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(230 P.)

Following this title, and preceding the enacting clause, is this preamble:

"Whereas, Milo T. Crane has offered to purchase for the purpose of operating the same the waterworks and electric light system owned by the incorporated town of Kiowa, Oklahoma, and as a condition thereto provides that an ordinance be passed granting a franchise to the Kiowa Waterworks, Light & Power Company, its successors and assigns, and,

"Where the language of an ordinance granting to a waterworks company a franchise is ambiguous and reasonably susceptible of two constructions, the construction that is more favorable to the public should be adopted."

Neither the preamble nor any provision of the ordinance informed the voters as to the price which the town should receive for its water and light plant. This plant cost the town of Kiowa $57,000; of which $49,000 was proceeds of a bond issue, and the Kiowa Waterworks, Light & Power Company paid for it $2,500 in cash and $2,500 in light and

"Whereas, it is necessary to as quickly as possible procure a supply of water and electric lights for said incorporated town and its inhabitants, and to that end, it is the desire of the Kiowa Waterworks, Light & Power Com-water service to the town. pany that a franchise be granted to it for the purpose of enabling it to supply said incorporated town of Kiowa, Oklahoma, and its inhabitants with water and electric lights."

[7] The ordinance then grants a franchise in the usual terms for a period of 20 years to the Kiowa Waterworks, Light & Power Company, "to erect, maintain, extend and operate a system of waterworks, water mains and pipes, meters, fire plugs, poles, wires and all necessary apparatus and appurtenances within the corporate limits of said town as now existing, or may be hereafter extended, for the purpose of supplying water, generating electricity and distribut ing the same to said town and public general ly, and for said purpose to enter upon or below and use streets, alleys, avenues, lanes, boulevards, sidewalks, and public areas or grounds of the town or under control or jurisdiction thereof, and erect, maintain, extend and operate such water mains and water pipes and meters and fire plugs, wires, cables and all necessary apparatus and ap purtenances, subject to the terms and conditions hereinafter provided."

Section 11 authorizes the assignment of the franchise upon the express condition that the assignee accepts all of the terms and conditions of the ordinance. Section 12 requires the written acceptance of the ordinance by the Kiowa Waterworks, Light & Power Company within five days. It is admitted that this written acceptance was filed with the town clerk.

It is upon the terms of this ordinance and its preamble, aside from general statutes that the plaintiff relies to support the validity of the deed and bill of sale thereafter executed by the municipal authorities conveying all real and personal property which appertained to the municipally owned water and light plant to the Kiowa Waterworks, Light & Power Company. Since it has been determined that no express or implied statutory power existed authorizing this sale, the conveyances in question must be considered in their relation to Ordinance No. 103. In Mitchell v. Tulsa Water, Light, Heat & Power Co., 21 Okl. 243, 95 P. 961, the first paragraph of the syllabus reads:

The deed and bill of sale relied on are in identical language except as to the kind and character of property conveyed. Both instruments recite as preamble the proceedings leading up to their execution, including an of the board, and the referendum on and adoption of Ordinance No. 103.

election held December 31, 1917, resolutions

of each instrument reads:

Section 1

"Whereas, heretofore, to wit, on the 3d day of December, 1917, the board of trustees of the incorporated town of Kiowa, Oklahoma, were authorized to sell its waterworks system and electric light plant and to grant to the purchasers all of the rights, titles, interest and equities of said town in the operation and use of the plants that the town might have, so far as it could be legally done, and to grant to such purchasers such franchise as might be legal and proper."

SO

It thus appears that when the matter was first submitted to the people on December 3, 1917, they by their votes authorized the board of trustees to sell all of the rights, titles, interest, and equities of the town "in the operation and use of the plants * far as it could be legally done." Thereafter on March 11, 1918, the people by referendum adopted Ordinance No. 103, being informed by the preamble thereof that "Milo T. Crane has offered to purchase for the purpose of operating the same the waterworks and electric light system" upon condition "that an ordinance be passed granting a franchise to the Kiowa Waterworks, Light & Power Company, its successors and assigns." The deed and bill of sale were duly placed of record in Pittsburg county.

In determining the extent of the power granted by the people in these referendum elections, it is necessary to consider the extent and compass of the propositions to which they were asked to give their assent. It is too clear for argument that at both elections the people were asked to give their assent to a conveyance of the water and light plant "for purpose of operating the same," and the purpose of operating it was unquestionably understood to mean the furnishing of public service as originally contemplated by the bond issue for its construc

(No. 14887.)

(Supreme Court of Oklahoma. Nov. 18, 1924.)

(Syllabus by the Court.)

tion. The deed, the bill of sale, and Ordi- | formity with the views herein expressed. In nance No. 103 constitute one entire contract all other respects the decree of the trial court authorized by the people to be entered into should be affirmed. by the board of trustees with the Kiowa Waterworks, Light & Power Company. Therefore, the title which the company acquired to the property was such title only as the FREEMAN et al. v. W. T. RAWLEIGH CO. board of trustees was authorized by the voters to convey. It could not be conveyed free of the use for which it was constructed and to which it was adapted, and to which use it had been dedicated. It could not be conveyed so as to defeat the right of repurchase by the town as authorized by Comp. Stat. 1921, § 4767. All proceedings connected with this transaction are matters of public record and are notice to the world of the limitations of the conveyance (Comp. Stat. 1921, § 4797), and of the public use with which the title is burdened. Public policy forbids that a public utility such as this shall be impaired or destroyed willfully, or that private rights shall be acquired therein the enforcement of which will have this result.

It is therefore concluded that the municipal authorities of the incorporated town of Kiowa had no constitutional or statutory authority, either express or implied, to sell unconditionally the municipally owned water and light plant. It is further concluded that by virtue of the referendum elections they were authorized to enter into the contract which was made with the Kiowa Waterworks, Light & Power Company, but that such contract did not authorize that company to mortgage or otherwise convey the property except as provided in section 11 of Ordinance No. 103, which limitation was ac

cepted in writing by the company, and is binding on it and on all persons claiming under it. This acceptance is explicitly recited in the face of the deed and of the bill of sale on which plaintiff relies.

This conclusion renders unnecessary a consideration and discussion of the other propositions urged by plaintiff in its brief.

The judgment of the trial court should have been in favor of plaintiff for foreclosure of its mortgage and for a sale of the property upon condition that the purchaser take the property burdened with the condition that it be operated as a public utility as originally contemplated in the bond issue for its construction. That portion of the judgment requiring the incorporated town of Kiowa to pay the Kiowa Waterworks, Light & Power Company the sum of $2,500 within six months should be vacated.

For the reasons herein stated, this cause should be remanded to the trial court, with directions to correct and amend its decree in the two particulars pointed out in the last preceding paragraph, and for such further proceedings as may be necessary for carrying into effect such amended decree in con

Contracts 248-Direction of verdict for plaintiff, where evidence wholly fails to support sole defense, not erroneous.

Where the only defense offered to an obligation incurred by reason of a written contract is a change or alteration of said contract, and the evidence wholly fails to show any change or alteration, it is not error for the court to direct a verdict for the plaintiff, in accord with the prayer of the petition.

Commissioners' Opinion, Division No. 3. Appeal' from District Court, Murray County; W. L. Eagleton, Judge.

Action by the W. T. Rawleigh Company against G. L. Freeman and others. From a judgment for plaintiff, defendants appeal. Affirmed.

H. W. Broadbent and John A. Haste, both of Sulphur, for plaintiffs in error. H. W. Fielding, of Sulphur, for defendant in error.

JONES, C. This action was instituted in the district court of Murray county, Okl., by the defendant in error, as plaintiff, against the plantiffs in error, as defendants in the trial court. The record discloses that on or about the 23d day of September, 1913, the appellant G. L. Freeman entered into a written contract with the defendant in error, W. T. Rawleigh Company, to purchase at wholesale prices certain proprietary articles, medicines, extracts, etc., for the purpose of reselling same to customers, and, also purchased a wagon to be used in the distribution of his wares. one of the ordinary contracts used by companies, such as Rawleigh Company, in dealing with their customers or employees who sell their wares and merchandise direct to the consumers, and among other things provided that the said G. L. Freeman should make weekly payments of the goods purchased.

The contract sued on is

The other appellants, Vale, Bates, and T. C. Freeman, signed a bond or obligation with the said G. L. Freeman to the appellee, Rawleigh Company, wherein they become guarantors for the said G. L. Freeman, for the payment of all indebtedness incurred under the terms of the contract heretofore referred to.

(230 P.)

The defense offered by these guarantors—which expresses a principle with which is that the contract was changed without we fully agree, but has no application to their knowledge and consent, and in their an- the facts in this case. In the Harrington swer aver that after the contract had been Case the county in which the goods should executed whereby they became obligated as be sold was set forth in the contract, and sureties for the appellant G. L. Freeman afterwards changed without the consent of that an agent of the Rawleigh Company de- the guarantor, but in this contract no counlivered to the appellant G. L. Freeman a cer- ty is named, the selection of some territory tain document, which is styled "Rules and or county in which to operate was a necesinstructions about reporting," wherein it sary incident to the fulfillment of the conwas stated that the company required the tract, and, no mention of this fact being said G. L. Freeman to remit to the company made in the contract, the presumption would at least one-half of his cash receipts until be that the guarantors were willing for him his account was paid and various other sug- to select whatever territory he wanted. This gestions and directions concerning the man- seems to be the judgment of this court in the rer or mode of conducting the business by Harrington Case, as indicated on page 203, the said G. L. Freeman, but this instrument 83 Okl. (201 P 498). The fact, as we view it, was not signed by any one, and in our judg- is simply a case of failure to pay, which is ment in no wise affects the contract entered not denied or seriously controverted, and into. The appellant also complained that involves a principle of law so elementary after the execution of the contract the said and primary that we deem it unnecessary to G. L. Freeman selected Murray county, Okl.; cite authorities in support of same, and therein other words, Murray county was set apart fore recommend that the case be affirmed. to him as his territory in which to sell his wares and merchandise, which they aver is a material change of the original contract, and from an examination of same we find that there is no mention made of any particular territory in which the said G. L. Freeman should operate, and, so far as the record discloses, there were no objections made by Freeman to making the sale in Murray county, and the other appellants, guarantors for the said G. L. Freeman, neither allege nor offer any proof showing that their rights in any particular were prejudiced by reason of the said G. L. Freeman being assigned to Murray county.

On the trial of the case a jury was impaneled, and at the close of the evidence the court instructed the jury that the proof failed to show that there had been any change in the contract, and that the defendants, appellants in this court, were liable, and instructed them to return a verdict in favor of the plaintiff, Rawleigh Company, from which order and judgment of the court, the appellant prosecutes this appeal, and sets forth various specifications of error and cites numerous authorities in support of their contention based upon the theory of a change or alteration of the written contract (citing the case of Halsell v. Renfrow, 14 Okl. 674, 78 P. 118, 2 Ann. Cas. 286, and other similar cases, which in our judgment are not applicable to the facts in this case), and further allege that the guarantors are exonerated by reason of the change or alteration as alleged, and cites the case of K. K. K. Med. Co. v. Harrington, 83 Okl. 201, 201 P. 496, in which the court stated:

"Where the creditor changes or alters the original obligation of the principal without the consent of the guarantor, such act on the part of the creditor exonerates the guarantor,"

ROURKE v. GERLACH-BARKLOW Co. (No. 13840.)

(Supreme Court of Oklahoma. Nov. 25, 1924.)

(Syllabus by the Court.)

Appeal and error 766-Appeal dismissed for failure of plaintiff in error's brief to set forth specifications of error, argument, and authori

ties.

Where plaintiff in error fails to set forth in

his brief the specifications of error complained of, the argument and authorities in support. thereof as required by rule 26 of this court (165 P. ix), but merely states that the judgment is not supported by law or evidence, there is nothing presented for this court to review, and the appeal will be dismissed.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by the Gerlach-Barklow Company against S. A. Rourke, doing business as Southwest Transfer & Storage Company. Judgment for plaintiff and defendant appeals. Appeal dismissed.

Gasper Edwards, of Oklahoma City, for plaintiff in error

Pierce, McClelland & Kneeland, of Oklahoma City, for defendant in error.

JARMAN, C. The brief filed by plaintiff in error contains the following statement: "The judgment is not supported by law or evidence."

There is no specification of error of which complaint is made, set out in the brief of the plaintiff in error, other than that the judgment is not supported by law or evidence.

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

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Presumably this was an action on a contract, motion to vacate and set aside a judgment, and the defendant, plaintiff in error here, defendant appeals. Affirmed. contends that said contract was breached

on the part of the plaintiff, defendant in

error here, and for that reason the defendant is not liable. It is not pointed out in the brief wherein said contract was breached, and no authorities at all are cited to support the contentions of plaintiff in error, and under rule 26 of this court (165 P. ix) there is nothing presented to this court for review, and the appeal of this action should be dismissed. Henderson v. Todd, 91 Okl. 18, 215 P 607; Hocker v. Rackley, 90 Okl. 83, 216 P. 151.

Simons, McKnight & Simons, of Enid, for plaintiff in error.

A. G. Morrison, of El Reno, for defendant in error.

WARREN, J. This is an appeal from an order of the district court of Canadian county, overruling a motion of the plaintiff in error to vacate and set aside a certain judgment rendered in said court on December 7, 1922.

It appears that L. P. Elliott, as plaintiff, on February 20, 1922, filed his petition The plaintiff in error executed a supersede- against the defendant, Goodwill Oil Compaas bond in this case in the sum of $500 with ny, seeking judgment on a contract for $229.S. A. Brown as surety, which bond was duly 80. On March 21, 1922, the defendant filed approved as shown by a certified copy there- its answer in said cause, admitting the conof attached to the case-made. The defend- tract, but setting up various defenses thereant in error has filed a motion herein for to, among others that of payment. On Dejudgment against the surety on said super-cember 7th there was filed an unsigned reply sedeas bond for the amount of the judgment to this answer. The filing mark shows Derendered in said cause; and said motion is cember 8th, but the recital in the case-made sustained, and judgment is hereby entered shows the reply to have been filed Decemagainst S. A. Brown, surety on said bond ber 7th. for the sum of $339 32, with interest at 6 per cent. from January 1, 1920, and the cost of said action; but in no event shall said judgment. interest, and cost exceed the sum of $500, and for which let execution issue.

GOODWILL OIL CO. v. ELLIOTT.
(No. 14634.)

This appeal is by case-made also certified as a transcript. It appears that the case was regularly assigned for trial in the district court of Canadian county for December 7, 1922, and the case-made shows the following entry on that day:

"6218. Elliott v. Goodwill Oil Co. This case comes on for trial as per assignment. Plff. announces ready for trial. Defendant appearing not. One witness sworn & testimony heard. Court renders judgment for plff, as per

(Supreme Court of Oklahoma. Nov. 18, 1924.) J. E."

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On the trial the defendants failed to appear, one witness was examined to sustain the allegations of the petition, and, no defense being interposed or witness introduced to prove the allegations of the answer, judgment was rendered for the plaintiff for the amount proven. On December 19, 1922, the defendant filed a motion to set aside the judgment and grant a new trial, alleging accident and surprise; that the judgment was contrary to the law and evidence; that a jury was not waived; that the case was not properly triable on December 7th; that the defendant did not discover the case was set for trial until December 13th following, and that defendant has a valid defense. On March 3, 1923, the said motion was denied by the court and appeal therefrom to this court perfected by case-made also certified as a transcript.

The plaintiff in error assigns the following as error in the proceedings in the trial court: "(1) That the court below erred in rendering judgment by default in favor of the plaintiff and against the defendant.

"(2) That under the issues joined by the pleadings at the time of the rendition of such

(230 P.)

judgment that defendant was entitled to judg- the case-made, and we must assume that it ment on the pleadings. was sufficient to support the judgment. The action of the trial court will therefore be affirmed.

MCNEILL, C. J., and JOHNSON, GOR

"(3) That the defendant below was not in default, but had a full and complete answer on file in said cause, the allegations of which were not denied by the plaintiff, and which entitled defendant below to judgment on the pleadings. "(4) That the court below erred in overrul- DON, NICHOLSON, and MASON, JJ., coning and denying the motion of the defendant cur. below to set aside such judgment and for a new trial of said cause."

In its argument on these propositions, the plaintiff in error fails to distinguish between a judgment by default where the defendant has failed to file pleadings and a default where there is a failure to appear and present proof of the allegations in the answer on the day regularly set for trial.

The decisions amply sustain the argument of counsel where there is an attempt by the court to render judgment by default because of the absence of pleadings at a time when the case is not regularly set for trial; the defendant in fact having answered. But the failure of the defendant to appear with his witnesses when the case has been regularly set is an entirely different matter.

The failure of the defendant to sign his reply was immaterial in the present case, for the case went to trial on trial day without a motion for judgment on the pleadings having been filed. In such a case the failure to reply will be deemed waived. Leach v. Altus State Bank, 56 Okl. 102, 155 P. 875.

[1] In the present case the defendant can claim no rights at the trial, when he was not there to protect them. By his failure to file an appropriate pleading, calling the court's attention to the failure to reply before the testimony was taken, he waived the failure to file a reply, if, in fact, the unsigned instrument filed be considered a nullity. The defendant by failure to appear cannot question the action of the court in dispensing with a jury, although it does not affirmatively appear that a jury was not impaneled.

In this case plaintiff in error admits in its motion that the court clerk sent its attorneys the assignment of cases beginning Monday, November 27th, and ending Friday, December 15th, but only claims that there was no special check calling counsel's attention to this case. Counsel explains that this case was overlooked in some unaccountable way.

[2] "An application to vacate a default judgment, and to be allowed to defend, is addressed to the sound discretion of the court, and will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion." Olentine v. Alberty, 82 Okl. 9, 198 Pac. 296. No abuse of discretion is shown in the present case.

WOODYARD v. BURDETT et al.
(No. 14953.),

(Supreme Court of Oklahoma. Nov. 25, 1924.)

(Syllabus by the Court.)

Appeal and error 21, 300-Motion for new trial filed more than three days after rendition of judgment cannot be considered on appeal; appellate jurisdiction cannot be acquired by agreement of parties where motion for new trial not timely filed.

Where the motion for a new trial is not filed within three days after the judgment is rendered and the only grounds for a new trial no showing is made that the moving party was are errors of law occurring at the trial, and unavoidably prevented from filing the motion within the statutory time, this court does not, by appeal, acquire jurisdiction to consider and determine the questions presented by such motion, and such jurisdiction is not acquired by agreement of the parties.

Commissioners' Opinion, Division No. 1. Appeal from District Court, Payne County; C. C. Smith, Judge.

Action by L. H. Woodyard against Mary E. Burdett and others. From a judgment for defendants, plaintiff appeals. Dismissed.

Geo. F. Cunningham, of Stillwater, for plaintiff in error.

Geo. A. Hoke, of Stillwater, for defendants in error.

RAY, C. Plaintiff in error asks reversal for errors of law occurring at the trial. In his brief he sets out the following stipulation:

"In the District Court in and for Said
County and State.

"No. 6556.

"L. H. Woodyard, Plaintiff, v. Mary E. Burdett, W. S. Burdett, and C. R. Smith, Defendants.

"Stipulation and Agreement.

"It is hereby stipulated and agreed by and between Geo. Hoke, attorney of record for defendants Mary E. Burdett and W. S. Burdett, and Geo. F. Cunningham, attorney for the plaintiff, L. H. Woodyard, that the motion for in the above-entitled action, may be heard and a new trial filed by the said attorney plaintiff, passed upon by the said court at the present term of said court, by and with the consent of The evidence in this case is not included in said court, and the said attorney for the said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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