State By and Through State Highway Commission v. Efem Warehouse Co.
| Decision Date | 11 April 1956 |
| Citation | 207 Or. 237,295 P.2d 1101,70 A.L.R.2d 797 |
| Parties | , 70 A.L.R.2d 797 STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Ben R. Chandler, Charles H. Reynolds, and M. K. McIver, Appellant, v. EFEM WAREHOUSE CO., an Oregon corporation, Respondent. |
| Court | Oregon Supreme Court |
John C. MeLean, Salem, argued the cause for appellant. On the briefs were Robert Y. Thornton, Atty. Gen., C. W. Enfield, Leonard I. Lindas, Charles Peterson, and Ralph Wyckoff, Asst. Attys. Gen.
Carmie R. Dafoe, Jr., Portland, argued the cause for respondent. With him on the brief were Sabin & Malarkey, Portland.
Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.
This is an appeal by the plaintiff, State Highway Commission of the state of Oregon, from that portion of a final judgment in a condemnation proceeding which awarded to defendant, Efem Warehouse Co., an Oregon corporation, costs and disbursements and an attorney's fee.
Efem Warehouse Co. was the owner of a tract of land in the city of Portland, which was needed for right of way purposes in the construction of the T. H. Banfield Expressway through Sullivan gulch in said city. After negotiating without success, for the purchase of said land, pursuant to the provisions of ORS 366.370, the plaintiff filed its complaint for condemnation. In its complaint plaintiff alleged that the true value of the real property sought was the sum of $3,700. Defendant in its answer alleged the true value of the property to be the sum of $15,000, and that $2,500 was a reasonable sum to be allowed as an attorney's fee. By its reply plaintiff denied that $15,000, or any sum in excess of $3,700, was the true value of the property, and denied that $2,500 or any other sum was a reasonable attorney's fee to be allowed.
Upon the issues formed by the pleadings, a trial was held. The jury returned a verdict fixing as the fair market value of defendant's property the sum of $4,000. The trial court entered judgment condemning and appropriating the real property, fixing the price therefor as determined by the verdict in the sum of $4,000, and awarded defendant its costs and disbursements, together with the further sum of $750 as a reasonable attorney's fee. It is from that portion of the judgment awarding costs, disbursements, and attorney's fee that plaintiff appeals.
Prior to the filing of plaintiff's complaint in the condemnation proceeding, the State Highway Commission, acting by and through its chief counsel, wrote the following letter to defendant:
'I have been authorized by the State Highway Commission to offer to you, and do hereby offer and tender to you, the sum of $4,800.00 for a warranty deed conveying the said real property [the real property in question] to the State of Oregon, by and through its State Highway Commission, free and clear of all liens and encumbrances, including the taxes for the fiscal year during which the State of Oregon receives title to or takes possession of the said real property.
According to the stipulated facts, this letter was mailed March 18, 1953, was received by defendant the following day, and plaintiff filed its complaint on March 30, 1953. Defendant made no objections whatever to said offer prior to the commencement of the action.
The sole question for determination is whether or not, in the light of the offer made by plaintiff before action was commenced, defendant was entitled to recover costs, disbursements, and a reasonable attorney's fee.
The Oregon State Highway Commission is a quasi-public corporation, an agency of the state. It is vested with broad powers but, of course, possesses no authority other than that conferred upon it by statute.
ORS 366.380(7) provides:
'(7) The costs and disbursements of the defendants, including a reasonable attorney's fee to be fixed by the court, shall be taxed by the clerk and recovered from the state; but if it appears that the commission tendered the defendants before commencing the action an amount equal to or greater than that assessed by the jury, the state shall recover its necessary disbursements from the defendants.' (Italics ours.)
Plaintiff contends that in the light of its offer of $4,800 for the property prior to the commencement of the action, defendant is not entitled to recover costs, disbursements, and an attorney's fee, because the amount fixed by the jury was less than that sum, to wit, $4,000. Answering this contention, defendant asserts several propositions as follows:
1. To defeat the right of a property owner in a condemnation suit to its costs and attorney's fee, the state must have tendered it an amount equal to or greater than that assessed by the jury, and a tender must be kept good by a deposit in court of the amount tendered.
2. A tender subsequently reduced is ineffectual. In pleading a liability of $3,700, the state thereby reduced its prior offer and violated the rule that a tender must be kept good to remain effective.
3. A reasonable time must be given to consider a tender. For a tender to be a defense it must have been refused, and refusal will not be implied from silence unless a reasonable time has elapsed.
4. A tender must be unconditional. A tender accompanied by conditions upon which the tenderer has no right to insist is not effectual.
5. A tenderer must show its ability to make its tender good.
In support of its several propositions defendant cites a number of authorities, most, if not all, of which deal with the subject of 'tender' in its common-law sense, and not in the light of specific statutes governing the matter. Portland Trust & Savings Bank v. Lincoln Realty Co., 180 Or. 96, 170 P.2d 568; Equitable Life Assur. Soc. v. Boothe, 160 Or. 679, 86 P.2d 960; Dolan v. Continental Casualty Co., 133 Or. 252, 289 P. 1057; Milton v. Hare, 130 Or. 590, 280 P. 511; Anderson v. Griffith, 51 Or. 116, 93 P. 934; Welch v. City of Astoria, 26 Or. 89, 37 P. 66; Holladay v. Holladay, 13 Or. 523, 11 P. 260, 12 P. 821; Hunt on Tender 540, § 478; 486, § 418; 397, § 360; 86 C.J.S., Tender, § 58, p. 588; § 52, p. 583; § 29, p. 571.
In 52 Am.Jur. 214, Tender, § 1, it is stated:
'* * * The general common-law rules of tender do not apply where the matter of tender is regulated by statute in a particular matter or proceeding, as, for example, in a condemnation proceeding.'
At common law neither party to a condemnation proceeding could recover costs. Costs and an attorney's fee are strictly matters for statutory regulation. Warms Springs Irr. Dist. v. Pacific Livestock Co., 89 Or. 19, 23, 173 P. 265. In condemnation proceedings instituted by the Highway Commission, the matter is governed by ORS 366.380(7), supra.
In determining the matter now before us, it is necessary to consider other sections of the highway code respecting the powers and duties of the Highway Commission.
ORS 366.360 provides:
'In all cases where title to real property is acquired by the commission either by donation, agreement or exercise of the power of eminent domain a title in fee simple may be taken.'
ORS 366.370 in part provides:
'(1) Whenever in the judgment of the commission it is necessary to acquire real property for any of the purposes for which the commission is authorized by law to acquire real property, the commission may, after first declaring by resolution that the real property is necessary and the purpose for which it is required, attempt to agree with the owner of any interest in the real property with respect to the compensation to be paid therefor, and the damages, if any, for the taking thereof.
* * *
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'(3) It is not prerequisite to the exercise of the right of eminent domain, or to the bringing...
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