Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d.
[55 NJSuper Page 358] By this appeal defendant seeks to reverse a district court judgment for $989.58 entered in favor of plaintiff on December 3, 1958 amending a prior
judgment against defendant entered November 17, 1958 in the sum of $891.58. The case was tried without a jury.
The action was based on a claim that defendant had without right refused to enter into a contract for the transportation of pupils on one of the routes designated as Route No. 10 for the school year 1957-58 after being awarded the contract therefor as the lowest bidder following competitive bidding. The amount of the judgment was the difference between the bid of the next lowest bidder $3,266.55 and defendant's bid of $2,168.55 less $108.42, the amount of a certified check which accompanied defendant's bid. The deposit represented 5% of $2,168.55, which was the estimated school year total of the contract reflected in defendant's bid. The sum was based on a bid price of $11.85 per day for 183 school days. The next lowest bid was for $17.85 per day which, for the same number of days, reflected the aforesaid total of $3,266.55.
In response to plaintiff's advertisement for bids for the transportation of school children over various routes, plaintiff received a number of bids which were opened July 15, 1957. Defendant was the low bidder for the contract for several of the routes, one of which was for the aforesaid Route No. 10. On July 24, 1957 defendant submitted a written request to withdraw its bid for the aforesaid route. At the next regular meeting of plaintiff board on August 15, 1957 defendant's president again sought to withdraw defendant's bid for Route No. 10 and advised plaintiff that it would not enter into a contract for the transportation of pupils over the designated route. However, the board then awarded defendant the several transportation contracts on which it was the low bidder including the one for Route No. 10. On August 26, 1957 plaintiff forwarded an official notification of the awards to defendant. Defendant refused as aforesaid to sign the contract for Route No. 10. Defendant executed the contracts for the other routes.
Plaintiff retained the aforesaid deposit of $108.42 which it declared forfeited and sued defendant to recover the difference
between the two bids. Defendant counterclaimed for the $108.42, asserting that it was entitled thereto because of plaintiff's alleged unwarranted delay in awarding the contract. The record reveals that the trial court dismissed the counterclaim and determined initially that plaintiff, having waived the recovery of $98, the amount in excess of the $1,000 limit of the district court jurisdiction, and having retained the deposit of $108.42, was entitled to the difference between $1,000 and $108.42 or $891.58. This was the amount of the judgment entered against defendant on November 17, 1958. The amended judgment entered December 3, 1958 was based on the following order entered by the court:
"Ordered that the judgment heretofore made and entered on November 17, 1958, in the above matter, be and the same is hereby amended by changing the last two paragraphs of said judgment to read as follows:
'The difference between the defendant's bid and the next lowest bid was $1,098.00. The plaintiff has already received $108.42 as a result of the forfeiture of the deposit. The balance remaining is $989.58.
'Judgment will be entered in favor of the plaintiff and against the defendant for $989.58. The counterclaim filed by the defendant is dismissed.'"
The statute controlling the making of transportation contracts by a board of education is N.J.S.A. 18:14-11, which provides as follows:
"No contract for the transportation of children to and from school shall be made, when the amount to be paid during the school year for such transportation shall exceed $600.00, unless the board of education making such contract shall have first publicly advertised for bids therefor in a newspaper circulating in the school district once, at least 10 days prior to the date fixed for receiving proposals for such transportation and shall have awarded the contract to the lowest responsible bidder.
Each transportation bid shall be accompanied by information required on a standard form of questionnaire approved by the State Board of Education and by a cashier's or certified check for 5% of the annual amount of the contract, which deposit shall be forfeited upon the refusal of a bidder to execute a contract; ...