H. W. Stanfield Constr. Corp. v. Robert McMullan & Son, Inc.

• Decision Date: 28 January 1971
• Citation: 14 Cal.App.3d 848,92 Cal.Rptr. 669
• Court: California Court of Appeals Court of Appeals
• Parties: H. W. STANFIELD CONSTRUCTION CORPORATION and S. L. Haen, Inc., Plaintiffs and Respondents, v. ROBERT McMULLAN & SON, INC., Defendant and Appellant. Civ. 10131.

Page 669

92 Cal.Rptr. 669

14 Cal.App.3d 848

H. W. STANFIELD CONSTRUCTION CORPORATION and S. L. Haen, Inc., Plaintiffs and Respondents, v. ROBERT McMULLAN & SON, INC., Defendant and Appellant.

Civ. 10131.

Court of Appeal, Fourth District, Division 1, California.

Jan. 28, 1971.

[14 Cal.App.3d 850] Hillyer & Irwin, Robert A. Weninger and Karen Tustin, San Diego, for defendant and appellant.

Kaminar, Sorbo, Andreen & Thorn and L. William McGrath, Jr., San Diego, for plaintiffs and respondents.

OPINION

COUGHLIN, Associate Justice.

Defendant, a painting subcontractor, appeals from a money judgment awarding damages to plaintiffs, general contractors, on account of defendant's refusal to do painting work in compliance with a bid submitted to plaintiffs.

In preparation of a bid on the prime contract to do construction work for the United States Navy, plaintiffs advertised for bids from subcontractors on various phases of the work. On January 25, 1968, a few hours before the time for submission of bids on the prime contract, defendant, in a telephonic communication with plaintiffs, submitted a bid of $9,384 on the painting work required by Section 9F of the plans and specifications for the contruction project. Plaintiffs checked defendant's bid with others they had received and noted the latter were for $18,500, $18,713, $19,475 and $24,463; thereupon, because of the apparent discrepancy between defendant's bid and the other bids, by telephone communication advised defendant the latter's bid was quite low, and requested defendant review and verify it before bid time, which was 2 o'clock; and thereafter, on the same day, 'received a second telephonic bid from defendant in the amount of $13,261 which they used in preparing a bid they submitted on the prime contract. Also on the same day, i.e., January 25, 1968, plaintiffs, by telephone, advised defendant the latter's bid had been used by the former in preparing their bid on the prime contract, which appeared to be the low bid, and in the event it was accepted they would send defendant a contract. Plaintiffs' bid on the prime contract was accepted February 4, 1968. On February 16, 1968 plaintiffs sent defendant a proposed written contract premised on the latter's bid, but which contained terms and provisions not included in the advertisement for bids or the telephonic bid submitted. Defendant, among other things, contends the inclusion of these terms and conditions in the proposed written contract amounted to a rejection of its bid and submission of a counter offer by plaintiffs. The court found the terms and conditions in question were not a material element of the parties' negotiations and did not constitute a counter offer. On March 29, 1968, having received no response from defendant, a representative of plaintiffs called a representative of defendant inquiring whether defendant intended to execute the contract theretofore submitted; defendant's representative replied he did not think defendant was going to sign the contract because he thought plaintiffs were going to want defendant 'to paint those joists on the job' and defendant 'didn't figure painting them'; in response plaintiffs' representative said 'Well, if it's in Section 9F, which is the only thing that we are asking you to do on the subcontract, then you'd be expected to do it'; and defendant's representative, when asked directly whether defendant was going to sign the subcontract, replied 'No.' During the foregoing telephone conversation no reference was made to the allegedly objectionable terms and conditions of the proposed written contract.

Plaintiffs caused the painting work upon which defendant had bid to be performed by another subcontractor for the sum of $18,713, and sued for $5,452 which is the difference between this amount and the amount of defendant's bid. The judgment awarded plaintiffs $5,239 which is the difference between defendant's bid and the next lowest bid received. Plaintiffs make no complaint respecting the difference between the amount they sought and the amount they were awarded.

In a written opinion the trial judge expressed his belief the facts in the case were substantially similar to those in the case of Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757, and concluded the doctrine of promissory estoppel applied in the cited case dictated judgment in favor of plaintiffs. In accord with these views, the court found plaintiffs were entitled to and did rely upon defendant's bid; were unaware of any mistake in the computation of defendant's bid which, if it existed, was a unilateral one and the fault of defendant; accepted the bid within a reasonable time; did not make any counter offer; and were damaged by defendant's refusal to perform in accordance with its bid.

In Drennan v. Star Paving Co., supra, 51 Cal.2d 409, 413, 333 P.2d 757, 759, the court said:

"A promise...