The opinion of the court was delivered by: FORMAN
In the third count of the complaint in this case, plaintiff, Kingston Bituminous Products Company, sued the defendant, the Tuller Construction Company, for a breach of its alleged contract providing for the construction of the pavement at the Dunnage Yard Area, Naval Ammunition Depot, Earle, New Jersey. Defendant moved for summary judgment in its favor on this count.
On April 25, 1944 defendant invited plaintiff and others to submit bids on 'all roadwork, sidewalks and curbs', etc., in accordance with plans and specifications.
In an addendum, dated April 28, 1944, to its invitation to bid of April 25, 1944, defendant advised plaintiff as follows: 'Paving of dunnage yard is to be eliminated in its entirety.'
On May 1, 1944 defendant addressed a letter to plaintiff in supplement to its original invitation of April 25, 1944, and the addendum of April 28, 1944, in which it introduced further conditions with the following paragraph: 'Supplementing our invitation to bid on roadwork, side walks, Curbs, etc. dated April 25, 1944 and our addendum dated April 28th we attached herewith revised bid form showing Item No. 1 Lump Sum for roads, walks, curbs, etc., and Item No. 1 for Type No. 2 pavement at Dunnage Yard Area.'
On May 5, 1944 defendant advised by telegram as follows: 'RE YOUR QUOTATION THIS DATE FOR ROADS ETC ALL BIDS REJECTED. NEW BIDS WILL BE DUE MAY 6 3 PM YOUR LETTER HEAD IN DUPLICATE SEALED ENVELOPE. BID TO BE BASED ON CAST IN PLACE CURBS FEDERAL SPEC. AYD TYPE E 1 1/2 CONCRETE. BID ITEMS AS FOLLOWS 1 ROADS SIDE WALKS CURBS 1 N DEPOT AND PIER AREA LUMP SUM. 1A ROADS PER SQUARE YARD FOR ADDITIONS AND DEDUCTION. 1B SIDEWALKS SQUARE YARD. 1C CURBS UNIT PRICE LINEAL FEET. 2 DUNNAGE YARD TYPE 2 PAYMENT LUMP SUM. DUNNAGE YARDS PAVEMENT MAY BE DELETED FROM THIS WORK.'
In a letter dated May 1, 1944 and signed May 6, 1941 (sic) plaintiff submitted its bid for Item No. 2 in the following form:
'Item 2. Type No. 2 Pavement-Dunnage yard $ 35,767.60. This work
may be deleted.' (See Exhibit E attached to plaintiff's Bill of Particulars.)
' * * * it is our intention to award you this contract under conditions satisfactory to the Bureau of Yards and Docks and with the approval of the Officer-in-Charge of Construction.
'Your bid on Item No. 1 in the amount of $ 50,067.90 is hereby accepted and your bid on Item No. 2 in the amount of $ 35,767.60 will be accepted provided that this portion of the work will be done. However you can exercise your option in doing Item No. 2.
'A formal contract will be drawn shortly.'
On June 1, 1944 the defendant signed and sent to plaintiff a formal contract which did not refer to any option and provided: 'It is understood that Item No. 2 covering paving at the Dunnage Yard, shall be omitted.' Accompanying this contract was a form of purchase order covering Item No. 1 and recited also 'Pavement for Dunnage Yard cancelled.'
During these negotiations the Navy Department was undecided as to Item No. 2 and on or about June 1, 1944 it determined to eliminate this item and defendant was requested to estimate on cinder surfacing in the area of the Dunnage Yard. Defendant submitted a bid for cinders as requested, which was rejected June 13, 1944 and afterwards the Navy Department ...