Plaintiff seeks to recover from the defendant under a written contract. Prior to its preparation, defendant was obligated to the State of New York for about $150,000 because a contractor, for whom it was surety, had abandoned the construction of a highway. The State had a balance of $117,000 available to complete the contract. If the new contract did not exceed that amount, there would be no liability on the bond. Plaintiff was a road contractor. It was agreed between the parties that plaintiff should bid not more than $117,000 and not less than a sum for which he could do the work. The contract also provided: “ Upon completion of said contract, and final payment by the State, the party of the first part agrees to pay party of the second part any deficit between the sum so paid by the State and the sum of $117,000; provided, however, that said sum of $117,000 shall be reduced by the amount of the contract price of any item eliminated by the State.”
The construction contract was awarded to plaintiff on his bid of $105,306.14. This bid complied with the terms of his agreement with the defendant, as it was less than the maximum named, and the road was completed at a figure which gave him a profit. Items of the contract price of $5,588.98 were eliminated, and a few small items added. Plaintiff received $100,123.31 from the State. Defendant contends that plaintiff had agreed to bid $117,000, and that their contract was incorrectly prepared. This is not sustained, as the contract was prepared by defendant's own attorney, and a few days after the bid was made defendant learned the amount, and in effect approved it, by furnishing a bond for the faithful performance of the contract with the State.
Defendant further argues that the improvidence of the contract is so obvious that an error is suggested thereby. Consideration of the interests, obligations and desires of the parties at the time of making the contract will be helpful in the quest for its meaning and intent. Defendant was then obligated on a bond for nearly $150,000. A new bid of $117,000 or less would discharge liability on 'the bond. Plaintiff had no reason to contract with defendant unless he was to receive some benefit. If we assume that defendant believed the work would cost substantially $117,000, the contract was wise and reasonable for each of the parties. Defendant was justified in this belief as of the four bidders other than plaintiff, *452three estimated the cost from $4,000 to $22,000 above that figure, and one less than $2,000 below.
The contract provided that the payment by defendant shall be “ reduced by the amount of the contract price of any item eliminated.” The amount of the ehminations and the payment by the State should be deducted from $117,000. Plaintiff should have judgment for the difference of $11,287.71.
Van Kirk, P. J., and Hinman, J., concur; Whitmyer, J., dissents and votes for affirmance; Hasbrouck, J., dissents, with an opinion.