Hirsch v. May

146 P. 831 | Or. | 1915

Mr. Justice Buenett

delivered the opinion of the court.

1. It is provided in Section 79, L. O. L.:

“* * At any time when the pleadings in the suit or action are complete, or either party fails or declines to plead further, the court may, upon motion, grant to any party moving therefor, such judgment or decree as it may appear to the court the moving party is entitled to upon the pleadings.”

The defendant had answered admitting all the material allegations of the amended complaint and had made certain averments which he deemed sufficient to support equitable relief. The plaintiff completed the pleadings by tendering an issue of law upon the sufficiency of the answer, at the same time moving for judgment on the pleadings. The whole case was thus submitted to the court, and it remains to determine whether the decision was correct.

2. The defendant himself avers that the plaintiff had claims against him, the correctness of which he disputed, and that in settlement thereof they agreed upon a balance which the plaintiff promised to pay. In Smith v. Farra, 21 Or. 395 (28 Pac. 241, 20 L. R. A. 115), this court decided thus:

“A settlement and compromise of a claim asserted on reasonable grounds and in good faith, which the parties, having equal knowledge of the facts, consider doubtful, constitute a new and valid agreement which will be enforced in law, although the matter compromised be not in fact doubtful in legal contemplation and the settlement be not what a court would have adjudged upon the facts of the case. ’ ’

If the defendant would overturn this settlement, it must be either for fraud or for mutual mistake. It is not pretended that the plaintiff attempted to practice any fraud whatever in the matter. Neither is it apparent from the pleading that the mistake in the settlement, if any was made was mutual between the parties, and this is essential if one of them would upset the agreement or settlement for mere error. The answer of new matter is fatally defective in both these respects and constitutes no obstacle to the judgment sought by the plaintiff, especially as the defendant admitted all the allegations of the complaint. Under the conditions disclosed by this record, it would have been idle to prolong the litigation further.

3. There is nothing in the proposition that the so-called cross-bill should have been disposed of by a decree of the court on the equity side and the litigation then determined by a judgment on the law side. Both law and equity are administered by the same tribunal, and, the result being correct under the pleadings, it would be the extreme of technicality to haggle about whether it should be called a decree in equity or judgment at law.

It is laid down in Section 390, L. O. L.:

“In an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of a cross-bill, which shall stay the proceedings at law, and the case shall thereafter proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree.”

The defendant’s answer falls far short of the requirements of this section. It does not purport to be a pleading wherein the defendant here acts as a plaintiff. It is nothing else than a renewed attempt to get from the plaintiff a detailed statement of account, a question which the defendant raised and which was decided against him on the motion to make the complaint more definite and certain.

4. In another aspect the pleader appears to have interposed an equitable defense against an action at law —something we have decided many times is not permissible: Coles v. Meskimen, 48 Or. 54 (85 Pac. 67); Zeuske v. Zeuske, 55 Or. 65 (103 Pac. 648, 105 Pac. 249, Ann. Cas. 1912A, 557); Donart v. Stewart, 63 Or. 76 (126 Pac. 608).

Prom whatever angle we view the question it is manifest that the defendant never left the law side of the court and failed to make a case in any respect cognizable in chancery or available at law. The decision of the Circuit Court is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.