City of Healdton v. Blackburn, Case Number: 22412

• Court: Supreme Court of Oklahoma
• Citation: 37 P.2d 311,169 Okla. 357,1934 OK 573
• Docket Number: Case Number: 22412
• Parties: CITY OF HEALDTON v. BLACKBURN.
• Decision Date: 23 October 1934

1934 OK 573
37 P.2d 311
169 Okla. 357

CITY OF HEALDTON
v.
BLACKBURN.

Case Number: 22412

Supreme Court of Oklahoma

Decided: October 23, 1934

Syllabus

¶0 1. Fraud--Fraud not Presumed but to Be Proved.

Fraud is a question of fact to be established at the trial, and is never presumed.

2. Appeal and Error--Exceptions--Motion for New trial.

Errors occurring at the trial must be excepted to at the time and presented in a motion for new trial before they can be considered on appeal.

3. Municipal Corporations--Action by Contractor for Price--Legality of Contract--Burden of Proof.

When the plaintiff in an action against a municipality proves performance of the contract and that the debt is unpaid, the burden shifts to the defendant to prove the illegality of the contract, if it be unlawful.

4. Appeal and Error--Conclusiveness of Findings in Law Action Tried to Court Where not Excepted to.

When, in an action at law heard by the court without a jury, the court at the request of either party makes special findings of fact, and no exceptions are saved thereto, the findings of fact will not be disturbed on appeal, and the case will be affirmed unless the lower court committed error in the application of the law to the facts so found.

Appeal from District Court, Carter County; Asa E. Walden, Judge.
Action by Dan Blackburn against the City of Healdton. Judgment for plaintiff, and defendant appeals. Affirmed.

Marvin Shilling and John E. McCain, for plaintiff in error.

S. A. George and Thos. H. Vick, for defendant in error.

PER CURIAM.

¶1 In 1927, the electors of the city of Healdton voted a bond issue in the sum of $ 65,000, for the purpose of constructing and completing a waterworks system for the city. No question is raised as to the legality of this bond issue. After advertising for bids as required by law, the city entered into a written contract with the plaintiff to drill wells to provide water for the city and to furnish and install the necessary machinery and equipment, including a Diesel engine of not less than 120 H. P., to be used in the operation of said water system. All to be done in accordance with the plans and specifications prepared therefor, and under the direction and supervision of the city engineer. The wells were to be drilled upon land then owned by the city if a sufficient water supply could be produced therefrom, but if not, then the plaintiff was to provide, at his own expense, additional land upon which to drill said wells. The wells to be capable of supplying 250 gallons of water per minute. For all of which the plaintiff was to receive $ 59,900.

¶2 The plaintiff drilled wells upon the land owned by the city, and salt water was encountered. Thereupon, the plaintiff purchased and gave to the city additional land, and drilled water wells thereon, which wells after being tested by the city engineer and a committee of men appointed by the city counsel for that purpose, were accepted by the city as being in full compliance with the terms of the contract.

¶3 During the progress of this work the city council decided that an engine of 80 H. P. would be sufficiently large to satisfy their needs, and the plaintiff was instructed to purchase and install an 80 H. P. engine in lieu of the larger sized engine, as provided in the original contract, and the difference in the cost thereof was to be deducted from the $ 59,900 to be paid to the plaintiff. However, not knowing at that time the exact difference in this cost, the city deducted $ 2,000 from the amount owing to the plaintiff. It was later found that the actual difference in this cost amounted to $ 1,595; thus leaving a balance of $ 405 due the plaintiff on the original contract.

¶4 In the meantime, by reason of the change in the location of the wells as above stated, it became necessary to lay additional water lines and provide and install other machinery, appliances, and equipment not specified in the original contract, in order to complete the water system for the city. To cover the additional cost of this extra material and labor necessary to install the same, the city entered into an oral contract with the plaintiff to complete the project and agreed to pay the plaintiff the actual cost thereof, together with the actual costs of said extra labor, plus ten per cent. as profit to the plaintiff.

¶5 All of which was to be done and performed under the direction and supervision of the city engineer.

¶6 The entire water system was completed by the plaintiff about February, 1928, and upon recommendation of the city engineer and water committee, was accepted by the mayor and council for the city as being in full compliance with said contracts. The city paid to the plaintiff the $ 59,900 called for by the original contract, less the sum of $ 405 above mentioned.

¶7 The...