Lewis v. Merrill

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; LUSK
Citation228 Or. 541,365 P.2d 1052
Decision Date25 October 1961
PartiesWilliam D. LEWIS, Appellant, v. Parley MERRILL, III, Respondent.

Page 1052

365 P.2d 1052
228 Or. 541
William D. LEWIS, Appellant,
Parley MERRILL, III, Respondent.
Supreme Court of Oregon, Department 1.
Argued and Submitted Sept. 7, 1961.
Decided Oct. 25, 1961.

[228 Or. 542] Gerald H. Robinson, Portland, argued the cause for appellant. With him on the brief was Stephen King, Portland.

Ben T. Gray, Portland, argued the cause and filed a brief for respondent.


LUSK, Justice.

The plaintiff brought an action against the defendant to recover damages for assault and battery. The defendant filed a counterclaim based on the same incident as that alleged in the complaint charging that the tort was committed against him and seeking damages for his injuries. The plaintiff in his reply alleged that the counterclaim was barred by the statute of limitations. To this reply the defendant filed a demurrer which was sustained by the court. The jury returned a verdict in favor of the defendant on his counterclaim for $250 compensatory damages and $1,500 punitive damages. From the ensuing judgment plaintiff has appealed.

Page 1053

[228 Or. 543] The alleged assault and battery occurred on the twenty-seventh of March, 1958. The complaint was filed on March 16, 1960, and the defendant was served on March 18, 1960. The answer containing the counterclaim was filed on March 29, 1960. Both the complaint and counterclaim alleged that the incident occurred 'on or about March 27, 1958.'

The action is governed by the two-year statute of limitations, ORS 12.110(1), and would have been barred after March 27, 1960. Defendant's answer, therefore, was filed two days after the expiration of the statutory period, but the cause of action stated in the counterclaim was not barred at the time the complaint was filed. We are, therefore, called upon to determine whether, in these circumstances, the statute of limitations should be held to have run against the counterclaim. This is a new question in this state.

Preliminarily, we notice the contention of the defendant that the plaintiff waived the defense of limitations by setting it up in the reply instead of demurring to the counterclaim. The argument assumes that the fact that the action was barred appears on the face of the pleading and the decisions of this court which hold that when this is so the objection may be taken only by demurrer are relied on. Dixon v. Schoonover, Or., 359 P.2d 115, 117, and cases there cited. This, however, is an erroneous assumption because, as Judge Deady said in Conroy v. Oregon Construction Co., C.C.D.Or.1885, 23 F. 71, 73, an allegation that something occurred "on or about' a certain day, is not an averment that it occurred on any distinct day or time. The actual day or time may be either before or after the one stated with an 'on or about." It was therefore[228 Or. 544] held in a personal injury action in which the complaint alleged that the injury was sustained "on or about" a certain day that a demurrer to the complaint based on the statute of limitations would not lie because it did not appear on the face of the complaint when the right of action accrued.

We recognize, of course, that there are limits beyond which the courts will not go in the application of this rule of construction to particular cases. Thus, as the court said in Newcomer v. Ament, 214 Iowa 307, 242 N.W. 82, 83: 'No date in July is 'on or about' the last days of October.' See, also, Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1; Render v. Commonwealth, 206 Ky. 1, 266 S.W. 914. Without attempting to determine the allowable latitude that may be given the phrase, it is certain that 'on or about March twenty-seventh' includes at least until the end of March; hence, the fact that the statutory period for bringing the action had run did not appear on the face of the counterclaim and the question was properly raised in the reply.

This court has held in a number of cases, of which Dixon v. Schoonover, supra, is the most recent, that, notwithstanding the running of the statute of limitations, a counterclaim may be employed defensively, that is by way of setoff or recoupment, either to defeat altogether the plaintiff's action, or diminish the amount of his recovery. These cases, however, are not controlling because they do not involve the right of the defendant to recover an affirmative judgment and were decided without regard to the question whether the cause of action stated in the counterclaim was barred at the time that the plaintiff filed his action.

[228 Or. 545] The Oregon statute provides that the answer of the defendant shall contain 'a statement of any new matter constituting a defense or counterclaim.' ORS 16.290(2)(b). ORS 16.300 provides in subsection (1):

'The counterclaim mentioned in subsection (2)(b) of ORS 16.290 must be one existing in favor of the defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

'(a) A cause of action arising out of the contract or transaction set forth

Page 1054

in the complaint, as the foundation of the plaintiff's claim. * * *'

In Sturtevant v. Dowson et al., 110 Or. 155, 163, 219 P. 802, 222 P. 294, we held that the language of the section last quoted was broad enough to cover causes of action arising after as well as those existing at the time of the commencement of the action. We are concerned in this case, however, only with a cause of action which was in existence at the time the complaint was filed and our decision is limited to such a case.

While there is a difference of opinion on the question, the majority of the courts hold that a counterclaim based on a cause of action which is not barred at the time of the commencement of plaintiff's action is not thereafter barred because not pleaded before the expiration of the full statutory time. 34 Am.Jur. 205, Limitation of Actions, § 249; 54 C.J.S. Limitations of Actions § 285, p. 342; Annotation, 127 A.L.R. 909. The following cases support this view: Perkins v. West Coast Lumber Co., 120 Cal. 27, 52 P. 118; McDougald v. Hulet, 132 Cal. 154, 64 P. 278; [228 Or. 546] Whittier v. Visscher, 189 Cal. 450, 209 P. 23; Union Sugar Company v. Hollister Estate Co., 3 Cal.2d 740, 47 P.2d 273; Stillwell v. Bertrand, 1860, 22 Ark. 375; Tom Reed Gold Mines Co. v. Brady, 55 Ariz. 133, 99 P.2d 97, 127 A.L.R. 905; Denton v. Detweiler, 48 Idaho 369, 282 P. 82; Eve v. Louis, 1883, 91 Ind. 457; Zink v. Zink, 56 Ind.App. 677, 106 N.E. 381; Grevenstuk v. Hubeny, 216 Ind. 379, 24 N.E.2d 924; Turnbull v. Watkins, 1876, 2 Mo.App. 235; Concrete Steel Co. v. Reinforced Concrete Co., Mo.App. 1934, 72 S.W.2d 118; Rollins v. Horn, 1863, 44 N.H. 591; Brumble v. Brown, 1874, 71 N.C. 513; Parsell v. Essex, 15 Misc.2d 617, 181 N.Y.S.2d 1019; Herbert v. Day, 33 Hun, N.Y., 461; National Retailers Mut. Ins. Co. v. Gross, 142 Ohio St. 132, 50 N.E.2d 258; Eagle Sav. & Loan Ass'n v. West, 71 Ohio App. 485, 496, 50 N.E.2d 352; Bryant v. Sweetland et al., 48 Ohio St. 194, 210, 27 N.E. 100. In Wisconsin the majority rule has been incorporated into a statute. See Preston v. Thayer, 127 Wis. 123, 128, 106 N.W. 672.

We have not cited cases involving setoffs or recoupments though the reasoning in some of these would seem to be fully applicable to counterclaims. See McEwing v. James, 1880, 36 Ohio St. 152; Markley v. Michael, 1881, 8 Ohio Dec.Reprint 269; Williams v. Lenoir, 1875, 67 Tenn. 395 (mutual accounts, affirmative judgment in favor of defendant for excess sustained); Paducah & M. Railroad Co. v. Parks, 86 Tenn. 554, 8 S.W. 842.

In Perkins v. West Coast Lumber Co., supra, an attorney brought an action to recover upon a special contract for professional services rendered to the defendant. Over four years after the commencement of the action the defendant pleaded a counterclaim for damages based on bad advice given him by the [228 Or. 547] plaintiff. The defendant's claim was not barred at the time the action was commenced, but if he had brought an independent action it would have been barred at the time the answer was filed. The California court held that the counterclaim was not barred, saying:

'The claim was not barred when the complaint was filed, and that fact allows it to be set up as a counterclaim, though, if standing alone, the statute would run against it before the answer was filed. As to a counterclaim, the filing of the complaint suspends the running of the statute of limitations. By section 438 of the Code of Civil Procedure, it is held that the answer of a defendant may set up a counterclaim 'existing at the commencement of the action.' Lyon v. Petty, 65 Cal. 322, 4 P. 103, fully supports this view. In answer to this position, respondent claims that it is only in actions arising upon contract set up as counterclaims that the statute of limitations is held in abeyance by the filing of the complaint. We are satisfied that the principle applies also to counterclaims of the character here relied upon.' 120 Cal. at page 28, 52 P. at page 118.

The provision of our counterclaim statute relating to a cause of action arising out

Page 1055

of the transaction set forth in the complaint is...

To continue reading

Request your trial
15 cases
  • Mayor v. Dowsett
    • United States
    • Supreme Court of Oregon
    • March 17, 1965
    ...et al., 223 Or. 518, 355 P.2d 93, where the record was excluded because no proper foundation for its admission was laid; Lewis v. Merrill, 228 Or. 541, 365 P.2d 1052, which [240 Or. 230] held inadmissible a part of a police officer's report because it was a mere statement of a conclusion; U......
  • Brown v. General Motors Corp., 1061660.
    • United States
    • Supreme Court of Alabama
    • January 16, 2009
    ...sufficient certainty to give rise to a limitations defense appearing on the face of the complaint, Brown relies on Lewis v. Merrill, 228 Or. 541, 365 P.2d 1052 (1961). In that case, the Supreme Court of Oregon held that an allegation that something occurred "on or about" a certain day is no......
  • Advocate South Suburban Hosp. v. N.L.R.B., 06-1346.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 21, 2006
    ...testimony must be taken to indicate the full period in which Hall said the encounter could have occurred. See, e.g., Lewis v. Merrill, 228 Or. 541, 543, 365 P.2d 1052, 1053 (1961). But Mrozek, who so far as the record reveals has no legal expertise, might have understood the attorney's ques......
  • Employers' Fire Ins. Co. v. Love It Ice Cream Co., A7906-02629
    • United States
    • Court of Appeals of Oregon
    • October 5, 1983
    ...Therefore, the counterclaims were not time barred, because they relate back to the filing of plaintiff's complaint. Lewis v. Merrill, 228 Or. 541, 549, 365 P.2d 1052 (1961); Carter v. Wolf Creek Hwy., 54 Or.App. 569, 573-74, 635 P.2d 1036 Plaintiff argues that the trial court erred in award......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT