(182 P.) been acquiesced in without form of objection, the cause of newly discovered evidence, ma- such authority, nor does the language of the terial for the party applying, which he statute so indicate. As we have seen, from the could not with reasonable diligence have dis-early days of the common law, the right has covered and produced at the trial or impos- been recognized. It is a necessary and inhersibility of making a case-made, within three ent power pertaining to the courts in the administration of justice that the very end and days after the verdict or decision was ren-object of their institution may not be defeated. dered, unless unavoidably prevented. The The rule laid down by the court in Long v. attorney for the plaintiff filed a statement of Board of County Commissioners, 5 Okl. 128 facts explaining why the motion for a new [47 Pac. 1063]. being against both sound reatrial was not filed within three days, and up- son and the great weight of authority, should on hearing the new trial was granted. The be and is expressly overruled. The extraordigranting of new trials is largely within nary power thus recognized to exist should be the discretion of the trial court, and, unless notice to the parties, or at the time when the exercised sparingly, and, we may add, upon due it is clear the trial court in making the or- verdict is rendered. This, that the losing liti der erred upon a pure and unmixed question gant may have time and opportunity to except, of law, the judgment granting a new trial and. if desirous, appeal from the court's action. ought to be affirmed. Adams v. King, 170 "The court having the inherent right to vaPac. 912; Badger Lbr. Co. v. Rhoades, 26 cate the judgment (though its action was subOkl. 261, 109 Pac. 302; McBride v. O. K.ject to review on appeal), and its order having Houck Piano Co., 169 Pac. 889. Here a question arises. Is the defendant surety company in a position to insist upon error of the court in granting the new trial? While it is true exceptions were taken to the action of the court at the time, there the surety company stopped; no further steps were taken. In Underwood v. Sledge, 27 Ark. 295, it was held that a court has control over its orders and judgments during the term in which they are made, and for sufficient cause may modify or set them aside; that it was good policy in the law to allow [4] Second. Was the contract changed aftcourts an hour's reflection, time to revise er the execution of the surety bond? The hasty action, correct mistakes, and review defendants contend that the construction of such error as they may have fallen into for the electric light plant was eliminated from want of sufficient consideration, and to this the contract, and that practically all that end, they have, during their respective terms, was left for the defendant engineering comto make up their records and fully consider pany to superintend was the system of waterthe propriety of their judgments, and to reworks; that the contract had been changed view and correct any mistakes, errors, or by the city purchasing the electric light plant indiscretions into which they may have fall- already installed; and that by reason of the en during the terms, and when such revision change in the contract the Southern Surety is had the action of the court and the record Company was released from any liability on stand precisely as if no such former mistake the bond. The plaintiff contends that in or erroneous judgment had ever been given purchasing the light plant then existing it or entered. It was further held that if dur-was understood and agreed to by the defending the term the court, for sufficient cause, or even without cause, sees fit to set aside such judgment, its benefits are lost to him in whose favor it was rendered. This ques tion has probably been as exhaustively and as ably treated by our own court as by any in the United States. In the case of Todd V. Orr et al., 44 Okl. 459, 145 Pac. 393, Sharp, C. (afterwards Chief Justice), uses the following language: "The power of a court of record, during the term at which rendered, to control its orders, judgments, and decrees made during the term is of far-reaching importance. That such authority should be possessed by trial courts of general jurisdiction must be conceded. Any other view would so fetter and paralyze the power of the courts that they must frequently do wrong, from mere inability to do right. We do not believe it was the intention of the Legislature either to destroy or impair the exercise of ant engineering company prior to the execu tion of the bond, and it was understood that the amount paid for the light plant was to be included in the $49,000 guaranteed by the defendants as being the amount within which the waterworks and electric light plants should be constructed. This was a question purely for the jury. The evidence on the part of the plaintiff tended to show that this item was included in the contract. As we have seen, the contract between the plaintiff and the defendant was entered into on the 25th day of July, 1908. The plaus and specifications covering the system of waterworks and electric light plant were submitted on December 31, 1908. The bond executed by the Southern Surety Company, guaranteeing the work within the limits specified, was executed on the 25th day of August, 1909. On the 2d day of January, 1909, the plaintiff wrote to the defendant, O'Neil Engineering ( plant in the sum of $8,750 was included in the Company, the following letter: "The specifications of the waterworks and light plant for this place as furnished by you are received and filed. Please furnish a detailed statement showing the estimated cost of each item as well as the total cost of the plant. As soon as the statement is received, the council will take the necessary steps for calling the bond election." On July 25, 1908, the following letter was written by the defendant O'Neil Engineering Company to the plaintiff: "Should you desire to omit from contract dated July 25, 1908, the construction of the electric light system, there will be no charges due us for the preliminary work done by us in connection therewith, and for such plans and specifications as refer to the electric lighting system." On August 9, 1909, the defendant, O'Neil Engineering Company, wrote the following letter to the plaintiff: "In accordance with the terms of paragraph 7 of our contract, we are entitled to 1 per cent. of the estimated cost of $49,000, and we herewith inclose bill for $490.00." On September 14, 1909, the plaintiff wrote to the defendant, O'Neil Engineering Company as follows: "I am inclosing draft for $402.50. Your estimate is $49.000, less $8,750.00 for pole lines, leaving $40,250.00, which you are entitled as per your agreement that you would not charge commission on the purchase price of the pole lines, 1 per cent. making $402.50." On September 18, 1909, the following answer was sent by the defendant O'Neil Engineering Company: "We beg to acknowledge receipt of yours of the 14th inclosing check for $402.50. Our mistake in billing you for the larger amount was due to having added in the cost of the pole line material in our estimated cost and in failing to eliminate that item in making up our charge." On April 16, 1909, the electric light plant then existing in Lehigh was appraised. M. Griffin O'Neil, president of the O'Neil Engineering Company, was selected by the city as one of the appraisers, and the plant was appraised at $8,750. The issue as to whether or not it was understood and agreed by and between the parties that the change was made before the execution of the bond, and whether or not, including this change, the waterworks system and the electric light plant should not cost exceeding $49,000, was fairly submitted to the jury and fully covered by the fifteenth instruction given by the court as follows: "Evidence has been introduced before you tending to prove that there were several estimates made, and that changes were made in the original estimate. It is contended by the plaintiff that the cost of a part of the electric light estimate made by the defendant O'Neil Engineering Company, under which the waterworks system and the electric light plant were constructed. The defendant contends that it was not included, but that it was excluded. In this connection, you are instructed that you are to determine from the evidence whether or not it was included, and if you find that it was, you may consider this item in determining whether or not the cost of construction exceeded the estimate." We are unable to see how the court could make this issue plainer to the jury. The evidence on the part of the plaintiff was that the purchase of the electric light plant was thoroughly discussed prior to entering into the contract with the defendant, and that it was understood between the parties that the purchase might be made. When the plant was valued, the plaintiff selected as its representative, Mr. O'Neil, the president of the defendant engineering company, and in the letter of September 17, 1909, supra, the defendant, at the time the draft for $402.50 was sent by the plaintiff was informed that the estimate was $49,000, less the $8,750 for pole lines which would leave $40,250 to which the defendant was entitled as commissions as per the contract. There was no question at the time raised by the defendant O'Neil Engineering Company that this amount was not correct and it is clearly shown that the purchase price of the electric light plant, to wit, $8,750, added to the $40,250, makes exactly $49,000. Besides we are unable to see wherein there was any material change. The defendants contend that the contract called for plans and specifications for the construction of a waterworks and electric light system to be erected and constructed and contend further that purchasing the poles already erected in lieu of erecting the poles released the surety from liability under the bond, and in support of their contention cite a long array of authorities. In view of our conclusions, it is unnecessary to differentiate the authorities presented, and show their inapplicability to the case at bar. There is no showing that it cost more to buy new poles, dig the holes, and erect the poles and stretch the wire than to buy poles already erected to which the wires were attached. The plaintiff had a right to suppose that the defendant O'Neil Engineering Company was skilled in planning, designing, and executing the work provided for in the contract, and that it possessed a practical knowledge of all the details appertaining to the work. It was supposed to be familiar with the qualities of the materials to be used and their cost, and, further, that it possessed the requisite skill and ability to enable it to perform the contract with care, skill, and ability, and not to exceed the sum named. It is not to be supposed that the plaintiff possessed this knowledge. If (182 P.) It had, there would have been no necessity ties to the contract, has the burden of provfor the employment of the defendant. Being that the changes were made. General sides, it would appear rather unusual, and Bonding & Casualty Co. v. Beckville Ind. would have reached the degree of stultifica- School Dist. (Tex. Civ. App.) 156 S. W. 1161. tion on its part if the city in the first in- [5, 6] Did the court commit error in the stance, being so careful in employing the instructions given and in refusing to give the defendant engineering company, and requir- instruction asked for by the defendants? ing that plans and specifications for the work We have examined carefully the instrucand awarding the contract and for superin- tions given by the court, as well as the intending the entire work be first submitted, structions asked for by the defendants and and, in addition thereto, requiring a bond refused, and conclude that, taking the inthat the work should not exceed $49,000, structions as a whole, we fail to see wherein should, without any apparent reason change the substantial rights of the defendants have the entire contract and defeat the very pur- in any way been affected. In a case of this poses of the bond. It is a well-settled prin- nature, tried by able attorneys, where a ciple of law that immaterial changes which great mass of testimony was introduced, do not alter the general character of the work many questions of law raised during the progcontemplated by the contract, or the general ress of the trial, and where the trial court character of the materials necessary for its is compelled to decide promptly on all quesexecution, do not result in releasing the tions presented, having in view the expedisurety from liability on the bond. C. J. vol. tion of business in the court, it would be al9, p. 858; Fransioli v. Thompson et al., 55 most impossible for any judge, however Wash. 259, 104 Pac. 27S. The contract pro- learned or experienced, to be able in every vided for changes. This fact was known to ruling to follow the very letter of the law the surety company, at least it is to be pre- in every instance. The appellate courts, sumed that it had notice, as reference is recognizing these conditions, have wisely made to the contract in the bond, and we concluded that in all cases where on an exfind that the contract provided that changes amination of the entire record, and viewing might be made. The bond was executed more the instructions as a whole, they can see than one year after the execution of the that substantial justice has been done in the contract. It is to be presumed that the sure-premises, such errors are regarded as harmty executed the bond with full knowledge of all the terms of the contract. Hinton v. Stanton, 112 Ark. 207, 165 S. W. 299. While it is true that the surety is not required to look beyond the bond as to its liability, and that it has not undertaken more than is therein expressed, and if alterations or changes are made by the original parties, which vary and alter the terms of the orig inal contract by the substitution of other materials than those called for in the contract, so as to destroy its identity in the matter of performance, the surety is discharged if the alterations were made without the consent of the surety; but where the alteration is immaterial, or where it was provided by the contract and within the terms of the contract, and where the cost is not to exceed the amount mentioned or specified in the original contract, the surety would not be released from liability on the bond, in which it was guaranteed that the work should not exceed the price mentioned in the contract and bond. Neuwirth et al. v. Moydell et al., 188 Mo. App. 467, 174 S. W. 206; Ætna Indemnity Co. v. City of Little Rock, 89 Ark. 95, 115 S. W. 960. A surety, relying on the defense that alterations or changes had been made by the original par less, and have refused to reverse the judgment of the trial court. "Where the court hears all of the evidence, * and fairly instructs the jury on the law applicable to the case, and a verdict is returned within the issues and is reasonably supported by the evidence, the same will not be disturbed on appeal." Ft. S. & W. Ry. Co. v. Chandler Cotton Oil Co., 25 Okl. 82, 106 Pac. 10. (75 Okl. 119) Springs had drawn certain plans and specifications and have entered into a contract (Supreme Court of Oklahoma. July 1, 1919.) with Sherman Machine & Iron Works to (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 846-LOCATION OF SEWER BASIN AND SEPTIC TANK EVIDENCE INJUNCTION. In an action brought by property owners against a town and its officers to enjoin and restrain the officers from constructing a sewer basin and septic tank in close proximity to their residences, and upon the trial of the case, the court finds that the location of the sewer basin and septic tank as proposed would emit obnoxious odors sufficient to be detected by and be very offensive to plaintiffs, and to other persous in that vicinity, and the evidence in the case is sufficient to support the findings of fact, and, there being no other questions involved, it is not error to grant such injunction based upon such facts. OF FACT BY COURT-JUDGMENT-REVIEW. In a case properly triable to the court without a jury, and the court having made findings of fact, and said findings of fact are not clearly against the weight of the evidence, and the judgment of the court is based upon the findings of fact, the judgment of the trial court will not be disturbed on appeal. 3. NUISANCE 18, 77-PUBLIC NUISANCE— EQUITY JURISDICTION. construct a sewer basin and septic tank on block 91, and was just starting to construct the same. The location of the sewer basin and septic tank would be from 500 to 700 feet from the residences of the defendants in error. [1, 2] The case was tried in the district court upon the petition of the defendants in error, and the answer of plaintiffs in error, and at the request of the plaintiffs in error the court made special findings of fact and conclusions of law. The second and third findings of fact are as follows, to wit: "(2) The court finds that at least during the summer months the septic tank located as proposed would emit odors so as to be detected by and be obnoxious, not only to the plaintiffs, but to many other families; cannot say to the extent of affecting the health of the plaintiffs, but will be very obnoxious. "(3) The court finds from the evidence that the proposed basin is some improvement over the Holdenville basin, in that the proposed basin will have a concrete top or cover with vent pipes therein, and an intermediate roof, while the basin at Holdenville has no intermediate roof and a wooden roof, but that the process is the same. The court further finds that unsatisfactory conditions arise inherently from the plant, but of course are aggravated if negligently operated." As a general rule, courts of equity have power to give relief against either public or private nuisances by compelling the abatement, or restraining the continuance of the existing From the judgment of the district court nuisance, or enjoining the commission or estab-granting the injunction, the plaintiffs in erlishment of a contemplated nuisance. ror appealed, and assign as error and argue but one question: That the findings of facts Appeal from District Court, Grady Coun- Nos. 2 and 3, made by the court, are unwarty; Will Linn, Judge. ranted and not supported by sumcient evidence. Action for injunction by J. M. Bentley and others against the Town of Rush Springs, Okl., and its officers, and the N. S. Sherman Machine & Iron Works. Judgment for plaintiff's granting a permanent injunction, and defendants appeal. Affirmed. This being a case properly triable to the court, without a jury, and the court having made findings of fact, counsel for plaintiff in error assert the judgment of the trial court is clearly against the weight of the evidence, and by invoking the rule of this Holding & Herr, of Chickasha, for plain-court as applied in the cases of Schock v. tiffs in error. Fish, 45 Okl. 12, 144 Pac. 584, Wimberly v. Bond, Melton & Melton, of Chickasha, for Winstock et al., 46 Okl. 645, 149 Pac. 238, defendants in error. MCNEILL, J. This is an appeal from a permanent injunction granted to J. M. Bentley et al., against the town of Rush Springs, Okl., and its officers, and N. S. Sherman Machine & Iron Works, wherein the court enjoined the defendants from constructing on block 91, in the town of Rush Springs, a certain sewer basin and septic tank. From the order granting the injunction, the town of Rush Springs and different officers have appealed. and Mendenhall et al. v. Walters et al., 53 Okl. 598, 157 Pac. 732, the cause should be reversed and judgment rendered for the plaintiff in error under the rule adopted in the above cases. It is the duty of this court to consider the whole record, and to weigh the evidence, and if, after weighing the same, the judgment is found to be clearly against the weight of the evidence, it is our duty to cause to be rendered such judgment as should have been rendered by the trial court, otherwise to sustain the judgment. In doing so, we do not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) deem it necessary in this opinion to set out [3] It is true the court found that the proa detailed statement of the evidence adduced posed improvement would be an improveat the trial, and will not attempt to do so. ment over the one located at Holdenville, There were some seven or eight witnesses but he also found that the odor from the plant upon each side, and the examination of said would be very obnoxious to the defendants in witnesses was somewhat lengthy. The evi- error in this case, and other families living dence was very conflicting, and, as we gain that vicinity, and under the findings made ther from the evidence, perhaps there was by the court this improvement would be a only one thing upon which the witnesses nuisance. Plaintiffs in error suggested the agreed, and that was there is a certain odor court should not enjoin a contemplated nuithat comes from a sewer basin and septic sance, and argue that it is not certain that tank when receiving the sewerage from a this will become a nuisance; but the findings sewer system. As to the kind and character of the court make this improvement a nuiof odor, the parties could not agree. There sance such as is defined in section 2515, Reappears to be a difference of opinion; some vised Laws 1910. The rule, we think, is of the witnesses state that it was an ob- well established in regard to enjoining nuinoxious odor, while others state it was very sances as laid down in 29 Cyc. 1219, as folsimilar to what is commonly known as sew-lows: er gas, but was not obnoxious. As to what "Courts of equity have power to give relief distance this odor could be detected from against either public or private nuisances by the tank, the parties differ very materially. compelling the abatement, or restraining the Some of them stated that it could not be de- continuance of the existing nuisance, or tected over 10 to 25 feet, while others stated joining the commission or establishment of a it could be detected for perhaps the distance contemplated nuisance." of a mile. It appears there is in use, and has been for a short time, two plants of exactly the same kind and character in operation, one at Ringling and one at New Wilson, Okl. There has been another plant of the same kind and character operating at Holdenville for a number of years, although it is stated that the plant to be installed at the town of Rush Springs will have a different covering and will be an improvement over the one at Holdenville. en This rule is practically sustained in the following cases: West and Severns v. Ponca City Milling Co., 14 Okl. 646, 79 Pac. 100, 2 Ann. Cas. 249; Clinton Cemetery v. McAttee, 27 Okl. 160, 111 Pac. 392, 31 L. R. A. (N. S.) 945; Bixby v. Cravens et al., 57 Okl. 119, 156 Pac. 1184, L. R. A. 1916E, 871; Jones v. State, 38 Okl. 218, 132 Pac. 319, 44 L. R. A. (N. S.) 161, Ann. Cas. 1915C, 1031. While the facts in the instant case are different from the facts in the cases above cited, and it is true that the sewer basin The court made its finding as to the dis-and septic tank is not a nuisance per se, tance the plaintiff's property was from the but when the court found from the evidence proposed location of the septic tank. There appears to be no objection to this finding of fact. The distance of the four plaintiffs' properties ranges 500 feet to 700 feet from the location of this septic tank. The court then found that the septic tank located as proposed will emit odors so as to be detected by and be offensive, not only to the plaintiffs, but to many other families, and will be very obnoxious. This finding of fact is supported by a number of witnesses who were familiar with the plant at Holdenville, although the plaintiff in error produced witnesses who testified that no odor eminated from the operation of the plant. The plants at Ringling and New Wilson had only been in operation a short time, and the evidence in regard to these plants does not aid very much in determining the facts. The trial court heard the evidence and made his findings thereon, and we cannot say that his findings are clearly against the weight of the evidence; but we think his findings are supported by the evidence. that the same would be very obnoxious to the plaintiffs and other people living in that vicinity, which finding is to the effect that the improvement when completed and operated would be a nuisance, it would not be error to grant an injunction. The only ques tion presented and argued was, Was the evidence sufficient to sustain the finding of the court? There being no theory presented why the general rule pertaining to granting injunctions is not applicable, but being practically conceded by all the parties in the case, that the case is governed by the general rule applicable to nuisances. The court having found under the facts in this case that the construction of this sewer basin and septic tank would be a nuisance, and the evidence being sufficient to support said finding, leaves but the one question to be decided. The judgment of the trial court is therefore affirmed. SHARP, HARRISON, PITCHFORD, and HIGGINS, JJ., concur. |