Southern Pac. Co. v. Siemens

Mr. Justice Harris delivered the opinion of the court. 1. The first affirmative defense appearing in the answer was vulnerable when assailed by demurrer because the defense rested largely upon legal conclusions: O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004). 2. The defendant argues that the alternative writ is not sufficient because it fails to allege that the money and warrants tendered before the commencement of the mandamus proceeding had been brought into court. It must be remembered, however, that the answer specifically admits that the defendant refused to accept the tender made by the plaintiff; and, furthermore, the answer does not deny, and therefore admits, the averment appearing in both the petition and alternative writ that the plaintiff “is still able, ready and willing to make said tender, and continues to make the same. ’ ’ The question presented here does not involve the consideration of Section 574, L. O. L., which permits a tenderer in certain cases to evade liability for costs by bringing the amount of the tender into court and is not analogous to cases construing that section, like Jacobs v. Oren, 30 Or. 593 (48 Pac. 431); McGee v. Beckley, 54 Or. 250 (102 Pac. 303, 103 Pac. 61); Anderson v. Griffith, 51 Or. 116 (93 Pac. 934). The present controversy is likewise distinguishable from suits requiring the doing of equity before equitable relief can be asked for, as where a complainant concedes that he is justly liable for a certain sum but seeks to avoid payment of all in excess of that sum: Welch v. Astoria, 26 Or. 89 (37 Pac. 66); Hamblin Real Est. Co. v. Astoria, [68] 26 Or. 599 (40 Pac. 230). The sole purpose of plaintiff is to compel the defendant to accept the money and warrants tendered, while the single design of defendant, evidenced by his resistance to the utmost, is to thwart the expressed desire of plaintiff. The defendant not only admits the tender, the ability, and willingness of plaintiff to pay and the continuance of the offer, but he also in effect declares that he will not accept the tender, unless compelled to do so by a final judgment of the court. 3, 4. The demurrer admits every fact pleaded in the writ, and therefore whether the question of tender is determined on the writ and demurrer thereto or on the writ and answer the admissions made by the defendant are the same; and when he concedes that the pleadings show a tender, ability and willingness to pay, a continuance of the offer, and at all times a refusal to accept, he cannot complain because the writ does not allege that the plaintiff performed the futile act of bringing the money and warrants into court. Idle ceremonies and vain things are not required by the law: Eldriedge v. Hoefer, 52 Or. 241 (93 Pac. 246, 94 Pac. 563); Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718, 107 Pac. 460, 112 Pac. 1); Whitney Co., Limited, v. Smith, 63 Or. 187 (126 Pac. 1000). A judgment for the plaintiff only affirms its rig’ht to pay and commands the defendant to accept the payment when the money and warrants are proffered. The judgment does not by its own force satisfy and cancel any indebtedness, but it merely defines a right which the plaintiff may exercise and a duty which the defendant must perform when the former makes use of the defined right. 5. The remaining assignment of error arises out of the ruling of the trial judge who held that the litiga [69] tion pending in the Circuit Court for Klamath County and in the District Court of the United States for the District of Oregon did not necessarily abate the mandamus proceeding. The suits in equity were prosecuted on the theory that the warrants held by plaintiff and others are unconstitutional and void. The answer of defendant, in the mandamus proceeding, although not sufficient because pleading conclusions of law, seeks to question the validity of the warrants, and therefore the legality of the paper issued by the county is a question which could be involved in the instant case and is involved in the suits in equity. Decrees in the suits in equity declaring the validity of the warrants would afford some of the relief, but not all, sought by the writ of mandamus, because the decrees would proceed no further than to determine the worth of the warrants. If the paper is void, the county would be enjoined from paying. If the warrants are valid, the decrees would so declare; but, in such event, this plaintiff would still be obliged to call for the aid of a writ of mandamus if the County Treasurer should continue to refuse to accept the tendered warrants. All the relief sought by mandamus cannot be obtained in the suits in equity. There is also a difference in the character of the relief asked for. The suits will not result in a complete adjudication of the questions involved; and consequently the instant case is not necessarily abated by the prior litigation: 1 Cyc. 29; 1C. J., §92; 26 Cyc. 184. 6. Although the answer did not allege sufficient facts to support the legal conclusion of the defendant that the warrants are void, nevertheless, on the facts stated herein and conceded at the oral argument, there is no hesitancy in announcing that the inevitable conclusion [70] is that the warrants issued to the plaintiff are valid-, and they do not represent the character of indebtedness which is prohibited by the Constitution. The rulings made by the trial court were correct, and the judgment appealed from is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Bean concur.