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CABAL v. DONNELLY

TC 20-803; CA A33370; SC S32733.

727 P.2d 111 (1986)

302 Or. 115

Robert C. CABAL and Julie A. Cabal, husband and wife, Respondents on review, v. William G. DONNELLY, dba Donnelly and Jenner Construction, Defendant, Herbert D. Jenner, dba Donnelly and Jenner Construction, Petitioner on review.

Supreme Court of Oregon, In Banc.

Decided October 21, 1986.

Attorney(s) appearing for the Case

J. Michael Alexander, Salem, argued the cause for petitioner on review. With him on the petition was Burt, Swanson, Lathen, Alexander & McCann, Salem.

Donald M. Kelley, Silverton, argued the cause for respondent on review. With him on the brief was Kelley & Kelley, Silverton.

GILLETTE, Justice.

This case presents the question whether an action by the purchasers of a new home (plaintiffs) against their builder-vendor (defendant)1 under the implied warranty that the home was fit for habitation is an action on a contract—thereby entitling the prevailing party to attorney fees under their earnest money agreement—or an action in tort—with no attorney fees awarded. The trial court ruled the case...

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