Cal Worthington v. Robert Lick and Nancy Lick, Individually and Dba Lick Farms and Baker Mill and Grain Company, an Oregon Corporation

Cal Worthington sued Robert Lick for damages and restitution arising out of custom farming work which Lick performed in 1982 on Oregon land owned by Worthington. Lick counterclaimed and prevailed on the counterclaim. Worthington appeals the award of attorney fees to Lick. We affirm.

Worthington’s original complaint alleged a number of theories to support his claim that Lick owed Worthington more money than Worthington owed Lick. One theory was breach of a written contract made in 1981; another was negligence in farming and marketing the wheat crop. There was a count for conversion of the proceeds of the sale of the crop. Worthington also alleged common counts of assumpsit for money had and received.

Under Oregon law, one who sues on a contract that provides for attorney fees for the prevailing party may be liable to pay attorney fees to his adversary if he should lose the case. Or.Rev.Stat. 20.096(1), (5). The district court eventually found that Worthington owed Lick more than Lick owed Worthington, and assessed attorney fees under the statute. The correctness of that ruling in this diversity case is a matter of Oregon law.

Worthington argues that no matter how the case began,…