I dissent for the following reasons:
1. The rule followed by the majority opinion that a cause will not be considered in this court on a theory not presented in the trial court does not apply to this case, which involves public rights. *Page 532 Shaffer Oil Refining Co. v. County Treasurer, 175 Okla. 6,52 P.2d 76; First National Bank v. Southland Production Co.,189 Okla. 9, 112 P.2d 1087; 3 C. J. 742; 4 C.J.S. 485; 3 Am. Jur. 35.
2. The plaintiff does not point to a statute under which the contract could be made with the architect prior to the accumulation of the fund sufficient to pay for the courthouse and repair of the jail, as is his duty. Board of County Com'rs v. Johnston, 192 Okla. 203, 134 P.2d 335. A portion of the funds were to be raised by an extra levy under 19 O. S. 1941 § 731. That section requires that the proposition submitted to the people to authorize the special levy state the sum desired to build the courthouse. The proposition submitted stated the sum to be $58,085.77, not $227,325, which is the estimated cost on which plaintiff's fee is based, and did not advise the people that W.P.A. money and the salvage value of the old courthouse were to be considered in estimating the cost of the building. See, in this connection, Borin v. City of Erick,190 Okla. 519, 125 P.2d 768, and art. 10, sec. 19, Constitution. 19 O. S. 1941 § 732 requires that the fund be accumulated before a contract can be made for the erection of the building. These sections were not complied with. I believe the contract with plaintiff was void because the conditions precedent prescribed by these sections were not complied with (15 C. J. 540; 14 Am. Jur. 209), and it is certain that the contract was not ratified by the accumulation of the fund and use of the plans, as in Board of County Com'rs v. A. C. Davis Sons, 184 Okla. 258,86 P.2d 782, where we did not consider the effect of section 732, and which should have been based upon ratification.
But, assuming that the contract was valid when made, it is my view that the record supports the contention of the county that the contract was an entire, not a severable, one, and that the parties so intended it. The contract called for a total fee to the architect for making the plans and specifications and supervising the construction amounting to 6 per cent of the cost of the completed work, payable in installments to be applied "on account of his fee." It did not, as the majority holds, provide that he should have three separate fees, one for the completion of the preliminary studies, one for the completion of the specifications and general working drawings, and one for supervision. The county was interested only in completed structures, not in the preliminary studies or finished plans and specifications as such. In fact, the architect specifically retained title to the plans and specifications. The provision for payment of installments related to the time of making such payments, not to the compensation for any particular portion of the services. The fact that the fee was payable in installments does not, as the majority opinion holds, make the contract severable. 9 Am. Jur. 13; 12 Am. Jur. 875; 9 C. J. 713; 17 C.J.S. 791.
It is clear that both contracting parties had in mind completed structures and that, in order to complete them, it would be necessary to receive a portion of the funds from the W.P.A. The plaintiff does not contend, and offered no proof to establish, that any money was ever received from the W.P.A., and does not deny the statement of the county that said money was not received. It seems clear from the sequence of events that the county commissioners concluded that because of the outbreak of war just a few months after the contract was made, it would be unwise and impracticable to tear down the courthouse and take the chance of not being able to procure the labor and materials necessary to complete the structures in the forseeable future. And it would seem that the county commissioners had in mind the best interests of the nation, and were actuated by patriotic motives, in the steps taken. We know that from the time war was declared the energies of all patriotic people were directed towards preserving the life of the nation and preparing for and waging all-out war. Soon after the *Page 533 commencement of War Congress enacted 50 U.S.C.A. § 601, authorizing the President "to make such redistribution of functions among executive agencies as he may deem necessary", and some time thereafter the W.P.A. ceased to exist.
The county commissioners acted reasonably in assuming that, because of the changed conditions, it would be impracticable or impossible to get the W.P.A. funds and complete the work. Under such circumstances it is well settled that the county was excused from carrying out the contract. Gosden Oil Gas Co. v. Moss, 131 Okla. 49, 267 P. 855; Potts Drug Co. v. Benedict,156 Cal. 322, 104 P. 432, 25 L.R.A. (N.S.) 609; Hipp v. Fidelity Mutual Life Ins. Co., 128 Ga. 491, 57 S.E. 892, 12 L.R.A. (N.S.) 319; Krause et al. v. Board of School Trustees,162 Ind. 278, 70 N.E. 264, 102 Am. St. Rep. 203, 65 L.R.A. 111, 1 Ann. Cas. 460; 13 C.J. 642; 17 C.J.S. 956; 6 R.C.L. 1005; 12 Am. Jur. 953, 954. This rule, which applies to private rights, should certainly be applied when public rights, as here, are involved. In interpreting contracts made by the state or counties, doubt as to their meaning is to be resolved in favor of the public. 59 C.J. 184; 20 C.J.S. 1034; Henry Shenk Co. v. Erie County, 319 Pa. 100, 178 A. 662.
Assuming further that the contract is not void, is an entire and not a separable one, and that the fee already paid is not, under the circumstances, adequate for the work done, it is possible that the plaintiff could get relief on the theory of quantum meruit. See Williston on Contracts, Revised Edition, § 1977; Page on Contracts, § 2714. In fact, the plaintiff offered to prove the value of the services on a quantum meruit basis, thus recognizing that his right to recover according to the contract was doubtful, but the trial court rejected such offer.
The result of the majority opinion is to take from the county $7,627.65, in addition to the $1,920 previously paid, for the decision made by the county commissioners, in the stress of war, actuated by patriotic motives and a desire to serve the best interests of the county. The county is required to pay a fee based upon W.P.A. funds amounting to $88,219 that have not been, and will probably never be, received now that the W.P.A. is no longer in existence, and also based upon the salvage value of the old courthouse in the sum of $68,989.94, which the county points out was constructed in 1901 at a contract price of $29,755.