and that no fraud is involved. United States v. Lipman, 122 F. Supp. 284, 287; Alta Electric and Mechanical Co., Inc. v. United States, 90 C. Cls. 466; Leitman v. United States, 104 C. Cls. 324; Nason Coal Co. v. United States, 64 C. Cls. 526; Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U.S. 373. The case of Refining Associates, Inc. v. United States, 124 C. Cls. 115, cited by both parties and emphasized by the defendant, is inapplicable to the facts of this case. No mistake was found to exist in that case. In fact, in that case the court recognized that on many occasions it has granted relief to plaintiffs seeking to withdraw or modify a bid after the date of the opening. It cites and discusses several such cases and distinguishes them from that particular case. In the instant case the plaintiff on account of its mistake had a right to withdraw its bid, provided a binding contract had not yet been made. The question is whether, in all the circumstances of this case, the depositing of the notice of award in the mail constitutes a binding contract from which plaintiff cannot escape, notwithstanding the mistake was brought to the attention of the contracting officials before the notice of award was received. We believe that when the record is considered as a whole in the light of modern authorities, there was no binding contract, since plaintiff withdrew its bid before the acceptance became effective. Under the old post office regulations when a letter was deposited in the mail the sender lost all control of it. It was irrevocably on its way. After its deposit in the mail the post office became, in effect, the agent of the addressee. Naturally the authorities held that the acceptance in any contract became final when it was deposited in the post office, since the sender had lost control of the letter at that time. That was the final act in consummating the agreement. But some years ago the United States Postal authorities completely changed the regulation. It read as follows in 1948: Withdrawal by sender before dispatch. (a) After mail matter has been deposited in a post office it shall not be withdrawn except by the sender, *** Recall of matter after dispatch. (a) When the sender of any article of unregistered mail matter desires its return after it has been dispatched from the mailing office application shall be made to the postmaster at the office of mailing. (b) When application has been made in due form for the recall of an article of mail matter the postmaster shall telegraph a request to the postmaster at the office of address, or to a railway postal clerk in whose custody the matter is known at the time to be, for the return of such matter to his office, carefully describing the same, so as to identify it and prevent the return of any other matter. * * * (c) On receipt of a request for the return of any article of mail matter the postmaster or railway postal clerk to whom such request is addressed shall return such matter in a penalty envelope, to the mailing postmaster, who shall deliver it to the sender upon payment of all expenses and the regular rate of postage on the matter returned * * [39 CFR 10.09, 10.10 (1939 Ed.)] When this new regulation became effective, the entire picture was changed. The sender now does not lose control of the letter the moment it is deposited in the post office, but retains the right of control up to the time of delivery. The acceptance, therefore, is not final until the letter reaches destination, since the sender has the absolute right of withdrawal from the post office, and even the right to have the postmaster at the delivery point return the letter at any time before actual delivery. We have so held. Harvey Franklin Dick v. United States, 113 C. Cls. 94, and authorities therein cited. We know of no decision of any court to the contrary since the effective date of the new regulation, where the new regulation was called to the attention of the court. The English courts have construed a similar regulation to mean finality at point of destination and courts in this country have so construed the regulation. Ex Parte Cote, L.R. 9 Ch. 27; Traders' National Bank v. First National Bank, 217 S. W. 977; 17 C.J.S. 405. In the Bank case, supra, the Supreme Court of Tennessee, after referring to decisions which had theretofore held that the depositing of a letter in the mail was final, said: These cases, insofar as they deal with similar circumstances, proceed on the theory that a delivery is completed when the subject of delivery is posted in the mail. The test of delivery, as noted in our cases, is the power of the grantor of a deed or maker of a note to recall the same. Has he parted with dominion and control over it? If so, there has been a delivery. * * * Heretofore it has been assumed that when a letter was posted it was beyond the control of the sender, and became the property of the addressee as soon as put in the mail. 13 C.J. 302. We think all the cases relied on by the complainant are based on this supposition. If a letter, when posted, can be regarded as beyond the control of the sender, then it may well be concluded that delivery of its contents to the addressee has been perfected. By the United States Post Office Regulations (1913) §§ 552, 553, a change has been made as to rights of the parties. The writer or sender may now apply for a letter, which is put in the mail, and when it is properly identified, the postmaster must return it to him or telegraph to the office of the addressee, whose postmaster must return it to the post office where mailed, if it has not been delivered. *** We quote also from 17 C.J.S. 405 as follows: Post-office regulations as to reclaiming letter. The rule that acceptance is final when the letter has been posted was modified by United States Post Office Regulations 1913 §§ 552, 553, that the writer or sender may apply for a letter which he has put in the mail, and when it is properly identified the postmaster must return it to him or telegraph to the office of the addressee, whose postmaster must return it to the mailing post master if it has not been delivered, to the effect that a letter which has been posted, but which has been returned under such regulations, does not constitute an acceptance. Does any one believe that if the mistake had been the other way, that is, if the machine bolts had been listed first and the stud bolts as later items, and that through oversight the defendant had mailed an acceptance for too high a price and the same day had wired withdrawing and cancelling the acceptance before it left the sending post office the defendant would nevertheless have been held to an excessive price? Or again, if after mailing such an acceptance the defendant, discovering its mistake, had gone to the sending post office an withdrawn the letter, the plaintiff on hearing of it, could have enforced an excessive contract on the ground that the acceptance actually had been posted and became final and enforceable, notwithstanding its withdrawal and non-delivery? We cannot conceive of such an unjust enforcement. No, under the new regulation, the Post Office Department becomes, in effect, the agency of the sender until actual delivery. We are living in a time of change. The theories of yesterday, proved by practice today, give way to the improvements of tomorrow. To apply an outmoded formula is not only unjust, it runs counter to the whole stream of human experience. It is like insisting on an oxcart as the official means of transportation in the age of the automobile. The cart served a useful purpose in its day, but is now a museum piece. The old rule was established before Morse invented the telegraph as a means of communication. Commerce must have a breaking point upon which it may rely for the completion of a contract. At that time no faster mode of communication was known. But in the light of the faster means of communication the Post Office Department wisely changed the rule. The reason for the old rule had disappeared. This does not change any principle, it simply changes the practice to suit the changed conditions, but leaves unchanged the principle of finality, which is just as definite as ever, though transferred to a different point by the new regulation. This change seems to have been recognized by the Government officials who prepared the Invitation for Bids. The offer by the defendant stated that when the award was "received" by the bidder it would "thereupon" become a binding contract. This it would seem clinches the correctness of our interpretation. The interpretation reaches the ends of justice for all parties. It preserves the definite time at which acceptance becomes final and does so in full accord with the changed regulation. Manifestly a mistake was made. The defendant is not injured by permitting its correction. It only forbids defendant's unjust enrich ment by preventing its taking technical advantage of an evident mistake. Plaintiff is allowed to recover its actual losses, if any, in furnishing the machine bolts, limited, however, to the difference between its bid and that of the next lowest bidder on these particular items, that amount being not a yardstick, but a ceiling on any losses it may be able to prove; or, in the alternative, the reasonable value of the items furnished, subject to the same limitation. The case is remanded to a commissioner of this court for the purpose of hearing evidence as to such losses, if any, or as to the reasonable value of the items furnished. It is so ordered. LARAMORE, Judge, and LITTLETON, Judge, concur. I think a binding contract was made in this case. I shall state my reason for this opinion very briefly. The invitation for bids asked the bidders to state the time the bid would remain in effect. The bidder stated it would remain in effect 20 days. This was a binding agreement. The bid could not be withdrawn within that time in the absence of fraud or mistake, but the mistake must have been mutual. The plaintiff admits this in its brief. A mutual mistake would invalidate plaintiff's agreement to hold his bid open for 20 days, but a unilateral mistake will not. There were wide variations in the bids on the several items covered by the invitation. In the circumstances there was nothing to put the contracting officer on notice that the plaintiff had made a mistake. For these reasons I dissent. MADDEN, Judge, concurs in the foregoing dissent. NOTES 1. Dick v. United States, RB F. Supp. 326 (Ct. Cl. 1949), involved a negotiated contract where a mistake was alleged after the Government had mailed an acceptance but before the plaintiff had received it. As in Rhode Island Tool, supra, the court held that the acceptance was not effective until received. In Dick, however, the method of acceptance was not specified, although a proposal by telegram was authorized and made by the plaintiff. Would the result in the Dick case differ if the Government had telegraphed rather than mailed the acceptance? Suppose in Rhode Island Tool Co. that the invitation for bids provided: "A written award mailed (or otherwise furnished) to the successful bidder within the time for acceptance specified in the bid results in a binding contract without further action by either party." See Standard Form 33, par. 8(d) (October 1957). 2. The plaintiff's offer to sell land to the United States was to be effective when accepted and notice of acceptance was mailed to the offeror. The offer was accepted by an authorized agent of the United States but no notice was mailed to the plaintiff. Later, the acceptance was revoked. Held, no contract. Slobojan v. United States, 136 Ct. Cl. 620 (1956). Section 3. THE REQUIREMENT OF A WRITTEN CONTRACT CLARK v. UNITED STATES 95 U.S. 539 (1877) [Under an oral agreement, the plaintiff delivered a steamship to the Quartermaster Department for a trial run. A written contract for the use of the vessel was to be entered into if the trial run was satisfactory. The steamship was wrecked while in the possession of the United States. Under the terms of the oral agreement, the plaintiff was to be paid $150 for each day's use and $60,000 if the vessel were wrecked on the trial run. The Court of Claims, however, refused to enforce the oral agreement and the plaintiff appealed to the Supreme Court.] MR. JUSTICE BRADLEY delivered the opinion of the court. The first objection made to the claim is, that the contract was not in writing, as required by the act of June 2, 1862, entitled "An Act to prevent and punish fraud on the part of officers intrusted with the making of contracts for the government." 12 Stat. 411. This act provides: "SECT. 1. That it shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the said contract in the 'returns office' of the Department of the Interior (hereinafter established for that purpose), as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, as also a copy of any advertisement he may have published inviting bids, offers, or proposals for the same; all the said copies and papers in relation to each contract to be attached together by a ribbon and seal, and numbered in regular order numerically, according to the number of papers composing the whole return." It is contended on the part of the government that this act is mandatory and binding both on the officers making contracts and on the parties contracting with them; whilst the claimant insists that it is merely directory to the officers of the government, and cannot affect the validity of contracts actually made, though not in writing. The |