Mountain Timber Co. v. Case

Mr. Justice McNary delivered the opinion of the court. 1. The first assignment of error made by plaintiff is directed to the refusal of the trial court to sustain a motion for judgment on the pleadings. The motion was properly denied, as the pleadings presented issues of fact, and while they remained undetermined, no judgment could have been entered on the motion. Such a judgment cannot be given when the answer sets up an issuable defense: Willis v. Holmes, 28 Or. 268 (42 Pac. 989); Watkins v. Southern Pacific Ry. (D. C.), 38 Fed. 712 (4 L. R. A. 239); 23 Cyc. 769. 2. No error was committed by the court in refusing to allow plaintiff to recover attorneys’ fees, as the cross-bill contains no allegations relative thereto, nor was any proof offered in support thereof. The only assistance the court could give plaintiff in the remuneration of his attorneys’ fees was that allowed by Section 561, L. O. L., which is often called prevailing or statutory attorneys’ fees, but comprehended under the term “costs.” 3. Plaintiff takes the position that the court erred in its refusal to give plaintiff a judgment for its costs, and argues the denial thereof was an abuse of judicial discretion. It is admitted that the taxation of costs and disbursements in an adequate proceeding rests within the sound discretion of the court, and that only abuse thereof is reviewable. We find nothing in the record indicative of an abuse of discretion. We think the court exercised a sound judgment upon all the facts and circumstances of the ease, and that the judgment requiring each party to pay its own costs and disbursements did not work an injustice. 4. Finally, it is urged by plaintiff that the court committed error in not allowing interest on the stock subscription of $37,500 from March 1, 1910, at the [421] rate of 6 per cent per annum. In Ms answer defendant admits the amount of his subscription and the nonpayment thereof, but denies that it was due on the aforesaid day, or that payment had been demanded at the time plaintiff’s cross-bill was Med. The written contract of subscription signed by defendant provides, in substance, that the capital stock of plaintiff was to be paid in cash upon demand of the treasurer of the company, and on or before March 1, 1910. Some conflict exists in the evidence concerning whether the plaintiff made demand on the defendant for the payment of the stock subscription on March 1, 1910. The trial court made findings to that effect, and which in the light of the testimony we believe should not be disturbed. However, it is our opinion no demand for payment of the subscription was necessary as a condition precedent to the right to recover from defendant, as he had agreed to pay the amount subscribed on or before a certain specified day. Defendant had the privilege of paying the subscription on or at any period of time anterior to March 1, 1910, unless plaintiff sooner matured payment by a demand through its proper officer. The duty rested on defendant to meet the subscription, either on demand of plaintiff or, in the absence thereof, not later than the time agreed upon and specified therefor: 2 Clark & Marshall, Corp., § 498; Davis v. Glenn, 72 N. C. 519; Cook, Corp. (6 ed.), § 106. 5. Holding to the view that the subscription contract imposed a legal obligation upon defendant to make payment not later than March 1, 1910, we think the additional obligation lay upon defendant to pay interest on the subscription from the time of default in payment at the statutory rate of 6 per cent per annum. Section 6028, L. O. L. provides: “The rate of interest in this state shall be 6 per centum per annum, [422] and no more, on all moneys after the same becomes due.” In the case of Hawkins v. Citizens’ I. Co., 38 Or. 544 (64 Pac. 320), the court held this section applied to balances due on corporate subscriptions. This view seems to be in accord with the great weight of authority: 2 Clark & Marshall, Corp., § 502; 1 Cook, Corp. (6 ed.), § 112. We think the court erred in refusing to allow plaintiff interest as prayed for in its complaint; and, in consequence thereof, the decree of the Circuit Court will be modified in respect thereto. Modified. Me. Chief Justice McBride, Me. Justice Bean and Me. Justice Eakin concur.