Hansen v. Eagle Mountain-Saginaw Independent School Dist.

• Decision Date: 06 December 1963
• Docket Number: No. 16467,MOUNTAIN-SAGINAW,16467
• Court: Texas Court of Appeals
• Parties: Don E. HANSEN et al., Appellants, v. EAGLEINDEPENDENT SCHOOL DISTRICT, Appellee.

Page 817

373 S.W.2d 817

Don E. HANSEN et al., Appellants, v. EAGLE MOUNTAIN-SAGINAW INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 16467.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 6, 1963.

Rehearing Denied Jan. 10, 1964.

Dixon, Alley & Petrovich, and Travis Alley, Fort Worth, for appellants.

Morgan & Shropshire, and Cecil A. Morgan, Fort Worth, for appellee.

RENFRO, Justice.

This is an appeal by Don E. Hansen and American Employers' Insurance Company from a summary judgment awarded to Eagle Mountain-Saginaw Independent School District.

The plaintiff plead that Hansen submitted a proposal to erect a shop building as an addition to the W. E. Boswell High School of plaintiff district for a consideration of $45,910.00 on May 8, 1962; attached to the proposal was a bid bond of same date signed by Hansen and American Employers' Insurance Company; the bid bond provided that defendants would pay plaintiff the sum of five per cent of the total amount bid conditioned that Hansen would carry into execution his proposal to construct the building; on May 8, 1962, the Board of Trustees awarded the contract to Hansen; and on May 11 notified Hansen the contract had been awarded to him; Hansen defaulted on his proposal and refused to construct the building; on May 21 the Board of Trustees awarded a contract in the amount of $56,448.00 to John W. Webb; that defendants were bound and liable to pay plaintiff five per cent of $45,910.00 or the difference between the Hansen bid and the Webb bid, whichever was the lowest amount for which the plaintiff could legally contract with another party to perform the work; prayer was for the lesser amount, or five per cent of $45,910.00.

Defendant answered that he was granted a 10 day period after award of contract to execute such a contract and furnish bond; plaintiff breached said provision by awarding the contract to another before the expiration of such 10 day period; denied that the sum of $56,448.00 was necessary or required to construct the building.

The suit was filed July 11, 1962, and answer filed August 20, 1962. On Nov. 27, 1962, plaintiff filed motion for summary judgment attaching thereto plaintiff's interrogatories and request for admissions, defendants' answer to such interrrogatories and requests, affidavit of the architect for plaintiff and affidavit of a member of the School Board.

Defendants did not reply to the motion for summary judgment.

The first point of error is that a material issue of fact exists in that Hansen made a material mistake of fact in the bid submitted, and of which facts he advised the plaintiff promptly and requested withdrawal or renegotiation of his bid.

Defendants' answer did not plead either mutual or unilateral mistake.

Exhaustive interrogatories and requests were submitted to defendants.

It was admitted that Hansen submitted the $45,910.00 bid and that a bid bond was duly executed by both defendants, but 'which written instrument inadvertently and through mutual mistake contains the figure $45,910.00, and otherwise said instrument speaks for itself.' In answer to another request, 'Defendants admit the inadvertent execution of such Bid Bond through mutual mistake of the parties * * * and * * * any statements made by Hansen were predicated upon a mutual mistake concerning his sub-contractor bids, which facts were made known to the Board by Hansen as soon as such mutual mistake was discovered'; that defendants met with the architects and at such 'time informed them of such mutual mistake.' It was admitted that Hansen received a letter dated May 11, 1962, informing him officially that he had been awarded the contract and notifying him to sign the contract documents, which were ready in the office of the architect, by May 15.

The affidavit by the architect stated that Hansen was present when the Board accepted his bid. The next day he informed both defendants all papers were ready for execution but both refused to sign. On May 21, the contract was awarded to the next lowest bidder, John W. Webb, in the amount of $56,448.00.

Board member Elkins, by affidavit, stated that all bids were opened on May 8, that Hansen's was the low bid, and after a discussion between Hansen, the architect and members of the Board the contract was unanimously awarded to Hansen. Hansen was present when the contract was awarded to him; Hansen failed and refused to enter into a written contract; the Board waited until May 21 for Hansen to execute the contract, but upon his refusal the Board awarded a contract to Webb.

As heretofore stated, the defendants did not reply to the motion for summary judgment, the various instruments and affidavits contained therein, but base point one on their replies in answer to admissions wherein they refer to mutual mistake.

We have carefully studied the pleadings and all matters before the court at the time of the hearing and find no allegations or statements regarding mistake other than the quoted references in the forepart of our opinion. At no time did defendants allege the nature of...