Maney v. City

• Decision Date: 12 May 1931
• Docket Number: Case Number: 19224
• Citation: 150 Okla. 77,1931 OK 250,300 P. 642
• Parties: MANEY et al. v. OKLAHOMA CITY.
• Court: Oklahoma Supreme Court

1931 OK 250

300 P. 642

150 Okla. 77

MANEY et al. v. OKLAHOMA CITY.

Case Number: 19224

Supreme Court of Oklahoma

Decided: May 12, 1931

Syllabus

¶0 1. Municipal Corporations--Two Classes of Powers of Cities.

A city has two classes of powers--the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality.

2. Same--Operation of Water Plant Held Business Function.

Municipal corporations in operating a water plant exercise business and administrative functions, rather than those strictly governmental in their nature, and in the exercise of such functions are governed largely by the, same rules applicable to Individuals or private corporations engaged in the same business.

3. Same--Contractor Excavating for Water Works Plant Held Entitled to Extra Pay for Removal of Unexpected Quantity of Rock Where Representations of City Engineer Relied on.

Where a contractor, contracting with the municipality in the construction of a water works plant, contracts to excavate a by-pass and encounters a large quantity of rock, which was unexpected by the contractor and the city, the extra expense over what would have been necessary had the character of the materials to be excavated been such as was represented by the defendant city and its engineer and as represented by its plans, specifications, maps, profiles and boring or sounding sheet, should be allowed to the contractors for the construction of water works system for the defendant city; the time not being sufficient for the contractors to make their own borings and they relied upon the defendant city's plans, specifications, profiles, borings showing character of materials and representations made by engineer, although such specifications further provided "The contractor bases his bid upon his own estimates and judgment in regard to both quantity and character of materials."

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by Maney Brothers & Company, a copartnership, against Oklahoma City. Judgment for the defendant, and plaintiffs appeal. Reversed, with directions.

E. L. Fulton and Twyford & Smith, for plaintiffs in error.

M. W. McKenzie, A. L. Hull, and Bliss Kelly., for defendant in error.

CLARK, V. C. J.

¶1 This action was commenced in the district court of Oklahoma county by plaintiffs in error against defendants in error to recover a money judgment. The controversy grew out of a contract entered into between plaintiffs and defendant wherein plaintiffs were to excavate a bypass for the defendant city. For convenience the parties will be referred to as they appeared in the trial court.

¶2 Plaintiffs in their petition alleged:

That the bid was based upon maps, drawings, plans, and specifications and sounding sheet and profile, showing the nature and character of the work to be done, and particularly the character of the material to be excavated, which had been prepared and made by the defendant city. That the maps, drawings, plans, specifications, and the sounding sheet (which was made from borings made by defendant city) disclosed the material to be excavated consisted entirely of earth and dirt except a small and negligible quantity of rock at one particular point; that the said maps, drawings, plans, specifications, and sounding sheet, together with the representations made by the city engineer, were relied upon by the plaintiffs in the preparation of their bids and in entering into said contract. That plaintiffs did not have sufficient length of time between the advertisement for bids and the letting of the contract to make their own soundings, but relied upon the representations of the defendant city as to the character of material to be encountered. That in the progress of the work it developed that instead of the material to be excavated being earth and dirt excepting a negligible quantity of rock, a very large portion thereof was rock, to wit, about 74,000 cubic yards. That the defendant city, Its engineers, and commissioners were immediately notified, who viewed the rock, and directed plaintiffs to proceed with said work under their contract, and all formal claims and notices prescribed in the specifications were waived by said city engineer and city commissioners. That plaintiffs completed their work to the satisfaction and written acceptance of the defendant city. That the contract price for earth and dirt excavation was wholly inadequate for excavation and removal of said solid rock; and that the fair and reasonable cost and expense of excavating and removing said rock was $ 1.40 per cubic yard. And plaintiff prayed for judgment against the city for $ 1.40 per cubic yard for the excavation and removal of said rock, and for such other and further relief as under the law and facts the plaintiff was entitled.

Defendant city filed its answer, which consisted of a general denial of all material allegations of plaintiffs' petition except what were specifically admitted, as follows:

"1. Admitted the status of the parties.

"2. Admitted the execution of the contract, and that it undertook to construct an improved water system.

"3. Admitted it was necessary to construct a by-pass.

"4 Admitted it caused maps and drawings to be made and showing that borings and soundings had been made by it to ascertain the character of the material to be excavated.

"5. Admitted that such borings and soundings disclosed that the material to be excavated consisted of a quantity of earth and dirt with a small quantity of rock.

"6. Admitted plaintiffs completed to the satisfaction and written acceptance of the city and its engineer the work."

¶3 The cause was tried to a jury and resulted in a verdict for the defendant. Motion for new trial was filed and overruled. Plaintiffs brought the cause here for review.

¶4 The first proposition presented by the plaintiffs is as follows:

"Under the undisputed evidence the plaintiffs were entitled to a directed verdict holding the city liable for the rock excavation in question. The only question to be submitted to the jury was the reasonable cost thereof."

¶5 At the close of the trial the plaintiffs requested the following instruction:

"You are hereby instructed that the plaintiffs and defendant have stipulated that the actual amount of rock excavated by the plaintiffs for which they have not been paid amounts to 60,000 cubic yards. In this connection you are further instructed that the only question for you to determine is the reasonable value of such excavation at the time the same was performed, less the sum of 16c per cubic yard"

--which was refused by the court and exceptions allowed.

¶6 The undisputed facts in the case show:

That the defendant in error, in contemplation of construction of its improvements to its water supply system, had maps, plans, profiles, and specifications prepared by its engineers, as well as soundings made to ascertain the character of material that was supposed to be in the by-pass, and that said soundings showed very small amount of rock not exceeding 407 cubic yards, which would be a negligible quantity of rock, taking into consideration the entire project. The soundings were transferred onto a blue print and kept in the commissioner's and engineer's office. The prospective bidders secured copies of the plans and specifications, drawings and profiles from the city clerk's office, and also saw and used a sounding sheet and profile showing soundings which were in the city engineer's office and showed the character of the material to be encountered in the by-pass; that said sounding sheet showed only negligible or very small quantity of rock. Plaintiffs used the plans, drawings, specifications, profiles prepared by the defendant city, together with the sounding sheet, and the information furnished by the city engineer in the preparation and submission of their bid. Plaintiffs were shown the sounding sheet by the said city engineer and were advised by the city engineer there was a very negligible quantity of rock. That the bid and contract were made and entered into for the excavation of earth and dirt and not solid rock, except the very small quantity as shown on the sounding sheet. The term "earth" and expression "earth excavation," as used in such contracts, mean earth only, and that there was no rock or anything else except earth. The bidders did not have sufficient length of time to make their independent soundings, and had to rely on the maps, drawings, profiles, and sounding sheet and the information furnished by the city engineer as to the character of the material to be encountered. That plaintiffs were the successful bidders and entered into the contract for the construction of section "B" of the project, being the "by-pass," at the price of 16c per cubic yard, subject to the provisions in the contract and specifications. That plaintiffs fully performed the contract, and that the work was completed and accepted by the defendant city and plaintiffs received compensation therefor at the contract price of 16c per cubic yard for earth excavation, but did not receive compensation for the extra work of rock excavation.

¶7 It was stipulated at the trial below that the plaintiffs excavated 60,000 cubic yards of rock from said by-pass. That after the work had progressed for sometime a change was made in the line of the by-pass from that originally staked out. That in the progress of the work plaintiffs encountered large quantities of rock; that they notified the city engineer and also the city commissioners at a session of the commissioners; that the commissioners, in a body, went out to the by-pass and viewed the rock. That the matter was taken under advisement. Plaintiffs were instructed to proceed with the work and hurry same to...