Mael v. Stutsman

Mr. Justice Moore delivered the opinion of the court. It will be rembered that an issue existed respecting the reasonableness of the attorney’s fees demanded. Without receiving any testimony on this controverted question, and in the absence of any stipulation as to what sum would have been reasonable as attorney’s fees, judgment was .given for $100 as suitable for that purpose. 1. The defendants were entitled to a trial of this issue in failing to grant which an error was committed. Cox v. Alexander, 30 Or. 438 (46 Pac. 794); First National Bank v. Mack, 35 Or. 122 (57 Pac. 326); Lassas v. McCarty, 47 Or. 474 (84 Pac. 76). In view of the conclusion thus reached, it is considered essential to call attention to the answer, so that, if an amendment thereof is allowed, the defects therein may be remedied. 2. The allegations of new matter are not pleaded as counterclaim or set-off, and, though it is averred that by reason of the alleged fraudulent representations the defendants sustained damages in the sum of $1000, no [69] demand therefor or for any sum is made except for the costs and disbursements of the action incurred by the defendants. 3, 4. It is not alleged that the defendants could not read, nor is any reason given for supposing that the special warranty deed which was delivered contained a covenant of general warranty. Nor is it averred that the contract for the purchase of the land was rescinded nor any excuse given for failing to annul the agreement. Such an averment was essential. 19 Ency. Pl. & Pr. 47; Steiger v. Fronhofer, 43 Or. 178 (72 Pac. 693). 5. If the contract was induced by fraud, the defendants could have rescinded it without the aid of equity, and might have pleaded the fraud as the basis for damages sustained by reason of the false representations. Olston v. Oregon W. P. & Ry. Co., 52 Or. 343 (96 Pac. 1095: 97 Pac. 538: 20 L. R. A. [N. S.] 915). The answer being faulty in these particulars, the demurrer was properly sustained. For the error committed, however in awarding any sum as attorney’s fees, the judgment is reversed and the cause remanded for such further proceedings as may be necessary not inconsistent with this opinion. Reversed.