Adair v. McAtee
| Decision Date | 09 October 1963 |
| Citation | 385 P.2d 621,77 Or.Adv.Sh. 195,236 Or. 391 |
| Parties | Ben ADAIR and Edith Adair, partners, doing business as Adair's Hardware & Furniture, Respondents, v. Paul McATEE, Appellant. |
| Court | Oregon Supreme Court |
Glenn D. Ramirez, Klamath Falls, argued the cause for appellant. With him on the brief was Quentin D. Steele, Klamath Falls.
O. W. Goakey, Klamath Falls, argued the cause for respondents. With him on the brief was Philip J. Engelgau, Klamath Falls.
Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN and LUSK, JJ.
Defendant McAtee bought furniture from plaintiffs, Adair. McAtee signed conditional sales contracts to secure his obligation to pay the purchase price. The contracts were not signed by either plaintiff. However, the furniture was delivered to McAtee and was used by him for the purposes intended. He made some payments as required by his contract and thereafter failed to make further payment.
This was an action by Adairs to recover the purchase price. McAtee, in defense, claimed that there were no contracts because of the failure of either Adair to sign the contracts in question. The trial court awarded judgment for plaintiffs and McAtee appeals.
The rule is clear that a contract can be binding and enforceable even though not signed by one of the parties, if the party not signing adopts the contract by performance. Title & Trust Co. v. Nelson, 1937, 157 Or. 585, 592, 71 P.2d 1081, 114 A.L.R. 1196; Sammons v. Paterson et al., 1928, 127 Or. 11, 270 P. 499; Estrich, Instalment Sales, 1926, page 212; 2 Corbin, Contracts, 1950, § 524, page 774.
Plaintiffs Adair adopted the contracts by full performance upon their part immediately after the contracts were signed by McAtee. In this instance it was meaningless whether the Adairs did or did not sign the contracts. The assignments of error addressed to this issue lack merit.
In this appeal McAtee attempts, for the first time, to claim that Adairs were not the real parties in interest. The matter was not presented to the trial court and will not be considered here. Arney (Gohn) v. City of North Bend, 1959, 218 Or. 471, 475, 476, 344 P.2d 924, 926, 927.
Affirmed.
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...reasonable attorney fees, in the proceeding." The other parties resist Craft's petition for costs and attorney fees, citing Adair v. McAtee, 236 Or. 391, 385 P.2d 621, 388 P.2d 748 (1964); In re Carlson's Estate, 156 Or. 597, 68 P.2d 119 (1937); In re Shepherd's Estate, 152 Or. 15, 41 P.2d ......
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Allen v. National Video, Inc.
...90A at 291-93. This rule applies whether the contract question is to be decided under Oregon law as National asserts, see Adair v. McAtee, 385 P.2d 621 (Or.1963), or New York law. See, e.g., Helen Whiting, Inc. v. Trojan Textile Co., 307 N.Y. 360, 364, 121 N.E.2d 367 (1954); Joseph v. Atlan......
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Swett v. Bradbury
...appeal. In a separate opinion devoted strictly to that issue, i.e., attorney fees on appeal, this court explained: "In Adair v. McAtee, 236 Or. 391, 385 P.2d 621, 388 P.2d 748 [ (1964) ], recently decided, we held that `attorney's fees will not be allowed upon appeal in the absence of a sta......
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First Nat. Bank v. Malady
...case. There is no other provision, by contract or statute, which would require plaintiff to pay attorney fees. See Adair v. McAtee, 1964, 236 Or. 391, 393, 385 P.2d 621, 388 P.2d Affirmed. GOODWIN, Justice (specially concurring). I would affirm the judgment below for the reason that the ins......