McDonald v. American Mortgage Co. of Scotland

• Decision Date: 20 June 1889
• Parties: MCDONALD v. AMERICAN MORTGAGE CO., Limited.
• Court: Oregon Supreme Court

21 P. 883

17 Or. 626

MCDONALD v. AMERICAN MORTGAGE CO., Limited.

Supreme Court of Oregon

June 20, 1889

Appeal from circuit court, Multnomah county.

(Syllabus by the Court)

Facts set forth in an answer which, in effect, only controvert the allegations of a complaint, may be properly pleaded in connection with a direct denial of the main allegations thereof; and they may be so pleaded by way of confession and avoidance of the cause of action alleged in the complaint although the denial be of such a character that, if true, it would defeat such cause of action.

In such case, however, the denial must be special or qualified.

Separate defenses to a cause of action are not inconsistent when the all, taken together, may be true; but, when the truth of some of them cannot be maintained without falsifying others, they are inconsistent.

A further answer by way of confession and avoidance of the matters alleged in a complaint is inconsistent with a specified denial thereof, but may properly be pleaded with a special or qualified denial, such as a denial with an absque hoc.

Where an action was brought against the A.M. Co. of S. to recover a claim for work, labor, and services alleged to have been performed for it by a law firm, upon its retainer, and for money paid and agreed to be paid by said firm in the prosecution of its business, and at its request, and said A.M. Co., in its answer, denied that it ever retained said law firm, or that said firm ever performed services, or paid out money for it, or that it ever had a contract with said firm, or that it ever promised to pay said firm for any services or money paid out, and for a further answer alleged in substance, that the services rendered and money expended by said law firm, sought to be recovered in the action, were so rendered and expended for, and at the instance and request of, a third party, under and by virtue of a contract entered into by and between the A.M. Co. and such third party whereby said third party had agreed, for a certain consideration, to perform the said services and pay the said money, and, at its own charge and expense, to pay all expenses connected therewith of every nature and description and to hold the said A.M. Co. harmless against the same, and that the therms of said contract were well known to said law firm when engaged by said third party to perform said services and expend said money held, that the facts contained in such further answer were not sham, frivolous, or irrelevant, not inconsistent with the said denial. Held, also, that a further answer or defense interposed by the said A.M. Co. in the said action, wherein it charged and alleged that said law firm was guilty of gross negligence in the performance of said services, occasioning it great damage, was properly united as a ground of defense with said denial.

Under the provisions of the Oregon Code the court may direct a reference without the consent of the parties, or of its own motion, where the trial of an issue of fact requires the examination of a long account on either side.

Where, therefore, the plaintiff's claim consisted of about 180 items in number, which varied in amount from 50 cents to $550, as shown by a bill of particulars furnished by the plaintiff, held, that the case was a proper one for the court to direct a reference. The decision in Tribou v. Strowbridge, 7 Or. 156, approved.

The appellant commenced an action against the respondent in the said circuit court to recover a claim for work, labor, and services alleged to have been performed by the law firm of McDougall & Bower, as attorneys, between the 2d day of February, 1882, and the 1st day of September, 1887, for the respondent, upon its retainer, and for money paid and agreed to be paid by said firm in the prosecution of the respondent's business, at its request, which claim the appellant alleged had been assigned to him by said McDougall & Bower; also to recover a claim for the breach of an agreement alleged to have been entered into between the respondent and said law firm on the 25th day of February, 1882, whereby said firm agreed and undertook to perform work and services as attorneys at law in loaning money for respondent on real-estate security in the state of Oregon and territories of Washington and Idaho, for which the respondent, besides the payment of certain fees, agreed to retain said firm in prosecuting all suits and actions for the foreclosure and collection of any mortgages and loans that might be accepted by the respondent, and upon the abstract of which the said firm had passed and certified, and to pay said firm for such services a reasonable compensation in all such matters, suits, and actions, brought to foreclose and collect any such loan or mortgage, which latter claim the appellant also alleged had been assigned to him by said McDougall & Bower.

The appellant alleged in his complaint in said action that there was due him upon the first of said claims the sum of $10,717.14, and upon the second one the sum of $12,000. The respondent, in its answer to the said complaint, denied that it ever retained said law firm, or that said firm ever performed services or paid out money for it, or that it ever had a contract with said firm, or that it ever promised to pay said firm for any services or money paid out; and for a further answer alleged, hypothetically, that the services rendered and money expended by said law firm, sought to be recovered in the action, were so rendered and expended for and at the instance and request of the Oregon & Washington Mortgage Savings Bank of Oregon, a corporation, and under and by virtue of a contract entered into by and between respondent and said bank, which took effect November 1, 1882 whereby said bank, in consideration of a portion of the interest to be earned upon loans of respondent's money made by said bank, which was agreed to be paid, and was paid, by said bank therefor, agreed and bound itself to conduct the respondent's business, and act as its agent in all its business, in the state of Oregon and territories of Washington and Idaho, and at its own charge and expense to pay the remuneration of all attorneys, and all costs of court, and all cost and expenses of foreclosing the respondent's mortgages, and collecting its debts due upon said loans, and all expenses of every nature and description...