Opinion
June 3, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Philip G. Gregg, Littleton, for plaintiff-appellee.
Lohf & Barnhill, P.C., David E. Brody, Denver, for defendant-appellant.
PIERCE, Judge.
I. P. Gregg brought this action against Concrete Placers, Inc., for breach of an alleged subcontract, and was granted summary judgment by the trial court. We reverse.
On August 15, 1973, Gregg solicited from a representative of Concrete Placers a telephone bid for labor and materials required to install a cellular insulating concrete roof fill for a project on which Gregg was preparing to bid as a contractor. In response, he received a bid of $1,085. Later that day, Gregg submitted his bid and was notified that he was the low bidder and would be awarded the general construction contract.
The folllowing day, Gregg informed Concrete Placers that Gregg was the low bidder for the project and asked for a letter confirming Concrete Placers' quote. On the same day, August 16, Concrete Placers sent the requested letter to Gregg, quoting a price of $1,085 and listing several provisions regarding the work to be performed. On August 22, after he had signed the general construction contract, Gregg signed and sent to Concrete Placers a 'Standard Form of Subcontract.' Concrete Placers refused to sign the subcontract form, basing its decision on a previous business relationship with Gregg which had 'proved to be unsatisfactory,' and on Concrete Placers' 'credit policies.' Gregg solicited other bids for the work, accepted the low bid of $1,820, and instituted this suit for the damages he had incurred.
The major issue framed by the pleadings and the pretrial order was whether a contract existed. Concrete Placers contended that the telephone bid was in the nature of preliminary negotiations, that its August 16 letter constituted an offer to perform the desired work, and that the subcontract form varied from the terms of the offer and therefore constituted a counteroffer which was not accepted.
The August 16 letter and the August 22 subcontract are in conflict in several particulars such as the dry density of the concrete, the compressive strength of the concrete, and the responsibility for protecting the newly poured concrete. At this stage in the proceedings, we cannot assume that the conflicting terms were not essential terms of the contract. Furthermore, the trial court's reliance on the fact that Concrete Placers' refusal to sign the subcontract form was based upon its credit policy rather than upon the conflicting terms, is misplaced. If no contract existed, as Concrete Placers contends, the reasons for its rejection of the alleged counteroffer are immaterial.
Therefore, there was an unresolved factual question as to whether an agreement ever existed between the parties, and summary judgment was improper. Primock v. Hamilton, 168 Colo. 524, 452 P.2d 375.
Judgment reversed.
SILVERSTEIN, C.J., and COYTE, J., concur.