Sanborn-Cutting Co. v. Butler

• Decision Date: 01 April 1919
• Citation: 179 P. 573,91 Or. 619
• Parties: SANBORN-CUTTING CO. v. BUTLER ET AL.
• Court: Oregon Supreme Court

179 P. 573

91 Or. 619

SANBORN-CUTTING CO. v. BUTLER ET AL.

Supreme Court of Oregon

April 1, 1919

In Banc.

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

On rehearing. Denied.

For former opinion, see 178 P. 228.

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

Johnson Handley & McGrath, of Tillamook, opposed.

HARRIS, J.

Because of the earnestness displayed by the defendants in their petition for a rehearing, we have again examined the question presented by the record; but we arrive at the same conclusion that was reached in the original opinion. Sanborn-Cutting Co. v. Butler, 178 P. 228. The plaintiff corporation says in its complaint, which was filed on April 11, 1917 that between July 7, 1914, and September 20, 1915, and at the instance and request of the defendants, who are partners, it sold goods to, and paid expenses and rendered services for the partnership. The complaint contains an itemized statement of the several items entering into the account. The corporation alleges that the items are reasonably worth the respective amounts shown in the statement, and that their aggregate reasonable value is $1,289.56. The corporation also avers that it is entitled to interest at the rate of 7 per cent. per annum from September 21, 1914, the alleged average due date, to September 20, 1915. The plaintiff alleges that no payments have been made, except the sum of $750, which was paid on September 20, 1915.

The answer denies that the plaintiff is entitled to interest admits that between July 7, 1914, and September 20, 1915, at the request of the partnership, the corporation sold goods to, and paid out moneys and rendered services for, the partnership, and that $1,289.56 is the reasonable value of the items. The partners also admit in their answer that $750 was paid on the account on September 20, 1915, and they allege that an additional sum of $500 was paid on August 15, 1915. The corporation replied, by denying that it received $500 from the partnership.

Thus it is seen that by their pleadings the litigants agreed that the corporation was entitled to a credit of $1,289.56 and that the partnership was entitled to a credit of $750. The pleadings raised only two issues: (1) As to the interest; and (2) as to the $500 payment. However, the question of interest was eliminated from the controversy; for pursuant to a stipulation entered into by the parties--

"the court instructed the jury that, whatever amount was found by the jury as the balance owing by defendants to plaintiff should bear interest at the rate of 6 per cent. per annum from September 20, 1915, the parties, by their respective counsel, agreed that plaintiff was entitled to receive interest on the balance of the account, whatever it might be, from that date."

The question of interest having been settled, it will be seen that when the cause was submitted to the jury--

"the only dispute," as stated in the bill of exceptions, "between the parties was whether the defendants, by means of a check drawn by them in favor of Sanborn & Son, but with the direction written thereon that same was to apply on Sanborn-Cutting account, the defendants claiming that Sanborn & Son were the agents of the plaintiff for the purpose of receiving said payment."

In the original opinion Mr. Justice Benson, speaking for the court said:

"We think that the proper rule is to measure the offer and the judgment as of the date when the offer was made."

The application of this rule will accomplish the purpose for which the statute was designed. In other words, to ascertain whether the judgment is more favorable than the offer, the judgment must, of course, be compared with the offer; and if the judgment includes a principal sum, and also interest on that principal sum computed from a date prior to the time of the offer, then whatever interest accrues since the date of the offer and enters into the judgment should be subtracted from the judgment, and the remainder becomes the amount which is to be compared with the offer. Schulte v. Lestershire Boot & Shoe Co., 88 Hun, 226, 34 N.Y.S. 663, 664; Tilman v. Keane, 1 Abb. Prac. N. S. (N. Y.) 23, 27; Budd v. Jackson, 26 How. Prac. (N. Y.) 398, 400; Kellogg v. Pierce, 60 Wis. 342, 18 N.W. 848; 15 C.J. 805.

It will not be necessary to analyze the argument made by the petitioners concerning the meaning of the term "liquidated", when used in connection with the allowance of interest. In the absence of the stipulation providing for the allowance of interest, the plaintiff would not have been entitled to interest from September 20, 1915. Sargent v. American Bank & Trust Co., 80 Or. 16, 39 154 P. 759, ley v. Dawson, 16 Or....