Winston v. City of Pittsfield
| Decision Date | 24 May 1915 |
| Citation | 108 N.E. 1038,221 Mass. 356 |
| Parties | WINSTON et al. v. CITY OF PITTSFIELD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas F. Choate, Jr., of Boston, for appellants.
Sherman L. Whipple, William R. Sears, and Whipple, Sears & Ogden, all of Boston, for respondent City of Pittsfield.
The jurisdiction of a court of equity to decree appropriate relief, where it appears that a bilateral contract, whether it remains executory or has been fully performed by the plaintiff, has been entered into through the fraudulent representations of the defendant, or under mutual and material errors of fact, and the bill is seasonably brought upon discovery of the fraud or mistake, is well settled. Long v. Athol, 196 Mass. 597, 610, 82 N.E 665, 17 L. R. A. (N. S.) 96; Eustis Mfg. Co. v. Saco Brick Co., 198 Mass. 212, 84 N.E. 449; United Zinc Companies v. Harwood, 216 Mass. 474, 477, 478, 103 N.E 1037. And the question for decision is whether the plaintiffs' bill states a case within this doctrine. The material statements admitted by the demurrer close with the allegations that in inducing the plaintiffs to enter into the contract the defendant either intentionally perpetrated a fraud by representing that the work to be done within the stipulated time was substantially less in amount, and of a substantially different character from the work it intended to require, and this deception was practiced for the purpose of obtaining more favorable prices than could have been obtained if the facts had been fully disclosed, or that the contract, which is inequitable and unconscionable under the conditions averred, was entered into by the parties under a mutual mistake of fact. The bill is brought after full performance to the satisfaction of the city, and upon their own showing the plaintiffs seemingly must have discovered during the progress of the work the alleged discrepancies between the requirements as understood by them and the construction of the contract asserted by the city, hereafter referred to as the defendant. The contract of course could not be concurrently valid and voidable. If upon being aware of the alleged fraud they chose to go on, their conduct would justify the defendant's contention that they affirmed its validity. Plympton v. Dunn, 148 Mass. 523, 20 N.E. 180; Ginn v. Almy, 212 Mass. 486, 493, 99 N.E. 276.
But under the explanatory and charging allegations, that because of their gradual development they did not realize and appreciate the importance and effect of the differences or changes until after the work had been done, and the final measurements ascertained, we consider the grounds upon which they rely for rescission in the order stated in the bill, even if in view of all the alternative and qualifying allegations it seems doubtful whether actual fraud has been charged. The plaintiffs describe themselves as engaged in the business of general contractors, and as such they have entered into and performed contracts for the construction of railroads, waterworks, reservoir dams and other works of a public nature. It was in the light of this experience that they read the pamphlet entitled, 'Information for Bidders,' and the draft of 'a proposed contract to be entered into by the successful bidder,' furnished by the defendant when it decided to construct an additional dam and storage reservoir in connection with its system of water supply, and advertised for bids. We assume that the proposal submitted to the plaintiffs, who were successful bidders, followed the form shown by the exhibit annexed to the bill. It contains these significant words:
'The undersigned as bidder declares that * * * he has carefully examined the location of the proposed work, the annexed proposed form of contract, and the plans and specifications therein referred to, and he proposes and agrees if this proposal is accepted that he will contract with the city * * * in the form of the copy of the contract deposited in the office of the' city clerk.
And the contract executed by the parties recites in the twenty-fifth article that all plans, general and detail, all specifications, the information for bidders, and the proposal of the contractor, 'are hereby made parts of this contract.' If, as alleged, when full performance of the work as stipulated was demanded by the defendant, the plaintiffs in removing the soil for the reservoir site were compelled to excavate more than double the number of cubic yards shown by the engineer's estimate, and in building the dam the different classes of cyclopean masonry and concrete blocks had to be furnished in greater and substituted quantities differing from the estimate, the allegations that the estimates having been well considered represented substantially the amount and character of the work and materials required, and which could not be exceeded by the defendant, cannot be sustained. The engineer's estimates for the yardage of the excavation appear in the information for bidders under the title of 'Approximate Quantities.' The schedule of items which includes the various classes of work, masonry and materials is followed by the statement that the quantities are approximate only, and are given as a basis for the uniform comparison of bids while the city does not either expressly or by implication agree, that the actual amount of work or materials will correspond therewith, and the right is reserved to increase or decrease the quantity of any class or portion of the work as may be deemed necessary by the engineer. The...
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