Mcneil v. Boston Chamber of Commerce

• Decision Date: 02 September 1891
• Citation: 154 Mass. 277,28 N.E. 245
• Parties: MCNEIL v. BOSTON CHAMBER OF COMMERCE.[1]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 277

28 N.E. 245

MCNEIL v. BOSTON CHAMBER OF COMMERCE.^[1]

Supreme Judicial Court of Massachusetts, Suffolk.

September 2, 1891

COUNSEL

R.M. Morse, Jr., and C.E. Hellier, for plaintiff.

R Stone, for defendant.

OPINION

C ALLEN, J.

There was sufficient evidence to warrant the finding that the members of the committee on building, who were present at the conference of March 15th, purported to make a contract on behalf of the defendant, by which they agreed to accept the lowest bid, in case the building was built substantially in accordance with the plans and specifications submitted without reserving the right to reject bids in that case. The presiding justice, in his charge to the jury, called attention to the distinct difference in the testimony introduced on the one side and on the other. Five different builders had been selected by the architects and the building committee of the defendant, to whom written notices had been sent, requesting bids for the defendant's proposed new building. To each of these a copy of the specifications was afterwards delivered, to which was attached a "notice to bidders," containing the terms of the bidding. After an examination of these documents, four of the selected builders declined to submit bids. A conference was thereupon invited and had between the builders and the building committee, at which there was a full discussion, and certain changes from the terms of the "notice to bidders" and from the specifications were agreed upon, and the builders agreed to submit bids. In respect to one particular, which has become material, the testimony is somewhat at variance as to what was the result of this conference. The "notice to bidders" contained the two following provisions: "The work to be let to the lowest and best bidder upon his executing to the Boston Chamber of Commerce a good and sufficient bond," etc. "The building committee of the Chamber of Commerce reserves the right to reject any and all bids." These provisions were the subject of discussion at the conference. All the witnesses agree that the words "and best" were to be struck out of the first clause. The plaintiff contends that the last clause was modified by an agreement that, in case the building should be erected substantially in accordance with the plans and specifications then submitted, the contract should be given to the lowest bidder among the five selected builders. The defendant contends that the committee only agreed to give the contract to the lowest bidder among the builders if any of their bids under that competition should be accepted, but that they did not surrender the right to reject all of the bids, and open a new competition. The plaintiff offered testimony tending to support his view, which was met by testimony offered by the defendant tending to support the contrary view. This testimony was all submitted to the jury, under instructions to which no exception was taken; and their verdict sustained the view contended for by the plaintiff.

There can be no doubt that it was competent in law for the parties by an oral agreement to vary the terms of the "notice to bidders." This would be so, even if that notice had expressed the terms of a concluded contract. Bartlett v. Stanchfield, 148 Mass. 394, 19 N.E. 549. But it was only a proposal, which was never accepted as it originally stood; and it is not contended that there was anything in the nature of it to make it legally impossible for the final contract between the parties to be expressed and represented partly by the writing, and partly by additions or changes orally agreed to. The defendant, however, contends that an examination of the evidence shows clearly that both parties to the conference understood that the terms on which bids should be invited were to be expressed in writing, and that they were then and there undertaking to do no more than to settle the terms in which a future invitation should be expressed; so that the notice to bidders, subsequently sent, must be taken to embody all the terms upon which the bids were to be made. This proposition is controverted by the plaintiff, and it does not seem to us that it can be said to be clearly established. No witness testified that there was to be a new written or printed notice embodying the new terms which had been settled upon. No one of the builders testified that he accepted the new notice as having the effect contended for by the defendant. On the other hand the plaintiff testified that he did not think he read it, but did not remember. The specifications attracted his chief attention. Mr. Woodbury testified that he did not remember whether there was any change in the notice to bidders. The several builders apparently proceeded with their estimates without waiting for any new statement of terms, and when it came no one of them appears to have treated it as embodying all the terms of a new proposal for bids; indeed, it plainly did not do so. One of the terms upon which there was no dispute was that the bids should be opened in the presence of all the bidders. There was a reason for insisting on this stipulation. The original notice to bidders provided for a delivery of the bids, signed and sealed, to the architects; but there was a distrust of the fairness of the architects. Mr. Lothrop, in his letter of March 12th, declining to submit a bid under that notice, mentioned as one objection that the proposals should be opened in the presence of the bidders. At the conference this letter was read, and this stipulation, according to the testimony of the plaintiff and of Mr. Lothrop, was expressly agreed to, and no witness said anything to the contrary. All agreed that the letter was read, and its objections commented on one by one. Nor does it appear that the terms of the new notice were fixed by the committee. The plaintiff asserts that it was prepared by one of the architects, who was not present at the conference. So far as it appears the jury might properly find that both the committee and the builders rested upon what had been said and done at the conference.

The defendant further contends that the building committee were joint agents of the defendant, and that the four members who were present at the conference of March 15th could not execute the power which was delegated to the whole committee, consisting of five members, jointly. It does not clearly appear that this objection was taken at the trial, and it is not noticed in the charge of the presiding judge; but we have considered it. Where special agents are appointed to act jointly in the execution of a particular power, it has often been held that the action of all is necessary, in order to execute the power properly. This rule, however, is subject to many qualifications or exceptions. It is well understood that public agents may usually act by a majority. So, also, it has been settled that a majority of the directors of a corporation constitute a quorum, and a majority of the quorum may act. Sargent v. Webster, 13 Metc. (Mass.) 497, 504; Edgerly v. Emerson, 23 N.H. 555; Wells v. Rubber Co., 19 N.J.Eq. 402. Generally speaking, a committee of a corporation is subject to the same rules as the directors. State v. Jersey City, 27 N.J.Law, 493; Junkins v. School-Dist., 39 Me. 220. It would be very inconvenient in practice if a committee of this character, whose duties involve many acts in carrying out the general purpose of their appointment, could do nothing if a single member should be absent. There is sufficient precedent for holding that a majority may act, and such is the better rule. Kupfer v. South Parish in Augusta, 12 Mass. 185; Damon v. Granby, 2 Pick. 345; Hayward v. Pilgrim Society, 21 Pick. 275, 277; Haven v. Lowell, 5 Metc. (Mass.) 35, 42; Fire-Dist. v. County Com'rs, 108 Mass. 142.

Moreover there was evidence from which the jury might infer the assent of Mr. Speare, the absent member of the committee, to what was done by his associates. He went away, temporarily, to New Orleans, leaving...