Tyra v. Cheney

• Decision Date: 28 May 1915
• Docket Number: No. 19192[120].,19192[120].
• Citation: 152 N.W. 835,129 Minn. 428
• Parties: TYRA v. CHENEY.
• Court: Minnesota Supreme Court

129 Minn. 428

152 N.W. 835

TYRA

v.CHENEY.

No. 19192[120].

Supreme Court of Minnesota.

May 28, 1915.

Appeal from District Court, Hennepin County; Daniel Fish, Judge.

Action by Joseph Tyra, etc., against Robert J. Cheney, etc. Verdict for plaintiff, and, from denial of alternative motion for judgment or new trial, defendant appeals. Affirmed.

Syllabus by the Court

Where an oral estimate or bid upon work is given, to be followed by a written bid, and a mistake in the price is made in the latter, the one to whom the bid is offered cannot by an acceptance make a contract if he knows of the mistake and the bidder's ignorance of its occurrence.

In such case the bidder, having performed the work in ignorance of the mistake, may recover the reasonable value, upon proof that the other party, cognizant of the mistake, nevertheless, in bad faith, directed the work to be done when he knew that the bidder believed the written bid conformed in price to the oral bid previously given.

The record examined and found free from prejudicial error. R. L. Penney, of Minneapolis, for appellant.

Alvord C. Egelston, of Minneapolis, for respondent.

HOLT, J.

The defendant had the contract to add to and repair a school building in Minneapolis, Minn. Plaintiff did some work and furnished some material in the performance of the contract. This action was to recover the reasonable value thereof, less certain admitted payments. In defense an express contract was pleaded, and judgment tendered for $27, the unpaid balance. Verdict for plaintiff, and defendant appeals from the order denying his motion in the alternative for judgment or a new trial.

[1] Plaintiff's contention, in brief, was: About the last of July, 1912, he offered to bid on the roofing and sheet metal work required in defendant's contract. Lacking time to put the bid, or estimate, in formal shape, he, on July 27th, gave to defendant's estimator the figures for the various items, namely, $963 for the new part of the building, $2,410 for the old part, $400 for registers, and $251 for metal covered doors; the total bid being about $4,025. On August 1st he was told the bid came too late, but, nevertheless, he could send it in in writing. Plaintiff undertook to do so on the 3d, but now claims the item of $963 for the new part of the building was left out through oversight. A few days thereafter, upon inquiring about his chance of securing the work, he was told that his bid was too high. However, he persisted in the attempt to induce defendant to use, instead of the specified metal doors, metal doors of plaintiff's make. He succeeded, and, late in August, was awarded a separate contract for the doors for $295. Nothing further was heard from defendant until in September, when plaintiff was told to go ahead with the work. Defendant denies ever receiving any estimate, bid, or figures, except the written bid. The court, in submitting the case, charged that the burden was upon plaintiff to show, by a fair preponderance of testimony, that when, in September, 1912, defendant gave plaintiff the direction to proceed with the work, it was done with knowledge of plaintiff's mistake of $963 in the written bid and of his resting under the belief that it conformed to the oral bid of $4,025, so that it might be truthfully found that defendant did not accept the written bid of $3,062 in good faith, then plaintiff could recover the reasonable value, otherwise the verdict must be limited to the amount tendered in the answer. We believe this theory sound. If cognizant of the mistake in plaintiff's bid, and that the latter was unaware of its occurrence, defendant had no right to claim that, when he told plaintiff to go ahead with the work, their minds met upon the price...