John J. Bowes Co. v. Inhabitants of Town of Milton

• Decision Date: 04 March 1926
• Citation: 255 Mass. 228,151 N.E. 116
• Parties: JOHN J. BOWES CO. v. INHABITANTS OF TOWN OF MILTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 228

151 N.E. 116

JOHN J. BOWES CO.

v.INHABITANTS OF TOWN OF MILTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1926.

Appeal from Superior Court, Suffolk County; Morton, Judge.

Suit in equity by the John J. Bowes Company against the Inhabitants of the Town of Milton and others to compel return to plaintiff of a certified check deposited with defendants. Decree for plaintiff. From an interlocutory decree overruling defendants' exceptions and confirming the master's report, and from a final decree for plaintiff, defendants appeal. Final decree reversed, and decree entered dismissing the bill.

L. Bryant, of Boston, for appellants.

P. A. Hendrick, of Boston, for appellee.

CROSBY, J.

This is a suit in equity brought to compel the return to the plaintiff of a certified check for $2,500, previously deposited with the defendants. The case was referred to a master who has filed a report. At the annual town meeting held in Milton in March, 1923, the appointment of a committee was authorized to build a school house to be known as the Tucker school. At the meeting the town appropriated $240,000 for the purpose of constructing and furnishing the building, which sum was to be raised by an issue of bonds.

The committee employed a firm of architects, and invitations were sent to certain firms, not including the plaintiff who later asked to be allowed to submit a bid and its request was complied with. The invitation so issued contained the following provision:

‘As security for giving the contract and bond, a certified check for two thousand five hundred dollars ($2,500.00), payable to the town of Milton, must be left with the proposal.’

On April 23, 1923, the last date fixed in the invitations for the submission of bids, the plaintiff filed a written proposal with the committee in which it offered to construct the building in accordance with the plans and specifications for $201,784, and also offered to allow $2,600 for the old school house on the lot. With the proposal the plaintiff, in accordance with the invitation, deposited a certified check for $2,500 payable to the order of the town. The plaintiff was the lowest bidder; the next lowest bid was about $20,000 higher than that of the plaintiff. The building committee after opening the bids found that the lowest bid together with the amounts required to construct and complete the building was in excess of the amount appropriated by the town. All the bids were taken under advisement and they with the checks accompanying them were placed in the safe of the school committee. None of the bids were accepted at that time.

It was found necessary to reduce the costs so that the expense of the building would come within the appropriation. With that end in view the architects were instructed to make certain changes in the plans and specifications. The architects made said proposed changes which were submitted to the plaintiff and other bidders. The plaintiff and the architect went over these changes and it was agreed by them that the allowances for them amounted to $15,164, so that by the changes in the original plans and specifications the amount of the plaintiff's bid would be reduced to $184,020.

Thereafter the plaintiff was notified by the architects there would be a meeting of the committee at the office of the architects on April 30, 1923, at 4:30 p. m.; at this meeting there were present all the members of the committee, Mr. Bowes, the president, and Mr. Kelly, the treasurer, of the plaintiff company, and various questions relating to the contract, including the time when the building should be completed, were discussed. The proposed changes in the original specifications were on typewritten sheets which had been prepared by the architects and entitled “Addenda'-‘to be considered a part of the plans and specifications of the Tucker school, Milton, Mass.” It is found that these sheets stated accurately the changes that had been agreed upon between Mr. Hopkins, one of the architects, and Mr. Bowes at their conferences. These changes were approved by the committee.

The master found that it was the understanding of the committee and of the plaintiff that the latter had modified its original proposal and submitted an amended proposal to perform the work required by the original plans and specifications as modified by the changes in the sheets marked ‘Addenda’ above referred to, for the sum of $184,020; that the original proposal had not been rejected, but that the proposal of the plaintiff to erect the building for $184,020 was an amendment to its original proposal and was so understood by both parties. After the preliminary conference was ended Messrs. Bowes and Kelly were requested to retire to another room while the committee conferred. The committee then voted unanimously to award the contract to the plaintiff; thereafter Messrs. Bowes and Kelly returned to the room and were told that the committee had awarded the contract to the plaintiff, and Mr. Bowes appeared pleased at the action of the committee. It was agreed that the fulfillment bond should be in the sum of $50,000.

The architects having previously prepared the contracts to be signed, all the members of the committee executed two copies thereof. It is found that--

‘Mr. Bowes testified that he was satisfied with the terms of the contract, but Mr. Kelly did not go as far as that in his evidence.’

The two copies were handed by the architect to Bowes; about this time Kelly stated that he desired ‘to check up on his figures,’ he and Bowes having learned shortly before on the same day that their bid was much lower than that of their nearest competitor. They took the contracts and specifications and went away. The next day...