# Petition for a Writ of Certiorari — Kizziar v. Dollar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0050%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 914 ## Text - 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 wvvVvVvVvVvVvVTVvVvVvVvVvVvVvVvVvVvVvVvVVe VvvVvVVTVTT KING LAW BRIEF CO., COMMERCE EXCHANGE BLDG. OKLAHOMA CITY—PHONE CE 5-2969 _. 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 — ‘ . > ' ™ . « 4 . . . . . / . > ¢ ‘ . PB = . / No { / ® = . ‘ e 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 ‘ o 6 ~ * KuzziarR Vv. DOLLAR - * < 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, © | 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 ‘ > ‘ - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0050%3A2. Public record. Not legal advice.