City of Healdton v. Blackburn

Decision Date23 October 1934
Docket NumberCase Number: 22412
Citation37 P.2d 311,169 Okla. 357,1934 OK 573
PartiesCITY OF HEALDTON v. BLACKBURN.
CourtOklahoma Supreme Court
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 actual costs of the material used and labor employed in carrying out the terms and conditions of the oral contract above mentioned, as determined and approved by the city engineer, was $ 3,970, which, together with the said $ 405, still unpaid on the original contract, amounted to the sum of $ 4,375, claimed by the plaintiff, plus ten per cent., as before stated, which the defendant city refused to pay.

¶8 In due time plaintiff commenced his action in the district court of Carter county to recover this amount. A jury was waived and said cause submitted to the court.

¶9 Judgment was rendered in favor of the plaintiff.

¶10 Motion for new trial was filed and overruled, and the defendant has appealed said cause to this court for review.

¶11 For convenience the parties hereto will be referred to as they appeared in the trial court below.

¶12 At the request of the defendant, the trial court rendered special findings of facts and conclusions of law, which findings of facts are substantially as above stated. No exceptions were saved by the defendant to either. The defendant, not having excepted to the findings of facts so made by the court, has waived the errors therein, if any there be (Larkin v. Barker, 134 Okla. 46, 272 P. 882; Elsea Bros. v. Killian, 38 Okla. 174, 132 P. 686), for it has been repeatedly held by this court that errors occurring at the trial must be excepted to at the time and presented in a motion for a new trial before they can be considered on appeal.

¶13 In the case of Larkin v. Barker, supra, this court said that:

"Special findings of fact were requested by the plaintiff in error and by the court made as provided by section 556, C. O. S. 1921. This section provides that it shall not be necessary for the court to state its findings, except generally, unless one of the parties so request with the view of excepting to the decision of the court upon question of law involved in the trial. Plaintiff in error, not having excepted either to the findings of fact made by the court or to the application of the law thereto, waived the errors, if any made, to the application of the law."

¶14 Again in the case of St. Louis Carbonating & Mfg. Co. v. Lookeba State Bank, 59 Okla. 71, 157 P. 1046, it was stated in the body of the opinion as follows:

"No exceptions were reserved to either the findings of fact or conclusions of law, but plaintiff filed a motion for a new trial therein assigning that the decision and judgment of the court is contrary to law. There being no exceptions saved to the findings of fact, there is nothing before us to review except the record proper. The findings of fact stand therefore as conclusive, or as an agreed case, and it is for us to inquire only whether the conclusions of law, upon the findings of fact, were correctly pronounced."

¶15 However, notwithstanding the rule of law as above stated, we have carefully examined the case-made and find that the findings of fact as stated by the trial court are sustained by the evidence submitted.

¶16 It is the contention of the defendant that the contracts so entered into between the plaintiff and defendant were fraudulently made, in that the plaintiff purposely...

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12 cases
  • City of Tulsa v. Langley
    • United States
    • Oklahoma Supreme Court
    • April 16, 1946
    ...this conclusion conflicts with our holding in Town of Covington v. Antrim Lumber Co., 123 Okla. 129, 252 P. 50, and City of Healdton v. Blackburn, 169 Okla. 357, 37 P. 2d 311. Both of those cases involve contracts made prior to the exhaustion of available funds derived from bond issues and ......
  • Ahlschlager v. Lawton Sch. Dist., Indep. Sch. Dist. 008 of Comanche County
    • United States
    • Oklahoma Supreme Court
    • September 13, 2010
    ...¶ 17, 330 P.2d 198, 203 (holding entry of auditor's report into evidence constituted substantial compliance with statute); City of Healdton v. Blackburn, 1934 OK 573, ¶ 23, 169 Okla. 357, 37 P.2d 311, 313-314 (holding entry of city's financial statement was sufficient to satisfy original ve......
  • Ahlschlager v. Lawton School District, 2010 OK 41 (Okla. 6/1/2010)
    • United States
    • Oklahoma Supreme Court
    • June 1, 2010
    ...¶ 17, 330 P.2d 198, 203 (holding entry of auditor's report into evidence constituted substantial compliance with statute); City of Healdton v. Blackburn, 1934 OK 573, ¶ 23, 37 P.2d 311, 313-314 (holding entry of city's financial statement was sufficient to satisfy original version of sectio......
  • Valley Vista Development Corp., Inc. v. City of Broken Arrow, 69292
    • United States
    • Oklahoma Supreme Court
    • December 6, 1988
    ...with §§ 362 and 363, sufficient to support a breach of contract award, has been found in two cases. In City of Healdton v. Blackburn, 169 Okla. 357, 37 P.2d 311, 313-14 (1934), the City's financial statement, entered in the record, was found sufficient to support an award in a contract acti......
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