Electrical Products Corp. v. Ziegler Drug Stores, Inc.

15 P.2d 1078, 10 P.2d 910, 141 Or. 117, 1932 Ore. LEXIS 188

• Court: Oregon Supreme Court
• Decided: October 6, 1932
• Status: Published

Opinions

KELLY, J.

This is an action wherein plaintiff declared upon fifteen contracts by the terms of each of which defendant agreed to pay certain specified sums respectively for the use of an electric sign. Each contract is upon the same printed form as all of the others. Certain terms and conditions appear upon the back thereof. One of these terms is as follows:

“(f) In the event Lessor ‘(plaintiff)’ shall institute and prevail in any action or suit for the enforcement of any of its rights hereunder, Lessee ‘(defendant) ’ will pay to Lessor a reasonable attorney’s fee on account thereof;” etc.

Plaintiff recovered judgment in the sum of $10,-244.40, and the further sum of $2,000, attorney’s fees, together with its costs and disbursements. Defendant appeals.

Doubtless, plaintiff’s motion for additional attorney’s fees on appeal is based upon the doctrine of the ease of Goodspeed v. Duby et al., 131 Or. 275, 280 (283 P. 6), which was a suit in equity. One of the cases there cited is Mills et al. v. Lehigh Valley R. Co., 226 Fed. 812, in which the District Court of the Eastern District of Pennsylvania allowed an additional attorney’s fee for services performed in the Circuit Court of Appeals and in the United States Supreme Court. The practice thus followed by the federal court mentioned is based upon a holding by Mr. Chief Justice Taney of the Supreme Court of the United States in the case of Sizer v. Many, 16 How. 98 (14 L. Ed. 861), approving the allowance of appellate court costs by the trial court. Such a course is unnecessary and unwarranted as to the matter of costs, in this court; but, as to reasonable attorney’s fees contemplated by express contract of the parties, it affords ready means of adjudication.

This court has held that, in the absence of a statute authorizing it, the circuit court cannot allow or determine the costs and expenses of a trial in this court. Johnson v. Prudential Life Ins. Co., 120 Or. 353, 363 (252 P. 556). This, however, merely disapproved of an anticipatory adjudication and is not inconsistent with the practice authorizing the trial court to determine the value of an attorney’s services on appeal after such services have been fully performed. It must be borne in mind that we are not now considering the matter of costs on appeal, but only the matter of an allowance of attorney’s fees for services on appeal where by contract the allowance of a reasonable attorney’s fee has been expressly agreed upon.

In the absence of a statute authorizing it, this court has no power to award attorney’s fees for services rendered for one of the litigants by an attorney upon appeal in a law action. Lewis v. Continental Casualty Co., 135 Or. 170, 174 (295 P. 450); State v. Mohler et al., 115 Or. 562, 579 (237 P. 690, 239 P. 193), 15 C. J. 274, § 677.

For these reasons, plaintiff’s motion for an allowance of an additional fee for attorney’s services upon appeal is overruled, denied and disallowed, without prejudice to an application hereafter to be made to the circuit court therefor.