361 Mass. 363

February 9, 1972 - March 7, 1972

Worcester County


In an action by a general contractor, who had been the successful bidder on a contract to furnish and lay water mains for a municipality, against a supplier of materials to recover the difference between the price of butterfly valves, as quoted by the defendant in a letter sent by him to the plaintiff and other potential general contractors four days before bids were to be received, and the higher price of such valves having a worm gear feature, as required by the general contract specifications issued by the municipality but omitted from the detailed specifications, where the defendant knew that the price of butterfly valves, as quoted in the letter along with the prices of at least fifty other items, did not include the worm gear feature but the plaintiff, ignorant of that fact, submitted a bid in reliance upon the defendant to supply the proper materials and thereafter had to purchase conforming valves at a higher price, it was held that the defendant's letter was not an offer, firm or otherwise, but a quotation of prices with a request that an offer be made and, since no offer was made, the judge rightly directed a verdict for the defendant. [366]

CONTRACT. Writ in the Superior Court dated July 13, 1970.

Page 364

The action was tried before Beaudreau, J.

David A. Talman for the plaintiff.

James F. Queenan, Jr., for the defendant.

BRAUCHER, J. This action of contract is before us on the plaintiff's exception to the allowance of the defendant's motion for a directed verdict. The trial judge stated that "there was never any acceptance by" the plaintiff. We summarize the evidence most favorable to the plaintiff.

The town of Springfield, Vermont (the town), issued a "Contract Document for Furnishing and Laying Water Mains" and called for bids to be opened at 2 P.M. on May 8, 1970. The general specifications in the contract document required that butterfly valves have "operators . . . of the enclosed worm gear type," but this requirement was omitted from the detailed specifications.

The defendant, a supplier of materials, on May 4, 1970, sent to the plaintiff and twenty-one other possible general contractors a document entitled "Quotation," referring to "Springfield Vermont Contract C Water Main" as the "Job Name," and stating "Delivery: As Required; Terms: Net 30 Days." The body of the quotation consisted of a list of more than fifty items of materials, one of which was "34 12" Mechanical Joint Dresser #450 Butterfly Valves With Boxes" at a unit price of $250.75. The list was based on the contract document, and the defendant knew that general contractors relied upon it to refer to materials complying with the specifications. As the defendant knew but the plaintiff did not, the type of valve described in the quotation did not have an "enclosed worm gear operator," although it could be modified to contain one for about $50 a valve.

Relying upon the defendant to supply complying materials, the plaintiff submitted a bid including thirty-four twelve-inch butterfly valves at $310 a valve. About two and one-half hours before the bid opening, a representative of the town informed the defendant that its valves

Page 365

did not comply with the specifications because they did not contain enclosed worm gears. The plaintiff was awarded the general contract at the bid opening, and thereafter learned for the first time that the valves were noncomplying.

The plaintiff made several phone calls to the defendant for the purpose of accepting the defendant's bid to supply valves, if acceptable to the town's engineer, but no oral acceptance took place during these calls. The defendant's sales manager did not return the calls because the defendant had determined several months before not to solicit business from the plaintiff. In a conversation on the street about a week after the bid opening the plaintiff's office manager expressed to the defendant's salesman a desire to buy the valves from the defendant if they were approved by the town's engineer. The defendant's salesman knew of the defendant's policy not to solicit business from the plaintiff but said he did not know why the plaintiff's calls were not returned.

The plaintiff bought conforming valves from another supplier at a higher price, and on June 25, 1970, the plaintiff's attorney sent the defendant a letter demanding payment of the difference. On September 22, 1970, the defendant wrote to the plaintiff revoking the quotation, "Inasmuch as we have received no order or acceptance to date for any item contained in the quotation and the item" of thirty-four valves "was specifically rejected by your attorney's letter dated June 25, 1970."

The plaintiff contends that the defendant's quotation could be found to be an offer to sell complying valves, qualifying as a "firm offer" under G. L. c. 106, Section 2-205, and that the plaintiff could be found to have accepted the offer by its course of conduct in trying to reach the defendant's sales manager and conversing with the defendant's salesman, citing G. L. c. 106, Sections 2-204 (1), 2-206 (1) (a), and 2-207 (3). It also suggests in oral argument that the defendant is bound by estoppel, citing Crane Co. v. Park Constr. Co. Inc. 356 Mass. 13, 17. See Restatement

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2d: Contracts (Tent. draft No. 2, April 30, 1965) Section 89 B (2), and illustration 6. Compare Union Tank Car Co. v. Wheat Bros. 15 Utah 2d, 101, 104-105.

We need not pass on these contentions, since we think there was no evidence that any offer, firm or otherwise, was made by the defendant. The defendant's letter of May 4, 1970, was not an offer but a quotation of prices, a request or suggestion that an offer be made to the defendant. Smith v. Gowdy, 8 Allen 566, 567. Mellen v. Johnson, 322 Mass. 236, 238-239, and cases cited. Kuzmeskus v. Pickup Motor Co. Inc. 330 Mass. 490, 493. Restatement 2d: Contracts (Tent. draft No. 1, April 13, 1964) Section 25, and comment c. The defendant's subsequent references to acceptance and rejection of an "item," although they might help to resolve an ambiguity, could not convert a price circular into a collection of offers.

Exceptions overruled.