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If a contractor will protect himself against the loss of time and labor in preparing proposals for work, he should insist upon an agreement with the proprietor that the lowest bidder shall be awarded the contract. If he does not do this he may expect to make fruitless bids for work, and his time and trouble be employed simply to give the proprietor a basis on which to let the work to some favorite contractor or builder previously selected.
188. Implied Agreement to Remunerate Bidder for His Labor or to Award Contract to Lowest Bidder.—It has been intimated that if bidders had had no knowledge that the competition was not in good faith, and could show that bids were invited solely for the purpose of making the lowest possible contract with a party previously chosen, they could recover for their time and labor spent in preparing the bids. It would be almost out of the question to establish such proofs, and even then it would be doubtful if an implied contract would arise in favor of the contractor.'
Acceptance of a bid has been inferred and a contract implied from an owner's conduct, in connection with evidence of a usage in the building trade to accept the lowest bidder. So when builders were present at the opening of the bids and it was generally understood that the lowest bid was to be accepted, because nothing was said or intimated by the owner or his agents to the contrary, and, acting on that assumption, the unsuccessful bidders dined at the successful bidder's expense, and all parties by their conduct showed apparently the same understanding, it was held to amount to an acceptance of the bid. The terms of the proposal must be definite and expressed so that they show the terms of the contract, and the subject matter must be described. Instructions or directions to the bidder to go on and do the work have been held an acceptance when he had made a proposal to do the work as specified.'
When an agreement is alleged between private persons that the lowest bidder shall have the contract, but it is not proven, and the contractor's bid is an unsigned memorandum, without reference to any particular building and without names of parties or specifications, and no mutuality of obligation is shown, the contractor has no rights.' An intimation in the written acceptance of a tender that a contract will be afterwards prepared does not prevent the parties from becoming bound to perform the terms of the tender and acceptance, if the intention of the parties was thereby to enter into an agreement, and if the preparation of the contract was contemplated merely for the purpose of expressing in formal language the agreement already arrived at.•* If, however, it can be gathered from the tender and
1 2 The Engineering Magazine 482.
5 Lewis v. Brass, L. R. 3 Q. B D. 667; ? Pauling v. Pontifex, 20 Law Times 126 but see Lefurgy v. Stewart (Sup.), 23 N. Y. (1852).
Supp 537, where the price of stone named * Burch v. Hotel Co., 7 Mo. App. 583. in bid was held to be the fair and reason.
• Doyle v. Dusenburg (Mich.), 74 Mich. able value of the stone, coming precisely 79 .
within the bid.
acceptance that an agreement was made subject to the preparation and approval of a formal contract, then there is no agreement independent of that stipulation, and it is by the formal contract that the parties will be bound.'
When proposals for a contract are in writing and executed by the parties, i. e., have been made and accepted, the terms of the contract being in all respects definitely understood and agreed upon, and either party refuses to execute the contract, it seems he is liable on the breach of his agreement for the same damages as would be recoverable for an entire refusal to perform the contract after its execution in writing.' When, however, the document was not executed, accepting the tender in such manner as to be binding at law, the engineer having merely informed the bidder that his proposal was accepted, which intimation had been confirmed by the directors of the company at a meeting at which the bidder was present, and the project was afterward abandoned, it was held that the contractor could not compel the company to execute the contract, or recover from it the loss he had sustained in preparing to do the work.'
Plans and specifications referred to in a call for bids are treated as incorporated into and forming a part of the contract as well as other matter referred to in the call.* *
A proposal to receive bids for certain things to be sold, specifying no limitation or qualification, constitutes a contract to include the whole of such thing. This case arose out of the sale of stone contained in an old bridge, and would apply with equal force to the sale of materials of an old building.t
1 Winn o. Bull, L. R. 7 Ch. D. 29 ; Com’rs o. Fetch, 10 Ex. 611.
9 Pratt o. Hudson River R. Co., 21 N. Y. 305 (1860); and see Highland Co. v. Rhoades, 26 Ohio St. 411. • Jackson o. The N. W. Ry. Co., 1 Hall
& Twelle 75 (1848).
4 Woods Law of Master and Servant (2d ed.) 164; citing Windhorst v. Deeley, 2 C. B. 253.
• Verm o. Commissioners, 32 Beav. 490 .
* See Secs. 214-233, infra.
Secs. 189-199 are omitted.
A CONSTRUCTION CONTRACT. ITS PHRASEOLOGY, TERMS, CONDITIONS, STIPULATIONS, PROVISIONS AND REQUIREMENTS, AND THEIR INTERPRETATION,
CONSTRUCTION, AND FORCE.
INTRODUCTION. AUTHORITY TO CONTRACT. REQUIREMENTS.
MUTTAL AGREEMENTS, THE CONSIDERATION. DESIGNATION OF PARTIES.
SUBJECT-MATTER OR UNDERTAKING DESCRIBED.
200. Form of Introduction.
DEPARTMENT OF PUBLIC WORKS.
CONTRACT AND SPECIFICATIONS
1897. “THIS AGREEMENT, made and entered into this..... day of..... ..in the year one thousand eight hundred and ninety. by and between .
... his heirs, executors, and assigns [or, if it be a company or board, their successors and assigns], part.... of the first part, by the Commissioner of Public Works, or by its Board of Park Commissioners, or acting by and through the
Commissioners, by virtue of the power vested in them by Chapter .... of the Laws of 189.. of the State of...... parties of the first part, and John Doe, his heirs, executors, or assigns, of the City of...
County of ......
State of ., Contractor, party of the cecond part.”
201. Another Form of Introduction.
CONTRACT AND SPECIFICATIONS FOR
« THIS AGREEMENT, made and entered into this..... .....day of 189.., by and between the City of ...,
of the County of.... State of....
., party of the first part, and.
party of the second part, Witnesseth: WHEREAS, The Board of Public Improvements of the City of...... under the provisions of Ordinance No....., approved...
.., and by virtue of the authority vested in the said Board by the charter and general ordinances of the city, did let unto the said...
party of the second part, the work of
202. Remarks upon the Matter of Introduction. — The form of introduction, date, parties, and residence have been dwelt upon sufficiently in Part I for all practical purposes. As stated in Chapter I, “ the power or authority by which public officers or agents act should be set forth in the written instrument, and the act, ordinance, or charter under which the contract is assumed should be given."
203. The Mutual Agreements and Undertakings-Technically the Considerations of the Contract.
“Now THEREFORE, In consideration of the covenants, agreements, and payments hereinafter mentioned to be performed and made by the said first party the said
.hereby covenant(s), agree(s), undertake(s), and promise(s), under the penalty expressed in a bond bearing even date with these presents, and hereunto affixed, at... own proper cost and expense, to do all the work and furnish all the materials necessary to construct and complete...
...in accordance with and as described in the following specifications herein contained, and in full compliance with the terms, conditions, and stipulations of this agreement." 204. Mutual Agreements between a Company and Three Contractors,
“Now THESE PRESENTS WITNESS, That the parties hereto, hereby mutually contract, undertake, and agree with each other, and that the said AB, CD, and EF, so far as the stipulations and provisions of these presents, and the works, matters, and things herein mentioned and referred to, are to be performed, observed, executed, or done by them, do hereby for themselves, and every two and each of them, covenant with the said .... ... Company, and the said.... Company, so far as the said stipulations, provisions, matters, and things are to be performed, observed, executed, or done by it, hereby covenants with the said A B, C D, and E F, and separately with each two and one of them, in manner following, that is to say:
205. Mutual Agreements and Undertakings—The Consideration,
“WITNESSETH, That the parties to these presents, each in consideration of the undertakings, promises, and agreements on the part of the other herein contained, have undertaken, promised, and agreed, and do hereby undertake, promise, and agree, the parties of the first part for themselves, their successors and assigns,* and the party of the second part for...... .and.. . heirs, executors, and administrators, as follows: 206. Words Employed to Designate Parties Explained and Described.
Clause: “That whenever and wherever in this agreement the phrase party of the second part,' or the word 'contractor,' or a pronoun in place of either of them, is used, the same shall be taken and deemed to mean and intend the part....of the second part to this agreement.
“That whenever the word 'engineer' is used in these specifications or in this contract it refers to and designates the chief engineer of the...
acting either directly, or through the deputy chief engineer, or any assistant or division engineer having general charge of the work, or through any assistant or any inspector having immediate charge of a portion thereof, limited by the particular duties intrusted to him.
“ That whenever the word.... ... is used in these specifications or in this contract it refers to and designates the parties of the first part to this agreement."
207. Words Employed Extended to the Personal Representatives of the Parties.
Clause: “ That whenever the term 'the city'[or the company'] is used it shall include the Mayor and Council of the city for the directors of such company,] their successors and assigns,* acting for and in behalf of the city (or the company and its stockholders).. ....the party of the first part to this contract; and the term 'the contractors' shall extend to the persons who are partners in the firm of.... and Company, or if the contractor be an individual it shall include his executors, administrators, heirs, and assigns.” *
208. Undertaking of the Contractor — General Description of the Work-Subject matter of Contract. Clause: “The party of the second part will, at....
....own cost and expense, and in strict conformity to the hereinafter-contained specifi. cations, furnish all the materials (not herein agreed to be furnished by the part.... of the first part) and labor necessary or proper for the purpose; and in a good, substantial, and workmanlike manner excavate... do all other excavation, build all masonry, and do all other work necessary to complete ...
.. and all its appurtenances, from point L to point K, along the line shown on the plan Sheet No......, in
..County, in the manner and under the conditions herein specified.” 209. Subject matter of the Contract.
Another clause: « The builder shall at his own cost erect, build, and completely finish, in a good, substantial, and workmanlike manner, a
.., and other buildings or structures upon a piece The word “assigns” should not be used if the assignment is prohibited, as in clauses Secs. 14 and 291-296.