103 P. 68 | Or. | 1909
delivered the opinion of the court.
We do not agree with plaintiffs’ contention that the clause in the contract, requiring the city to pay certain expenses required to satisfy the attorney of the legality of the bond issue, absolved plaintiffs from the results of a forfeiture. The contract of plaintiffs is to accept legally issued bonds — not accept bonds which his attorney should advise him were of such a character. Such a construction would furnish a contractor a very easy method of evading a contract, as it would not be difficult to find an attorney who might advise a client in an emergency that any sort of a bond issue was illegal. Nor do we think that a fair construction of this clause leaves to the attorney the decision of the question as to the primary right of the city to issue bonds for the purpose proposed, but in any event was only intended to give him a sort of a general supervision of the manner in which the issue should be made. The city was to “pay all cost of advertising, etc., required to satisfy the attorney of the legality of the bond issue.” Now if the character “etc.” has any meaning in a contract, which is doubtful, it can only mean “and others”; that is, other things of like character to the thing specified, namely, advertising, and such other details of the issue as would make bonds, which both parties must have assumed that the city had a right organically to issue, good and valid. If the city had no right under its charter ta issue bonds for the improvement, under any circumstances, then no amount of advertising and no moneys worth of “etc.” could remedy this defect, and we will not assume that the parties were intending to contract for an absurdity. There are abundant authorities which hold that the character “etc.,” used as it is in this contract, is meaningless: Harrison v. McCormick, 89 Cal. 327 (26 Pac. 830: 23 Am. St. Rep. 469); Myers v. Dunn, 49 Conn. 71; Whitmore v. Bow
Assignment No. 19 relates to the refusal or failure of the court to find that plaintiff demanded the return of the $600, and proposed that, if it would do so, he would release it from further liability on the contract. There was only one legal way for plaintiffs to demand their money, and that was by-presenting their demand, with the proper evidence thereof, to the recorder, which is not alleged. The allegation as it stands is not material.
Assignment No. 20 relates to the refusal of the court to find the following allegation of the writ to be true: “That by the adoption of such report and recommendation the city of Sumpter entered into a contract with plaintiffs for the return of said sum of $600 upon plaintiffs signing the release mentioned in said report and recommendation, and in said proposal of said plaintiffs,” and in refusing to find upon said allegation. The allegation was, in its essence, a mere statement of a conclusion of law, namely, that by a certain action of the city council, and the signing of a certain paper by plaintiffs, a contract arose by operation of law. The allegation was not material, and no error was committed by the court in refusing to find upon it. The same may be said of the next assignment.
If there had been no finding on any of the matters embraced in the assignments of error just mentioned, we still think that, in the absence of specific requests for such findings, the failure to find would not be reversible error. The court found on issues that ultimately de
From the conclusions here reached, it follows that the judgment of the court below must be affirmed.
Affirmed.