Kornbrodt v. Equitable Trust Co.

Decision Date28 July 1931
PartiesKORNBRODT v. EQUITABLE TRUST CO. [*]
CourtOregon 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.

RAND J.

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 &amp 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:

"That on or about the 7th day of January, 1925, while the aforesaid demand of Clark Kendall and Company was continuing and while plaintiff was able to comply with said demand, the defendant under the name of the Lumbermens Trust Company requested plaintiff not to rescind the above mentioned sale of the Snake River Irrigation District bonds to Clark Kendall and Company, Incorporated, and to permit defendant to handle the affairs connected with said transaction. An agreement was thereupon entered into by and between defendant and plaintiff whereby defendant promised and agreed that if plaintiff would comply with its request aforesaid, the defendant would reimburse plaintiff for the amount of money plaintiff had lost by sale of the Snake River Irrigation District bonds aforesaid, that defendant would hire an attorney to protect plaintiff's interests, and that the defendant would buy back the Murphy Irrigation District bonds hereinabove mentioned and pay to plaintiff the full amount paid by him for these bonds and/or would guarantee that plaintiff would suffer no loss in the value of the Murphy Irrigation District bonds. That plaintiff has performed each and every covenant and condition on his part to be kept and performed."

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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12 cases
  • Oregon Farm Bureau v. Thompson
    • United States
    • Oregon Supreme Court
    • July 31, 1963
    ...or a joint venturer, it is impossible to understand how the trial judge could discover what the situation was. Kornbrodt v. Equitable Trust Co., 137 Or. 386, 2 P.2d 236, 3 P.2d 127, quoted approvingly the 'Such pleading is bad under any system of practice when it states material facts in th......
  • Clubb v. Hanson
    • United States
    • Oregon Supreme Court
    • June 12, 1975
    ...of negligence. Defendants contend that alternative pleading is improper, at least as a general rule, citing Kornbrodt v. Equitable Trust Co., 137 Or. 386, 2 P.2d 236, 3 P.2d 127 (1931), and Oregon Farm Bureau v. Thompson, 235 Or. 162, 378 P.2d 563, 384 P.2d 182 (1963), and that this case do......
  • Maupin v. Opie
    • United States
    • Oregon Court of Appeals
    • March 21, 1991
    ...situation in which it is necessary to construe "and" to mean "or" to give effect to an "obvious intent." See Kornbrodt v. Equitable Trust Co., 137 Or. 386, 389, 2 P.2d 236 (1931) (stating principle).8 In addition, we may, but are not required to, consider "sentimental reasons, [such as] an ......
  • Miller v. Semler
    • United States
    • Oregon Supreme Court
    • July 28, 1931
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