Jitner v. Grant

PER CURIAM Plaintiffs appeal from judgments for defendants in these consolidated actions for breach of a putative real estate contract. They contend that the trial court erred by allowing defendants to amend their pleadings to conform to the proof and by directing verdicts for defendants on plaintiffs’ claims. Those contentions are without merit. Plaintiffs also assign error to the court’s award of attorney fees to defendants, pursuant to the fee provision in the instrument on which plaintiffs based their actions. Defendants asserted, inter alia, that there was no agreement between the parties and, if there were, that the agreement was invalid. They are not entitled to attorney fees under the provision. See Niedermeyer v. Latimer, 307 Or 473, 769 P2d 771 (1989); John Deere Co. v. Epstein, 91 Or App 195, 755 P2d 711 (1988), aff’d 307 Or 348, 769 P2d 766 (1989). Award of attorney fees vacated; otherwise affirmed.