Baird v. Gimbel Bros case brief

Baird v. Gimbel Bros; (2^nd Cir, 1933); Supp 56; Notes 34; Judge Learned Hand

Subcontractor offer used in contractor’s bid – not K

• Facts: P contractor bought linoleum from Gimbel, D, subcontractor. D’s employee underestimated total yardage of linoleum needed by half amount; P had relied on D’s offer in making a bid to the city for a job; D notified P of mistake. P suing D for breach.
• Issue: P thought offer irrevocable b/c P was using it to make a bid.
• Holding: No K b/c of language of the offer. P could have insisted upon a K before using figures in bid. P tried to use promissory estoppel, but court said no b/c bid had not even been accepted yet. No consideration.
• Commentary: Can’t use § 90 to convert an offer into a promise. There was no promise in this situation but rather an offer of a promise. An offer only becomes a promise when it is accepted. Would have been same result if he had changed his mind rather than make a mistake, b/c offer had not been accepted. Until offer accepted, can revoke the offer.
• Conflicting opinion: Drennan v. Star Paving Co., 1958, Judge Traynor. Cited often, represents the prevailing view. Paving contractor used subcontractors oral bid in his own bid for job. Subcontractor refused to enter K based on its bid.
  • Traynor found an implied secondary promise in the bid that the subcontractor would keep its offer open for a reasonable time. This implied promise became irrevocable under § 90 once the general relied on it by using the sub-bid in its prime bid.
• Restatement § 87: intermediate position on the issue. Option Ks.