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method that is wasteful and extravagant be, The evidence shows that some other royalty cause such method was customary.

owners do the same thing. By the method Plaintiffs cited and relied upon Scott v. used by defendant the court finds that the Steinberger, 113 Kan. 67, 213 Pac. 646. The taking of the samples and analyzing them to question there was the price to be paid for determine the amount of oil to be paid for gas, whether the lessor should be paid on must be done with care in order to be acthe basis of the price of gas at the end of the curate, and obviously that is true, but the pipe line through which it was marketed, or evidence is, and the court finds, that this should he be paid upon the price of gas at work was being done with care by defendthe lease, and it was held:

ant. Now, if the plaintitfs desire to know “That the lessor was entitled to receive his with certainty the amount of oil they should share as measured into a pipe line which con

be paid for, there is no reason why they nected with the wells at the price or value of could not have an employee take samples at gas at that place and not the price or value the same time samples were taken by dethat was obtained for it at some distant place fendant and have them analyzed by some on the pipe line to which it was transported one employed by them, and they should be and sold.” Syl.

permitted to do that if they desire to do so.

But there is no complaint along this line. There is nothing in this holding which con- Plaintiffs have never been denied the right flicts with the conclusion here reached. The to have their employee present at the time oil of plaintiffs is measured in the tanks on samples were taken and the oil turned into the leases, and samples are taken from which the tanks; in fact, the evidence shows that is determined the percentage of oil and water he was present at such times when plaintiffs in the total quantity of fluid turned into the desired him to be. And he should be perpipe line. So the oil is measured on the mitted to take samples at the same time and leases, and plaintiffs are paid in accordance under the same circumstances as those takwith that measure.

en by defendant, or, if there is likely to be a Plaintiffs argue that the method used difference between the two samples taken, to places them at the mercy of defendant; that have a part of the sample taken by defenddefendant's agents and employees turn the ant and then to have that examined. But oil from the tank, take the measurements, these rights have not been denied, and they take the sample, and at defendant's labora- are not complained of by plaintiffs. But tory, by a process with which plaintiffs are there is nothing in the lease that would renot familiar, they determine the amount of quire defendant to pay plaintiffs' employee oil to be paid for. It is pertinent to ask for doing such work. Defendant is required who would do this if defendant did not? The to treat the plaintiffs fairly and to pay them lease is of no value to either party, unless it for their full one-eighth of the oil produced is operated. By the lease the defendant is and saved from the leased premises, and required to operate it. The plaintiffs have when it has done that its obligation is fulno liability in that regard; plaintiffs are filled. only indirectly concerned with method of We have examined all of the authorities operation; they are primarily concerned cited by counsel on both sides. There is with the result obtained. So long as the nothing in any of them contrary to the conmethod used by defendant is fair and effi. clusions here reached. It will not be necescient, and by its use the plaintiffs receive sary to make a more extended reference to and are paid for one-eighth of all the oil pro- them, for in its final analysis this case gets duced and saved from the leased premises, down to this proposition: When a plaintiff is they have nothing to complain about. Colgan defeated at the trial upon all the material v. Oil Co., 194 Pa. 234, 45 A. 119, 75 Am. St. allegations of his petition, and it is clear he Rep. 695; Locke v. Russell, 75 W. Va. 602, has sustained no injury, the defendant should 84 S. E. 948; Grass v. Development Co., 75 not be put to great expense because plaintiff W. Va. 719, 84 S. E. 750, L. R. A. 1915E, entertains a fear that possibly he might be 1057.

injured in the future. When he sustains such The evidence shows that eren prior to the injury, if he does, the courts will give him use of this method by defendant that plain-relief. tiffs employed a man to watch and check the

The judgment of the court below will be work of the gauger of the purchasing com- reversed, with directions to sustain defendpany and report to them, in order that they | ant’s motion for judgment in its favor upon might have information of their own as to the findings. the amount of oil produced from the leases. All the Justices concurring.

(230 P.)

ly justified in paying, court will enjoin city from WADE et al. v. CITY OF TACOMA et al. paying contractor the excess, leaving such ex(No. 18418.)

cess to be disposed of, as law may direct, after

all legal demands are satisfied. (Supreme Court of Washington. Nov. 13,

Holcomb, Fullerton, Parker, and Mitchell, JJ., 1924.)

dissenting. 1. Fraud Om 52Widest latitude allowed to support allegations of fraud.

En Banc. The widest latitude should be permitted in Appeal from Superior Court, Pierce Counthe introduction of evidence to support allega- ty; Clifford, Judge. tions of fraud.

Suit by Cora E. Wade and others against 2. Appeal and error -992—Supreme Court City of Tacoma and another. From a judgcannot interfere with trial court's judgment ment dismissing action, plaintiffs appeal. that proof offered to impeach public record Reversed, with directions. is insufficient.

Burkey, O'Brien & Burkey, E. N. EisenWhere, in view of rule that every intend- hower, and B. W. Coiner, all of Tacoma, ment must be indulged to support public rec

for appellants. ord, there might reasonably be difference of

E. K. Murray, Percy P. Brush, Lorenzo opinion as to whether rejected proof offered by appellants would have been sufficient to im- Dow, and William H. Pratt, all of Tacoma, peach the record, Supreme Court could not in- for respondents. terfere with trial court's judgment, if it had admitted the offered proof that it was insuffi TOLMAN, J. This appeal is by a number cient to impeach the record.

of interested property owners seeking re3. Municipal corporations ww370—When special

versal of a judgment dismissing their ac assessment fails, city may not pay cost of tion to enjoin the city of Tacoma from paywork from general fund.

ing to the contractor a sum in excess of the When special assessment has failed, city contract price for the making of certain may not assume and pay cost of work from street improvements. general fund.

On September 13, 1922, the city council

passed a resolution to widen the pavement 4. Municipal corporations Ow360(1)-Contract then existing on St. Helens avenue in that for paving held to obligate contractor to as city for a distance of three blocks, and to recertain for himself cost of completing con- surface the whole with asphaltic concrete to tract, Contract for paving improvement by its a depth of approximately two inches, for the

construction of a terms held to obligate contractor to ascertain

concrete retaining wall for himself the amount of labor and material along a designated portion of the lower side required to complete contract.

of the street, and the removal and replacing

of ornamental lamps. Prior to the order5. Municipal corporations emo360(1)-City held ing of the improvement, after the initiatory not empowered to pay contractor excess over resolution passed by the city council, a preestimated cost.

liminary estimate of the cost was made, of Where contractor was under his paving which several property owners were noticontract bound to ascertain for himself the

fied. This estimated cost was $30,327.44, amount of labor and material required to com- which included estimated engineering explete contract, but failed to do so, city acting as agent of property owners could not at their penses of $3,500. Plans and specifications expense relieve him by paying excess over es

were prepared by the city engineer for the timated cost under guise of extras, when in fact improvement, which were duly adopted, adwhole work was fully covered by contract. vertisements for proposals for bids were

made, and, upon receipt of bids, a contract 6. Municipal corporations m493(6) – Court

held powerless to set aside assessment roll was let to the respondent Torkelson on a confirmed pursuant to statute, and no appeal lump sum bid, with units separately priced taken.

pursuant to the call for bids for the computa. In view of Laws 1911, p. 455, § 23, court tion of all extras and deductions, to complete could not set aside assessment roll, where stat. the entire improvement for the sum of $29,utory proceedings were followed in confirming 480. The contract called for the completion it, and no appeal was taken therefrom. of the work according to the plans and speci

fications prepared by the city engineer, which 7. Municipal corporations am 995(1)-City will work included the widening and resurfacing

be enjoined from paying contractor's expens of the street, and “doing all other necessary es incurred in excess of his estimate, where work to bring the finished surface to a propcity is not legally justified in paying such ex

er grade and crown"; construction of PortWhere court cannot by reason of Laws land cement concrete retaining wall and fill1911, p. 455, 8 23, set aside assessment rolling in back of the same, “the excavation which had been made large enough to pay ex

for all walls to be carried down to a depth penditures incurred by a contractor, in excess of satisfactory to the commissioner of public estimated cost, which excess city was not legal.) works or his representative." The exact

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cess,

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location of the wall was designated. They order to make legal, if possible, the additioncontract also called for the removal of street al payment. Upon the trial the court belamps at the expense of the contractor. low refused to permit a witness named War

The contractor completed the work, and ter, who had contemplated bidding for the at the conclusion thereof an assessment roll contract, to testify as to a difference in the was prepared for a sum total of $39,459.70. specifications furnished to him by the enThis included th contract price of $29,480, gineering department upon which to bid from to which had been added so-called extras the specifications attached to the contract ordered and allowed by the city engineer with Torkelson. The court also refused to and the commissioner of public works, permit the city comptroller to testify that amounting to $12,175.45, from the total of no previous or subsequent contract had ever which was subtracted $737.75 as the value been entered into by the city containing the of work omitted, and an excess of $1,458.90 interlineations which appear in the specific on the engineering estimate which was orig- cations attached to the contract in question. inally $3,500

The witness Warter was not permitted to A time was set for hearing on the confirm- testify that he called the attention of the ation of this assessment roll. Notice of the engineering department of the city, prior to time and place of such hearing was duly the opening of the bids, to the fact that the published in the city official paper, which is estimates were insufficient and the plans a paper of general but not extensive circu- defective. Cross-examination of the city enlation, but that notice the appellants claim gineer was not permitted as to the reasons never to have seen. Nothing was stated in why the specifications in this particular inthe notice as to any increase in the roll over stance contained interlineations not found in the original estimate or the contract price. any other specifications. The rulings of the None of the property owners had any actual court above indicated, together with the renotice of the hearing on the assessment roll fusal to enter judgment for the appellants or of the increase over the contract price or as prayed for, constitute the errors claimed the original estimate.

on this appeal. At the time the roll was confirmed, none In summing up the case, the trial judge of the property owners filed any objections or stated that the evidence did not show any appeared, and none of the city commissioners, actual fraud, and that what would consti. except the commissioner of public works un- tute constructive fraud under the circumder whose direction the roll had been pre- stances might be a matter of dispute which pa red, had knowledge that the roll exceeded he would not go into; that what impressed the original estimate or the contract price. him was that under the proof the contracThe mayor and certain councilmen admitted tor would probably have been largely the losthat they would not have confirmed the roll er had be been compelled to receive only the had the council known the facts, and the com- contract price, and, after some further obmissioner of public works admitted that he servations, the trial court concluded that had not sufficiently called the attention of the he could find no equity on the showing made mayor and the council to the fact that the by the appellants. assessment roll exceeded the originales The records shows, and it is admitted, timate or the contract price. The roll was, that the engineering department of the city however, at all times on file in the office of made a gross mistake in the estimate. It the city clerk. It was before the city coun- is contended that this mistake was not discil at the time of its confirmation, and im-covered until the contract had been let, and mediately after the confirmation the prop- the contractor had entered upon the premises erty owners were notified by postcard of and the work. It seems possible, therefore, the actual amount assessed against their that, in order to rectify this mistake and properties. Thereupon various owners ap- justify the additional payments necessary peared before the council and asked relief. to make the contractor whole, the specificaThe council, for the first time being informed tions were then altered by adding with pen of the facts, referred the matter to the city and ink the four words "without extra comattorney to ascertain if its action could be pensation therefor,” which will be hereinrescinded. The city attorney, fearing that after further referred to. such an attempt would involve the city in [1, 2] When fraud is alleged, the widest litigation with the contractor, advised against latitude should be permitted in the introduce a rescission, and no further action was taken tion of evidence, and we think the trial court by the city council.

should have received the offered testimony; This action was then commenced to en- but even so, since every intendment must join the payment to the contractor of any be indulged in support of a public record, sum in excess of that which he was entitled there might reasonably be differences of opinto receive under the terms of his contract, ion as to whether, if the appellants had been and to cancel the assessment roll. By trial permitted to prove all they offered to prove, amendment it was also alleged that, after that would have been sufficient to impeach bids were invited, the specifications were the record, and had the trial court admitted changed in the contract with Torkelson, in the evidence and held it insufficient, we

3

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(230 P.) could not have interfered. We therefore pass | timates of the engineer as to lekor and mathis question without further comment. terial required, must not blind us to the law,

(3-6] The main question is as to the pow- or lead to the adoption of a rule, which in er of the city in the premises. The contract this particular case might relieve from an provides:

honest mistake, but in the future might per"Bidders must examine and judge for them- mit dishonesty and fraud to wax fat at the selves as to the location and character of the expense of innocent and helpless property proposed improvement, nature of the material owners. When a special assessment has to be excavated," etc. The engineer's estimates failed, the city may not assume and pay are figured net; no allowances are made for the cost of the work from the general fund waste and breakage of materials. The con- (Pratt v. Seattle, 111 Wash. 104, 189 P. tractor assumes all risk for variance in any 565); and on principle and in reason it computation of amounts or quantities neces- would seem that, even though the mistake sary to complete the work required by these be its own, the city cannot, in such a case specifications. *

“All material and workmanship used in this as this, relieve the contractor at the expense
improvement shall be in accordance with the of the property owners. The reasoning in
following detailed specifications, and the accom- Paul v. Seattle, 40 Wash. 294, 82 P. 601;
panying diagram of the district and plans, which Malette v. Spokane, 68 Wash. 578, 123 P.
are hereby made a part of these specifications. 1005, Ann. Cas. 1913E, 986; and McHugh
The arrangement of walks, curbs, and minor v. Tacoma, 76 Wash. 127, 135 P. 1011, lend
details are subject to slight changes or altera- support to this position.
tions as the commissioner of public works may

A contractor, under the terms of such a
require, according to instructions furnished or contract as this, is bound to ascertain for
delivered before the beginning of or during the himself the amount of ļabor and material
progress of the work. No work or material
not fully described on the said diagram or spec- required to complete the contract (Hart v.
ifications shall be furnished without detailed City of New York, 201 N. Y. 45, 94 N. E. 219;
plans or instructions from the commissioner of Dunn v. City of New York, 205 N, Y. 342,
public works, provided, however, that no change 98 N. E. 495; Winston v. City of Pittsfield,
in the work shall aggregate in extra cost, as 221 Mass. 356, 108 N. E. 1038; Blackstaff
estimated by the city engineer, throughout the Engineering Co. v. Commissioners of Sewer-
entire district, an amount exceeding that bid age, 147 Ky. 629, 145 S. W. 152; Stuart v.
by the contractor upon the work. The intent Cambridge, 125 Mass. 102; Molloy v. Vil-
and purpose of this clause is to permit changes lage of Briarcliff Manor, 129 N. Y. S. 929),
to be made in minor details to conform to the and, having failed to do so, the city acting
necessities that may arise or become evident
as the work progresses, such as varying posi- as the agent of the property owners, bas
tions of walks, etc., but not to make any chang- no power at their expense to relieve him by
es in the general design, nor to add to the paying the excess over the estimated cost
estimated expense to the contractor in the ag- under the guise of extras, when in fact the
gregate, without extra compensation there whole work was fully embraced and cover-
for.” (The italicized words being those intered by the contract.
lined with a pen.)

[6, 7] The statutory proceedings were folWhen these provisions are read together, lowed in the matter of the confirmation of it seems to us their meaning is too plain to the assessment roll, and no appeal was taken

therefrom. call for construction. The wording of the

In mandatory terms, the statspecifications and their manifest intent is ute provides that the failure to make objecthat the bidder, who afterwards becomes tions in the manner prescribed and within the contractor, must examine and judge for the time fixed creates a conclusive presumphimself as to the character and nature of tion of the waiver of all objections, and by the work and the labor and material re

section 23 of chapter 98, Laws of 1911, it is quired to complete the contract; that the

provided : engineer's estimates are no more than a mere

“Whenever any assessment roll for local imguide, and the bidder must for himself de provements shall have been confirmed by the termine as to their correctness, and, if he ac- council or other legislative body of such city cepts them unchecked and unverified, he validity and correctness of the proceedings re

or town as herein provided, the regularity, does so at his peril. Moreover, paragraph lating to such improvement, and to the assess31 of the specifications, which contains the ment therefor, including the action of the couninterlined words "without extra compensa- cil, upon such assessment roll and the contion therefor,” provides for the increase of firmation thereof, shall be conclusive in all pay only for changes in plans and specifica- things upon all parties, and cannot in any mantions in other than minor details, and here ner be contested or questioned in any proceedthere were no changes in either plans or ing whatsoever by any person not filing written specifications, either minor or major, and objections to such roll in the manner and within the work, and all of the work was done strict. from the action of the council in confirming

the time provided in this act, and not appealing ly under the plans and specifications as first such assessment roll in the manner and within written and as embodied in the contract. the time in this act provided. No proceeding

Sympathy for the contractor, who in the of any kind shall be commenced or prosecute1 face of these provisions relies upon the es- for the purpose of defeating or contesting any

we

such assessment, or the sale of any property, vent the sale of any real estate, are (1) that to pay such assessment, or any certificate of the property about to be sold does not appear delinquency issued therefor, or the foreclosure upon the assessment roll, or (2) that the asof any lien issued therefor: Provided, that this sessment has been paid. section shall not be construed as prohibiting the

In North American Lumber Co. v. Blaine, bringing of injunction proceedings to prevent 89 Wash. 366, 154 P. 446, we again dealt the sale of any real estate upon the grounds (1) that the property about to be sold does with this section; Judge Parker, speaking not appear upon the assessment roll, or (2) for the court, saying: that said assessment has been paid."

"This court has repeatedly held that such a Hence we cannot cancel or set aside the determination by the city council, had upon due

notice under previously existing statutes simi. assessment, but nevertheless, since, as

lar to this, became final as to all owners of have already seen, the city may not pay to property so assessed, unless the assessment the contractor any more than the sum legally was attempted to be levied under such circumdue him, the trial court should have enjoin- stances that the city was exceeding its jurised the city as to the payment of any ex- diction over the subject-matter. This question cess, leaving such excess to be disposed of as is reviewed at some length in Rucker Brothers the law may direct, after all legal demands v. Everett, 66 Wash. 366, 119 P. 807, 38 L. R. are satisfied.

A. (N. S.) 582, where our former decisions

are noticed. The judgment is reversed, with directions

The doctrine was adhered to in to enter a judgment in harmony with the Grandin v. Tacoma, 87 Wash. 98, 151 P 254, views herein expressed.

involving an assessment under this statute." MAIN, C. J., and BRIDGES, MACKIN

In Giles v. Olympia, 115 Wash, 428, 197 TOSH, and PEMBERTON, JJ., concur.

P. 631, 16 A. L. R. 493, where the property

owners had appeared before the city counHOLCOMB, J. (dissenting). Although cil upon due proceedings, made their objec the decision of the majority is but a Pyrrhic tions, which were denied, and appealed to victory for appellants, it unfortunately in the superior court from the action of the troduces marked discord in our decisions. city council, we sustained the objections and Under the statute quoted in the majority defenses of the property owners; but in opinion (section 23, c. 98, Laws of 1911) ap- Lee v. Olympia, 122 Wash. 616, 211 P. pellants are estopped to institute and main-883, where the property owners in the same tain this action, and we have so held in a local improvement district as in the lastnumber of cases. In Goetter v. Colville, 82 cited case had not appeared before the city Wash. 305, 144 P. 30, Judge Main, speak- council and objected and set up their deing for the court of the provisions of that fenses, afterwards bringing an independent section, said:

action like the one at bar, we denied their

right to relief, all the present judges con"The language of the statute is clear and curring in that decision, except Judges explicit, and mandatory in its terms."

MACKINTOSH and PEMBERTON. In Grandin v. Tacoma, 87 Wash. 98, 151

There is no doubt in my mind that the P. 254, a per curiam opinion in which the and the litigation and expense to the city

judgment in this case should be affirmed, section quoted is dealt with, where no ob- and property owners ended. I therefore disjections had been filed by the property own

sent. ers to the assessment, and no appeal taken from the action of the city council, it was FULLERTON, PARKER, and MITCHELL, said:

JJ., concur in what is said by HOLCOMB, J. “Appellants have filed no objections, as provided by this act, and are not attacking the assessment on either ground given by the law as cause for an injunction. Their right to enjoin the collection of the assessment results, if at all, from a total lack of authority in the John P. DUKE et al., Respondents, V. NA: council to assess their property for this im

TIONAL SURETY CO., Appellant. provement. By failing to file written

(No. 18538.) objections before the confirmation of the assessment roll, showing that the improvement

(Supreme Court of Washington. Nov. 14, was of no benefit to their property, the appel

1924.) lants have brought themselves within the estoppel of section 23 of the act, and this action En Banc. not being one of the exceptions provided for Appeal from Superior Court, Pierce Countherein, the court was without jurisdiction of

ty; Chapman, Judge. the subject-matter."

Hayden, Langhorne & Metzger, of Tacoma, It will be recalled that the exceptions in for appellant. the proviso of section 23, permitting the F. D. Oakley, Guy E. Kelly, and Thomas bringing of injunction proceedings to pre- MacMahon, all of Tacoma, for respondents.

*

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