Electrical Products Corp. of Or. v. Ziegler Drug Stores, Inc.

CourtSupreme Court of Oregon
Writing for the Court[141 Or. 118] KELLY, J.
Citation141 Or. 117,10 P.2d 910
Decision Date26 April 1932

10 P.2d 910

141 Or. 117



Supreme Court of Oregon

April 26, 1932

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by the Electrical Products Corporation of Oregon against the Ziegler Drug Stores, Inc. From a judgment for plaintiff, defendant appeals. On plaintiff's motion for allowance of additional attorney's fees.

Motion overruled without prejudice to application to be made to circuit court.

Herzog, Fulop & Kenin, of Portland, for the motion.

Joseph, Haney & Veatch and James P. Powers, all of Portland, opposed.

[141 Or. 118] KELLY, J.

This is an action wherein plaintiff declared upon fifteen contracts by the terms of each of which defendant agreed to pay certain specified sums respectively for the use of an electric sign. Each contract is upon the same printed form as all of the others. Certain terms and conditions appear upon the back thereof. One of these terms is as follows: "(f) In the event Lessor '(plaintiff)' shall institute and prevail in any action or suit for the enforcement of any of its rights hereunder, Lessee '(defendant)' will pay to Lessor a reasonable attorney's fee on account thereof," etc.

Plaintiff recovered judgment in the sum of $10,244.40, and the further sum of $2,000, attorney's fees, together with its costs and disbursements. Defendant appeals.

Doubtless, plaintiff's motion for additional attorney's fees on appeal is based upon the doctrine of the case of Goodspeed v. Duby et al., 131 Or. 275, 280, 283 P. 6, which was a suit in equity. One of the cases there cited is Mills et al. v. Lehigh Valley R. Co. (D. C.) 226 F. 812, in which the District Court of the Eastern District of Pennsylvania allowed an additional attorney's fee for services performed in the Circuit Court of Appeals, Lehigh Valley R. Co. v. Clark, 207 F. 717, and in the United States Supreme Court, Mills et al. v. Lehigh Valley R. Co., 238 U.S. 473, 35 S.Ct. 888, 59 L.Ed. 1414. The practice thus followed by the federal court mentioned is based upon a holding by Mr. Chief Justice Taney of the Supreme Court of the United States in the case of Sizer v. Many, 16 How. 98, 14 L.Ed. 861, approving the allowance of appellate court costs by the trial court. Such a course is unnecessary and unwarranted as to the matter of costs in this court; but, as to reasonable attorney's fees contemplated by express contract of the parties,...

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16 cases
  • Chaffin v. Ramsey
    • United States
    • Supreme Court of Oregon
    • 21 Octubre 1976
    ...contract as for the violation of any other of said provisions * * *,' citing Elec. Prod. Corp. v. Zeigler Stores, 141 Or. 117, 125--26, 10 P.2d 910, 15 P.2d 1078 This court has not had occasion to consider the particular problems presented in Alvord and in Dairy Coop. since the adoption by ......
  • Layton Mfg. Co. v. Dulien Steel, Inc.
    • United States
    • Supreme Court of Oregon
    • 25 Febrero 1977
    ...denomination given by the parties to an agreed damages clause is not conclusive. Elec. Prod. Corp. v. Ziegler Stores, 141 Or. 117, 125, 10 P.2d 910, 15 P.2d 1078 (1932); Manley Auto Co. v. Jackson, 115 Or. 396, 401, 237 P. 982 There was no evidence of the intensity and economic value of pla......
  • Comm'r of Ins. v. Massachusetts Acc. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 30 Enero 1942
    ...Ave. Corp. v. Pearlman, 201 App.Div. 12, 193 N.Y.S. 670;Id., 234 N.Y. 589, 138 N.E. 458;Electrical Products Corp. v. Ziegler Drug Stores, 141 Or. 117, 10 P.2d 910,15 P.2d 1078;Gentry v. Recreation, Inc., 192 S.C. 429, 7 S.E.2d 63, 128 A.L.R. 743; Am.Law Inst.Restatement: Contracts, § 339. W......
  • Dairy Co-op. Ass'n v. Brandes Creamery
    • United States
    • Supreme Court of Oregon
    • 13 Marzo 1934
    ...We think that said paragraph imposes nothing more than a penalty or forfeiture. Electrical Products Corporation v. Ziegler Drug Stores, 141 Or. 117, 10 P.2d 910, 15 P.2d 1078. The difficulty confronting plaintiff rendering it impossible with any degree of accuracy to plead definite facts in......
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