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BROOK-LEA COUNTRY CLUB v. HANOVER INSURANCE COMPANY (12/22/69)

SUPREME COURT OF NEW YORK, MONROE COUNTY 1969.NY.44074 <http://www.versuslaw.com>; 306 N.Y.S.2d 780; 61 Misc. 2d 896 December 22, 1969 BROOK-LEA COUNTRY CLUB, INC., PLAINTIFF,v.HANOVER INSURANCE COMPANY, DEFENDANT Fitzgerald & Fitzgerald (Daniel F. Fitzgerald, Jr., of counsel), for plaintiff. Lamb, Webster, Walz Telesca & Donovan (Luther Ira Webster of counsel), for defendant. Marshall E. Livingston, J. Author: Livingston


Marshall E. Livingston, J.

Author: Livingston

 This action was tried before me, without a jury, on September 16 and 17, 1969.

Plaintiff (Brook-Lea) for some time prior to September, 1966, had been considering the installation of a golf course irrigation system at its club in Rochester, New York, and A. J. Miller, Inc. (Miller), experienced in the field of such irrigation systems, solicited an opportunity to be placed on the list of bidders from Mr. Barrow, Brook-Lea's engineer.

Accordingly, in September, 1966, after making a deposit, Miller and other firms received plans and specifications for the job from Mr. Barrow. The specifications provided that all bids would be opened Tuesday, September 27, 1966 at 7:00 p.m. at the club in Rochester, New York.

Miller attempted to prepare a bid, but on September 26, 1966, a letter was sent to Brook-Lea advising that Miller would not bid because of its inability to secure reliable bids from subcontractors, especially with reference to Item 1 having to do with the water storage reservoir. The letter also advised: "We are returning the plans and specifications to the engineer." The plans and specifications were returned that day to Mr. Barrow, and Mr. Barrow subsequently returned Miller's deposit for the plans.

Prior to September 26 Messrs. Miller and Barrow had talked by telephone on several occasions. Mr. Miller needed a sub-bid for Items 6 and 7 which had to do with electrical equipment, wiring system controls and appurtenances. On behalf of Miller, Mr. Barrow contacted a firm (Bernhardt) in Albany which bid $9,865 for the total electrical in Items 6 and 7. This was confirmed by Bernhardt in a letter to Mr. Miller, dated September 24, 1966. It does not appear when the letter was received, but by this time Miller had decided not to submit a bid because of his inability to get a bid for Item 1. On September 27, 1966, at 7:00 p.m. four bids, including Item 1, ranging from $159,800 to $209,800 were opened and recorded. No action was taken by plaintiff on these four bids.

On Wednesday, September 28, 1966, Mr. Barrow telephoned Miller and asked him to bid. Barrow stated that Item 1, which called for excavating and building the reservoir for water storage would be waived.

So now, despite the fact that the plans and specifications had been returned to plaintiff's engineer, Miller decided to submit a bid from the notes made by Mr. Handley, his estimator, and subcontractor bids received, leaving out the storage pond and certain control wire. The bid made on that day was in the amount of $114,743 and was sent by wire to Mr. Barrow at the club. The next day, September 29, a message from Handley confirming the price, and broken down into the items set forth in the specifications, along with a bid bond, was forwarded to Mr. Lingg, the president of Brook-Lea.

On September 29, 1966, Brook-Lea decided to reject the original four bids, ranging from $134,000 to $170,000, excluding the reservoir, Item 1. No action was taken, however, on Miller's bid of $114,743, which had been wired to Mr. Barrow at the club on September 28. A letter was sent by Mr. Barrow on September 29, 1966 to the original four bidders, as well as to Costabile's Trenching Service, Inc. and apparently to Oldfield Equipment Co. of Cincinnati. The letter stated that all bids for the turf irrigation system had been rejected and that the committee was asking for rebids to be submitted by noon on October 4, 1966, with a 5% bid bond or certified check. Proposal forms for rebidding were enclosed.

Miller was never notified of Brook-Lea's decision to rebid the job, and its bid made September 28, at Mr. Barrow's request, was prepared in a few hours without benefit of the plans and specifications.

Pursuant to the rebid deadline on October 4, 1966, five bids were received ranging from approximately $128,000 to $157,000. The sixth bid considered was Miller's telegraphed bid of September 28.

On October 5 the board of directors of Brook-Lea held a meeting when "new and reconsidered bids" were discussed. The directors authorized Mr. Fraim (the house committee chairman), after consultation with Barrow, to "award a contract for the irrigation work only (items 2 thru 26 of the specs) to the best qualified low bidder".

By letter dated October 11, 1966, received October 13, 1966, Mr. Barrow advised Mr. Handley that Miller was the low bidder on the turf irrigation system and asked that he meet Mr. Fraim on October 17 at Brook-Lea Country Club. Attached to this letter was another letter, also dated October 11, 1966, from Mr. Barrow, ...


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