Olson v. Boling , 120 Or. 554 ( 1927 )

The entire question submitted to this court with one exception, which will be noted later, is one of fact and not of law. We have carefully read the testimony and given it due consideration and concur with the findings of fact made by the learned Circuit Court. In behalf of the defendants there was considerable evidence of defective work, but there was equally credible testimony to the effect that the workmanship in the main was good. The witnesses for the defendants did not agree in their testimony regarding the defective work, and we think the evidence preponderates in favor of the plaintiff. It would be of no value to anyone for us to analyze and comment upon the testimony.

The defendants raise the question here that there was no evidence regarding the amount of a reasonable attorney's fee. In page 41 of the transcript of the testimony we find:

"Mr. Metsker: (Attorney for Plaintiff.) * * we have agreed to let the Court fix the reasonableness of the lien claimant's attorney's fee in case the Decree is for the Plaintiff in the case and let the records show that without the necessity of proving that item.

"Mr. Storla: (Attorney for Defendants.) Yes, that is satisfactory. I know what the Court generally allows me for Attorney's fee."

Having stipulated that the court could fix the fee without taking testimony, the defendants are in no position to claim upon appeal that no evidence was taken. The judge doubtless was competent to fix the fee. He would have been a competent witness for that purpose. He was not obliged to fix the fee without evidence, but that was a matter resting in his discretion. Defendants ought not to be heard after inviting the error, if it was an error, to complain on this appeal. Mael v.Stutsman, 60 Or. 66, 68 (117 P. 1093), cited by the defendants, states the rule of law thus:

"It will be remembered that an issue existed respecting the reasonableness of the attorney's fees demanded. Without receiving any testimony on this controverted question, and in the absence of any stipulation as to what sum would have been reasonable as attorney's fees, judgment was given for $100 as suitable for that purpose."

In the case at bar the stipulation entered into in open court during the progress of the trial submitting the question of a reasonable attorney's fee to the court was equivalent to a stipulation as to the amount of that fee as fixed by the court. The decree is affirmed without costs.