Ferrell v. Leach

DENECKE, J. Plaintiffs brought an action for damages for breach of an earnest money receipt. The defendants interposed the defense of merger by deed. When the trial court indicated during plaintiffs’ case in chief that it was of the 'opinion that there had been a merger, the plaintiffs moved for a voluntary nonsuit which was granted. The earnest money receipt provided: “In any suit or action brought on this contract, the prevailing party shall be entitled to recover reasonable attorney’s fees to be fixed by the court.” Pursuant to this provision the court awarded defendants attorney’s fees . and plaintiffs appeal from such award. Plaintiffs assert that because the defendants prevailed by reason of a deed, which had no provision for attorney’s fees, they are not entitled to attorney’s fees. This is an' action on the earnest money agreement and the defendants prevailed; therefore, they are entitled to attorney’s fees. ' Plaintiffs contend defendants did not prevail because the action was terminated by a voluntary nonsuit. Sackett v. Mitchell, 264 Or 396, 505 P2d 1136 (1973), upon which the trial court relied, is tb the contrary. [301] Plaintiffs also contend the fee was excessive. Defendants presented evidence which supports the award of $1,155 as a reasonable attorney’s fee. Affirmed.