Powers Const. Co., Inc. v. Salem Carpets, Inc., 0295

Citation283 S.C. 302,322 S.E.2d 30
Decision Date08 October 1984
Docket NumberNo. 0295,0295
PartiesPOWERS CONSTRUCTION COMPANY, INC., Respondent, v. SALEM CARPETS, INCORPORATED, d/b/a Cogdill Carpets, and d/b/a New Concepts Flooring, and d/b/a New Concepts, Appellant.
CourtCourt of Appeals of South Carolina

D. Cravens Ravenel, of Belser, Baker, Barwick, Ravenel, Toal & Bender, Columbia, for appellant.

L. Franklin Elmore, of McGowan, Nettles, Keller & Eaton, P.A., Florence, for respondent.

GOOLSBY, Judge:

This is an action for breach of contract brought by the respondent Powers Construction Company (Powers) to recover damages it allegedly sustained when the appellant Salem Carpets, Inc., (Salem) revoked a subcontractor's bid. A jury returned a verdict in Powers' favor in the amount of $12,676. The questions on appeal relate to the denial of Salem's motion for involuntary nonsuit, the exclusion of certain evidence challenged as hearsay, the exclusion of certain opinion evidence, the qualification placed on a deposition admitted in evidence, the instructions to the jury, and the denial of Salem's motion for new trial. We affirm.

Powers, a general contractor, solicited bids from subcontractors for the preparation of a prime bid it intended to submit for the construction of a proposed high school in Mullins, South Carolina. In preparing its bid, Powers received phoned-in bids from subcontractors submitted during the morning of the day prime bids were due from general contractors interested in competing for the job. Powers got three bids from carpet subcontractors: a bid of $50,720 from Bonitz, a bid of $48,175 from Eatman Carpets, and a bid of $21,648 from Salem.

Powers incorporated Salem's proposal in the prime bid it made four hours later to the owners of the planned building. Powers' bid was secured by a five per cent bid bond and could not be withdrawn for thirty days.

Several days later, Salem wrote Powers confirming the bid it made by telephone and invited Powers' acceptance of the bid in writing.

Two weeks after submitting its bid to Powers, and before Powers was awarded the contract for the construction of the high school, Salem withdrew its bid. Salem had discovered what it described as "a glaring error" in the calculations used to prepare its bid proposal.

When Salem refused to perform, Powers contracted with Sears to install the carpet at a cost of $47,000 and afterwards instituted the present action against Salem.

I.

The first argument advanced by Salem is that the trial court erred in failing to grant its motion for involuntary nonsuit. Salem maintains that the only reasonable inference to be drawn from the evidence introduced by Powers is that no enforceable promise or contract existed between Salem and Powers. Powers, Salem argues, had no right to rely on its phoned-in bid because, when compared with other bids received by Powers, the bid showed on its face that it was the result of an error in computation and therefore could not be "snapped up". Moreover, Salem contends, its offer was revoked prior to acceptance.

In considering whether the trial court was correct or not in denying Salem's motion for nonsuit, we must, of course, view the evidence and all inferences reasonably deducible therefrom in the light most favorable to Powers, the nonmoving party. Bellamy v. GMAC, 269 S.C. 578, 239 S.E.2d 73 (1977). When the evidence is so viewed we can only conclude that the trial court properly denied Salem's motion for involuntary nonsuit. The evidence establishes that Powers incurred a detrimental change of position in reliance on Salem's bid before the bid was withdrawn; therefore, we hold the bid had become irrevocable before Salem withdrew it.

A number of jurisdictions will permit a general contractor to enforce a subcontractor's bid under the doctrine of promissory estoppel where a general contractor's reasonable reliance upon a subcontractor's bid results in a forseeable prejudicial change in position. See Illinois Valley Asphalt, Inc. v. I.F. Edwards Construction Co., 90 Ill.App.3d 768, 45 Ill.Dec. 876, 413 N.E.2d 209 (1980); Montgomery Industries International Inc. v. Thomas Construction Co., Inc., 620 F.2d 91 (5th Cir.1980) (applying Texas law); Ferrer v. Taft Structurals, Inc., 21 Wash.App. 832, 587 P.2d 177 (1978); James King & Son, Inc. v. DeSantis Construction No. 2 Corp., 97 Misc.2d 1063, 413 N.Y.S.2d 78 (Sup.Ct.1977); Constructors Supply Co. v. Bostrom Sheet Metal Works, Inc., 291 Minn. 113, 190 N.W.2d 71 (1971); E.A. Coronis Associates v. M. Gordon Construction Co., 90 N.J.Super. 69, 216 A.2d 246 (1966); N. Litterio & Co. v. Glassman Construction Co., 319 F.2d 736 (D.C.Cir.1963); Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757 (1958); see also Annot., 48 A.L.R.2d 1069 § 12 at 1085-86 (1956); 1 WILLISTON, CONTRACTS § 140 (3d ed. 1957); Note, Another Look at Construction Bidding and Contracts at Formation, 53 Va.L.Rev. 1720 (1967). Because promissory estoppel is a recognized doctrine in South Carolina [ Higgins Construction Co. v. Southern Bell Tel. & Tel., 276 S.C. 663, 281 S.E.2d 469 (1981) ], we have no doubt that the doctrine can support an action brought in this state by a contractor who has submitted a prime bid in reliance upon a subcontractor's bid.

Before a recovery by a contractor employing the doctrine can be sustained, however, the elements of promissory estoppel must be established by the evidence. These elements are: (1) the presence of a promise unambiguous in its terms; (2) reasonable reliance upon the promise by the party to whom the promise is made; (3) the reliance is expected and foreseeable by the party who makes the promise; and (4) the party to whom the promise is made must sustain injury in reliance on the promise. Illinois Valley Asphalt v. J.F. Edwards Construction Co., 45 Ill.Dec. at 878, 413 N.E.2d at 211; see Higgins Construction Co. v. Southern Bell Tel. & Tel., supra.

Salem's argument centers only upon the second and third elements. Powers, Salem claims, "had evidence in its possession which would put it on notice that Salem's bid was probably in error;" therefore, Salem argues, Powers' reliance upon Salem's promise was unreasonable and could not have been anticipated. See 28 Am.Jur.2d Estoppel and Waiver § 48 at 657 (1966). The evidence that Salem points to are the other two bids, which were $29,072 and $26,527 higher than the one submitted by Salem.

We cannot say, however, that as a matter of law Powers' reliance upon Salem's bid in preparing its own bid was unreasonable or unexpected and unforeseeable. Testimony offered by Powers indicated that it is "not uncommon" to have differences between the low and high bids submitted by subcontractors that are "more than double." The questions of whether Powers reasonably relied upon Salem's bid and whether Powers' reliance thereon was expected and foreseeable by Salem were, therefore, for the jury to determine. See Padgett v. Cunningham, 156 S.C. 356, 153 S.E. 280 (1930); Van Ness v. Schachte, 143 S.C. 429, 141 S.E. 721 (1928).

II.

Salem next charges the trial judge with error in refusing to allow in evidence a statement from its witness Paul Bowman that a carpet representative told him sometime after Salem submitted its bid to Powers, "Golly, we heard ya'll were the lowest. You were really low." The testimony was needed, Salem claims, "to explain the effect those statements had upon" Bowman. On hearing these statements, Bowman checked his figures and discovered they were in error.

We need not determine whether the trial judge erred in excluding the statements because Bowman testified that based on a conversation he had with a carpet representative he "got the plans out and ... checked the figures." Clearly, the proffered testimony was cumulative on the issue for which its introduction was sought; therefore, its exclusion was nonprejudicial. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980); Crouch v. Cudd, 158 S.C. 1, 155 S.E. 136 (1930).

III.

Salem also charges the trial judge with error in excluding other testimony it sought to introduce through Bowman. The trial judge refused to permit Bowman to testify as an expert witness on the subject of bid differentials.

The law appears well-settled in South Carolina that the qualification of a witness as an expert is a matter that rests largely within the discretion of the trial judge. See Prince v. Associated Petroleum Carriers, 262 S.C. 358, 204 S.E.2d 575 (1974); Parks v. Morris Homes Corp., 245 S.C. 461, 141 S.E.2d 129 (1965). We discern no error here. Bowman was not shown to have possessed any experience as a contractor in comparing multiple bids received from carpet subcontractors.

IV.

Salem further complains about the basis on which the trial judge allowed in evidence the deposition of Dale Russ Knepp, Powers' project manager for the Mullins contract. At the time Knepp's deposition was introduced, Knepp resided in North Carolina and no longer worked for Powers. The trial judge allowed Knepp's deposition in evidence pursuant to Circuit Court Rule 87 D(3)(b) 1 because Knepp was out of state. Salem argues, however, that Knepp's duties at the time of his deposition qualified him as a matter of law as a "managing agent" of Powers and that his deposition should have been allowed in evidence as a party's deposition pursuant to Rule 87 D(2) 2 instead. So admitted, Knepp's deposition could have been used for any purpose.

We discern no prejudice in the failure of the trial judge to admit Knepp's deposition pursuant to Rule 87 D(2). Salem was allowed to publish those portions of Knepp's deposition it desired the jury to hear, including testimony that Knepp telephoned Salem after receiving its bid but before Powers submitted its own to verify the correctness of Salem's bid. A representative of the telephone company had earlier testified, also by deposition, that its records did not reflect a call from Powers to Salem on the day Powers received bids from...

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