*1 119 directions on briefs November reversed with Submitted rehearing February 14, petition 14, 1951 denied March v. HAMILTON GUMBERT WEISS 227 P. 2d

228 P. 2d *3 Mead, of Portland, George W. and J.8. Bischoff for appellants. Rosenberg respond-

Goan, Swire, & of Portland, ent.

TOOZE, J. assumpsit brought

This is plain- an action of against tiffs David M. Weiss and Ed Hamilton de- individually fendant B. Eva Gumbert, and as execu- trix of the estate of Milton L. deceased, to Gumbert, recover the sum of $10,000. case was tried to the jury. Findings court without a fact, conclusions of judgment law, and were entered in favor defend- appeal. ant. Plaintiffs

Milton L. lifetime, his Gumbert, was the owner operator and of a fur retail business in Portland under the name of “Milton L. and Gumbert Furriers” Washington. another retail fur in Vancouver, business January 12, He died testate will his last duly probate probate testament was admitted to in the department county of the circuit court for Multnomah January 18, 1944.

By the said will the United States National Bank (Oregon) appointed nominated and Portland was Eva B. widow, executor and decedent’s as Gumbert, estate, the coexeeutrix of the and the said bank alone, as thereby. formally trustee of the trust created The bank executor, accept appointment declined to either as or ap- and no other was will, trustee under trustee pointed. January Eva B. Gumbert appointed sole estate, such, executrix operation of the Portland store. continued the many years immediately prior For to and at the *4 plaintiff here, involved David time of the transactions engaged buying in the fur Weiss was business M. headquarters throughout in the nation with his New immediately City; period some of time and for York dealings up prior liti- led to the instant which to engaged gation, plaintiff in the Ed Hamilton was Oregon. at Salem, retail fur business requested one Hamilton In the late summer inquiry to Portland, Albert T. realtor of make Bullier, selling the consider of defendant whether she would Qumbert store, Portland he did. Also about which plaintiff directly, same "Weisswrote to time, defendant making inquiry. At the time, similar defendant selling. in them she was interested informed early Portland In decided to sell the 1947,defendant agent employed her make the store and Bullier as to immediately as a Bullier Hamilton sale. contacted by purchaser, prospective informed Hamilton but was necessary make the that he not have the finances did suggestion, purchase. con- At Bullier’s Hamilton then was Weiss, who interested. tacted Wednesday, in Portland on Weiss arrived March purpose looking into for the the matter. and Hamilton entered time, At or about Weiss whereby agreement it was themselves, an between into purchase able to if Weiss was understood Qumbert he Hamilton would form a store, then engage operating corporation retail stores, fur corporation. of the stock of to own each one-half completed agreed that when Weiss them It between purchase he would transfer it store, the Gumbert payment corporation for his interest therein; to such agreed to the his Salem store to transfer Hamilton adjusting corporation therein, for his stock his and that to be store in value between difference agreed execute and deliver purchased he Weiss, promissory for $15,000. note his *5 plaintiffs negotiations On March 26, entered into purchase by Bullier with for the Weiss of the Portland part negotiations, plaintiffs store. As a of these they requested showing that be a furnished statement profits volume of sales and net of that store a over period years. conveyed request of Bullier to de- fendant. closing

Late the afternoon of March after 26, plaintiffs at the store, hours and Bullier went to the parties store to meet defendant. All the then went to out together dinner dinner and after returned to the store. leaving planning Inasmuch as defendant was then following Friday, suggested for Sacramento the she inventory that take an of stock, fixtures, he equipment evening. Acting on hand in and the store suggestion, by upon this assisted one Julius Weiss, buyer by Kruskal, a Weiss, fur and also Hazel employes Gfumbert, defendant, Olson Warner proceeded immediately inventory. to take such The completed midnight. work until was negotiations March resumed in were Bullier’s meeting plaintiffs Bullier delivered to office. At this purported typewritten which a statement show the profits volume of sales and net the Portland store years year to each for the inclusive. This prepared by been Hazel Olson, statement had sister of by employed defendant who was as book- defendant, by keeper store, was handed to Bullier defendant. very profitable a statement reflected business.

This asking $165,000for the business, her The defendant inventory upon being price stock, actual based good plus equipment, $85,000for fixtures, will. shows that as the evidence here value of Inasmuch by taking good going is at of a arrived will business period average profit annual over substantial very knowledge profits these of what time, price may determining reasonable what be a material in good paid including the will. for such business, be inventory by fix- stock, taken Weiss disclosed equipment fixed than tures, and less value negotiations respecting defendant, which led further *6 nego- paid price in business, the be for the which to price part. personally A tiations took a sales defendant finally agreed upon. Belying upon the $153,938 of was subject accuracy him and the furnished of statement by of the Portland store to an examination of the books agreed to make an offer for the own auditor, his Weiss agreed upon. price However, Weiss business for the identity explained that he did not want his to Bullier just fur business be known with a Portland retail engaged owing to the fact that he was then time, at that representing as their York various retail stores New in agreed buyer. that the offer the It then Weiss was plaintiff Ham- name of estate should be the ilton. might passing, that be noted the evidence

In it any peradventure beyond of that doubt establishes plaintiff purchase the of this store Humbert the party he alone, and was interest; he, was real agent purchaser. for of Weiss Hamilton was making purpose other offer, of no appear quoted from testi- purpose; as later and, shall mony fact known her, was as defendant, of the agent Bullier. as her well of fact that the trial unmindful are not

We findings to the effect Hamilton of fact court made acting together principals in the were and Weiss purchase of this business and found as conclusion they joint law that adventurers in connection; study but after a careful examination the entire competent record, we conclude there is no substantial support finding evidence to either the court’s fact being or conclusion of law now discussed. foregoing negotiations

Pursuant to the and under- standing, Friday, following on March 28, the offer in duplicate by attorney: prepared Weiss’s Oregon

“Portland, March 28, 1947 “Mrs. Eva B. Executrix Gumbert, Estate Milton L. Gumbert, Deceased, Oregon Portland,

“Dear Mrs. Gumbert: understanding

“This letter will confirm our oral purchase relative to the matter the under- signed inventory, goodwill, of the merchandise equipment supplies tradename, fixtures, of the L. Milton Gumbert store at located 816 Southwest following Oregon, Morrison Street, Portland, basis: purchase price “The is to be the sum of One *7 Fifty Three

Hundred Thousand Nine Hundred Thirty-Eight ($153,938.00), plus prepaid Dollars premiums adjusted insurance of the of as date ninety closing per of this less cent transaction, (90%) price of the net cash invoice all of merchan- by you midnight, 26, dise sold on and after March closing. date of to price merchandise, to all “The sale is include supplies equip- goodwill, ment. and tradename, fixtures, obligations that all is understood incurred “It up closing the date of this the business to of the delivery stock and the of the and mer- transaction chandise equipment paid to be full and other are you by yonrself, discharged to are and that and comply Oregon Bulk connec- with the Sales Law transaction. tion with this comple- upon the “The of are cash terms sale premises, delivery tion of transaction and equipment supplies and and

merchandise, fixtures, Ten Thousand Dollars ($10,000.00) is herewith you apply payment handed down purchase price. upon “It this offer is is understood and undersigned express are able condition that satisfactory negotiate lease with conclude your premises is in which the owner of the store lease that such a can

located, and in the event days thirty (30) from this date be concluded within no further this is be void and of then effect signed offer you to the are to forthwith return under- ($10,000.00) Dollars here- the Ten Thousand you. handed with this be

“It is understood that transaction will you possible opportunity and concluded at the first agree the end that the Court shall your exert influence to recommend and

approve the consum- mation of this transaction. foregoing agreement “If is accordance you kindly your understanding indicate will

with acknowledgement acceptance your upon thereof original duplicate of this communication. truly, very

“Yours ED HAMILTON /S/ hereby foregoing offer “The accepted day March, 28th subject approval to the of the State the Circuit Court County, Oregon Multnomah Department Probate. B. EVA HUMBERT

/S/

Eva B. Humbert”

128 signed by offer

This was Hamilton as indicated and delivered to Bnllier. At the time, same de- Weiss personal livered to Bullier his for check $10,000, payable the order of defendant executrix. Bullier delivered the offer and check to defendant, and she signed acceptance the as noted above. Weiss then returned New York.

Shortly steps organize were taken to a thereafter, corporation known as “Ed Hamilton Purs, Inc.,” president, being with Ed Hamilton as accord- arrangement ance with and Hamil- between Weiss corporation negotiations ton. This also entered into premises for lease with the owner of on which the April 28, store located, Gumbert was and on or about secured, such a lease. Monday, April one Buben, Julian C. public York,

certified accountant New arrived examining purpose Portland books other records store on behalf Gumbert of Weiss. April He made his 22. He fur- examination employes her defendant and with all the nished might light records of store throw books and upon profits. of sales net On this exam- the volume discrepancies Ruben substantial ination, found between originally figures on furnished the statement by disclosed books and records of the and those store. discrepancies following such table shows as to

profits: shown shown on Profits Profits books —Ruben audit. on statement Year given 3,675.14 3,386.38 Not $ 30,235.00 $ 10,974.35 16,735.84 28.495.00

1941 1942 43.200.00 25,565.74 50.365.00

129 shown shown Profits Profits Year on statement onbooks —Ruben audit.

1943 1944 139,681.55 190.399.00 124,806.33 101.556.00 1945 47,346.70 47.346.00 24,356.24 28.728.00

$520,324.00 $396,528.27 animal average as profit shown the state- ment furnished Weiss is Ruben’s audit $65,000; per of the it books, is or $44,000, $21,000 a difference of per year. As pointed out this is a previously, substantial consideration in be determining what should for paid will good the business.

Ruben directed attention to fore- defendant’s going discrepancies. same, Because of the suggestion price made that set forth in the offer Weiss be reduced. Defendant agreed to finally such reduction Ruben the sum assured her $5,000; whereupon that despite he would recommend discrepancies, Weiss be the sale at the reduced completed price. The defendant testified: * * * “A. Mr. Ruben then came back and said sale,

he recommend the would recommend sale to ** * go he through. immediately And tried reach Mr. over but was unable telephone * ** so do (Italics ours.) Testifying her with Ruben respecting discussion about the defendant said: discrepancies,

“Q. at rate after this any Now discussion some- that he did would have to notify one —Mr. Ruben say — — — Mr. Weiss right. “A. That is he

“Q.--— about what had discovered? “A. came out he that purpose; Naturally; I so. presume ‘* purpose; He your Q. came out for that

understanding? naturally---” “A. To check books, our so (Italics ours.) April agreed and after defendant had price procured copies as stated, reduce the Bullier both original pen of the offer and and ink with struck out “ ” figures “Fifty ($153 *) words Three” and figures “Forty their stead wrote the words and Bight” “(148 price *),” so that the the offer Forty Eight then read: “One Hundred Thousand Nine Thirty-Eight ($148,938.00).” Hundred Dollars On the *10 margin opposite the alterations Bullier “O. K.” wrote relating paragraph changed In lease, the to the Bullier “Forty figures “thirty (30)” the and word read margin opposite (40)” and on the wrote “O. K.” Opposite K.” letters “O. both Hamilton and de- the placed their initials. fendant dispute parties whether the is a between the There April initialing Bullier made done on the was when day. Hamilton testified the or the next alterations, placed made at the time Bullier the there initials were April changes the affixed and at time he that 22; on subject ap- the did so he stated that he initials, his proval Bullier corroborated Both Ruben and of Weiss. changes were initialed. the time the as to Hamilton Bullier testified: my April was 22nd. That I think I said

“A. impression the 22nd. that it was right; April pardon, you your beg are I “Q. day Ruben Mr. discovered the that 22nd. That was Mr. discrepancies; in that, am not correct I the Bullier? correctly the from if remember I Well, “A. given you-have I me that have under- dates stood, why, on the 21st into town Ruben came Mr. April auditing and lie made his he work—he did auditing [sic] during work I and believe 22nd, evening it was that that the offer was initialed and changes change fifty-three from a hundred —the forty-eight to a hundred and some odd thousand ” dollars was made. initialing

Defendant contends that the was on done April though changes Bullier on the 22nd. any parties changes In all event, understood that the subject approval to the Weiss. That defendant conclusively by so understood it is established her own testimony. explaining why change In was made to forty days, (40) days, thirty (30) read instead de- fendant testified: * * * “A. I Mr. think Bullier was the one they that told me would to expiration have have time exten- they sion because 28th, it,of going

would be that, over and Mr. was Buben Salem with Mr. he Hamilton, would leave on Thursday by plane, and he would not return to New Friday, Friday, Saturday York until and Sun- day go be lost, would he couldn’t to the bank make nor recommendation could he see Mr. Weiss, Monday being day would then be the 28th necessary the contract would over was with, be so it thought granted, I for—therefore the time days. ten extra agreed “Q. was that to ? When *11 At the time “A. that we affixed our initials on * * April thirty 23rd about two or around there *.” (Italics ours.) support initialing And in her that the contention accomplished April April on 23, 22, instead defendant testified: ‘‘ you say nobody Q. But that initialed it that at [April 22

time? when Bullier alterations.]

“A. Not at that time. We couldn’t have; the

approval (Italics had not come Mr. Weiss. from ours.)

There nois evidence whatever in the record that any by personally "Weiss at either time, act, word or approved changes original made in the offer or any rights may owing waived he have to mis had, representations profits appearing as to of the store any original statement. Neither is there substan competent any tial evidence in the record that atWeiss by personally authorized time, act, either word or speak Hamilton or Ruben to for him the either respects neither under discussion. Defendant knew that authority nor Ruben such as evidenced Hamilton had quoted respecting ap above “the her statement * * * proval from Mr. and her further Weiss” testimony Mr. “Ruben would recommend to go through. the sale Weiss” April Ruben delivered Weiss 28, or about figures from he had taken the Gumbert York the New George May his Mead, wired books. On store attorney, as follows: Portland profits were and of Gumberts “Because sales equal originally amount audit not after found necessary unable secure have been submitted promised me basis financing been had which Sorry figures. original alternative have no but advise landlord Please rescind transaction. but to deposit Weiss.” M. refund obtain —David immediately brought the atten- this wire to Mead May Mead also Bullier. On of defendant tion original withdrawing offer of defendant, wrote representations “(a) false reasons: March profits respect of the busi- net to the made with by anyone accepted not "been has (b) the offer ness, binding accept make it and to the same qualified to *12 contract between the parties,” demanded return of the $10,000 down Weiss. paid Defendant refused to return the money, and the instant action was commenced for its recovery.

Upon the trial, defendant offered an testimony in effort to explain away very substantial discrep ancies as to profits heretofore discussed. Without going into the testimony suffice detail, say most of the explanation offered referred to matters appearing the books the Gumbert store and depended largely upon mere conjecture. For example, it was contended that between the years 1939 and 1942, there were occasions when the Portland store would purchase merchandise and then transfer it to the Van couver store without any entry thereof made on being the books. This testimony was offered by Olson, Hazel who, during years, those did not have any connection with either store. it Further, was claimed that salary allowed and Mr. paid Gumbert during his life time as manager defendant as paid manager during time she the business managed as executrix should be considered as instead “profit,” an being expense operation. On the books these salaries as items. appear expense But these giving explana tions full face value, there remained yet substantial between the discrepancies profits represented in the profits light explanations. 8,May 1947, after Weiss had rescinded, witness Hazel Olson prepared corrected statement of the profits in accordance with her explanations.

This statement corrected was admitted in evidence. Let us compare figures appearing thereon with those set forth in the original statement furnished plaintiffs.

Corrected statement *13 Original May profits Year 1939 8 statement of 30,235.00 8,186.38 $ $ 1940 15,774.35 28.495.00 43.200.00 1941 21,735.84 30,365.74 1942 50.365.00 1943 1944 150,399.73 113,056.31 190.399.00 101.556.00 59,346.70 47.346.00 determined Not 28.728.00 theory of not the defendant that We do subscribe manager salary paid operating as while defendant the business as executrix of the estate be treated the should salary properly charged “profit”; on the as this was expense operation. her books an of In corrected as May included statement of the witness Olson the salary paid profits. as amounts of from all hold that in far a that, But aside we so as part right concerned, on the of Weiss is rescind right the Ruben is to be determined of time the his of made and the books and records the audit was what dependent is not disclosed, Gumbert store then upon explanations those later outside records. pointed previously, finding the

As out the of we plaintiffs joint the were adventurers in trial court that supported by purchase the Gumbert store the competent any in that find- evidence. Even substantial required ing “and Plaintiff Weiss was the court stated necessary complete pur- the the cash contribute from fur Defendant.” chase said store joint if the adventure, such, The there was be later conducted when Weiss secured business to new and Hamilton trans- store, Gumbert the and delivered corporation for to the the own new ferred his store agreement purposes operation. of the new Under their sep- obligations and Hamilton were of both Weiss Many findings arate distinct. of the other upon premise plaintiffs trial court are based joint being premise wrong, adventurers. wrong. findings based thereon are recognize the rule in an

We of law that action findings such as trial are this court entitled weight jury, to the same accorded a verdict thereby any court if is bound there is sub competent support stantial evidence in record to respecting them; and what have said we relation ship existing plaintiffs pur between so far as the chase of the Gumbert store is concerned is with that rule in mind. finding

The trial court that defendant “did *14 intentionally, recklessly, negligently not either or other- any representations wise make or false fraudulent plaintiffs regarding gross profits volume and net years of said fur store for the 1939 to 1946.” finding quite In this it is evident that the trial court representations had in mind false that would form the basis of actionable fraud. toAs the elements neces sary to constitute actionable fraud see et Conzelmann Poultry Dairy al. v. Northwest & al., Products Co. et 190 332, Or. 225 P. 2d 757; § 37 J. C. S., Fraud, 215, 3. may guilty be

It assumed that defendant not of actionable fraud. But the evidence is conclusive plaintiffs the statement furnished before the original offer was made contained misstatements re specting profits during of the Gumbert store years 1939 inclusive. These 1946, misstatements re upon by ferred to material matters and were relied plaintiffs. may making It be in conceded that the mis- may entirely

statements defendant was she innocent; have no had intention and deceive whatever mislead may plaintiffs; honestly figures she have believed the discovering upon Tet, set forth to be true. withal, right re audit, truth after Ruben’s Weiss had the promptly, provided he scind the acted transaction, he did. § rule

In Restatement, Contracts, 908, is stated: “(1) party to enter into is induced Where a party was under

transaction with another that he duty by fraud no of the latter’s to enter into means misrepresentation, the transaction or material against stand the latter and all who voidable as ** position *. no better “(2) because a transaction is voidable Where innocently misrepresentation representation with the facts become accordance party in- void- of an notification deceived before longer transaction, it is no avoid the tent to (Italics ours.) able.” foregoing we In on the statement find: comment b. ‘ though misrepresentation material ‘b. Innocent by negligence accompanied same has the effect discharge rendering void- a contract or fraud (Italics ours.) able.” Sharkey Burlingame Co., Or. In v. P. court said: granted an in cases where is often “Rescission not be maintained. could action deceit right right as the to recover not, does rescission depend damages deceit, action for in a common law *15 upon was the result for if the transaction fraud, representation it of a material fact cannot a false right party’s against injured rescind, stand (Italics honestly ours.) made.” however § 147. Contracts, 502, S., J. See also 17 C.

137 argues orig Defendant that inasmuch as inal did offer not disclose on its that face Hamilton was merely agent acting parol as an for Weiss, evidence was inadmissible to establish that fact. Authorities are an cited to that effect. But examination of the au parol thorities will that disclose evidence rule is applicable only who to one contracts in his own name personally but claims that he is not liable on the con principal. tract because he for an acted undisclosed agent only precluded by avoiding is rule from primary liability his on the contract. applicable

The rule as to the at case bar is that stated Pennick al. et v. American National Bank, Or. 268 P. follows: regarding “There conflict in the authorities is admissibility pur of evidence for offered pose is not the real showing party a to the written contract party acting signed in interest but principal he at the time entered into the the early adopted state, contract. This however, principle parol evidence was admissible show that a party named in nor subscriber to party a contract is the real in interest and is bound thereby. principle This was first announced in (43 378).” v. Goodale, Barbre Or. 470 Pac. supra page Goodale, Barbre v.

In at 471, in dis- cussing Mr. rule the late Justice Wolverton said: may principal

“The have recourse to the same party entering thus doctrine to bind tract with his into con- agent.” Agency, § also 3 C.J.S., 208, 275; See Am. Jur., Agency, § 400. unnecessary might discuss

It what the effect respecting this transaction had have been Hamilton and joint purchase been adventurers in the of the *16 Many and dis- cited authorities of the store. Gumbert argu- parties much of the of the in briefs cussed the joint effects thereof and the adventures to ment refer joint dealings or more the one between as concerns persons. au- To discuss these and third adventurers inapplicability point the their out thorities opinion. unnecessarily prolong this issues here would given the exten- careful consideration haveWe respective argument appearing in the briefs sive respecting the parties authorities cited and to the the given the last will and that should be construction determining the extent of the testator testament authority do not thereunder, but we of defendant’s necessary go those matters in this into it deem opinion. altering original offer would

The effect parties agreement in the a new between to create be approved by changes Weiss. Had he event such approved announced Anderson the rule same, and reaffirmed 159 P. 2d 176 Or. Laws, v. Dairy Poultry & Products v. Northwest et al. Conzelmann supra, contended defendant, al., would, et C o. applicable, viz.: be by fraud to one has been .induced “When who subsequently, knowledge contract, with

enter into agreement another re- fraud, enters into of the guilty specting of and same with one transaction injured party, thereby fraud, he, waives damages relinquishes right all account of fraud.” such foregoing had entered rule,

Under thereby agreement, been he would have the new into right exercising his of rescission based precluded from pointed misrepresentations. original But, as upon the give approval did not his out, Weiss to the alterations; applicable. the rule is not therefore, Even if we assume that Hamilton was in fact a principal, agent, than an rather in the transaction, Though the result would be the same. Hamilton ini- changes thereby expressed ap- tialed the his own *17 proval of the same, such alterations nevertheless, were subject approval. to Weiss’ this re- Therefore, quired approval by precedent Weiss a condition became par- to the formation of a new contract between the Obviously agree- ties. then, there could be no new respecting binding upon ment the same transaction and anyone approval given. until approval such The having given, been ripen the transaction did not into new contract; hence the rule announced in supra, apply Anderson v. Laws, would not to Hamilton. on his right Hamilton, own account therefore had the right and May rescind, he exercised that 6, 1947, in a letter addressed to defendant.

Having rights been well within rescinding their in plaintiffs transaction, were entitled to a re- original deposit turn of the of $10,000. judgment of the trial court is reversed, and this

cause is remanded with directions to the court to enter judgment plaintiffs against in favor of and defendant, as executrix of the estate of Milton L. Gumbert, de for the sum of ceased, $10,000, with interest thereon at per May the rate of annum from paid. 15,1947, until 6% Rehearing

On George and Mead, S. J. W. of Portland, Bischoff contra. Rosenberg

Coan, & Swire, for Portland, petition. J.

TOOZE, Rehearing. On Petition for appeal herein, this court reversed the trial court the court remanded the cause with directions to judgment plaintiffs to enter for David M. Weiss against Ed Hamilton defendant Eva M. Gumbert, executrix estate L. Gumbert, deceased, of the of Milton sum of with at the rate $10,000, interest thereon per May paid. per of 6 annum until cent from 221. Gumbert, v. Sh., and Hamilton Or. Ad. petition rehearing alleg filed Defendant has holding ing plaintiffs court erred claiming holding such interest, entitled to recover contrary Cope previous decisions of the court Boyer P. et al. Tweedle, 303, 122 302, v. 61 Or. land *18 Edgemont P. Co., Investment 135 Or. 295 471. 161, v. repre- principal of herein $10,000 sum involved by plaintiffs deposit 28, 1947, on March sented a part purchase offer of the Gumbert a a written of of in Portland. store located fur May and rescinded this offer on Plaintiffs writing deposit. day in a the that return of on demanded money, action to return the and this refused Defendant by plaintiffs with same, to recover the was commenced per per the 6 annum rate of cent at interest thereon May 15,1947. from plaintiffs appeal court, we held that to this

theOn right rescind the transaction had a upon return of their rescission, such entitled, deposit $10,000. (as

Section amended Or. 66-101, Laws, O.C.L.A. 1) part § provides: 1917, ch. in rate of in six “The interest this state shall be per per centum annum and no and shall be more, payable following in the cases, to wit: “ (1) moneys due; allOn the same becomes after provided, open interest accounts shall bear from the date of the item thereof. last “ judgments (2) payment and decrees for the money entry of some from the unless date of thereof specified judgment date or

other in said (Italics ours.) decree.” Copeland supra, appears

In v. Tweedle, it plaintiff conveyance taken had a from defendants of county, Clatsop paying certain timber land in therefor ground $3,900. She rescinded on the of fraud and tendering demanded a return of the defendants $3,900, reconveyance. a deed of The trial court found for plaintiff conveyance canceling and entered decree allowing recovery by plaintiff from defendants per $3,900, the sum of with interest at rate of per original convey cent annum date from appeal “prior we court, ance. On to this held that presents allowing case no situation inter decree, meaning § 6028, deci est within the L.O.L.” This sion was 1912. March, rendered part provided: L. O. L., Section rate of interest “The state shall be six per per moneys and no annum, more, centum on all judgments due; same becomes on after the payment money; money decrees for re- * * * the use ceived of another and retained .” Sargent v. In American Bank and Co., Trust *19 P. 759, 156 P. Mr. 431, 16, 40, Or. Justice Harris, rehearing, history on traced the of this interest statute original and discovered that in the draft the act Secretary the there as filed of State office (,) (;) was a comma instead of a semicolon after the moneys “on all after the same becomes due,” words thereby clearly indicating “on all words moneys to after the same becomes due” referred judgments moneys becoming and decrees.” due “on correctly Copeland was Because of v. Tweedle this, following Sargent the decision 1917, decided. inBut legislature supra, the Co., v. American Bank and Trust above noted. statute as amended this again April, amended came as 1923, In the statute v. Bank In Gellert court for consideration. before this al., 162, et Association, Or. National California, right that when the was contended 214 P. it 377, 178, good money faith interest will denied, inis recover liquidation prior to demand on the be allowed rejecting Mr. Justice judgment. contention, In said: speaking court, for Harris, plaintiff sued was for which amount “The plaintiff was entitled The certain sum. definite each or amount of draft either whole recover judgment. nothing. became due before The amount plain it By L., Or. terms of Section pay- ‘shall amendment, interest be after reads now ’ * * * moneys after same due. becomes all able judgment.” properly included in the Interest plaintiff had tendered the drafts case, In the Gellert and demanded a return cancellation the bank judg money paid on June 1920. for them plaintiff from included interest June in favor ment defendant’s refusal demand and of the date pay.

143 deposit In the ease at bar, $10,000 involved plaintiffs awas fixed and definite en sum, were nothing titled to recover the whole of such at all. sum or plaintiffs payment It became due when demanded plain provisions thereof from and under the defendant, § plaintiffs of 66-101, entitled to interest O.C.L.A., from that date. Boyer Edgemont

In the case of et al. v. Investment Co., January, Or. 295 P. 471, decided in plaintiff brought 1931, suit to rescind a contract for purchase property of certain real in Portland and money paid to recover the amounts thereon. Plain tiff was awarded a decree and was allowed interest paid on the several amounts from the dates of the respective payments. appeal, defendant contended that such allowance of interest was erroneous. This disposed by simply stating: court of the matter “Inter est should have been allowed the date the decree from only: Copeland (122 v. Tweedle, 61 Or. 303, 309 P. 302); Oregon § 7988.” Code 1930, § 57-1201; Or. L., (Italics ours.) authority

As heretofore noted, case cited quoted Copeland the above sentence, viz., v. Tweedle, decided before the amendment of 1917, and hence support ruling does not the court. In respects under now discussion, the statement of the Boyer Edgemont et v. court al. Investment Co., expressly supra, overruled. case,

In the instant the trial court should have judgment plaintiffs rendered favor of the for the with interest thereon $10,000, sum at the rate of per per annum from the cent date it became due, entering judgment for instead of defendant as it did. em Art. this court is VII,

Under Or. Const. § heretofore to direct powered entry judgment ordered. exhaustive of Mr. Chief Justice opinion See Hotel, Inc., on motion filed Brand v. Multnomah Gow dated March mandate, for recall modification 1951. is denied. for rehearing petition