Tony Amodeo Co. v. Town of Woodward
| Decision Date | 22 November 1921 |
| Docket Number | 33956 |
| Citation | 185 N.W. 94,192 Iowa 535 |
| Parties | TONY AMODEO COMPANY, Appellant, v. TOWN OF WOODWARD et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--H. S. DUGAN, Judge.
ACTION at law to recover $ 1,000, being the amount of a certified check deposited with the city clerk of Woodward, Iowa accompanying appellant's bid on a certain paving contract. Trial to the court without a jury. The trial court found for the defendants, and rendered judgment against plaintiff for costs. Plaintiff appeals.
Affirmed.
Chester J. Eller, for appellant.
S Trevarthen, for appellees.
1. Tony Amodeo is the owner and proprietor of Tony Amodeo Company, which is a trade name. About May, 1918, defendant town advertised for bids for paving and grading a certain portion of one of its streets. Plaintiff, a contractor, residing at Des Moines, went to Woodward, and was shown the proposals, specifications, and contract referred to in the published notice. The notice provided that, as evidence of good faith and responsibility, each bid must be accompanied with a certified check in the sum of 10 per cent of the amount of the bid, as security that the contractor would enter into a contract for the doing of the work, and would give bonds to carry out the terms of the contract and for faithful performance thereof, etc. Ten per cent of plaintiff's bid, according to his evidence, would be about $ 1,900. The proposals and specifications fixed the amount of the certified check at $ 1,000, thus, evidently by mistake, causing a discrepancy between the published notice and the specifications. After examining the papers, plaintiff made his bid, accompanied by his certified check in the sum of $ 1,000, which was deposited with the clerk. Plaintiff claims that there was a mistake of about $ 8,000 in his bid; that it was too low. The mistake was that of plaintiff's own engineer. Bids were presented by other contractors. Plaintiff's bid was so much lower that his attention was called to it, and there was some discussion between plaintiff and the council as to whether he would be able to go on, if his bid was accepted. This was before the council accepted his bid. His bid was accepted by the council, and thereafter plaintiff claimed to the council that there had been a mistake, and refused to enter into a contract or proceed further. He demanded back his check. Thereafter, by resolution of the council, the check was ordered cashed, and passed to the credit of the town. On the same day, the council, by resolution, provided that notice to contractors for bids on paving be republished. This was done; and later, a contract was let, and the work was done at a higher price than plaintiff's bid, and higher than the next lowest bidder at the time plaintiff's bid was accepted by the council. Plaintiff's bid was $ 1.65 per square yard. The bid next higher than plaintiff's was $ 2.33 per yard; and the bid finally accepted, under which the work was done, was $ 2.58 per yard. There were about 12,000 yards; so that the city, or property owners, would be compelled to pay some $ 3,000 more than they would under the bid of $ 2.33, or about $ 11,000 more than they would under plaintiff's bid. At least, it is so alleged by defendant in a counterclaim, in which a judgment is asked against plaintiff for the loss to the town. Plaintiff demurred to the counterclaim, and his demurrer was sustained. The demurrer was on several grounds, one of which was that plaintiff had not given any contract, and could not, therefore, be held for the damages. This suit was brought to recover the $ 1,000.
Plaintiff's claim is that his bid was illegal, because the notice called for a deposit of 10 per cent and the specifications called for a $ 1,000 deposit, and because he was required to deposit only $ 1,000. Plaintiff's foreman testifies that he first learned that the notice required 10 per cent of the bid right away after he filed the bid. But the matter was discussed as to whether there was not a mistake, and as to whether plaintiff could go on under his bid. This was before it was accepted. After discovering the provision of the notice, and before it was accepted by the council, plaintiff made no effort to correct his bid, or to withdraw it, or to withdraw the check. He gave the council to understand that he would go on with it, and thereafter his bid was accepted. Had plaintiff withdrawn his bid, the council would, no doubt, have accepted the next lowest bid,--at least, they could have done so. The defendants claim that the town and the council waived the requirement that plaintiff should deposit a check equal to 10 per cent of his bid, and that plaintiff has waived his right to a return of the check or its proceeds, and that he is estopped from claiming it. Plaintiff's bid was considered by the council, notwithstanding the fact that the deposit was only $ 1,000. After plaintiff's bid was accepted by the council, the town sent its representative to Des Moines, and within the 10 days presented a contract, asking plaintiff to sign it, which he refused to do. The town also asked plaintiff to waive the repayment of the $ 1,000, which he refused to do. Plaintiff's foreman testifies that they went back to Woodward the next day after the bid was accepted, and that he told them they couldn't afford to go ahead with the job, because of the mistake in the amount of the bid; that they came back, three or four days after that; and that plaintiff and his attorney from Des Moines then demanded back the check. Plaintiff himself testifies that he was at Woodward and at the council meeting, and at such meeting discovered that the deposit of $ 1,000 did not comply with the published notice; and that, a few days after his bid was accepted, he demanded the return of the check. He also testifies that the matter was discussed in the room off the council room. He signed the proposal at $ 1.65 per yard.
It is quite apparent from the record that plaintiff refused to go on and to enter into the contract and to give bond after his bid had been accepted, because his bid was too low. Had he entered into the contract and given bond, his loss would have been much more than the $ 1,000 deposited as a guaranty that he would execute the contract and bond for its performance. Though there is a discrepancy as to the amount of the deposit, in the specifications and in the published notice, this would apply to all bidders alike. It is conceded that, so far as the publication is concerned, the notice was duly published in the newspapers. It was published as a notice. There was no partiality or favoritism. No one was prevented from bidding by the discrepancy, or by the fact that plaintiff deposited only $ 1,000. This was favorable to him, it is true; but, even though other bidders may have seen the notice, and deposited an amount equal to 10 per cent of their bid, no one was prevented from bidding.
It is conceded that the precise point has not been heretofore presented. Appellant cites Code Section 813, and relies greatly upon the case of Bennett v. City of Emmetsburg, 138 Iowa 67, 74, 115 N.W. 582, and cases therein cited. That was a case in regard to the assessment to pay the cost of the construction of a sewer. There has been some change in the statute since the decision of the Bennett case, but not as to the amount of the deposit. The statute provides that the notice "shall state, as nearly as practicable, the extent of the work and the one or more kinds of materials for which bids will be received, when the work shall be done, the terms of payment fixed, and the time the proposals shall be acted upon." In the Bennett case, these provisions were held to be mandatory and jurisdictional; and it was held in that case that such mandatory provisions had not been complied...
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