Bd. of Com'Rs of Seminole Cnty. v. Sw. Natural Gas Co.
| Decision Date | 08 June 1943 |
| Docket Number | Case Number: 30752 |
| Citation | 192 Okla. 594,138 P.2d 525,1943 OK 225 |
| Parties | BOARD OF COM'RS OF SEMINOLE COUNTY v. SOUTHWEST NATURAL GAS CO. |
| Court | Oklahoma Supreme Court |
¶0 1. CONTRACTS--Contract not implied against express declaration of party.
A contract cannot be implied in fact against the express declaration of the party.
2. SAME--When quasi contract exists.
A quasi contract exists only when the law requires the thing to be done by the party seeking recovery or requires opposing party to respond.
3. SAME--GAS--County not liable to gas company for any portion of gas furnished city building which housed some county offices where company had notice county would deal exclusively with city in premises.
Where county uses some of the facilities of a building belonging to and controlled by a city under agreement solely with the city and actively refuses to accept liability for any portion of gas furnished to city building, upon theory that it is dealing exclusively with city, the furnisher of gas, after knowledge of the county's position, cannot continue to furnish gas to the city with which it had theretofore contracted, and recover of the county upon the theory of an implied contract, a quasi contract with the county, or upon a quantum meruit basis.
Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.
Action by Southwest Natural Gas Company against the Board of County Commissioners of Seminole County on implied contract for proportion of gas furnished a building in which the defendant had offices. Plaintiff had judgment, and defendant appeals. Reversed, with directions.
Bill Biggers, County Atty., of Wewoka, and J. Henry Weston, Asst. County Atty., of Seminole, for plaintiff in error.
Kerr, Lambert & Conn, of Ada, for defendant in error.
¶1 This action was instituted originally by Seminole Gas Company and thereafter maintained by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, to recover on an implied contract for a proportion of gas which had been furnished to the municipal building of the city of Seminole during the years 1936, 1937, 1938, and 1939, and in which building the defendant housed the superior court, court clerk, and assistant county attorney and a member of the board of county commissioners. The defendant denied that it had either expressly or impliedly contracted for the gas furnished said building or any portion thereof or that it had agreed to pay therefor, and alleged that on the contrary it had from the inception of any claim by the plaintiff and its predecessor denied liability contractual or otherwise and had refused and disallowed all claims that had been filed with it, with the exception of claims for three months in 1938 which, through inadvertence and mistake, had been paid in the aggregate sum of $50.40.
¶2 The cause was tried to a jury. The evidence adduced at the trial disclosed definitely that defendant had never contracted for any gas furnished to the building or to the offices of defendant therein, and that commencing with the first claim filed defendant had expressly disclaimed any and all liability, contractual or otherwise, for any part of the gas being furnished to said building, and that defendant had continued to thereafter reject each and every claim which had been filed against it except for the claims for three months in 1938, which aggregated the sum of $50.40 and which had been paid through inadvertence or mistake. The record shows that defendant had an appropriation for purchase of fuel and that it had an unexpended and unencumbered balance on hand out of which said claims and each of them could have been paid at the time they were filed with the defendant and disallowed by it. The record further shows that the constitutional debt limit had not been exceeded in any manner by which the claims filed and that the price which had been charged for the gas was that fixed by the Corporation Commission and that the amounts of the claims which had been filed with the defendant were within the estimates and appropriations made for the fiscal years in which they were filed, and that the gas so furnished was necessary to the maintenance and operation of the county offices in the building in which they were located; and, further, that the aggregate amount of the claims filed after allowing credit for the $50.40 which had been paid in 1938 amounted to the sum of $536.85, and for which amount plaintiff was seeking judgment. Motion of the defendant for directed verdict in its favor at the close of all of the evidence was overruled. The jury returned a verdict in favor of plaintiff and assessed its recovery at the sum of $252.73.
¶3 The defendant has perfected this appeal and as grounds for reversal, among other propositions, urges that the defendant could maintain its offices in the municipal building of the city of Seminole and use the gas furnished to said building without assuming any liability to the plaintiff for any part of the gas so furnished.
¶4 Our attention is called to Board of County Commissioners of Tulsa County v. Oklahoma Natural Gas Co., 182 Okla. 527, 78 P. 2d 800; Oklahoma Natural Gas Corp. v. City of Enid, 179 Okla. 283, 65 P. 2d 440. An examination of the cases cited will reveal that they are authority for the rule that where an appropriation has been made for the purpose of furnishing fuel and fuel has been furnished to a municipality without a specific contract and claims are filed therefor and allowed that they become valid obligations to the extent of the unexpended funds on hand for that purpose; but they do not have any application to a situation where the service for which claim is made has not been rendered at the instance or request of the municipality and where denial of liability contractual or otherwise has been communicated to the parties furnishing such service at the inception of any claim of liability against the municipality.
¶5 Before recovery could be had, plaintiff had the burden of first establishing either an implied or express contractual liability.
¶6 Under the record here submitted it definitely appears that the defendant never assumed any obligation to pay for any portion of the gas which plaintiff or its predecessor was supplying to the municipal building, and at the first opportunity defendant so advised the plaintiff and its predecessor in interest and consistently thereafter rejected any and all claims which sought to impose liability on the defendant in any manner except for claims for three months in 1938 which had been paid through inadvertence or mistake in the sum of $50.40. Assuming, without deciding, that there is no statutory inhibition against an implied contract in this case, we find no evidence to support the finding or conclusion that one did exist in fact.
¶7 Plaintiff was bound under express contract...
To continue reading
Request your trial
-
Skycam, LLC v. Bennett
...intent to contract.”Woodruff v. New State Ice Co., 197 F.2d 36, 38 (10th Cir.1952) (citing Bd. of Com'rs of Seminole County v. Southwest Natural Gas Co., 192 Okla. 594, 138 P.2d 525, 527 (1943)). 6. The primary factor courts consider in determining whether an employed to invent agreement ex......
- Board of Com'rs of Seminole County v. Southwest Natural Gas Co.
-
Woodruff v. New State Ice Co.
...course of dealing, and the common understanding of men, show a natural intent to contract." Board of County Commissioners v. Southwest Natural Gas Co., 192 Okl. 594, 138 P.2d 525, 527; Williston on Contracts, Revised Edition, Vol. 1, Section We think appellant's proof fails in "precise word......
-
Western Contracting Corp. v. Sooner Construction Co.
...because of subsequent conduct and actions regarding the subject matter involved. In Board of County Com'rs of Seminole County v. Southwest Natural Gas Co., 192 Okl. 594, 138 P.2d 525 (1943), it has been "* * * `An implied contract in the proper sense, arises where the intention of the parti......