Commercial Communications, Inc. v. State ex rel. Oklahoma Bd. of Public Affairs

Commercial Communications, Inc. v. State ex rel. Oklahoma Bd. of Public Affairs
1980 OK 93
613 P.2d 473
Decided: 06/17/1980
Supreme Court of Oklahoma

COMMERCIAL COMMUNICATIONS, INC., APPELLEE,
v.
STATE OF OKLAHOMA EX REL. OKLAHOMA BOARD OF PUBLIC AFFAIRS, APPELLANT.

Appeal from the District Court, Oklahoma County; Charlie Y. Wier, Special Judge.

¶0 The appellant appeals from a judgment notwithstanding the verdict in favor of appellee after a jury verdict had been entered for appellant in a case involving rescission and/or breach of contract.

AFFIRMED.

Jan Eric Cartwright, Atty. Gen., of Oklahoma and C. Elaine Alexander, Asst. Atty. Gen., Oklahoma City, for appellant.

Hammons & Wolking, Inc., by Mark E. Hammons, El Reno, for appellee.

HODGES, Justice.

[613 P.2d 475]

¶1 The Oklahoma Board of Public Affairs [appellant - Board] solicited bids for intercom equipment on October 13, 1976. The solicitation specified "Executone" or "approved equal" equipment. Although the solicitation listed the model numbers, it did not contain a set of specifications for the brand listed. Commercial Communications, Inc. [appellee] was determined to be the lowest and best bidder, and it was awarded the contract. After the equipment was installed, the Board refused to honor the contract, and ordered Commercial Communications to remove the equipment.

¶2 Commercial Communications filed suit alleging breach of contract. The Board sought the defense of rescission. It was argued by the Board that it had the right to cancel the contract because the equipment did not meet its specifications. The equipment sought by the Board was required to have the capacity to carry up to four channels of conversation simultaneously. The equipment furnished by Commercial Communications could only carry one channel at a time. The requirement that the equipment handle four simultaneously conversations was contained in certain technical documents promulgated by the manufacturer of Executone, but the information did not appear in the bid file or on the face of the bid documents.

¶3 The court granted Commercial Communications' motion to conform the pleadings to the proof. The jury verdict was entered for the Board, and Commercial Communications moved for judgment pursuant to 15 O.S. 1971 § 233B .

¶4 The litigants entered into a stipulation in lieu of a narrative statement because the trial transcript could not be completed. It was stipulated that: 1) There was evidence of breach of contract and of rescission, and 2) The question on appeal is one of law, not of fact.

¶5 The Board contends that the trial court could not weigh the equities under § 233B if there was any evidence to support the jury verdict. The Board does not assert that the only issue presented must be one of rescission, but that at the conclusion of the presentation of evidence, rescission must be the basis for relief. It is argued by the Board that where the evidence is of breach of contract and of rescission and relief could be granted on either, the statute dealing with judgment notwithstanding the verdict, 12 O.S. 1971 § 698 ,

I

¶6 A suit for rescission is ordinarily within the exclusive jurisdiction of equity, and can be conferred by equity alone.

¶7 The equitable nature of rescission has been recognized and codified by 15 O.S. 1971 §§ 231-235. The trial court specifically found the appellee failed to meet the requirements of 61 O.S.Supp. 1975 § 105 which failure caused, at least in part, appellant's right to rescind its contract. Considering though the Board's failure to specifically include the requirement of the equipment, to carry four conversations, in the bidding documents, the trial court applied its equitable power under § 233B in restoring the parties to their status quo. We find that § 233B was properly applied by the trial court.

II

¶8 Attorney fees and costs were correctly assessed. Statutory authority, pursuant to 12 O.S. 1971 § 936 ,

¶9 AFFIRMED.

¶10 WILLIAMS, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

¶11 LAVENDER, C.J., IRWIN, V.C.J., and BARNES and OPALA, JJ., dissent.

Footnotes:

1 Specific statutory relief may be granted in actions for rescission. 15 O.S. 1971 § 233B provides:

"In an action, counter claim, cross claim or plea in intervention based on the theory of rescission of a contract, the court shall adjust the equities between the parties, and although the action is tried to a jury, the court may require the party to whom relief based on rescission is granted to make that compensation to the other party which may be required. If the court determines that the contract may not be rescinded, it may grant damages or any other relief to which the party may be entitled, whether or not such relief is sought in the pleadings."

2 It is required by 61 O.S.Supp. 1975 § 105 that all bid notices contain the following information:

"The character of the proposed public construction contract in sufficient details that all bidders shall know exactly what their obligation will be, either in the bid notice itself or by reference to bidding documents on file in the main office of the awarding public agency; . . . ."

3 It is provided by 12 O.S. 1971 § 698 :

"When a motion for a directed verdict which was made at the close of all of the evidence should have been granted, the court shall, at the request of the moving party, render judgment in his favor though a verdict has been found against him, but the court may order a new trial where it appears that the order party was prevented from proving a claim or defense by mistake, accident or surprise. The request for judgment may be filed within ten days after the verdict, report or decision is rendered regardless of whether or not the term has ended, and the motion may be joined with a motion for a new trial."

4 Ionic Petroleum, Std. v. Third Finance Corp., 411 P.2d 492, 495 (Okl. 1966).

5 Peyton v. McCaslin, 417 P.2d 316, 320 (Okl. 1966); Ferguson v. Gulf Oil Corp., 192 Okl. 355, 137 P.2d 940, 942 (1943); Mosier v. Walter, 17 Okl. 305, 87 P. 877 (1906).

6 Hayes v. Thornsbrough, 180 Okl. 357, 69 P.2d 664 (1937); Wright v. Jordan, 161 Okl. 192, 17 P.2d 408 (1933).

7 See Wright v. Jordan, supra. West v. Mandansky, 80 Okl. 161, 194 P. 439 (1921).

8 It is provided by 12 O.S. 1971 § 936 :

"In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject to the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs."

9 See Quapaw v. Varnell, 566 P.2d 164, 167 (Okl.App. 1977).