Mael v. Stutsman

• Decision Date: 10 October 1911
• Parties: MAEL v. STUTSMAN et al.
• Court: Oregon Supreme Court

117 P. 1093

60 Or. 66

MAEL v. STUTSMAN et al.

Supreme Court of Oregon

October 10, 1911

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by C.D. Mael against E.F. Stutsman and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded for further proceeding.

This is an action to recover money. The complaint alleged that about July 2, 1909, the defendants executed to plaintiff a promissory note for $607.50, payable in 90 days, with interest after date until paid at the rate of 10 per cent per year; that the note provided that, if an action should be instituted thereon, the defendants would pay such additional sum as the court might adjudge reasonable as attorney's fees; that no part of the note has been paid; and that $100 is a reasonable sum as attorney's fees. The answer admitted the execution of the note, and that no part of it had been paid, but denied that any sum was due or owing thereon, or that $100 or any other sum was reasonable as attorney's fees. For a further defense it is alleged that the note was given to evidence a part of the purchase price of certain land respecting which the plaintiff falsely represented to the defendants that he was the owner in fee and would execute a general warranty deed therefor; that his title to the premises was defective, setting forth the particulars thereof; that defendants, believing such representations to be true, and relying thereon, executed the note sued on, whereupon plaintiff delivered to them what was supposed and believed to be a deed of general warranty, but was only a conveyance which covenanted for the quiet and peaceable possession of the premises. For a second defense it is averred that by reason of the defects in the title the defendants had sustained damages in the sum of $1,000. A demurrer to these allegations of new matter having been sustained on the ground that the facts stated did not constitute a defense to the action, and the defendants declining further to plead or answer, judgment was rendered against them for the sums demanded in the complaint, and they appeal.

Harry G. Hoy and Chas. I. Reigard, for appellants.

A.J Sherwood and L.A. Liljeqvist, for respondent.

MOORE J. (after stating the facts as above).

It will be remembered that an issue existed respecting the reasonableness of the attorney's fees demanded. Without receiving any testimony on this controverted question, and in the...