McQuilkin v. Postal Telegraph Cable Co.

RICHARDS, J.

This is an appeal from a judgment entered after an order sustaining the demurrer to plaintiff’s amended complaint without further leave to amend.

The facts as set forth in the amended complaint are these: The plaintiff is the exclusive sales agent in California of the General Fireproofing Company, a corporation having its principal place of business at Youngstown, Ohio, and dealing in the manufacture and sale of metal furniture and filing devices. By the terms of his agency the plaintiff is authorized to bid for and enter into contracts for the furnishing of these forms of equipment upon terms which will net to his principal the cost of the production and its profit, to which the agent was entitled to add the cost of dr ay age, erection, sales expenses, and his own commission, in making up the sum of his bid. In the month of April, 1912, the board of regents of the University of California were proposing to equip Agricultural Hall at the University with metal furniture, and to enter into a contract therefor in the manner provided by law. Section 1438 of the Political Code, in defining the powers and duties of the board of regents in such matters, provides as follows: ‘ ‘ The construction and furnishing of the buildings must be let out to the lowest responsible bidder after advertisement for not less than ten days in at least two daily newspapers published in the city of San Francisco; but the regents may reject any bid and advertise anew.” During the latter part of April, 1912, the regents caused to be published in the manner provided by law a notice calling for sealed bids for the metal furniture of Agricultural Hall, which bids were to be opened on the ninth day of May, which was more than

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ten days after the first insertion of the advertisement. On May 8th the board of regents postponed the opening of bids until May 13, 1912, at 10 o’clock a. m., but made no further publication of the change of date for the opening of bids, though both the plaintiff and his principal had notice of the postponement. On May 11, 1912, at 9:20 o ’clock in the forenoon, the General Fireproofing Company delivered to the defendant at its office in Youngstown, Ohio, a telegram signed by it and addressed to the plaintiff at his office in San Francisco, and reading as follows: “Berkeley job without glass or marble $15,200 net to us f. o. b. Berkeley. We understand that nichelene costs no more than bronze.” The complaint alleges that this message was duly transmitted to and received by the defendant at its San Francisco office on the same day it was sent at 8:31 o’clock in the forenoon San Francisco time, but that the delivery of the message to the plaintiff was negligently delayed until the 13th day of May, 1912, at the hour of 10:30 o’clock in the forenoon. At the hour of 10 o’clock a. m. of that day the board of regents received and opened the sealed bids for the metal furniture of Agricultural Hall. The plaintiff, not having then received the foregoing telegram, filed a bid on behalf of the General Fireproofing Company in the sum of twenty-one thousand eight hundred dollars. Had he been in receipt of said telegram or known of its contents prior to that time, he avers that his bid would have been $20,642. The only other bid presented was that of the Finch Jail Building and Metal Company, which was for the sum of $21,160. The board of regents awarded the contract to the latter, whereas, according to plaintiff’s averment, had he received said telegram within the reasonable time within which it should have been delivered, his bid of $20,642 would have been the lowest bid and, as he avers, the board of regents would have awarded the contract to his principal, in which case his commission would have been $2,692, which sum he avers to be the amount of his damage suffered through the failure and neglect of the defendant to deliver said telegram on time.