Petition for a Writ of Certiorari — Kizziar v. Dollar

- Fie copy.” -{“eites

| OCT 15 1959

JAME SRE WG Clerk

aN

in The

Supreme Court ofthe United States

October Term. 1959 |

No. 478

O. Q. Kizziar anp Mivprep Kiv/iar. His Wife,

Petitioners,

o

VERSUS

B. L. DoLLar, doing business as B. L. DOLLAR

CONSTRUCTION COMPANY,

wagon Respondent. ed RS et

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR SHE TENTH CIRCUIT.

.

Cie:

Oklahoma City, Oklahoma;

E. E. Gore,

W. T. Gore,

Altus. Oklahoma:

Attorneys for Petitioners.

OcToser, 159

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KING LAW BRIEF CO., COMMERCE EXCHANGE BLDG. OKLAHOMA CITY—PHONE CE 5-2969

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INDEX

: PAGE

Petition _....... , 2p AOL EO l

Opinion of the- Court Below . 2

Statement of Matters Lnvolved 3

Specifications.of Error to, be U rged 7

‘Arggment d | “9

Authority: "a

12 C. J., Costs, Section 618 -21

Errie R. R. Co. v. Thompkins, 304 U. S. 64, 58

S. Ct. 817, 82 L. Ed. 1188 - a3 eas 9

Davidson v. Gaskill, 31 Okl. 40,121 P.649 °° | s9

Federal Judiciary Act of September 24, 1879,

Section 34, 28 U.-S.'C. 725 (As amended. 28

U.S.C. 1652) — - re

Kinnard-Haines Co. v. Dillingham, 73 Okl. 139,

175 P. 208 15

Langnes v. Green, 282 U. S. 520, 75 L. Ed. 520. © 20

Mitchell v. Spurrier Lumber Co., $1 Okl. 834, =

121 P..10 SG TS Ls cermin 11, 13

__Phoebe-Brisco Co. v. Board of County Commis-

‘ sioners of Garvin cesinisi 108. Okl. 153, 235

P. 468 | 3 9

“St. L. & S. Fi Ry. Co. v. Hurley, 30 Ok. 833,

120 P. 568 See" . 20.

’ Title 15, Section -157, O. S$. 1951

Appendix * A’—Opinion of the United Staies District F

Court tor the Western District of Oklahoma —__23

Appendix “B’ ‘—Opinion of the United States Court

of Appeals for the Tenth Circuit tim Th

ee

Supreme Court of the United ates

October Term, 1959 —

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0. Q. ene AND pone a Kiva: AR, Elis W ife,.

Petitioners,

_ VERSUS

‘B. L: Dottar, déing business as B. L. DoLLaR

C ONSTRUCTION CoMPANY, ©

ff Respondent.

.

\. . PETITION FOR WRIT OF CERTIORARI TO. THE UNITED

Se / STATES, COURT OF APPEALS FOR THE TENTH CIRCUIT.

/ To THE oie oe THE CHIEF is AND THE

ASSOCIATE, JUSTICES OF THE SUPREME CourT OF THE UNITED

’ ( STATES: a |

fo Your petitioners, O. Q. Kizziar and Mildred Kizziar,

his wife, respectfully pray for a writ of ‘certiorari’ to the

United’ States Court of Appeals for the Tenth Circuit to

review the judgment entered by that court in ‘this case,

on July 23, 1959, beiig numbered 5987 in said Court of

Appeals. .*

Shee Kizviar've Dour ar .

A certified transcript of the record of ‘the. case in the

Court of Appeals. including record on motion of petition:

ers tO access costs against respondents, and a certified copy

of the. proceedings in the District Court as filed in said

Court of Appeals, are furnished “herewith in conformity

with Rule 38 of this Honorable Court.

"OPINION OF THE COURT BELOW

The opinion and judgment of the United States Court —

of Appeals is.unoffically reported in 268 F. 2d at page 914. ©

(advance sheet for September 21, 1959.) However the,

judgment of the District Court, and that Court's Findings

of Fact ‘and Conclusions of Law, are-shown at pages 92-100

of.the Record from the District Court, anid: the judgment

and opinion ‘of the Court of Appeals are shown dt pages

Sto 12 of the certified Transcript of Record in the United

States Court of Appeals. said opinion and judgment having ~

>. been entered in said Court of Appeals on the 23rd day of

July, 1959. Each judgngent and — is printed herein

as ai Appendix. —

_ Thereafter a petition for — was filed in said

Court of Appeals by these petitioners, ‘which was denied on

the 20th ‘day of August, 1959.

On September 2, 1959, said Court of Appeals entered

an order staying the mandate for 30 days, to give these peti-

tioncrs time to file this petition for writ of certiorari.

Petition FoR Writ (ace 8

Motion of these petitioners to assess thecosts of appeal

against he plaintiff (respondent here) was denied by the

Court of —— on Septentber 1], 1959.

STATEMENT OF MATTERS INVOLVED

B. L. Dollar (respondent here) filed suit in June 1957,

"in the District Court of, Jackson C ‘ounty, Oklahoma, against

— O. Q. Kizziar, in which two actions were joined. The first

‘ cause of action was to recover on a written’ contract for the

construction of a building in Altus, Jackson County, Okla-

~“homa, known as the Srigley Clinic, the contract price being

$20,000.00; and also.on:an alleged subsequent oral coritract

for the lengthening of said building at an alleged price of

$2,863.50. Plans and specifications were drawn (R. 87-41,

District: Court) and made’a part of the ‘written contract

(R. 41). Foreclosure of a mechanic's lien against the prop-

erty was also sought, and Mildred Kizziar, wite of -O. Q.

Kizziar, and a joint tenant with her husband in the owner-

ship of the real estate on which the building was construc-

ted, was made a party defendant in order to subject her

interest in the real estate. to. foreclosure of the lien. .-

The second cause of action was for a balance alleged

to be due on a former contract for the erection by plaintiff.

of the building known as‘Irby- Bussev Clinic in Altus, Okla-

‘homa, and for certain minor items. votalling $903. 60.

Answering the first cause of action, defendants (peti:

tioners here) , pleaded that the total contract Price, was $20,-

a

ss

e*

*. | ae Kizziank v: DouraR te

000.00, denied any subsequent oral agréement for ® the

lengthening of the building. alleged’ that the building

had. not been completed, further alleged that the contract

sued upon was an entire and indivisible contract, and that

it had not been substantially performed, and that, there-

fore, plaintiff could recover nothing in ‘this action based:

solely upon the contract: that in the event plaintiff should

Be allowed to recover in this action or ‘his. firs: ‘cause of

action, he had departed from ‘the adopted plans dnd speci-_

- fications. had adopted other and cheaper methods of con-

struction, had wholly failed t6 perform certain conditions —

and to make certain installations called for by the contract

and specifications, had thereby materially reduced the cost —

of construction as well as the value and solidity of the build- |

ing. and that defendants (these petitioners). were entitled

to credits on the contract price for these various omissions

and deviations which had tesulted in a decrease: in the cost

of construction, which were pleaded as‘ offsets and credits

against the. contract pr ice (Dist. Ct. Record 11 20.

For answer to the second cause of action, petitioners

pleaded that plaintiff had been paid in full by cash and by

certain drugs and sundries bought from petitioners by and

for plaintiff (respondent) .

After suit was tiled in the ‘State Cougt, the ‘United

States was made a party defendant because of its lien against

the property involved, tor certain unpaid taxes. The case,

‘upon motion of the United: States, was removed te the

PETITION ror Writ ‘ee

-

United States Disttict Court for the Wenere: District of

Oklahoma (R. lor in which C ourt the case was tried by the

Court without a jury, April 1 TL, 1958. The claim of the

United States was paid in full.after judgment, and it is,

* .

therefore. no Jonger interested. |

After the trial of the case at Lawton, Oklahoma, April

10-11, 1958! the trial C court filed Findings of Fact and: Con-

“clusions: of Law, (R. 94) .- | 7 i aa

Upon suggestion by the court: in ‘his’ Findings and.

¢ ‘onclusions that there was no evidence upon which to base

an attorney 's fee for plaintiff (who had alleged in his’ peti-

tion that a reasonable fee would be $2.000.00) respondent

filed his motion to reopen the case forthe introduction of -

testimony as to attorney 's fees: the motion was granted, evi-

dence introduced by plainuft, _ attorney's fee fixed by

the court at $2, 500.00. ~ .

Likewise petitioners filed their motion to reopen | the

case for the introduction by petitioners of additional evi-

dence, particularly as to the savings effected by the plain:

uiff, Dollar. in constructing the foundation which he did

construct, instead’ of constructing the foundation called for .

by the specifications: so that proper credit could be allowed -

for that sum. The motion was denied by the trial court.

—, tor New ‘Friai was filed by petitioners, in

“which the € Yourt was again reque ‘sted 40 reopen the case for

further evidence. but the. mouon was overruled. (R. 104).

ee

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6 ~ * KuzziarR Vv. DOLLAR

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The trial. court entered judgment i in favor of plaintiff

for everything he sued for, and denied all off-sets, counter

claims and credits for deviations and omissions from the

contract, with two eEXCEpOns, i.e.S the court found that the

central cooling system as installed was inadequate, and al-

lowed $750.00 credit for the installation of window air con-

ditioners to supplement the inadequate central cooling

* system; and another credit of $150.00 to convert the 4-ply.

roof installed by plainuft to the 5-ply roof called for by the

specifications. (See Appendix A). .

. In the trial court’s Findings of Fact (paragraph 14)

the court found that “all other deviations from the specifi-

cauons contemplated by the construction contract were

authorized by subsequent agreement of the parties: at the

time of construction’. (R. 95). For that reason, presumably,

no‘credits were allowed for any except the two deviations

already mentioned. -

On appeal to the United States Court of Appeals for

the Tenth Circuit, that court in its opinion (Appendix B).

held, among other things, that although the foundation of

the Srigley Clinic -was not built according to specifications,

there was evidence that it was the usual foundation built

in that area for that type of building, that it was considered

adequate, and that, therefore the contract, as it pertained

to the foundation, was “substantially performed” that, al-

though the plaintiff failed to install adequate central heat-

ing and failed to consruct a five-ply roof, as called for in’

«

PETITION FOR Writ 7

the specifications, yet the contract was substantially per-

formed. | oh | |

However the Court of Appeals rejected the theory of

the trial court that window air conditioners could be in-

stalled in lieu of the adequate central cooling system called

for by the contract, and.found that certain other minor

~ omissions and deviations, illustrated in footnote 2.to the Ap-

pellate Court's opinion, were not agreed to by the petition-

ers, and remanded the case to the District Court for further -

proceedings and evidence on these two points, and for modi-

fication of the judgment accordingly. se

* But the Appellate Gourt found that certain other re-

quirements of the specifications were agreed to by plaintiff .

and defendants and failed to allow credit for the savings

to plaintiffmade by these deviations and omissions. .

Petition for rehearing was filed by these petitioners

(pages 14-28, Appellate Court Record), and denied by

the Court of Appeals (R. 29) .. -

SPECIFICATIONS } ERROR TO BE URGED

It is respectfully submitted that the Linited States

Court of Appeals. as well as the United States District

“Court, erred as a matter of law. in the following particulars:

1. In failing to folléw the law of the State‘of Oklahoma

‘as declared by statute and by decisions o¢ the highest Court _

of the state with reference to quest'ons involved in the

construction and enforcement of a contract made in Okla-

homa and to be performed in Oklahoma.

Kizziar Vv. DOLLAR

2. In holding that the construction of a foundation 18

inches deep by 14 inches’ wide constituted “substantial

performance™ of a contract calling for a foundation 24

inches deep and 37 inches in width . .

3. In holding that the construction contract and the

plane and specifications attached thereto were substantially

performed. :

4. In failing and refusing to hold that iii were

entitled to credits for all savings made by deviations and

omissions from the contract and specifications for the

construction of Srigley Clinic, regardless as: to whether

such deviations and omissions were agreed io by the

parties.

5.-In allowing a sulin to stand based in part upon

testimony as to oral conversations and tentative agree-

ments prior toahe éxecution of the final written contract |

and not incorporated in such written contract.

6. The Court of Appeals erred in failing to hald that —

the trial court had abused its discretion in refusing to -

- reopen the case for the introduction of evidence as to the

amount of savings effected by the deviation of plaintiff ..

from the contract specifications as to the type of founda-

tion to be constructed for the Srigley Clinic.

7. The Court of Appeals erred in refusing to assess —

against respondent petitioners’ costs on ¢ppeal.—

We respectfully submit that.each of these specifica-

tions of error should be governed by the written contract

itself, and the construction of such contract placed there-

on by the statutes of the State of Oklahoma, and the

decisions of the Supreme Court of Oklahoma.

WHEREFORE, your petitioners respectfully pray that

this petition for writ of certiorari be granted.

Pug

PETITION FOR WRIT i)

ARGUMENT |

| This action is based upon a contract made in Okla.

homa and performed in Oklahoma. As held by this Court

cin Erie R. R. Co. v. Thompkins, 304 U. S. 64, 58 S. Ct.

817.82 L: Ed. 1188 and subsequent decisions in construing

Section 34, Federal Judiciary Act of September 24, 1879,

28 U, Ss. C. 725 (now. as amended, 28 U.S ce 1652) ,

such a contract must be construed in seas with the

/

construction placed upon such a coniract not only by the

, State’s written law, but also in harmony~with the con-

struction placed upon it by the decisions of the state's

highest court—in this instance, the Supreme Court of the

State of Oklahoma. The. Federal Cours, when enforcing -

such a contract is in substance another. court of the state

in which it is sitting, and may not depart from the rights

which would be accorded the liugants if the case were

being adjudiciated in the state courts.

Under many decisions of the Supreme Court of Okla-

homa, the contract here involved is an entire, indivisble

contract and no recovery can be had on such a-contract

unless it has been ‘substantially performed. See, tor ex-

ample Davidson v. Gaskill, 31 Okl. 40, 121 P. 649; Phoebe-

Brisco Co. v. Board of Co. Com’rs. of Garvin County, 108

Oki. 153, 235 P. 468. sa

“The Court of Appeals held in the instant case (Head-

-note 2) that a contract is substantially performed if “there

are no omissions OT devi lations from the general plan which

ss Kizztar Vv. DOLLAR

| J a

cannot be remedied without difficulty.” Tf the Court

Appeals had followed that principle, a portion of the

errors of which we complain would have been avoi ‘ed. |

In spite of the fact that. the specifications (R. 37)

called for a foundation 24° deep and 14 “inches wider on

each side than a masanry wall 9" thick, wor 37 inches in

width (R. 37), the respondent pS a foundation

which the witness Appleby. an architect. (R. 46) testified

was 18" deep and 17° wide, and which respondent: him-

self admitted was’ 18" deep and approximately 20° wide

(R. 33): in spite of the tact that the. contract (R. 41)

provided that the contractor should furnish all material,

he utilized an old foundation on the site. which was owned

by petitioners and attempted te tie on a new foundation

at each end ot the old, thereby causing a settling of the

walls of the building (R. 44): in spite of the fact that

Barnes, the contractor's ‘brick toreman on. this building,

testihed that in the part of Altus where this building was

constructed the soil “slips”. and “I wouid put a heavier

toundation under mt than im some ‘other parts’, and “I

. as ‘ 2 .

have stressed to every builder * * * to put a good founda-

tion ‘under walls in such part of Altius (R. 78-79), the

Court of Appeals held that the toundation as constructed

was substantial compliance with, the contract and specih-

cations, saying. (Headnote) 2) ° “Builder substantially

performed cantract to construct building for detendants

-even though the foundation did not meet the specifications,

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PETITION FOR WRIT -

where the foundation was standard and adequate for the

type of building. and there was no petticular reason why

the specifications required a different type of foundation.”

Under Oklahoma law the owner does not have to

buttress. his specifications by stating why he prefers French _

windows to those of the sash type. or why he wants twelve

inch walls instead of nine inch walls, or whyshe wishes a -

heavy foundation instead of the conventional. type. In

Mitchell v. Spurnier Lumber Co., 31 Okl. 834, 121 P. 10,

the Supreme Court of Oklahoma stated the law of Okla-

~ homa with reference to such a situation, as follows:

“The owner has acright to have built the structure

he contracted for, and not another. Even his caprices,- --

if _expressed in_ the contract, must" be complied with,

and even though they might not have added to the

value of the structure. or may have lessened its value.”

o e - ‘.

Again, in the same case:

“The court cannot sav that anvthing is immaterial

which the parties have made material by their con- .

tract. One has a right to determine for himself what

he deems a good foundation,. or what materials he

desires ‘used. and. if he contracts tor them, neither

the contractor nor the court has the right to compel

. ‘him to accept something clse which may be shown

by the eviderce to- be. just as good. or even better.

* *¢ #"

~~ Manv deviations and omissions were found by the

trial and Appellate Courts to have been agreed to by the

parties, but there is not a scintilla ot evidence in the

record which remotely hints that there was any agreement

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to weaken the foundation as was done by the respondent.

%

saber Kiz771ar V. DoLLaR

The’ “good enough” or “just as good”’ rule does not

obtain in Oklahoma, and neither custom: nor. expediency

may be resorted to as a route of escape for the ‘contractor

who has.so signally failed to perform his contractual obli-

gation. And it would tax“the imagination of-the most

credulous to assumé that the ‘respondent did not’ know

the type of foundation he was constructing. and .that it

- would weaken the foundation to such ar extent that the

walls would settle. and destroy any plans the petitioners

might o1 might not have, now or in the future, to add one

or more additional stories to the building. i

This was a deviation that could not be remedied

except. by tearing down the -building and. constructing

an entirely new foundation in accordance with the sie

fications. |

. The responds nt has a’ proper method - of recovery

for all moneys actually due to him. but he cannot legally

recover anything in an action on a contract’ which was

_ so flagrantly Violated by ‘him,

2. A tairly complete list of the devi lations cand omis-

sions from the contract is shown in’ the testimony ot

Mr. Appleby (R. 43-48). Several of these, like the founda-

tion, the inadequate central cooling svstem, the four out-

_ side wooden doors instead of two metallic doors, the Aply

roof instead of the 5-ply roof, etc.. were not agreed to as

shown by uncontradicted testimony. As to others there

‘was conflict in testimony. Petitioners said they were not

PETITION FOR. WRIT - BBs:

‘agreed to: respondent said they were. and the trial Court

found they were agreed to. Phe Court, of Appeals ‘stated

that such deviations and omissions, were “waived”. Both

the trial Court and the ‘Appellate Court refused te allow

So

petitioners any credit on the. contract, price for savings”

ss

effected by the deviation

found were agreed to bs \the parties. In this holding. the

trial: Court and the Appellate Court: were in error tor.

two reasons: (1) becatise the contract. beuveen the parties

_ provided (R.r4l) 2”

. ae :

“Art. TU The owner agrees to pay contractor. in

current funds for the performance ot this contract,

Twenty Thousand Dollars 320,000.00 to be paid as .

follows: Within thirty days after completion, or be-

tore, subject to any additions or deductions to the gen-

eral conditions of the contract.” (Emphasis ours.).

(2) The holding is in direct contravention ot the Okla-

homa construction of such a contract as expressed by the

. z a. ‘

Supreme Court in Mitchell v. Spurrier Lumber Co., supra, -

where in the second paragraph of tre syllabus by the Court

it is said: .

. o : :

Htethe detendant in error. through its agents, sug-

gested certain changes as to the specifications and plans:

for the construction of a house, and the plainuff in

error consented to the same, and-the same were accord-

ingly made, he is bound thereby:

“(ay He such changes im the plans reasonably, oper-

aved to decrease the cost to the detendant in error

in building the structure, jhe plamutf in error should

have the advantage of same. — : °

14. Kizzrar v. DOLLAR |

In the body of the opinion this language is used:

Though the plaintiff_in error may -have acquiesced

in the change in the plans, it does not tollow that,

such acquiescence would mean that the’contract price

_for the structure should remain the same. If the

changes in plans reasonably operated to decrease the

cost to the defendant in error of building the struc-

ture, the plaintiff in error should have the advantage

of the same.”

.

We hav ._ no cases to. the contrary.” “Phese credits

would have been allowed. petitioners if the case had been |

tried in a state ceurt:. they should under the law and‘

under the decisions of this Honorable Court have been °

allowed in the Federal Courts, This error is highly preg

judicial, and at not corrected, will cost these petitioners

hundreds of dollars. “

3. Negotiations. tor this contract’ covered several

months, during which, period ideas and plans as to con-

struction. changed ¢tyom time to cine until they finally

‘ripened into the completed contract’ and specifications

(R. 37-41). aa

During the period. of negotiations as to plans, which -

hnally ripened into the written contract and specifications,

the use of the side walls aml foundation of a building

then on the site, and owned by petitioners. im constructing

Srigley Clinic Building was discussed: but when the final

contract and specifications were drawn and signed all idea

of using any portion of the old building was discarded. and

the contract was made to provide: that the materials for

A PETITION FoR Writ 5

the building should be furnished by the contractor (Art.

I, R. 41). But in spite of that fact, the respondent (the

contractor) was allowed by the trial court to testify as ta

the preliminary conversations relative’ to constructing the

new building by adding to the front and rear of the old

building (R. 22). Upon objection by petitioners, the

trial court asked if the conversation occurred prior to the

writtén contract. Respondent’ s attorney answered Yes”,

whereupon the trial court qverruled the objection, (R. 22).

Upon that testimony was based the idea that respondent

had a ‘right to use the foundation and walls of the old

building, in derogation’ ‘of the written contract and speci- |

. fications, and the further idea that petitioners were not

entitled to credit for the savings effected, by the use“of:

parts of the foundation and walls of the old building. This |

was error upon the part of the trial court and concurred

in by the Court of Appeals.

‘Such a holding: is im conflict’ with the controlling

statutes and decisions of the State of Oklahoma.

Title 15 § 157, Okla. Siats. 1951, reads:

“The execution of a contract in writing, whether

the law requires it to be in writing or not, supersedes

all the oral negotiations or stipulations concerning °

its matter, which preceded or ——— the execu-

tion of the instrument.

The above statute “has been consttued to mean just

what it says. Kinnard- Haines Co. Vv. Dillingham, 73 Ok.

129, 175 P. 208, and many other cases to the same effect.

e *

‘16 Ss Kizziar Vv. DOLLAR ey <

The only execption toghat rule is where the contract

was procured by accident, fraud or mistake, or where it

is ambiguous. No accident, fragad or mistake is pleaded,

and could not be, since the respondent himself drew the

plans and specifications (R. 30). They are clearly not

ambiguous. and even if they were, they would be con-

strued against the party who drew them.

This testimony was erroneously arse and acted.

upon to the prejudice of the petitioners to the extent that

the’ court refused to give petitioners credit for the material

used from the old building, which holding was concurred

in by the Court of eT It was error prejudicial to

the petitioners.

4 (a) Attorneys for petitioners overlooked | proving

the amount of moncy saved by thé contractor (respondent)

in constructing a foundation littke more than one third

as heavy as the one called for -by- the specifications, and

by unwarrantedly- using an old light foandation of the

owner which’ was already on thé site.

The inference is to be drawn from the opinion of

the Appellate Court that if this proof had been made,

an additional credit for that amount would have been

=

‘allowed by the Court of Appeals.

4 (b) The finding of the trial court that there was a.

subsequent oral. agreement for the lengthening of. the

‘ building was based entirely on the testimony of the con-

tractor (categorically denied by the petitioner, O..Q. Kiz-

PETITION FOR Writ - . >:

ziar). Respondent testified (R. 29) that about three weeks

after construction on the Srigley Building started, he and

Kizziar were in the front part of the building; that at that

time the foundation of ‘the front wall and the side walls

back to the beginning of the old foundation had been

poured and the walls were up toa height of about four |

feet; that no work had been done on the rear foundation

01 walls, and that no one was present except himself and,

Kizziar. Thereby he fixed the time, place and circum-

stances under which the.alleged oral contract was made. =

Attached to the motion to reopen for further testimony

by the petitioners ‘are the affidavits°of Marvin Crelia (R.

104) who swore that the entire foundation was laid in

December; that a rainy spell intervened, and that no part

of the_ walls were laid until in 1957; that not a brick in

the wall was laid until the éntire fouindation had been

poured; and the: affidavit of J..B. Allen, who swore that

he hauled brick for the Srigley building: that the first

~ load -he hauled, bricks had been laid around the entire

foundation, about two feet: high.

4 (c) ‘The specifications called tor two outside metallic

doors in the sides of the building: instead, the contractor

installed four ‘wooden doors (R. 26). which he said he

installed at Dr. Srigley’s request (R. 26). Mr. -Kizziar

testified he made no request tor 4 wooden doors:- Dr.

Srigley’ s affidavit attached to the motion to reopen shows

that Srigley made no such Fequest ( R. 102).

Oo.

“18

‘KizziaR v. DOLLAR» ty

Respondent also testified that he omitted some medi- *

cine cabinets at the request of Dr. Srigley. In his affidavit

- (R. 162), Dr’ Srigley says he made no such request.

4(d) With reference to the second cause of action,

plaintiff's contention was that the subcontract with J. M.

Sturdevant for the air cooling system for the Irby- ‘Bussey

~ Clinic was not included in the contract price of $10,000.00.

When confronted with the fact that Sturdevant had issued

the invoice and the statement for payments to him, plain-

uff tried to run to covey by testifying that by letting the

invoice come through him, the owner, Kizziar, could save

the contractor’ s commission. Judge Gore, one of plaintiff's

attorneys, attached his affidavit to the motion to reopen

(R. 103) showing that if the case should be reopened,

Mr. Sturdevant’ weld testify: that when respondent pur-

‘ chased this cooling system, he, Sturdevant, was giving no

commission to contractors, and that the respondent knew it.

4 (c) ) Respondent testified (R. 68) that on November

21, 1956, he borrowed $839. 29 from the petitioner, Kizziar,

and gave | shim a post-dated check for that amount on.

which payment was refused by the bank because of “insuf-

the check was torn up. Petitioner Kizziar testified that

“he made a loan of $839. 20 to respondent and: introduced

a check by which he transfe rred that amount to respondent,

and said that the loan had neyer been -repaid. Kizziar ,

denied respondent had given. him a postdated check for:

ficient funds”: that later he repaid the loan i in cash and that

hms

©

the loan. In petitioners’. motion to reopen: for additional

testimony, they attached thereto a copy of the check given,

- not to him, but to Park’ Lane Pharmacy. dated November.

21,1956, ndt to repay.a loan, ‘but to pay “for drugs”, on™

which payment was refused for “insufficient funds.”

* 2 With. the exception of the inadverience of the at-

torneys with reference to the amount saved by the con-

tractor in constructing: the foundation ’ ashe did, all of

these matters were newly iliscovered. and all of them

~ bore upon the credibility—the truth or falsity—of. the

testimony as. tO maicrial facts given by the respondent,

Dollar—testimony which stood alone, corroborated by no

one and denied by the petitioner, Kizziar.

The testimony was given av Lawton, Oklahoma, ca

10, 1958; the trial was. closed the, next day. There was n

time to go to Altus, about 60 miles away, find the testimony

and return to Lawton for the opening of court the next

morning: ae R war heee

This testimony of the respondent was, unlooked for

testimony, and could not have been. foreseen, Nothing in

"the. pleadings, Meer wets or answers to, interrogatorics |

siwercarned petitioners of such testimony.

Respondents failed to make proot as to the value of

attorney fees in the case. “A motion was filed on behalf of

respon lent to reopen lor the purpose ‘of producing. such

testimony. It was granted at the s same timé that petitioners’

motion was denied.

es i. Pa aaee

>»

S

PETITION FOR WRIT | 19°

6

20 | KIzZIaAR V. | DOLLAR

By so ruling, the trial court failed to do justice be-

tween the parties, and thereby abused his judicial dis-

cretion, and the Court of Appeals committed error in

-failing to so hold.

; to refuse anew tnal.” ~

This Honorable Court, in Langnes v. Green, 282

U.S. 520, 75 L. Ed. 520, announced the guiding precept

as to judicial discretion in-the following language _(Head-

note 7):

**Discretion’ when invoked as.a guide to judicial

‘action means a sound discretion exercised, not arbi-

trarily or wilfully, but with regard to what is right

and equitable, under the circumstances, and directed

by reason and conscience of the judge to a just result.”

“+ In StL. & 8. F. Ry. Co. v. Hurley, 30-Okl. 883, 129

- P. 568, paragraph 2 of the syllabus (by the Supreme Court)

reads:

“In an action for damages sustained for personal

injuries, where judgment is rendered in favor of the

injured party, and wherein the amount of damages

is based upon the extent of the injuries, and where

the only testimony as to the extent of the injuries is’

that of the interested party, and after conclusion of

the trial new evidence is discovered, the existence of

_ which clearly appears to have been unknown to mov-

ant before trial, and such evidence, if true, con-

clusively tends to show that the injuries were not’

serious, and that such judgment had been procured

by deception and false testimeny.“HELD, it was error

We submit that the trial court’s action in denying

petitioners’ motion and the same request in the motion

PETITION FOR WrRIF- CC. ~ 21

fora new trial was an abuse of judicial discretion and that

the Court of Appeals committed error in failing*to so hold.

— 5. The Court of Appeals held that the trial Court

committed error in allowing a credit of $750.00 for window

air conditioners, when the contract and specifications called

for an adequate central cooling system and also committed

error in not allowing credit for certain minor items of,

deviation and omission illustrated in Footnote 2 to the

Appellate Court's opinion, amounting to an additional

credit of some $2500.00, and remanded ihe case to the

trial court for further proceedings on these items. Peti-

tioners filed their motion to assess the costs of appeal against

respondents, which was denied.

We think the trial court erred in denying ow motion.

The law, as applied.in a great majority of jurisdictions

. > ¥ . bd >. . © . :

is that when appellant obtains a modification of the judg-

ment against him in an appreciable amount, he wl be

entitled to his costs on appeal. In 12 Corpus Juris, Costs,

$ 618, the general rule is stated:

“In perhaps the majority of jurisdictions, an appel-

~. lant or plainuff in error, who obtains-a modification

of a judgment * * * is entitled to costs on appeal, the

view being taken that he is the prevailing party, * * *"

And the text is supported by decisions frem various juris:

dictions.

22 _— Kazziar v. DOLLAR

Respectfully submitted,

C. E. Hatt,

E. E. Gore,

W. T. Gore,

Attorneys for Petitioners.

C. E. HALL,

407 Great Western Life Ins. Bldg.,.

Oklahoma City 2, Oklahoma.

Gore & Gore,

Postoffice Box 188,

Ocroser, 1959

PETITION FOR WRIT 23

_APPENDIX A

IN THE UNITED STATES DISTRICT GOURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

B. L. DOLLAR, an individual

doing business as B: L. DOLLAR

CONSTRUCTION COMPANY,

‘ No. 7676-Civil

- Plaintiff,

“O. Q. KIZZIAR and MILDRED KIZZIAR, his wife;

and the UNITED STATES OF AMERICA,

Defendants.

JUDGMENT

This cause came. on for trial before the Court w ithout

a jury at Lawton, Oklahoma, on March 10-11, 1958, the

plaintiff appearing in person and by his attorneys, Ross

Rutherford and Harbison * Whiteside; the defendants, O.

Q. Kizziar and Mildred Kigziar appearing in person’ and

by and through their attorneys, Gore & Gore and C. E.

_ Hall: the defendant, the United States of America, appear-

ing by its duly authorized representatives and by its attor-

ney, Leonard Ralston, and the Intervenor, National Paving

Company. a corporation, appearing by its duly authorized

representative and by its attorneys. Yates. & Braddock. All

parties announced ready for trial and a jury sti waived,

24 : ~ Kiz7tar v. DOLLar

testimony was received by the Court and all parties having

- rested, the Couirt took the case under advisement. And the

_ Court having considered all testimony and evidence as

“offered by the parties to this cause: having considered the

briefs as filed herein by the plaintiff and defendants, O. Q.

Kizziar and Mildred Kizziar, and having heretofore made

and filed herein its Findings of Fact and Conclusions of

Law, and Order for Judgment, now, pursuant to said Order

for Judgment, it is by the Court ordered and adjudged

as follows: Yate | | a

(a) That the plaintiff, B. L. Dollar, an individual

doing business as Dollar Construction Company, have judg-

ment against the defendant, O. Q. Kizziar, on the first cause

of action set forth and alleged in plaintiff's petition, as

herein filed. tor the total sum of $21,963.50 with interest

thereon at the rate of 6 per cent per annum from May 4,.

1957, and for his costs and_-disbursements in this action,

including a reasonable aitorneys’ tce to plaintiff's attorneys,

which said costs and attorneys’ fees are to be hereinafter

taxed, on notice, and hereinaftes inserted by the Clerk of

this Court in the sum ot $2500. 00.

(b) That said plainaitt, B. L. Dollar, have judgment |

against the detendant, O. Q. Kizziar. on the second cause of.

action set forth and alleged in plainuft’s petition, as herein

tiled, for the total sum of $902.60, with interest thereon

. at 6 per cent per annum trom November 21. 1956.

- Petition FoR Writ | ee 25

‘(c) That the intervenor, National Paving Company,

a corporation, have judgment against the defendant, O. Q.

Kizziar, ond the principal surn of $293.20 with interest there-

on at.6 per cent per annum from May 15, 1957, and for—~

its costs and disbursements in this action, ‘including a

- reasonable attorneys” fee to Intervenor’s attorneys, which

-said costs and said attorneys’ fee are to be hereinafter taxed,

on notice, and hereinafter inserted by the Clerk of this

Court in the sum of $29.32. |

(d) That the plainttt, B. L. Dollar, holds a valid

and subsisting materialmen’s and mechanics’ lien upon

and against the whole of ‘the interest of the defendants’,

O. Q. Kizziar and Mildred Kizziar, in and to the

West 50 feet of Lot 20, Block |, Hightower ‘Park |

Addition to the City of Altus, Oklahoma,

for the sum of $21,963.50, with interest shereon at 6 per

cent per annum from May 4, 1957, together with the costs

of this action; that the right, lien and claim of said plain-

uff in and to said premises is, by virtue of said lien, prior

and superior to any right; claim, interest or title of said

defendants, O..Q. * izziar and Mildred Kizziar, in and to

said premises or any part thereof, and that said plaintiff

is now entitled to the foreclosure’ thereof. |

. (e) ‘That the intervenor, National Paving Company,

a corporation. holds.a valid and subsisting mechanics’ and

materialmen’s lien upon and against the whole of the in-~

26 f Kizztar v. Dottar -

terest of the defendants. Oo. Q. Kizziar and Mildred Kizziar,

‘in ‘and to the

West 50 fet of bot 20, Block. 1, Hightower Park

Addition to the C ity of Altus, Oklahoma,

for the sum of $293.20 with interest thereon at 6 per cent

_ per annum from May.15, 1957, together with its costs as

~ herein taxed and accrued; that the right, lien and claim |

of said Intervenor, in and to said premises is, by virtue of

* said lien, prior and superior to any right, claim, interest

or title of the defendants, O. Q. Kizziar and Mildred

-Kizziar, in and to said premises or any part thereof, and

that said Intervenor is now entitled to the foreclosure

thereof. ; he

, (f) That the defendant, the United States of America,

holds a valid lien tor Federal Withholding Insurance and

Excise Taxes cov cring the whole of the interest of the said

0.7Q. *Kizziar in and to the real property hereinbefore

described, in the principal sum of $5,336.20, with interest

and costs thereon accrued, which said lien of said defen-

dant is prior and superior to the mechanics’ and material-

men’s lien of the plaintiff and the Intervenor herein, as

to the interest of the defendant, O. Q. Kizziar, in and to

said premises. | j

(g) That the plaintiff and Intervenor herein are en-

titled to a. marshaling of assets by reason whereof it is by

the Court ordered that the defendant, the United States_

of America, first proceed against any and all property of

PETITION ror Writ : 27

| the defendant, O. Q. Kizziar. including ee: but

not being’ limitedte:---~..—.. ..

~

(a) A stock of merchandise and drug. store fixtares

comprising the Broadway Drug Store as located at ™

East Broadway. Altus, Oklahoma.

(b) A stock of merchandise and drug store fixtures

comprising the Park Lane Drug Store as located at

100 South Park Lane. Altus. Oklahoma.

(c) The West 26 feet of the South 100 feet of Lot

6, Block 3, Hightower Place Addition to. the City of

Altus, Oklahoma, upon which has been constructed

a medical clinic building known and referred to as the

Irby-Bussey Clinic of Ahus. Oklahoma.

(d) An undivided 1/7th interest in and to the East

Half of Section 3, Township 2 North of mange 22

West of the I. M.., 3

upon which said defendant, the United States of iced

a

holds a lien and on which said plainuff and said Intervenor

hold no lien, for the satisfaction of the tax lien of the

United States of America, before resorting to the interest

of the defendant, O. Q: Kizziar, in and to the property as

specifically hereinbefore described, for the satisfaction of

the lien of said defendant. the United: States of America.

(h)- That L. A. Goodwin is the owner of a first mort-

gage lien on the

West 50 feet of Lot 20, Block 1. ‘Sie Park

Addition to the City of Altus, Oklahoma.

upon which there is a balance owing of approximately

$8,200.00 with interest thereon accrued and that all fore-

closure sale proceedings condycted herein in pursuance of

28

Kiz7tar V. DOLLAR

this judgment should be made subject to the first mortgage

lien of the said L. A. Goodwin. |

1T IS THEREFORE BY THE COURT ORDERED.

_ ADJUDGED AND DECREED that the materialmen’s and

mechanics’ liens of the plaintiff. B. L. Dollar, and the In-

tervenor, National Paving C mgemy. 4 corporation cover-

* ing the

West 50 feet of Lot 20, Block 1. Hightower Park.

Addition to the City of Altus. Oklahoma,

be and the same are hereby foreclosed as by law provided.

and it is by the Court ordered that said property be sold,

upon execution and ordér of sale to be issued: herein, sub-

ject to a first, mortgage thereon as owned and held by

L. A. Goodwin. and the proceeds of any such sale applied

-as follows:

(1) To the payment of costs of said sale and the

costs of this action.

(2) To the payment of such balome, if any. as may

then be owing the United States of. America upon

its lien for Federal Withholding Insurance and Ex-

cise taxes in the principal sum of $5,336.20, wae in-

—verest and COSES thercon acerued.

(3) To the payment to the plaintiff, B. L. Dollar.

of the sum of $21,963.50, with interest: thereon at 6 .

per cent per annum from May 4, 1957, and to the

payment te the Intervenor. National Paving Company.

of the sum of $203.20, with interest thereon at 6 per

cent per annum from May 15, 1957, on a pro rata

basis. iv being by the Court ordered that from the —

funds so received said plaintiff shall first pay all bal-

ances as then owing by him to the. following named

nT and subcontragtors and those furnishing

PETITION FOR WRIT 29

money for the improvement of the above described

premises, to-wit: |

International Paper Company. as Successor to

Long Bell Lumber Company,'a corporation $ 183. 63

Clarence H. Corey, d/b/a, Altus Glass Company. 378.06

Cameron Lumber Company, a corporation - 4,667.94

Fagan Plumbing Company, a copartnership 279.60

R. B. Thomas, d/b/a R. B: Thoinas Co. 500.00

Geo. C. Wright Lumber Co., a corporation 613.18 |

Hammond Concrete Company cei

Southwest Metal & Trade Company. 167.00

Eddie Brinkman, d/b/a Brinkman Electric Co. . 2,237.12

Promissory Note owing Dr. R. S. inti for =

the principal suin of _. 3,500.08

(4) And any residue remaining to be paid as the

Court may direct.

‘IT IS SO ORDERED.

Ross \Riz

United St a District ‘Judge

a We: .

APPENDIX B

U NITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 5987, May Term. 1959

0. Q KIZZIAR AND MILDRED KIZZIAR; his wite,

Appellahts

30 | Kiz71ar v- DOLLAR

B. L. DOLLAR. an individual doing business |

as B. Le. DOLL AR CONSTRUCTION COMPANY,

Appellee.

| (July 23, 1959)

C. E. Hall. Oklahoma City, Oklahoma, (E. E. aie and

W. H. Gore, Altus, Oklahoma, were with him on the brief)

for Appellants.

Robert B. Harbinson, Altus, Oklahoma, (Rows Rutherford

and Harbinson & Whiteside, Altus. Oklahoma, ‘were with

him on the brief) for Appellee.

Before MURRAH. PICKETT AND BREI TENSTEIN,~

PICKETT, . Circuit Judge. | a

On November 12, 1956 the plaintiff and sthe defen-

dant, O. Q. Kizziar. entered ini® a written contract where-

by the plaintitt agreed to construct a building on property

owned by the detendant and his wife for an agreed price

of $20,000.00.-This action was brought to’ recover the full

‘amount due on the contract and an additional sum-of $2.-

863.50 alleged to be.duc ona subsequent oral contract for an

enlargement of the building as originally planned. The

plaintiff also sought the foreclosure of a mechanics’ and

materialmen's licn on the property and the recovery of a

reasonable attorney fee for enforcing the lien. As a separate

cause of action. plaintif requested judgment for the bal-

ance which kKizziar allegedly owed him on a-former con-

tract. The case was tried, without ‘a jury, and the court

found for the plainzitf onthe written and oral contracts

q

Permios FOR Writ | $1

for the first cause af action, and entered judgment in the

requested amounts less certain ‘deductions. The court also

ordered the lien foreclosed by the sale of the property and

‘allowed $2,500.00, for ‘costs ang attorney fees. Jitig-

ment was also entered in favor of the plaintiff for $902. 60,

the full amount alleged to be due on the former contract.

With regard to the first cause of action, the defend-

ants urge that the written contract “sued upon was entire |

and indivisible and that performance by the plaintiff was

insufficient to permit recovery ‘thereon. The law is settled

in Oklahoma that when a contractor and ‘builder has in

good faith endeavored io comply with the terms: of a con-

tract, literal compliance’ in all details is not essential to

recovery, especially where the owner has taken possession

of the building. In Robinson v. Beaty, 75 Okl. 69. 181 P.

941, 942, the Oklahoma Supreme Court said:

“Since the rule of exact or literal preformance .

. has been relaxed, literal compliance with a build-

ing contract is not essential to a recovery thereon,

but a performance thereot in all its material and

substantial particulars is sufficient.”

There: is substantial performance when the builder

has in good faih intended to perform his part. of the

‘ contract and has done so in the sense -that the building is

substantially what is provided for. and there are no omiis-

sions OT deviations. trom the general plan which cannot be

remedied without difficulty. $ Williston, Contracts, § 842

(Rev. Ed. 1986); Restatement. Contracts, § 275: 9 Am.

32 $8 — _Kizztar v. DOLLAR

Jur., Building and Construction Contracts, § 42; Words

and Phrases, Vol. 40, Substantial ‘Petformance. .

| When there has been substantial performance, . i

measure of recovery is the amount stipulated in the’ agree-

ment -less the reasonable cost of remédying defects: and

omissions to. make the building conform to. the contract.

Klein v. Moore, 202 Okl. 88, 210 P. 2d 363; Busboom v.

Smith, 199 Okl. 688, 191 P. 2d 198, and cases there cited.

In Lane v. F. 8. Miller Lumber Co., 101 Okl. 14, 222 P.

968, 969, the court quoted with approval from Kelley vs

Hamilton, 78 Oki. 179. 189 P. 585. as- follows:

“A contractor and builder who Aas -in good faith

_ endeavored to perform all that is required -of him

by the terms of: his contract for the construction of

a building, and ,has in fact substantially performed

the same. is ordinarily entitled to sue upon his con- °

tract” and: recover the contract ‘price less proper

’ deductions therefrom on account of ‘omissions and

deviations and defécts chargeable to him, especially

where. the owner occupies and uses such building.”

See also 9 Am Jur, Building and ‘Construction Contracis,

§ 40, 43; Ann. 38 A. L. R: 1383; Anno. 65 A. L. R. 1297. |

There is no indication of Gad faith on the part of the

plaintiff, and from an examination of the recerd, we are

satisfied there was substantial performance of the contract

_on his part. The building in question was constructed for

use asa medical clinic and the defendant's lessee has oc-

PETITION FOR Writ | | 33.

cupied it since the first part of April, 1957.! During the \

construction’ numerous changes in the plans were made = #6

at the request of the lessee and the defendants. ;

The trial court found that all of the deviations from

the specifications except two were authorized by wiherquens

agreenient of. the parties. . The. two exceptions relate to

the roof and the heating and air -conditioning equipment?

The plans and specifications required what was descyibed a as

2 ‘5-ply built-up. roof”. The root installed was a 4- ply” |

and ‘the court allowed’ a deduction of $150.00 which, ac-

cording to the evidence, would be the reasonable ‘cost of

placing an additional ply on the roof, The specifications

provided for a central heating and airconditioning system

“ducted in”. The system was to be Chrysler Air Temp or

its equal, with an air duct intoreach room, but the size _

of the unit was not specified. It is agreed that the type

of heating and air conditioning unit “installed was equal

to the Chrysler product, but the court found that the system

was inadequate to properly cool, the building. The court

also found that the deficiency could be overcome by the

install eon of window air conditioners at a cost of $750. 00, .

and allowed that amount as a deduction from the contract

i. The court made this’ finding: - ae , .

“16. That during the whole of the period of construction of said

Srigley Clinic building, the defendant Mildred Kizziar, had full knowl-

edge thereof, and advised with the plaintiff from time to time, as to

various features of said construction, and that upon completion of

said building and in the month of: April, 1957, the defendants O. Q.

Kizziar and Mildred Kizziar. entered into possession of said building.

and have since accepted the rental benefits. accruing therefrom.”

; . >

34 ‘Kizziar Vv. DOLLAR

price. Tegpre was evidence that Kizziar approved the use

of the-particular make of heating and cooling system which

was installed, but that approval would not authorize the |

installation of a system which was of a different type than

that specified’ or which was inadequate for its intended .

purpose. The defendants are paying for and are entitled

to a central system with sufficient capacity to heat and cool

_ the building in a reasonable manner, and.the court should

have determined and made allowance for the additional cost

to provide such a system. M itchell v. Spurrier Lumber Co.,

31 Okl. 834, 124 P. 10. d °

We think the evidence sustains the findings that a

number of the remaining variations, alterations and adjust-

ments ‘vere authorized by subsequent agreement of the

parties." There are, however, some items required by the

contract specifications which were not completed or in-

stalled and which were not waived." For the contract

price, the defendants were entitled to a completed building.

‘Unless this failure resulted solely from defendant’s conduct

which prevented completion, there should have been an |

allowance for the necessary cost of completing the building

as planned.

Complaint is made that the*foundation did not meet

the. specifications and that the variance was not authorized.

2. These include such minor items as unfinished painting, cleaning of.

‘tile flaors, omissions of: certain moulding, bathroom locks, medicine

cabinets, etc., The items to be allowed-‘shall be limited to thase

found to be required by the contract and may be —— from

the record or from additional evidence, or both. '

PETITION FOR Writ 35

The evidence is without conflict that the ‘foundation,

although -not equal to that specified, was standard and

adequate for this type of building. No evidence was intro-

duced at the trial as to the cost of providing a foundation

equal to the specifications. In the absence of a showing that -

the foundation was to be of certain specifications for a

particular reason, the plaintiff having provided one that

was standard and adequate for the building, the require-

_ ments of the substantial performance rule are- satisfied.

Defendants contend that the trial court erred in finding

that the parties entered into an oral contract for a building

_ larger than the one contemplated by the written contract.

- As to the’ existence of this oral agreement, the evidence

is in direct conflict. The plaintiff testified that the building,

as originally proposed, was-to be 70° in length and 35° in

width; that after construction was started’ it was agreed

between the parties that the length of the building should

be extended to 77° at an additional cost of $2,863:50.

Defendants deny that any such agreement was entered -into.

The doctor who was to occupy the building testified that

it was his original understanding that that building was to

be 70° x 35’ and that he was pleased to hear of the extension.

There is other evidence which tends.to support the oral

agreement, consequently the finding is hot clearly er-

roneous. |

Before construction was commenced, the lessee of a

portion .of the premises advanced the sum of $3,500.00

*

36 < : K1z21AR V. DOLLAR

to the plaintiff and accepted a promissory note signed -by

the plaintiff and the defendam, O. Q. Kizziar. Defendant

judgment for this amount.* The trial court recognized.

contends that he should have been given -credit on the

plaintiff's primary liability on the note and directed that

it be paid from the proceeds of the lien foreclosure sale. The |

plaintiff and the defendant ©. Q. Kizziar are liablé on the

note and cach is entitled to be protected against double

payment. As all parties agree that the note should be paid

from the judgment funds, we are satisfied that the court,

ey

the parties, and their attorneys, will devise a method to

protect all concerned.

The defendants challenge the allowance of a $2,500.00 —

attorney fee to piainufl. 42 O. S. A. § 176 provides that

in an action to enforce any lien, the party for whom judg-

ment is entered shall be entitled to a reasonable attorney

fee to be fixed by the court and taxed as costs. A lien claim-

ant recovering judgment against the owner of a building tor

material and services is entitled to recover a reasonable

attorney fee under the statute. Grissom v. Frensley Bros.

Lumber Co., 192 Okl. 413, 136 P. 2d 887. The plaintiff

alleged in his complaint that the reasonable attorney fee

was $2,000.00 for the toreclosure of the lien. Defendants

contend that the court erred in allowing a $2,500.00 fee

3. The lessee testified that he had not paid the defendants any rentals

but had credited them on the $3,500.06 note. The plaintiff concedes that

defendant, O. Q. Kizziar, is entitled to credit for any amount he has

paid on the note by allowance of rental credits or otherwise.

NY

/

/

j

‘ _ PetirioN FoR Writ | 37

and that the judgment should have been reduced to $2.000.-

00. The plainulf filed a motion requesting that a reasonable

attorncy:fee be fixed by order of the court and taxed as costs, -

There was a hearing dpon this motion which resulted in

the allowance of a $2,500.00 attorney. fee. Phe evidence.

in support of the motion is not in the record, and we must

assume that it was sufficient to support the allowance. The

plaintiff would not be bound by the $2,000.00 allegation,

and if the evidence was sufficient: to sustain the higher.

award, the complaint would be considered amended to

conform to the proof. Fed. Rules Civ. Proc. 15 (b):

C.#. R. v. Finley, 10 Cir.. 265 F. 2d 885: Decker v. Korth,

10 Cir., 219 F. 2d 732. certiorar: denied, 350 U.S. 830,

Underwriters Salvage Co. v. Davis © Shaw Furniture Co.,

10 Cir., 198 F. 2d 450.

The second cause of action in plamull’s, complaint ts

for the balance duc on a previous contract betwedn the same

parties. The evidence as to the amount paid or credited

_is conflicting. The determination of the issue depended

upon the credibility which the trial court: attributed to

the testimony of the various. witnesses. “Phere is no merit

Sufficient evidence to sts

‘to the contention that there

tain the $902.60 judgment entered by the court. *

. Prior to entry of the judgment the defendant filed”

motions for a new wial and te open judgment for addi

‘tional evidence’. ‘The denial of these motions ts assigned

as error. ‘The purpose ot the motions was to permit the

38 ; Kiz7iar V. Doar

introduction of newly discovered evidence “which shows

material statements of plaintiff were not true” . and “if

believed by the court. would substantially prove that” the

judgment should be modified, corrected or amended. -

Motions of this nature are addressed to the sound discretion —

of the trial court and a denial will be disturbed only when

clearly erroneous. Roberts v. Sawyer, 10 Cir., 252 F. 2d

286; Harrington v. Swanson, 10 Cir.. 249 F: 2d 640; Patter...

~ son v. National Life & Accident Ins. Co., 6 Cir., 183 F. 2d .

745; Trapp v. United States, 10 Cir., 177 F. 2d 1, certiorari

denied 339 U. S. 913. We find no abuse of discretion in the’

acticn of the court in disposing of these motions.

- The case is remanded for additional findings in accord-

ance with the views herein expressed and a modification

of the judgment accordingly.