Jones Chemicals, Inc. v. City of Binghamton

• Decision Date: 01 July 1966
• Citation: Jones Chemicals, Inc. v. City of Binghamton, 26 A.D.2d 710, 271 N.Y.S.2d 507 (N.Y. App. Div. 1966)
• Parties: JONES CHEMICALS, INC., Appellant, v. The CITY OF BINGHAMTON, New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 507

271 N.Y.S.2d 507

26 A.D.2d 710

JONES CHEMICALS, INC., Appellant, v.The CITY OF BINGHAMTON, New York, Respondent.

Supreme Court, Appellate Division, Third Department.

July 1, 1966.

William B. Mahoney, Buffalo, for appellant(John B. Corcoran, Buffalo, of counsel).

Stuart M. Pearis, Binghamton, for respondent(Joseph F. Lynch, Binghamton, of counsel).

Before GIBSON, P.J., and REYNOLDS, TAYLOR, AULISI and STALEY, JJ.

AULISI, Justice.

Appeal from a judgment of the County Court of Broome County which dismissed plaintiff's complaint.

The plaintiff, a seller of industrial chemical products including an activated carbon called Aqua Nuchar used to remove undesirable tastes and odors from drinking water, brought this action to recover the difference between the reasonable value of a quantity of Aqua Nuchar sold and delivered to defendant on different occasions in 1962 and the price erroneously billed therefor.The deliveries were made as ordered by the defendant by letter or telephone without any mention of price and payments were made as invoices were received by the city.

In 1959 shipments were sent at $180 per ton; in 1960 at $162.80 per ton; and a shipment in March, 1962 at $225 per ton.From May 15, 1962 through November 29, 1962 the above mentioned eight shipments were mistakenly billed at $42.60 per ton instead of $212.None of these sales were preceded by competitive bidding.Section 103 of the General Municipal Law requires municipalities to advertise for bids on all purchase contracts involving an expenditure of more than $1,000.

Two questions are presented here, (1) whether said section 103 has been violated, and, if not, (2) whether plaintiff can recover the difference through rescission and restitution.

In our view the eight deliveries did not constitute one contract but eight separate transactions and the first seven of the disputed purchases do not violate section 103 for the reason that even at the corrected price each was under $1,000 (seeRason Asphalt, Inc. v. Town of Oyster Bay, 6 A.D.2d 810, 175 N.Y.S.2d 302).The record before us discloses that there was no standing order; the need was unpredictable; when needs occurred, as in cases of pollution, orders were placed.Indeed, it was not desirable to stockpile this particular substance and thus caution against oversupply was necessary.No single agreement was made to supply the City's needs for 1962 and the price per ton may have varied with each shipment.We find, however, that the last purchase (November 29, 1962) computed at the correct price does exceed the $1,000 limit and is void and, therefore, no payment whatever may be made on any basis (18 Op.State Compt. 302(1962)).

We also conclude that on the facts here the City's contention that plaintiff's mistakes in billing preclude recovery on the other seven contracts had no merit.True, the general rule is that 'ordinarily where the contract is an executed one, and the Status quo cannot be restored the mistake must be mutual to be made the basis of relief'(Livingston v. New York Life Insurance & Trust Co., 59 Hun 622, 13 N.Y.S. 105;Clark, New York Law of Contracts, § 83), and that change of position by the non-mistaken party, which precludes restoration of the Status quo prevents relief, unless the 'clearest and strongest equity imperatively demands it'(Abner M. Harper, Inc. v. City of Newburgh, 159 App.Div. 695, 697, 145 N.Y.S. 59, 62, affd.222 N.Y. 670, 119 N.E. 1047).It is our...