United States v. Metro Novelty Manufacturing Co., 125 F. Supp. 713 (S.D.N.Y. 1954)

J. Edward Lumbard, U. S. Atty., New York City, for plaintiff, Robert W. Sweet, New York City, of counsel.

Milton H. Goldstricker, New York City, for defendant.

WALSH, District Judge.

Cross motions are presented for summary judgment. Plaintiff seeks to recover $12,000 damages from defendant for its failure to carry out a $6,000 bid for uniform ornaments. Defendant claims a mistake in the computation of *714 the bid. Plaintiff admits that the error was so gross that it was placed on notice. It further admits that the only consequence of defendant's failure to perform was the acceptance of the second lowest bid and that there was no damage to the government from the delay in execution which resulted from defendant's participation in the bidding.

Plaintiff's purchasing agent sought to avoid the force of Kemp v. United States, D.C.Md.1941, 38 F. Supp. 568, by telephoning the defendant and asking for a "verification" of the bid and by having it "confirmed" by telephone and letter from defendant's president. Plaintiff, however, did not put defendant on notice of the mistake which it surmised. Reaffirmation of the bid under these circumstances does not bar the defense of rescission.

Defendant's motion for summary judgment is granted.