Sanborn-Cutting Co. v. Butler

BENSON, J. The bill of exceptions discloses that upon the trial the court, pursuant to an agreement of the parties, instructed the jury that whatever amount should be found due to plaintiff should bear interest at the rate of 6 per cent per annum from September 20, 1915. The only dispute between the parties was upon the question as to whether or not the defendants were entitled to an additional credit of $500, which they claimed to have paid by check. The verdict being in excess of the offer in the sum of seventy cents, the judgment is obviously more favorable, unless, in the comparison, we consider the interest which would have accrued upon the amount offered, between the date of the offer and the date of the judgment. The defendant insists that in fixing liability for costs and disbursements, under the provisions of Section 532, L. O. L., that such interest should be added to the offer, thereby making it, at the date of judgment, slightly larger than the amount of the verdict and judgment. In support of this doctrine our attention is called to the following authorities: 11 Cyc. 80; Pike v. Johnson, 47 N. Y. 1; Bathgate v. Haskin, 63 N. Y. 261; Kellogg v. Pierce, 60 Wis. 342 (18 N. W. 848). We are unable to discover wherein any of .these cases support defendant’s contention. The section of 11 Cyc. which is cited, says: “Where a claim in suit is unliquidated no interest can be added to the sum offered, for the purpose of de [622] -termining whether the judgment obtained is more favorable than that offered; and in case of a claim which is not unliquidated the court, in determining whether the recovery is more favorable than the offer, will reject the interest which accrued between the time of the offer and the recovery of the judgment, and will include interest computed only to the date of the offer.” The doctrine thus expressed is adopted in Kellogg v. Pierce, 60 Wis. 342 (18 N. W. 848), wherein the complaint demanded $166.15, and on February 21, 1880, defendant offered to permit plaintiff to take judgment for $80, which offer was refused. A judgment was finally entered for $68.87, with interest from October 21,1879, and the opinion of the court holds, that at the time of the offer, the principal sum specified in the judgment could not have amounted to $80. So far then, as this case is of value, it teaches that in Wisconsin, the offer and the judgment are compared as to their value at the date of the offer, and seeks to determine which was then “more favorable” to the plaintiff. This view is perfectly logical and just, for it is then that the plaintiff is called upon to determine his cause of action. But this does not tend to support the theory that the court should compute interest upon the offer itself from its date to the date of judgment. Particularly is this true in the case at bar, where the record gives us no clue as to what portion of the judgment, if any, is interest, and what portion is principal. The New York case, Pike v. Johnson, 47 N. Y. 1, was one in which, upon appeal, the plaintiff offered a reduction of his judgment to $50, which offer was declined. After a lapse of six years the cause was tried to a jury, which returned a verdict of $50, but the record discloses that the jury in arriving at this verdict, included $14.74 of interest, and the court says: [623] “We hold that the defendant was entitled to recover costs. We hold that in such a case interest added by a jury or by the court to the damages found cannot be estimated in determining whether a judgment is more or less favorable to the appellant than the offer of the respondent. We do not enter into any discussion of the question.” The case of Bathgate v. Haskin, 63 N. Y. 261, was for the foreclosure of a mortgage and a personal deficiency judgment. Defendant pleaded a counterclaim and tendered a judgment for a specified sum which was refused. Upon the trial there was a decree of foreclosure and a personal judgment for a sum less than the offer, the counterclaim having been allowed. In concluding, the opinion says: “The defendants were clearly entitled to have interest computed upon the amount of the offer from the time it was made to the date of the judgment. The rule that interest cannot be added to the sum offered in determining whether the judgment is more favorable, is only applicable to actions where the damages are unliquidated, and not to a case like this.” 1-3. Johnston v. Catlin, 57 N. Y. 652, was an action to recover for services rendered. Defendant tendered a judgment for $105, and six months later there was a judgment for plaintiff in the sum of $106, and it was held that interest could not be added to defendant’s offer to entitle him to costs, because it was an unliquidated claim. What, then, is an unliquidated claim? 5 Words & Phrases, 4174, says: “A demand is not liquidated, even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a general dispute as to which is the proper amount, is regarded as 'unliquidated’ within the meaning of that term as applied to the subject of accord and satisfaction.” [624] The same authority says also, that “a claim is not liquidated when the balance due is fairly disputed.” And “a debt is ‘liquidated’ when it appears that something, and how much, is due. ’ ’ Many authorities are cited in support of these definitions and applying such test to the claim in this case, the New York citations are against the contention of appellant. In our own state, authorities upon the precise point appear to be wanting, and the only case in the Oregon Reports to which our attention has been called is that of Hammond v. Northern Pac. R. R. Co., 23 Or. 157 (31 Pac. 299). In this case the plaintiff sued for a specified sum and the defendant in its answer admitted its liability for the sum of $198.85, and offered to allow plaintiff to take judgment for that amount with costs. This offer was refused and upon a trial the jury returned a verdict for the plaintiff in the sum of $198.85, the exact amount of defendant’s offer. In the course of the opinion, Mr. Chief Justice Lord says: “When, therefore, in an action to recover money, the defendant, to put an end to the litigation, offers under Section 520, to allow judgment to be entered for a sum specified, and the plaintiff refuses to accept it, and fails to recover judgment for a sum more than was offered by the defendant, he is liable for the costs and disbursements from the time of the service of the offer.” The question of computing interest upon the offer from its date to the time of judgment is not mentioned. But we think that the proper rule is to measure the offer and the judgment as of the date when the offer was made, and since the record gives no basis for determining what the value of the judgment may have been at that time, we have no data upon which to base any change in the judgment of the lower court, and it is therefore affirmed. Affirmed. [625] Rehearing denied April 1, 1919.