recover damages arising from the failure of the defendants to perform certain work in accordance with a bid claimed to have been submitted by them to the plaintiff, and by it incorporated in a bid it made to do the plumbing and heating work in connection with a certain building to be erected by the state at one of its institutions. The appellants sought various corrections in the finding, some of which the court made in full or in a modified form, and others it denied. The appellants make particular point of the refusal of the trial court to strike from the finding certain statements as to a telephone conversation preliminary to the submission of the bid by the defendants. The president of the plaintiff, Raff, testified as to this conversation, but (the) one of the defendants with whom he stated it took place absolutely denied it. The trial court was not compelled, as appellants claim, to choose between the bare testimony of these witnesses, but that of the former might reasonably be regarded as corroborated by inferences to be drawn from the tenor and circumstances of an admitted telephone conversation on a later day when the bid was actually submitted. The other corrections now sought in the finding are immaterial, in the view we take of the case or could not be justified upon the evidence, except that the trial court did add a certain statement, in granting one paragraph of the motion to correct, as to a business practice and agreement to deduct a portion of the cost of a contractor's bond from the bid of a subcontractor, which seems to have no support in the evidence. This statement we disregard.

The finding as corrected states the following facts: The plaintiff was engaged in the heating and sheet metal business. The defendants conducted a plumbing and electrical business. The state was about to award a contract for the installation of heating and plumbing in a building to be erected as a part of one of its institutions. Raff learned of this, and also that the architect preferred that the heating and plumbing work be included in a single bid. He was also informed that the defendants uniformly were low in their bids for plumbing, and, desiring to secure the heating work for his company, he asked the defendants if they would be interested in submitting a figure for the plumbing work in connection with it. They agreed to submit such a bid, on condition that the plaintiff would not obtain figures from any one else for that work, and would give them the job if the plaintiff secured the contract, and these conditions were accepted by Raff. Later the defendants communicated by telephone with Raff, submitting a bid for the plumbing work in the amount of $14,300, and Raff asked them, in accordance with the practice in the trade, to confirm the bid by letter, which they agreed to do, but did not, nor was there ever any written memorandum of the agreement of the defendants to do the plumbing work made. The plaintiff company thereupon incorporated this bid in a combined bid covering both the heating and plumbing work, and the same day, September 19, 1927, submitted it to the officials of the state having the matter in charge. The bids were opened that afternoon, and Raff, reading in a newspaper that the bid of his company had been accepted, telephoned one of the defendants of what he had read, and advised him that immediately upon receipt of formal notice he would notify them, and thereupon this defendant expressed his pleasure and appreciation. Some two days later the defendants called at the office of the plaintiff, and informed Raff that an error had been made in the bid they had submitted, and that, because of it, they could not go through with their contract, but Raff told them that, while he regretted the mistake, he had accepted the bid in good faith, had submitted it as a part of his company's bid, that his company had its business honor to maintain, and would be obliged to perform its contract, and that he would expect the defendants to abide by their bid.

On October 4, 1927, the plaintiff received formal notice that the contract had been awarded to it in accordance with its bid, and the next day it advised the defendants of this fact. It then mailed to them an order to install the plumbing for $14,085.50, the difference between this amount and the bid representing a deduction of the defendants' proportionate share of the bond required to be filed by the plaintiff. On October 14th the plaintiff caused the defendants to be notified that, unless they proceeded at once with the work, it would have to secure some other contractor to do it, and that any sum it would have to pay in excess of the defendants' bid would be charged to them. The defendants did nothing, and the plaintiff, in order to perform its contract, proceeded to secure another contractor to do the plumbing work in the building. It had to pay this contractor $4,200 more for the work than the bid of the defendants.

The specifications under which the plaintiff's bid was submitted called for the furnishing of a large number of articles of personal property, lavatories, sinks, and so forth, and the labor and materials necessary for installing and connecting them. They also contained a provision that the contractor would not sublet nor assign the contract or any part of it without the written consent of the engineers in charge of the building, and that no subcontract should be made which the engineers could not require the contractor to terminate upon three days' written notice in case of delay or failure to conform to the specifications; but no permission was ever obtained by the plaintiff to sublet the contract for the plumbing to the defendants. The specifications also required that a certified check for 1 per cent. of the bid price should accompany each proposal as a guaranty of good faith, and, prior to the acceptance of the bid, the plaintiff could have withdrawn it by sacrificing the amount of this check; but, had it done so, it would have been guilty of a breach of business ethics, and would have had the reputation of being a firm whose bids could not be relied on, to its damage if not to its destruction. The trial court gave judgment for the plaintiff to recover the difference between the amount of the defendants' bid and the amount the plaintiff actually paid to the contractor who finally did the plumbing, with interest, and the defendants have appealed.

The defendants contend that no contract ever came into existence between the parties. When the defendants submitted their bid to the plaintiff, to be incorporated by it in its...