Kornbrodt v. Equitable Trust Co.
Decision Date | 28 July 1931 |
Parties | KORNBRODT v. EQUITABLE TRUST CO. [*] |
Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.
Action by Louis H. Kornbrodt against the Equitable Trust Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded, with directions.
P.J. Gallagher and George B. Guthrie, both of Portland (Earl C. Bronaugh, Jr., of Portland, on the brief) for appellant.
E. R Trayle, of Portland (H. B. Warfield, of Portland, on the brief), for respondent.
This is an action to recover for breach of an alleged promise. The complaint, in substance, alleges as the inducement for the promise that plaintiff purchased from defendant certain bonds of two irrigation districts of the state of Idaho; that both of said districts have since defaulted in the payment of the bonds, and that the bonds are now of no value; that plaintiff sold a part of said bonds so purchased to Clark Kendall & Co.; that, upon the district becoming insolvent, Clark Kendall & Co. threatened to bring suit against plaintiff because of its purchase of said bonds from plaintiff, and that, after a consultation between plaintiff and defendant, the promise sued on was made by defendant. The complaint states the promise alleged to have been made by defendant in the following words:
There is no charge of fraud in the pleadings, and the action is purely one on contract. There are numerous assignments of error, and defendant insists that for numerous reasons the complaint is fatally defective. The first ground urged is that the complaint is bad because stating in the alternative the obligations which it is alleged the defendant undertook to perform. This objection grows out of the unwarranted combination of the words "and" and "or" found in the paragraph copied above. As so used by the pleader, the statement is that the defendant agreed to do certain things "and/or would guarantee" etc. What does this mean? Does it mean that defendant agreed that it would do certain acts, and that it also would guarantee, or does it mean that defendant would either do the acts or else would guarantee, etc.? This cannot be determined from the language used in the pleadings, and hence the pleading is bad.
The words "and" and "or" are not interchangeable terms, nor are they ordinarily convertible. They are used for purposes entirely variant. It often happens that, to preserve the sense intended, it is necessary to construe "and" as "or," and "or" as "and," but this is done only when it is necessary to do so in order to carry out an obvious intent, as shown by the context, and to avoid an absurdity. They never mean the same thing. 2 C.J., p. 1237 et seq. and notes. The words "and" and "or," when combined as above, ought never to be used in a pleading. As said in 6 Ency. of Pl. and Pr., 268:
"Such pleading is bad under any system of practice when it states material facts in the alternative, so that it is impossible to determine upon which of several equally substantive averments the pleader relies for the maintenance of his action or defense."
See, also, 21 R. C. L., p. 451; Macurda v. Lewiston Journal Co., 104 Me. 554, 72 A. 490; Chitty on Pleadings (9 Am. Ed.) pp. 236, 237, 260, 536; Stephens on Pleadings, 340; 49 C.J., 97; 1 Sutherland on Pleading, § 90.
The complaint was also defective in that it failed to allege that plaintiff accepted the offer alleged to have been made by defendant. The complaint alleged that defendant requested plaintiff not to rescind the transaction between plaintiff and Clark Kendall & Co., under which a part of the stock purchased by plaintiff from defendant was sold, and offered to do certain things in consideration of plaintiff's compliance with...
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