The trial court concluded, as a matter of law, that the plaintiff was entitled to the allowance of this item under authority of Oklahoma City v. Derr, 109 Okla. 192. 235 P. 218. The plaintiff here offers that decision, as well as Maney v. Oklahoma City. 150 Okla. 77. 300 P. 642. as supporting the conclusion of the trial court in that regard. While it is true that this court, as well as courts generally, appear to have adopted the theory of construing contracts of this nature liberally, to the end that the same may be flexible enough to allow for miner changes, additions, extra work, etc., and to allow for conditions which could not have been foreseen by the contracting parties, and it seems that the authority of municipalities to incorporate in such contracts a delegation of authority to an engineer and other persons to order extra work or minor changes, has frequently been upheld or acquiesced in, we observe, however, that such authority has usually related only to minor changes or extra work, where such changes, etc., may be said to be a portion of the contract itself and reasonably contemplated thereby from the very nature of the work to be performed under the terms thereof.

A municipal corporation exercises business functions in contracting for waterworks, etc., and is bound by its contracts as other corporations of private nature. Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 259; Williams v. State, 60 So. 903; Brown v. Town of Sebastopol, 95 P. 365. It is our humble contention that the Town of Magee was performing a business transaction in its contract with the appellant and should be held to the laws of the land applicable to private corporations.

Plaintiffs proved that the actual cost of the additional excavation of solid rock was more than three times as great as the contract price of 60 cents per cubic yard. The present case is very similar to Maney v. Oklahoma City, 150 Okl. 77 [ 300 P. 642, 76 A.L.R. 258], wherein plaintiff was allowed to recover damages for the extra work. In that case the plaintiff, who was the successful bidder, submitted his bid in reliance upon the representation in the plans and specifications that the excavation work would consist principally of the removal of earth and that there would be not more than 407 cubic yards of rock.

That such was what he contracted for and that the additional rock encountered was extra work, beyond the provisions of his contract for which he was entitled to be paid. In support of this contention appellant relies in large measure on the case of Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 258, and annotated cases thereunder on pages 268-278. The rule announced in that case was followed in a majority opinion by the Dallas Court of Civil Appeals in City of Dallas v. Shortall, 87 S.W.2d 844. That rule as summarized by the annotator under the Maney Case is: "The general rule may be deduced from the decisions that where plans or specifications lead a public contractor reasonably to believe that conditions indicated therein exist, and may be relied upon in making his bid, he will be entitled to compensation for extra work or expense made necessary by conditions being other than as so represented."

There the owner designated the architect to act for him, as here the city designated the engineers to act for it, and the court held the principal liable for the acts of the agent. See, also, Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 258; Wyandotte D.R. Ry. v. King Bridge Co. (C.C.A.) 100 F. 197; City of Chicago v. Duffy, 218 Ill. 242, 75 N.E. 912; Henderson Bridge Co. v. McGrath, 134 U.S. 260, 10 S. Ct. 730, 33 L. Ed. 934. Having reached the conclusion that the engineers were the agents of the city and not independent contractors, it follows that the action in assumpsit was a proper one.

"No contractor qualified to perform highway construction work and especially the work of excavating, grading and preparing a roadbed, could have understood, from the proposal and contract, that the kinds and quantities of the work specified were in the nature of warranties or representations, or that, if the quantities varied to such an extent as to render the estimated quantities not approximate, that he would be permitted to disregard the plain terms of the contract and recover the reasonable value of the services performed. There are too many provisions in the proposal, and the special provisions supplementing the standard specifications, to permit of the conclusion that the estimated quantities set forth in the proposal were understood to be representations or warranties so as to bring this action within the holdings in City of Richmond v. I. J. Smith Co., 119 Va. 198, 89 S.E. 123; Pitt Construction Co. v. City of Alliance, 6 Cir., 12 F.2d 28; Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 258, and Hollerbch v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898."

9 L.Ed. 933; United States v. Utah, N. C. Stage Co., 199 U.S. 414, 425, 26 S.Ct. 69, 50 L.Ed. 251; Hollerbach v. United States, 233 U.S. 165, 172, 34 S.Ct. 553, 58 L.Ed. 898; Simpson v. United States, 172 U.S. 372, 383, 19 S.Ct. 212, 43 L.Ed. 482; United States v. Spearin, 248 U.S. 132, 139, 39 S.Ct. 59, 63 L.Ed. 166; United States v. Atlantic Dredging Co., 253 U.S. 1, 12, 40 S.Ct. 423, 64 L.Ed. 735; United States v. L.P. J.A. Smith, 256 U.S. 11, 17, 41 S.Ct. 413, 65 L.Ed. 808; United States v. Gibbons, 109 U.S. 200, 205, 3 S.Ct. 117, 27 L.Ed. 906; Passaic Valley Sewerage Commissioners v. Holbrook, Cabot Rollins Corporation (C.C.A.) 6 F.2d 721, 725; City of Lima, Ohio, v. Farley (C.C.A.) 7 F.2d 40, 42; Pitt Construction Co. v. City of Alliance, Ohio (C.C.A.) 12 F.2d 28, 32; John King Co. v. Louisville N.R. Co., 131 Ky. 46, 114 S.W. 308; Highland Motor Transfer Co. v. Heyburn Building Co., 237 Ky. 337, 35 S.W.2d 521; McGovern v. City of New York, 202 App. Div. 317, 195 N.Y.S. 925; Maney v. City of Oklahoma, 150 Okla. 77, 300 P. 642, 76 A.L.R. 258, 278 (note).

Although the contract documents themselves did not furnish Cook with all the information the State possessed, he cannot maintain an actionable claim for concealment against a public hirer of a contractor unless either one of two tests is met: [1] there is a finding of misrepresentation or [2] the facts allegedly withheld are not discoverable through the investigation contemplated by the contract.Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642 [1931]; Robert E. McKee, Inc. v. City of Atlanta, infra note 28; Eastern Tunneling Corporation v. Southgate Sanitation District, Arapahoe County, Colorado, 487 F. Supp. 109 [D.Colo. 1980]; Savin Bros., Inc. v. State, 62 A.D.2d 511, 405 N.Y.S.2d 516 [1978]; Jasper Construction, Inc. v. Foothill Junior College District of Santa Clara County, 91 Cal.App.3d 1, 153 Cal.Rptr. 767 [1979]; Anderson v. Golden, 569 F. Supp. 122 [S.D.Ga. 1982] and Ambrose-Augusterfer Corporation v. United States, 184 Ct.Cl. 18, 394 F.2d 536 [1968].

Particularly is this true in a case . . . where no specific warning is given in connection with the particular item the representation of which is in question; or in a situation . . . where the bidder has not time to make a personal and detailed inspection." John Arborio, Inc. v. State, 245 N.Y. So.2d 274, 278; Hollerbach v. United States, 233 U.S. 165, 172, 58 L. Ed. 898, 34 S. Ct. 553; Maney v. Oklahoma City, 150 Okla. 77, 82, 300 P. 642; Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 361, 39 A.2d 139; United States v. Johnson, 153 F.2d 846 (9th Cir. 1946); Morrison-Knudsen Company v. United States, 397 F.2d 826, 841 (Ct.Cl. 1968); Wunderlich v. State of California, 65 Cal.2d 777, 782, 423 P.2d 545; 43 Am. Jur., Public Works and Contracts, s. 111, pp. 852, 853. See Thomsen-Abbott Construction Co. v. City of Wausau, 9 Wis.2d 225, 234, 100 N.W.2d 921.

The cases principally relied upon by plaintiff on the question of extra pay under construction contracts are not in point. In Maney v. Oklahoma City, 150 Okla. 77, 300 P. 642, 76 A.L.R. 258, the defendant City represented "that there was no rock to be encountered except in negligible quantities" and took a bid for "earth excavation" only. In the instant case the nature of the material to be excavated was plainly shown on the Plot Plan, and the contract was not limited on "earth" excavation.