Smith v. Turner

54 P. 166, 33 Or. 379, 1898 Ore. LEXIS 144

• Court: Oregon Supreme Court
• Decided: August 13, 1898
• Status: Published

Opinion

Mr. Justice Wolverton

delivered the opinion of the court.

It is urged on the part of the plaintiff that the verdict was for a larger sum than was justified by the,pleadings, and, owing to the state of the record, this presents the only question which we feel called upon to decide at the present time. It is well understood that interest is not demandable, under our statute, upon unliquidated claims or demands : Hawley v. Dawson, 16 Or. 344, 349 (18 Pac. 592) ; Pengra v. Wheeler, 24 Or. 532, 536 (34 Pac. 354). The plaintiff’s claim bears interest because there is a contract to pay it, while, under the rule announced, the defendants’ counterclaims do not; but it is attempted to counterclaim as respects the first separate defense as of the date when it is alleged the damages accrued, and thereby cut off the running of interest upon the note. This cannot be done, however, because it required the verdict of the jury, or at least the confession or default of the plaintiff, to liquidate the defendants’ demand foy their alleged damages arising by reason of plaintiff’s supposed breach of contract, while the note draws interest by force of its direct stipulations. Measured by this rule, the verdict of the jury is larger than the pleadings will admit of by $181.10. The note, with interest to the date of the verdict, less the payments indorsed as shown by the complaint, aggregates $3,881.10, while the aggregate demands of defendants amount to $3,700 only. These considerations reverse the judgment of the court below, and it is-so ordered ; and, further, that the cause be remanded for such other proceedings as may seem proper.

Reversed.