Pederson v. City of Portland

• Decision Date: 19 September 1933
• Citation: 24 P.2d 1031,144 Or. 437
• Parties: PEDERSON v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

24 P.2d 1031

144 Or. 437

PEDERSON v. CITY OF PORTLAND.

Supreme Court of Oregon

September 19, 1933

In Banc.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by H. J. Pederson against the City of Portland. Judgment for plaintiff, and defendant appeals.

Affirmed.

George D. La Roche, of Portland, for appellant.

B. A Green, of Portland (R. K. Powell, of Portland, on the brief) for respondent.

RAND Chief Justice.

This is an appeal by the city of Portland from a judgment in favor of plaintiff. The action was brought to recover an alleged balance claimed to be due for labor performed by plaintiff and his fifty-two assignors for the commission of public docks, a department of the city of Portland. The labor was performed between September 20, 1926, and March 9, 1929, and consisted of work done in loading on vessels grain and other cargo for maritime commerce. For such services, the dock commission allowed and paid 70 cents per hour for a day's work of eight hours and $1.05, or one and one-half pay, for overtime. Plaintiff, in this action, seeks to recover the difference between the amounts so paid and what would have been paid if double pay for overtime had been allowed. He bases his right to recover the excess upon section 6721, Or. L., then in force, which provided as follows: "In all cases where labor is employed by the state, county, school district, municipality, municipal corporation or subdivision, either directly or through another, as a contractor, no person shall be required or permitted to labor, except as hereinafter provided, more than eight hours in any one day, or forty-eight hours in any one week, except in cases of necessity, emergency, or where the public policy absolutely requires it, in which event the person or persons so employed for excessive hours shall receive double pay for the overtime so employed; and no emergency, necessity or public policy shall be presumed to exist when other labor of like skill and efficiency, which has not been employed full time, is available; provided, however, that the provisions of this section shall not apply to state institutions and departments; and provided further, that in the operation or repair of any plant owned or operated by any municipality of this state in any city or town having a population of not more than one thousand inhabitants, any person hereinbefore mentioned may be permitted to labor more than eight hours in any one day, but not more than fifty-six hours in any one week."

The defendant sets up accord and satisfaction as a defense to the action, and offered evidence showing that plaintiff and his assignors during the period in question were paid regularly every week by checks drawn payable to their order by the dock commission, and that all said parties, when receiving their checks, either signed a pay roll which recited that the checks were received in full satisfaction of their respective claims or had indorsed upon the checks when delivered a similar recital.

The evidence offered by the city also showed that up to September 20, 1926, all the employees of the dock commission had received double pay for overtime, but that on September 10, 1926, a resolution was adopted by the commission of public docks which recited that:

"Whereas, the existing practice of paying double time for all time over eight hours is hurting the port of Portland in that the costs are thereby made higher than in competing ports, and whereas the shippers are complaining of this practice and threaten to divert from this Port important traffic,

"Resolved, that for all labor performed in the handling of cargo for shipper or consignee the cost of which is to be paid by shipper or consignee, all time over straight eight hours shall be paid on basis of time and one-half."

This was followed by the giving of notice to the men on September 20, 1926, that one and one-half pay instead of double pay would thereafter be paid where the labor involved was being performed in the handling of cargo for account of shippers or consignees. The evidence further showed that the men, with knowledge that they were to be paid only one and a half pay for overtime, continued to work and receive their checks without any objection being made to the dock commission by them. These facts, the city contends, constitute an accord and satisfaction of all the claims sued on.

It is a well-settled principle of law, and one to which this court is committed, that, where a claim is unliquidated and in good faith disputed, the acceptance of a check which has indorsed on it that it is received in full satisfaction of the claim operates to discharge the claim. It is also well settled in this state that: "It is not every disputed claim, however, which will support a compromise, but it must be a claim honestly and in good faith asserted, concerning which the parties may bona fide and upon reasonable grounds disagree." See Smith v. Farra, 21 Or. 395, 28 P. 241, 242, 20 L. R. A. 115.

Measured by these rules, can it be held that the claims of these laborers were unliquidated in face of the statute, or that there was any bona fide dispute between them and the city as to the amount of compensation to which they were entitled for their services? For it is equally well settled as a principle of law that: "If the claim is liquidated or undisputed no matter how clear the parties agree by writing on a check or otherwise that the claim shall be fully satisfied by an amount less than that due, the agreement is insufficient and the creditor can recover the balance." See note, 3 Williston on Contracts, § 1854; also see 1...