175 P. 443 | Or. | 1918
Lead Opinion
The trial court failed to make any findings of fact or conclusions of law in this case, and therefore we lack his assistance in determining the credibility of witnesses whom we have never seen or heard, and we are also in the dark as to the legal conclusions upon which the decree was based. We have made a careful review of the evidence, which in many details is conflicting, and from it all, we find the history of the transactions to be about as follows: Early in the spring of 1915, W- F. Todd, the owner of two contiguous lots with an aggregate frontage of 100 feet,
Defendants urge that the failure of the plaintiff to allege and prove a compliance by the Gr. A. Morrison Lumber Company with the requirements of Chapter 154, Laws of 1913, in regard to doing business under an assumed name, is fatal to plaintiff’s right of recovery.
It follows that a decree should be entered here foreclosing plaintiff’s lien in the sum of $922.15, and giving such lien priority over the two mortgages of the defendant Markwood, plaintiff to recover its costs and
Modified.
Rehearing
Denied November 19, 1918.
Petition for Behearing.
(175 Pac. 860.)
On petition for rehearing. Denied.
Mr. John R. Hughes, Mr. Leslie 8. Parker and Messrs. Lewis, Lewis é Finnigan, for the petition.
Mr. Allen R. Joy and Mr. L. E. Crouch, contra.
“The complaint alleges that $300 is a reasonable sum to be allowed as attorney’s fees for foreclosing the lien, and this amount is denied by the answer. No evidence was offered upon the issue so joined and therefore nothing can be allowed thereon: Guernsey v. Marks, 55 Or. 323 (106 Pac. 334).”
This, portion of the opinion of the court is challenged by plaintiff in a petition for rehearing, which calls our attention to the fact that in the trial court a stipulation in regard to the matter was entered into as follows:
“Mr. Lewis: I will now ask Mr. Joy if he will stipulate as to attorney’s fees?
“Mr. Joy. That has already been gone over and agreed upon.
*154 “The Court: Let us get it into the record formally. Do you agree the attorney’s fee may he determined by the court, Mr. Joy?
“Mr. Joy: I do, I always do in these cases. I made that statement before. ’ ’
It will be observed that nothing is said in this agreement as to the amount of the fee, or as to the introduction of evidence. It is simply stipulated that, in this particular the court shall do what the statute says it shall do; namely, to make a finding and decree as to the reasonable amount to be awarded as a fee, and our attention has not been called to any authority supporting the doctrine that such a stipulation obviates the necessity of introducing evidence upon which to base a finding as to an issue of fact.
We might well have added to the citation of Guernsey v. Marks, 55 Or. 323 (106 Pac. 334), the following cases, all of which announce the same doctrine: Bowles v. Doble, 11 Or. 474 (5 Pac. 918); Bradtfeldt v. Cooke, 27 Or. 194 (40 Pac. 1, 50 Am. St. Rep. 701); Cox v. Alexander, 30 Or. 438 (46 Pac. 794); First National Bank v. Mack, 35 Or. 122 (57 Pac. 326); Lassas v. McCarty, 47 Or. 474 (84 Pac. 76); Wright v. Conservative Investment Co., 49 Or. 177 (89 Pac. 387); Waymire v. Shipley, 52 Or. 464 (97 Pac. 807); Mael v. Stutsman, 60 Or. 66 (117 Pac. 1093); Sattler v. Knapp, 60 Or. 466 (120 Pac. 2).
It is further urged that the ruling in Guernsey v. Marks, 55 Or. 323 (106 Pac. 334), is not applicable to the case at bar, for the reason that in actions for the collection of promissory notes and the foreclosure of mortgages, the attorney’s fees are matters of contract, while in the foreclosure of mechanics’ liens such fees are a creature of statute and in the nature of costs. This may be conceded without citation of authority, but the deduction which the learned counsel draws
Our attention is called by counsel to two decisions of this court: Portland Bash & Door Co. v. Parker, 61 Or. 203 (121 Pac. 1135), and Wills v. Zanello, 59 Or. 291 (117 Pac. 291), which' appear to support the contention that litigants may agree that the court may determine the reasonableness of an attorney’s fee without the introduction of evidence. It does not appear from the opinions in these cases that the question was seriously presented upon the hearing, and it is not discussed, and it may well be observed that in each of these cases the trial court did make a finding upon the subject, which was affirmed by this court, while in the case at bar, there was no evidence offered and no finding made by the court below, and we are called upon to make a finding upon an issue of fact, without a syllable of testimony upon which to base it. This is contrary to a long line of decisions of this court, and the petition for rehearing must be denied.
Rehearing Denied.