Adair v. McAtee

• Decision Date: 11 October 1963
• Citation: 236 Or. 391,78 Or.Adv.Sh. 161,388 P.2d 748
• Parties: Ben ADAIR and Edith Adair, partners, doing business as Adairs' Hardware and Furniture, Respondents, v. Paul McATEE, Appellant.
• Court: Oregon Supreme Court

Page 748

388 P.2d 748

236 Or. 391

Ben ADAIR and Edith Adair, partners, doing business as

Adairs' Hardware and Furniture, Respondents, v. Paul McATEE, Appellant.

Supreme Court of Oregon, In Banc.

Oct. 11, 1963.

Decided Jan. 29, 1964.

O. W. Goakey, Klamath Falls, for the petition.

O'CONNELL, Justice.

Plaintiffs, who prevailed in Adair v. McAtee, 77 Or.Adv.Sh. 195, 385 P.2d 621 (1963), 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

On the other hand, we have construed a statute providing for the allowance of attorney's fees as including attorney's fees on appeal. ³ In some cases we have allowed a fixed attorney's fee in this court. ⁴ In other cases we have left the door open for an application to the trial court for attorney's fees for services rendered on appeal, though we have refused to make an award ourselves on the ground that in the absence of a statute we have no power to make such an award. ⁵

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 P.2d 112 (1959), and certainly after Gorman v. Jones, 232 Or. 416, 375 P.2d 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.

Were it not for the foregoing considerations we would hold that a general contractual provision for attorney's fees would include allowance for services rendered upon appeal. But in view of the circumstances recited above, we are of the opinion that the confusion should be resolved by the prospective action of the legislature, and that until it is so resolved attorney's fees will not be allowed upon appeal in the absence of a statute so providing or in the absence of an express agreement that the prevailing party is entitled to attorney's fees on appeal.

The petition for the allowance of attorney's fees is denied.

SLOAN, Justice (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 P.2d 301, to shift a similar burden to the legislature was futile and eventually it...