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Dean Vincent Inc. v. Chamberlain

December 21, 1972

DEAN VINCENT, INC. APPELLANT,
v.
CHAMBERLAIN ET UX, RESPONDENTS



Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge.

Max A. Ingerson, Eugene, argued the cause and filed a brief for appellant.

Marvin E. Hansen, Eugene, argued the cause for respondents. With him on the brief were Hansen, Curtis, Hendershott & Strickland, Eugene.

In Banc. Bryson, J.

Bryson

Plaintiff, an Oregon corporation, brought this action to recover a real estate broker's commission. Defendants' supplemental answer and cross complaint contained three affirmative defenses, failure of consideration, lack of a binding contract, and fraud, and a counterclaim that alleged breach of a fiduciary duty by plaintiff and damages to the defendants. The plaintiff demurred to the defendants' first affirmative defense (failure of consideration) and to the second affirmative defense (lack of a binding contract). The court entered an order allowing the demurrer to the second affirmative defense but denied the same as

to the first affirmative defense. Defendants then filed a second amended answer and cross complaint which contained three affirmative defenses: failure of consideration, fraudulent representations, and estoppel. In all other respects, the second amended answer and cross complaint was substantially the same as defendants' supplemental answer and cross complaint. Plaintiff then filed a reply admitting "that the relationship between the Plaintiff and Defendants was a fiduciary one" but denied all other allegations in defendants' second amended answer and cross complaint. Prior to trial, defendants successfully moved to amend their second amended answer and cross complaint to provide "* * * for Defendants' reasonable attorney's fees herein in the sum of $1500.00." At the beginning of the trial the parties stipulated that the court would set reasonable attorney fees based on the record and files of the case and on testimony of work done by attorneys. The court instructed the jury:

"In regard to the stipulation of counsel regarding attorney's fees, I advise you that this is a matter of no concern to the jury, and is a matter solely for the Court's consideration."

The jury returned a verdict for defendants in the sum of $2,500; the court allowed defendants attorney fees of $1,200 and entered judgment in favor of defendants in the sum of $3,700. The plaintiffs appeal.

The facts of the case are not germane to the issues raised on appeal. Plaintiff, in the preparation of its brief, has disregarded Rule 2.45 of this court which provides, in part:

"The argument shall follow each assignment or combination of assignments of error or proposition in the order stated."

Plaintiff's four assignments of error are set forth consecutively, followed by one argument with citations. We have reluctantly attempted to segregate the citations and portions of the ...


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