I dissent.
On the undisputed facts of the ease section 3399 of the Civil Code was properly invoked by the plaintiff and it is entitled to relief by reformation. The record shows that on January 19, 1954, the board of supervisors of the defendant county opened bids for electrical work in connection with 667 the county hospital. The bid of the plaintiff was the lowest. The board had reserved the right to reject any and all bids and to accept none for 30 days. No award of contract was made on the day the bids were opened nor until February 2d.
On January 22,1954, three days after the bids were opened, the plaintiff informed the board of supervisors by letter of an error as to one item. This item was mistakenly listed as $104.52 when it should have been $10,452. The plaintiff submitted to the board its work sheets and machine tapes indicating the mistake in the placing of the decimal point. The error was brought to the county’s attention immediately after the plaintiff became aware of it and an earnest and diligent effort was made to have the county recognize the error and approve its correction. Had the correction been made as requested the plaintiff would still have been the lowest bidder. Nevertheless, on February 2d, the board by resolution accepted the erroneous bid.
By the present action, commenced within 22 days after the action of the board of supervisors in accepting the erroneous bid, the plaintiff sought a reformation of the contract. It has in good faith performed the contract in compliance with the demands of the county. It is conceded that section 3399 of the Civil Code is controlling. That section provides in part: “When, through . . . mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” The rights of third parties were not involved.
The court holds that the purpose of reformation is to effectuate a common intention of both parties. But this is not its sole purpose. Another just as clear and distinct purpose is to permit “revision,” which is “reformation” when there is a mistake of one party which is known to the other at the time the contract comes into being, and in this case that was when the plaintiff’s bid was accepted on February 2d. Both parties knew of the mistake as early as January 22d.
It may be assumed that if an inadvertent error is discovered by one party after the contract is executed, and is not known to the other party prior thereto, reformation would not lie. (Bailard v. Marden, 36 Cal.2d 703 [227 P.2d 10].) But that is not this case. The bid of a contractor in response to a request for bids constitutes only an offer, and contractual 668 rights binding both parties come into being only upon the acceptance of the bid and the award of the contract. (Argenti v. San Francisco, 16 Cal. 255; 12 Cal.Jur.2d 203.) Here the county had at most an option to accept the offer of the plaintiff within the 30 day period. The option was outstanding until it was exercised by the county. Until then it did not constitute the contract for construction work. (Bruce v. Mieir, 120 Cal.App. 287 [7 P.2d 1037]; 12 Cal.Jur.2d 204.)
The result of the court’s decision is that the action of the defendant is condoned in compelling the plaintiff to accept $104.52 for $10,452 worth of work and materials furnished and under circumstances which should have impelled the board to grant the request of the plaintiff to correct the error. As shown the mistake consisted in the clerical error as to one item of placing the decimal point two places to the left, making a difference on its face of over $10,000. The request was promptly made and was so obvious from the work sheets produced by the plaintiff that no possible prejudice could have resulted to the county inasmuch as with the item as corrected the plaintiff was still the lowest bidder.
There can be no question but that the plaintiff has a cause of action for reformation under section 3399 of the Civil Code. It should not be foreclosed from amending the complaint. The Kemper case (M. F. Kemper Const. Co. v. County of Los Angeles, 37 Cal.2d 696 [235 P.2d 7]) is not in point. That was a case in rescission. It is conceded that the plaintiff could have proceeded for that form of relief. But it was not compelled to do so. To thus relegate the cause of action would be to compel the plaintiff to forego the benefits of the contract to which it was plainly entitled.
If the facts alleged were applied to a controversy between private parties the defendant would not under the circumstances here shown be justified in retaining the benefit of over $10,000 worth of materials and services without paying for them. The fact that the defendant in this case happens to be a public entity should not clothe it with immunity in perpetuating such an injustice as is here permitted. (See Farrell v. County of Placer, 23 Cal.2d 624 [145 P.2d 570, 153 A.L.R. 323].) I would reverse the judgment.
Appellant’s petition for a rehearing was denied July 5,1956. Shenk, J., and Schauer, J., were of the opinion that the petition should be granted.
