Dissenting.—This case is before us on appeal from a judgment of dismissal after the sustaining of a general demurrer without leave to amend. As stated in the majority opinion, “In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.] ” Nevertheless, the majority opinion, with unjust strictness rather than with liberality, refuses to permit plaintiff the opportunity to amend and forecloses plaintiff from any remedy for a mistake of which (it must be conceded for the purpose of this appeal) defendant sought to take advantage although, as alleged by plaintiff, defendant knew that the mistake occurred under circumstances which made it the result of excusable inadvertence and not the result of neglect of a legal duty.
In my opinion plaintiff has alleged facts sufficient to show that it might unambiguously state a cause of action on the one hand for recovery on a contract at a corrected figure or on the other hand for the reasonable value of the work and materials furnished. Plaintiff’s allegations, tested by the general demurrer, are sufficient to show that no express contract was formed at the mistaken figure stated in the bid; that with *666full knowledge that the bid was based on a mistake, defendant sought to create a contract incorporating such mistake by purported acceptance of the offer which was purportedly represented by the bid; but that, although defendant did all that it could to accept the mistaken bid with knowledge of the mistake, the only offer which it could and did accept was an offer which it knew plaintiff intended to make.
Plaintiff has alleged particular facts by which it attempts to bring the case within the provision of section 3399 of the Civil Code that “When, through ... a 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 . . . ”; i. e., an intention, plaintiff argues, to contract at a corrected figure. Plaintiff should have been allowed an opportunity to have made its complaint clear either by allegations showing such intention and removal from the complaint of the more general—and possibly immaterial—allegation that “there has been no meeting of the minds of plaintiff and defendant,” or by allegations showing a quasi-contraetual cause of action; i. e.: when defendant, knowing plaintiff’s bid excusably expressed a mistake, attempted to accept the bid and form, and unjustly profit by, a contract based on the erroneous figure stated in the bid, no contract was formed at that figure; nor was a contract formed at the figure to which plaintiff subsequently attempted to correct the bid, for that figure was not known to defendant at the time it purported to accept the bid; since no contract was formed at either figure but since it is manifest in equity and good conscience that defendant should pay for the work and materials which it accepted the law implies a promise to pay their reasonable value.
On the basis of plaintiff’s allegations it does not appear that it should be adjudged, by upholding the dismissal after the sustaining of the general demurrer without leave to amend, that plaintiff could not state any cause of action. I would reverse the judgment.