ADAIR ET AL v. MCATEE
Supreme Court of Oregon
October 9, 1963
Petition for rehearing denied November 5, 1963, petition for attorney‘s fees denied January 29, 1964
385 P. 2d 621 | 388 P. 2d 748
Argued September 6
Before MCALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
SLOAN, J.
Defendant McAtee bought furniture from plaintiffs, Adair. McAtee signed conditional sales contracts to secure his obligation to pay the purchase price. The contracts were not signed by either plaintiff. However, the furniture was delivered to McAtee and was used by him for the purposes intended. He made some payments as required by his contract and thereafter failed to make further payment.
This was an action by Adairs to recover the purchase price. McAtee, in defense, claimed that there were no contracts because of the failure of either Adair to sign the contracts in question. The trial court awarded judgment for plaintiffs and McAtee appeals.
The rule is clear that a contract can be binding and enforceable even though not signed by one of the parties, if the party not signing adopts the contract by performance. Title & Trust Co. v. Nelson, 1937, 157 Or 585, 592, 71 P2d 1081, 114 ALR 1196; Sammons v. Paterson et al, 1928, 127 Or 11, 270 P 499; Estrich, Instalment Sales, 1926, page 212; 2 Corbin, Contracts, 1950, § 524, page 774.
Plaintiffs Adair adopted the contracts by full performance upon their part immediately after the contracts were signed by McAtee. In this instance it was meaningless whether the Adairs did or did not sign
In this appeal McAtee attempts, for the first time, to claim that Adairs were not the real parties in interest. The matter was not presented to the trial court and will not be considered here. Arney, Gohn v. City of North Bend, 1959, 218 Or 471, 475, 476, 344 P2d 924, 926, 927.
Affirmed.
ON PETITION FOR ATTORNEY‘S FEES
O. W. Goakey, Klamath Falls, for the petition.
Plaintiffs, who prevailed petition this court for an order allowing attorney‘s fees on appeal.
Plaintiffs’ action was upon a contract which contained a provision that
“in case suit or action is instituted to collect said sum or any part thereof, purchaser promises to pay such additional sum as the Court may adjudge reasonable as Attorney‘s fees in such suit or action.”
The Oregon cases involving the right to attorney‘s fees on appeal are in hopeless confusion. It is likely that one source of the confusion is the ambiguity in the early pronouncement of this court to the effect that a party has no right to an attorney‘s fee on appeal in the absence of a statute authorizing it. This pronouncement has been taken to mean that unless there is a statute expressly making provision for an attorney‘s fee on appeal none can be allowed either by this court or by the trial court. Thus where a statute simply provides that the prevailing party is entitled to attorney‘s fees it is construed to permit recovery only for the attorney‘s services in the proceedings prior to appeal.1 And even where the parties have contracted that the prevailing party shall be entitled to attorney‘s fees, we have held that they will not be allowed for services on appeal.2
It is fair to assume that contracts for the payment of attorney‘s fees to the prevailing party entered into after the decision in Keller v. Lonsdale, 216 Or 339, 339 P2d 112 (1959), and certainly after Gorman v. Jones, 232 Or 416, 375 P2d 821 (1962), were drawn with the understanding that in the absence of an express provision for attorney‘s fees on appeal they would not be allowed. And even before these latter cases were handed down, apparently it was generally understood among the members of the bar that a general contractual stipulation for attorney‘s fees would not include attorney‘s fees on appeal, for out of all the appealed cases involving contracts usually containing a provision for attorney‘s fees there have been relatively few in which the prevailing party has petitioned the court for such fees.
The petition for the allowance of attorney‘s fees is denied.
SLOAN, J., dissenting.
It is the duty of the court, not the legislature, to construe contracts. Because the decisions in two of our recent cases were admittedly wrong and the earlier cases present a pattern of confusion is no reason to now abdicate our duty. Anyone who has studied the former decisions would be ill-advised to prepare contracts in reliance thereon. The majority opinion cites the cases where the court has held that fees were payable on appeal and fixed the amount thereof. And because the majority now more pointedly cry for help is no reason to believe that the legislature is more likely to relieve us of previous error than has been true in the past. The court‘s attempt in Landgraver v. Emanuel Lutheran, 1955, 203 Or 489, 494, 280 P2d 301, to shift a similar burden to the legislature was futile and eventually it became necessary for the court to rectify its own errors. Hungerford v. Portland Sanitarium & Benev. Ass‘n., 1963, 235 Or 412, 384 P2d 1009.