Sanborn-Cutting Co. v. Butler

• Decision Date: 04 February 1919
• Citation: 178 P. 228,91 Or. 619
• Parties: SANBORN-CUTTING CO. v. BUTLER ET AL. [a1]
• Court: Oregon Supreme Court

178 P. 228

91 Or. 619

SANBORN-CUTTING CO. v. BUTLER ET AL. ^[a1]

Supreme Court of Oregon

February 4, 1919

In Banc.

Appeal from Circuit Court, Tillamook County; Geo. R. Bagley, Judge.

Action by the Sanborn-Cutting Company against J. W. Butler and C. F Stone, partners, doing business under the firm name of Bay City Storage & Fisheries Company. Judgment for plaintiff, and defendants appeal. Affirmed.

On the 11th day of April, 1917, plaintiff began an action to recover a balance alleged to be due upon an account, together with interest thereon from an average date. On the 26th day of the same month, defendants served upon plaintiff, and subsequently filed, an offer of compromise in the following form:

"The defendants in the above-entitled cause hereby offer to allow judgment to be given against them in said cause for the sum of $126."

This offer was not accepted. On the same day an answer was filed admitting the original indebtedness, but denying that the balance due was as large as that claimed by plaintiff, and denying any liability for interest thereon. It is then alleged that in addition to the payments for which credit is allowed in the complaint, defendant had made a further payment of $500, thereby reducing the debt to the sum of $125.85, and no more. A reply was filed, denying the new matters set up in the answer, and on June 18, 1917, a trial was had to a jury, resulting in a verdict for the plaintiff in the sum of $126.70. After the return of the verdict the defendants requested the court to enter a judgment in their favor for their costs and disbursements, when entering judgment for plaintiff upon the verdict. This was declined by the court, and a judgment was entered for plaintiff for the sum of $126.70 and for its costs and disbursements in the sum of $71.80, and defendants appeal.

H. T. Botts, of Tillamook, for appellants.

Johnson Handley & McGrath, of Tillamook, and G. C. & A. C. Fulton, of Astoria, for respondent.

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

The bill of exceptions discloses that upon the trial the court pursuant to an agreement of the parties, instructed the jury that whatever amount should be found due to plaintiff should bear interest at the rate of 6 per cent. per annum from September 20, 1915. The only dispute between the parties was upon the question as to whether or not the defendants were entitled to an additional credit of $500, which they claimed to have paid by check. The verdict being in excess of the offer in the sum of 70 cents, the judgment is obviously more favorable, unless, in the comparison, we consider the interest which would have accrued upon the amount offered, between the date of the offer and the date of the judgment. The defendant insists that, in fixing liability for costs and disbursements, under the provisions of section 532, L. O. L., such interest should be added to the offer, thereby making it, at the date of judgment, slightly larger than the amount of the verdict and judgment. In support of this doctrine our attention is called to the following authorities: 11 Cyc. 80; Pike v. Johnson, 47 N.Y. 1; Bathgate v. Haskin, 63 N.Y. 261; Kellogg v. Pierce, 60 Wis. 342, 18 N.W. 848. We are unable to discover wherein any of these cases support defendant's contention. The section of 11 Cyc. which is cited, says:

"Where a claim in suit is unliquidated no interest can be added to the sum offered, for the purpose of determining whether the judgment obtained is more favorable than that offered; and in case of a claim which is not unliquidated the court, in determining whether the recovery is more favorable than the offer, will reject the interest which accrued between the time of the offer and the recovery of the judgment, and will include interest computed only to the date of the offer."

The doctrine thus expressed is adopted in Kellogg v. Pierce supra, wherein the complaint demanded $166.15, and on February 21, 1880, defendant offered to permit plaintiff to take judgment for $80, which offer was refused. A judgment was finally entered for $68.87, with interest from October 21, 1879, and the opinion of the court holds that at15 the time of the offer the principal sum specified in the judgment could not have amounted to $80. So far then, as this case is of value, it teaches that in Wisconsin the offer and the judgment are compared as to their value at the date of the offer, and seeks to determine which was then "more favorable" to the plaintiff. This view is perfectly logical and just, for it is then that the plaintiff is called upon to determine his cause of action. But this does not tend to support the theory that the court should compute interest upon the offer itself from its date to the date of...