Smith v. Aplanalp

Questions of fact cannot be tried on a motion for judgment on the pleadings. There was clearly an issue of fact as to the amount of the attorney’s fee. The court was without authority to inquire into the facts while considering a motion for judgment on the pleadings: Oregon & Western Colonization Co. v. Willoughby, 122 Or. 170, 176 (257 Pac. 812); Spencer v. Wolff, 119 Or. 237, 240 (243 Pac. 548); Owen v. Leber, 112 Or. 136, 141 (228 Pac. 927).

The answer pleads facts which constitute fraud. That it does is not really questioned by the plaintiff in his brief as we understand it. Plaintiff says…