Industrial Electric-Seattle, Inc. v. Bosko
| Decision Date | 13 January 1966 |
| Docket Number | No. 37884,ELECTRIC-SEATTL,INC,37884 |
| Citation | 67 Wn.2d 783,410 P.2d 10 |
| Parties | INDUSTRIAL, Respondent, v. Nick BOSKO, d/b/a Bosko Enginerring and S. L. Rowland Construction Company, a corporation, d/b/a Bosko Engineering and S. L. Rowland Construction Company, a joint venture, Appellants. |
| Court | Washington Supreme Court |
Bianchi & Tobin, Phillip Offenbacker, Seattle, for appellants.
Short, Cressman & Cable, Joan E. Hansen, Seattle, for respondent.
This is a suit for damages for breach of an alleged contract between plaintiff subcontractor and defendant general contractor. The trial court held that plaintiff subcontractor had proven the existence of a contract implied in fact and entered a judgment for $6,549.00 as damages resulting from the breach thereof. The general contractor has appealed.
Prior to any contact between the parties, the general contractor, Nick Bosko, 1 was preparing his bid as a general contractor on Metro Project 62--4, known as the Elliott Bay Interceptor Sewer. He had recently come to Tacoma and was a comparative stranger in the Pugent Sound Area. He knew few, if any, contractors by reputation or experience in that locality. He hired an engineer who helped him estimate the cost of the entire project, including the sewer line itself (which he intended to build himself) and also the outlying structures, which housed mechanical and electrical equipment. The latter were physically separated from the sewer line and Mr. Bosko expected to subcontract their construction as well as the electrical installation to be housed therein to some other contractor. The bids for the Metro Project were to be opened at 2:00 p.m. on July 12, 1962, at the Metro office in Seattle.
On July 9, 1962, Nick Bosko telephoned the plaintiff, Industrial Electric-Seattle, Inc., from Tacoma, and talked to Howard Bayley, then vice-president of the corporation. Bosko inquired if plaintiff intended to submit a bid for the electrical work involved in Metro Project 62--4. Bayley had never heard of Bosko before that telephone call, and did not want to commit the company regarding a bid until he had checked Bosko's background. Bayley asked Bosko to telephone again in a day or so.
Bosko telephoned again on July 11, 1962, at which time Bayley told him that Industrial Electric would bid. He advised Bosko that the pricing was not completed, but that the bid would cover sections C8.05, C8.09, C8.11 and C15 of the Metro specifications. Concerning this second conversation, Bayley testified as follows:
A. When I outlined the scope of the quotation, he said, 'What about the rest of the work?' I explained this was something outside of our province. * * * Q. What did he mean by the rest of the work? A. The thing he was a little concerned about at the time was a complete job. * * * Q. A complete job? A. Complete electrical job. As we normally bid the work. This is the sort of work we do. He explained he wanted the buildings, too. It was at this point that I discovered he with his own forces had not intended to build the buildings or do any of the work other than pipeline work, and I told him it was far too late for me to do anything, but I would try to get some of my friends who might be bidding, too, to quote a figure to him for the structures themselves. Q. And what type of work did building the structures consist of, Mr. Bayley? A. This particular job involved piling, both concrete and wood, riprap; there was considerable excavation below the water table, and the reinforced concrete structures themselves below and above grade. Q. Is this work you have just described work that your company does by itself? A. No. We have never done this sort of work. Q. In other words, does your company do any concrete work? A. Not as it pertains to buildings or structures, no.
Mr. Bosko's testimony about this same conversation was:
Q. What did you ask him (Mr. Bayley) for, or what did you say to him on this second conversation? A. Well, we had a lengthy discussion. I thought that was the second time we talked, and I asked him about mechanical and structures, and he says that he knew--* * * Q. * * * Did you discuss with him at that time any quotations or anything other than electrical work? A. Discussed? Yes. Q. And what did you say to him? A. I asked him a bunch of questions about structures and the--and the mechanical, and he says he could help me by--he worked with mechanical people and structural people, he will be able to help me out that way. * * * Q. * * * What was said by Mr. Bayley? A. Well, all I can remember is, what stayed in the back of my mind, that we were talking about the mechanical and the structurals, that he could arrange to do the whole job, and he could--but at that time he can't give me no price on that, that would take a little time, and he made me think that after the bid opening, if I got the job, he can help me out there. Q. Did he give you a price on anything then? A. He didn't given me any price until the next conversation. * * *
The two men agreed that Bayley was to telephone Bosko in Tacoma on the morning of July 12, 1962, prior to 10 a.m., with the pricing, and if Bayley failed to telephone by then, Bosko would telephone Bayley when he arrived at the Washington Athletic Club in Seattle, where he intended to complete his bid for submission to Metro. Bayley failed to telephone by 10 a.m., and Bosko telephoned Bayley about noon on July 12, 1962, and asked him for a pricing. Bayley gave him a price of $53,124 for the electrical work, with an itemization of the brand names and costs for the generator and electrical controls, which items had to be listed separately in the Metro bid. The generator was manufactured by Onan Sons and cost $12,300, and the switch controls were made by Square D at a cost of $8,000. These items were listed in the Bosko bid exactly as given to him over the telephone by Bayley. After receiving this information, Mr. Bosko stated to Mr. Bayley, 'Okay, I will go ahead and bid this job;' 'Okay, I will see; I will let you know how we make out.'
The name of Industrial Electric-Seattle, Inc. was listed by Bosko in his bid as a proposed subcontractor. There was no other subcontractor listed. The requirements of Metro, stated in its call for bids, were that the name of any proposed subcontractor who was to do work valued at more than one half per cent of the cost of the total project was to be listed by the bidder. The total bid submitted to Metro by Bosko was $2,384,590. Bosko testified that the total bid did not depend on the amount of the electrical bid given by Bayley, and the $53,124 price had no effect on the amount of the bid submitted to Metro by Bosko.
Mr. Bayley testified that, at the time of the third telephone call by Mr. Bosko, there was no discussion of the additional work for the structures or mechanical installations. Mr. Bosko testified that, at the time of this third telephone conversation, nothing was said about the additional work because Mr. Bayley had already agreed to supply him with the additional work figures, and that the only figures Mr. Bosko needed for the purpose of submitting his bid were the figures given by Mr. Bayley on July 12, 1962. Mr. Bosko also stated that he (through his bonding agent) wrote in the name of Industrial Electric because he expected to use it for the electrical work, but that he also expected to use plaintiff to subcontract the 'mechanical work' and 'structures' because of what Mr. Bayley had said to him on the Second telephone conversation.
Mr. Bayley heard from a supply company representative who had been present at the time of the bid opening, that Bosko was the apparent low bidder, and that Industrial Electric had been listed by Bosko Engineering as a subcontractor. A day or two later, Mr. Bayley telephoned Mr. Bosko, congratulated him on being the low bidder, and inquired as to when Mr. Bosko thought Metro would award the contract. Mr. Bosko indicated that he did not anticipate any problems as to the award of the prime contract. Nothing was said in that conversation about the electrical bid submitted by Industrial Electric.
Mr. Bosko again explained that he did not intend to use his own force to build the structures or install electrically-powered mechanical equipment which had not been covered by the Industrial Electric figures received on July 12, 1962. Mr. Bayley testified that he had stated that he 'would be very glad to be an intermediary between he (Mr. Bosko) and these people who do this sort of work, and we proceeded in that direction preparatory to his being awarded the job.' Mr. Bosko testified that Mr. Bayley stated that he would be willing to enter into a subcontract covering the work on the whole construction of the structures and installation of the electrically-powered mechanical equipment.
On July 20, 1962, the general contract was awarded to appellants. There was no written evidence of any contract between appellants and respondents until August 22, 1962, at which time Mr. Bayley delivered a letter to Mr. Bosko in Tacoma, which 'confirmed the quotation' of July 12, 1962, and then stated, 'As discussed with you, we are pleased to expand the scope of our quotation to the extent noted below.' The letter then listed 4 items of electrically-powered mechanical equipment and included the installation and testing thereof. It also included the construction of 5 concrete structures and the installation of manhole covers and sluice gates. The additional cost was to be $46,441, which brought the total quoted price to $99,565.
On receipt of this letter, Mr. Bosko indicated to Mr. Bayley that he wished to look it over, especially since there seemed to be some exclusions noted in it. Mr. Bosko testified that he did believe the price was about right for the total work he had wanted done. In later telephone conversations between Mr. Bosko and Mr. Bayley, Mr. Bosko stated that the exclusions were...
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Seneca Foods Corporation v. Starbucks Corporation, No. 21860-1-III (WA 2/3/2005)
...of custom and usage in light of the surrounding circumstances is admissible to prove an implied contract. Indus. Elec.-Seattle, Inc. v. Bosko, 67 Wn.2d 783, 797, 410 P.2d 10 (1966). These common law principles likewise apply to purported contracts involving the sale of goods under the Unifo......
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...awarding authority. Movant cites two cases which he contends are contrary to the general rule, to-wit: Industrial Electric-Seattle, Inc. v. Bosko, 67 Wash.2d 783, 410 P.2d 10 (1966), and Loranger Construction Corporation v. E.F. Hauserman Company, 376 Mass. 757, 384 N.E.2d 176 (1978). Howev......
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Premier Electrical Construction Co. v. Miller-Davis Co.
...that the parties intended that a contract be formed prior to the signing of a written agreement. Industrial Electric-Seattle, Inc. v. Bosko, 67 Wash.2d 783, 410 P.2d 10 (1966), cf. Traff v. Farbo, 337 Ill. App. 83, 84 N.E.2d 874 (1949). Premier has offered no evidence of business custom con......
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Premier Electrical Const. Co. v. Miller-Davis Company
...v. Grafe and Associates, Inc., 90 Idaho 502, 414 P.2d 873 (1966). The plaintiff contends that the case of Industrial Electric-Seattle, Inc. v. Bosko, 67 Wash.2d 783, 410 P.2d 10 (1966), modifies greatly the holdings of the Merritt and Pitts cases, supra. This court cannot agree. The Bosko c......
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Table of Cases
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§19.2 Subcontract Formation
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