Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.

STATE BAR v. SECURITY ESCROWS, INC., 233 Or. 80 (1962)377 P.2d 334

STATE BAR v. SECURITY ESCROWS, INC., 233 Or. 80 (1962)
377 P.2d 334
Supreme Court of Oregon
Argued September 6, 1962
Affirmed as modified December 19, 1962

Page 81

  Appeal from the Circuit Court, Multnomah County, P.K.

  Thomas H. Ryan and Victor C. Hefferin, Portland, argued the
cause and submitted a brief for appellants.

  Malcolm Montague, Portland, argued the cause for respondent.
With him on the brief were William F. Thomas and James H. Clarke,

  Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN,



  The Oregon State Bar brought suit against two private
corporations and certain of their officers to enjoin them from
preparing conveyances and other specified instruments. From a
decree granting a part of the relief prayed for, the defendants

  The issue is whether these particular defendants lawfully may
draft such instruments as contracts,
Page 82
deeds, mortgages, satisfactions, leases, options, certificates of
assumed business name, bulk-sales affidavits, and the like, as an
accommodation for customers who come to them for escrow service.

  The defendants perform closing services in connection with
real-estate transactions. They are not real estate brokers. They
offer to brokers, lawyers, and others their services as
depositaries for money and documents in the closing of a wide
variety of transactions. The closing fee in each case is based
upon the value of the property involved in the transaction, not
upon the number or complexity of instruments prepared. The fee
may be the same in two cases even though no instruments are
prepared in one and many are prepared in another. It is
stipulated that no fee is charged for the preparation of
instruments. The escrow companies have no interest in the
ordinary transactions, but presumably are selected as
depositaries because of their disinterest. They have no
obligation to any party to any transaction except to carry out
the terms of the escrow. They owe no duty to advise the parties
on their legal rights, nor do they owe any duty to prepare
instruments. They have no reason to protect the rights of any one
party as against another. Neutrality is their stock in trade. If
the instruments needed by a party to a given transaction were not
to be drawn by the defendants, such instruments would have to be
drawn elsewhere and brought to the defendants for deposit in the
regular course of the escrow business.

  The defendants say they will be at a competitive disadvantage
if they are enjoined from drawing conveyances. They say they draw
the instruments involved in this litigation only because their
customers want them to do so, and because satisfied customers
Page 83
are good for business. They perform the service for the same
reason other merchants give other kinds of premiums. It
stimulates trade.

  The defendants deny that in the performance of the services
described they are holding themselves out as qualified to
practice law even when the documents drawn by them are custom
made for a particular transaction. By far the greater number of
documents> <prepared> by the defendants are prepared upon printed
forms. (This last observation no doubt could apply as well to
most lawyers.) Whether there is a significant difference in
principle between the selection of the proper printed form and
the selection of the proper words to put on a clean sheet of
paper in order to accomplish a particular conveyancing purpose is
one of the peripheral questions in this case. First, however,
there are other questions that must be noticed.

  The defendants contend that it is exclusively a legislative
function to define the practice of the law, and that the Oregon
legislature has, by its silence, defined the practice of law in
such a manner as to exclude from any proscription the activities
complained of in this case. The present statutes contain no
definition of the practice of law. From 1919 to 1937 there was a
statutory definition. See § 32-505, Oregon Code 1930, repealed by
Oregon Laws 1937, ch 343.

  When the assertion made by the defendants is separated into its
component parts, it will be seen that it tenders two issues which
are of different kinds. The question whether either the court or
the legislature has the exclusive power to define the practice of
law is a question of constitutional importance, involving, as it
does, the frontier between the separated
Page 84
powers of government under our state constitution. It is not a
question upon which dictum should be lightly scattered. We
decline to express an opinion upon this question in this case for
two good reasons: (1) The question has not been briefed and
argued with the thoroughness it deserves when and if it needs to
be decided. (2) It is not necessary to decide the question
because the legislature has not, since 1937, undertaken to define
the practice of law.

  With the defendants' assertion that the legislature has, by
its silence, defined the practice of law so as to exclude
therefrom the common forms of conveyancing, we are invited to
divine legislative intent from an analysis of legislative
silence. The defendants rely upon an opinion by the attorney
general in saying that the silence is not inscrutable. An opinion
on the practice of law was given in 1937 in response to an oral
inquiry from the chairman of the House Judiciary Committee. The
defendants say the opinion is some evidence that the assembly
intended to enact the current form of the statute on <unauthorized>
<practice> <of> <law> only if such statute (now ORS 9.160) would not be
construed so as to prevent the drafting of deeds and mortgages by
licensed real estate brokers. See 1936-1938 Ops Atty Gen 190. The
opinion speaks for itself. It does not speculate upon the legal
effect of facts found in the case at bar. As a practical matter,
however, it may be true that some one or more members of the
assembly gave consideration to the effect they thought the
integrated-bar act might have upon the business methods of
various persons who are not lawyers. We have no reason to doubt
that such was the case. Even so, we have found no authority for
the proposition that legislative silence in this instance is the
equivalent of a legislative definition of the
Page 85
practice of law. We must hold that the legislature has not
attempted to define the practice of law, and, accordingly, there
is no need to inquire whether it has the power to do so.

  Before we may proceed with the case at bar, however, it is
necessary to have before us enough of a definition so that we can
decide whether the court below should have issued the injunction.
We must mark out at least enough of the boundaries of the
practice of law so that we can decide whether or not the
activities complained of fall within them, leaving to future
cases such other definitional problems as may remain unresolved.

  There have been numerous attempts elsewhere to define the
practice of law.[fn1] None has been universally accepted.[fn2]
The Arizona Supreme Court has said that
Page 86
an exhaustive definition is impossible. Perhaps it is. See State
Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76,
366 P.2d 1, 9 (1961), on petition for rehearing, 91 Ariz. 293,
371 P.2d 1020 (1962). Documents creating legal rights abound in the
business community. The preparation of some of these documents is
the principal occupation of some lawyers. The preparation of
business documents also occupies part of the time of accountants,
automobile salesmen, insurance agents, and many others. The
practice of law manifestly includes the drafting of many
documents which create legal rights. It does not follow, however,
that the drafting of all such documents is always the practice of
law. The problem, as is frequently the case, is largely one of
drawing a recognizable line. Here the line must be drawn between
those services which laymen ought not to undertake and those
services which laymen can perform without harm to the public.

  Whether or not the legislature is the exclusive custodian of
the public interest, a matter which, as we have seen, is not now
before us, the discipline and control of lawyers is interwoven
with the public interest. The discipline of the bar is a matter
of judicial concern. Ramstead v. Morgan, 219 Or. 383, 399,
347 P.2d 594, 77 ALR2d 481. History tends to show that as the body of
law has grown the community has needed, and continues to need,
the services of men and women learned in the law.[fn3] Indeed, as
the rule of law in our society becomes more firmly established,
and as the laws become more complex, the need for persons learned
in the law increases. Every civilized society recognizes certain
human rights and also recognizes
Page 87
a need for lawyers to aid in securing those rights. Specialized
duties in certain areas of activity thus fall upon the legal
profession, not because lawyers need the business, but because
the business needs lawyers. Laymen are excluded from law
practice, whatever law practice may be, solely to protect the
public. Since it is the duty of the courts to maintain the
discipline of those who act as officers of the courts, it is also
the responsibility of the courts, at least in the absence of
action by another branch of government, to decide who are
officers of the courts and what they may do in that capacity.

  Turning, then, to the specific matter of documents vesting
property rights, the exercise of discretion concerning the
property rights of another should be entrusted only to those
learned in the law. There are, of course, matters in which
persons who are not trained in the law can give perfectly sound
business advice. However, when laymen select and prepare
instruments creating rights in land for other members of the
public there is always the danger that they may do the job badly.
In the exceptional case the routine procedure may be grossly
wrong. Every lawyer knows, for example, how easily a carefully
constructed estate plan or tax-minimizing plan can be devastated
by the innocent intervention of a layman armed with the best of
intentions and the seal of a notary public. We are justified in
taking judicial notice of the fact that badly drawn instruments
create not only needless litigation but needless loss and
liability. A little of this mischief may flow from the
carelessness of lawyers, but by far the most of it is the work
product of laymen. In either case the injured party may have a
cause of action for his damages, but it is in the public interest
to keep these difficulties to a minimum.
Page 88

  We noted earlier that there is a question whether a significant
difference in principle may be found between the selection of
printed forms and the drafting of instruments on a custom basis.
We are unable to discover a logical difference in principle.
There may be, of course, wide differences in degree. One could
arrange upon a spectrum running from high to low the requisite
skill and learning needed to perform each task, and no doubt
could then classify all sorts of conveyancing in accordance with
such an arrangement.

  We are invited to engage in such an exercise when the
defendants argue that filling out simple forms is not the
practice of law. They then proceed up the scale of forms until
they contend that filling out complicated forms is not really the
practice of law because, after all, a form is only a form. We
agree with Pound, J., concurring with the New York Court of
Appeals, that "[t]he most complex are simple to the skilled and
the simplest often trouble the inexperienced." People v. Title
Guarantee & Trust Co., 227 N.Y. 366, 379, 125 N.E. 666, 670 (1919).
It is clear that some conveyances must be drawn by lawyers. Most
conveyances undoubtedly should be examined by lawyers. The
creation of estates in land is a matter that demands professional
legal advice. Few will disagree with the general proposition. One
of the defendants conceded at the trial below that custom-made
conveyances are probably within the scope of the practice of law.

  On the other hand, the defendants contend that there is no need
for trained legal advice or discretion in the ordinary case of a
warranty deed or real-estate mortgage. They say there is no
policy reason for insisting upon mere pro forma legal advice in
Page 89
cases. If it is true that there is a class of business in which
the public can be adequately protected without the intervention
of lawyers, then there is no need to force a burdensome formality
upon the public.[fn4]

  We believe there is a field in which lay conveyancers can
perform a useful service without undue risk of harm to the
public. Drawing the line in this case depends, then, upon finding
and describing those circumstances in which the public may safely
rely upon lay conveyancers, regulated or unregulated by other
state agencies as the case may be.

  For the purposes of this case, we hold that the practice of
law includes the drafting or selection of documents and the
giving of advice in regard thereto any time an informed or
trained discretion must be exercised in the selection or drafting
of a document to meet the needs of the persons being served. The
knowledge of the customer's needs obviously cannot be had by one
who has no knowledge of the relevant law. One must know what
questions to ask. Accordingly, any exercise of an intelligent
choice, or an informed discretion in advising another of his
legal rights and duties, will bring the activity within the
practice of the profession. We reject such artificial or
haphazard tests as custom, payment,[fn5] or the quality of being
Page 90

  The line is drawn at the point where there is any discretion
exercised by the escrow agent in the selection or preparation for
another of an instrument, with or without costs. This rule
applies to any instrument the purpose and result of which is the
creation of rights in property or the creation of obligations
that can be enforced by the courts. The only difficulty with the
line we have drawn lies in the practical enforcement of it.
Practical application requires the exercise of good faith on the
part of the defendants. We have no reason to believe that they
will not conduct themselves accordingly.

  The trial court drew the line by enjoining the defendants from
preparing (including the filling-in of blanks on printed forms)
the following: "real and personal property contracts, mortgages,
deeds, conveyances, satisfactions, releases, assignments, leases,
bulk sales affidavits, and similar documents affecting legal
rights * * *." The decree excepts from its
Page 91
proscription any such documents that may be made in connection
with transactions in which the defendants have a proprietary

  The decree did not permit the defendants to act as mere
scriveners when the selection of the instrument and directions
for its completion were made by the customer. If the
draftsmanship is the product of an intelligent choice between
alternative methods, and the choice is made by the escrow
representative, then we agree that it must be enjoined. The
escrow companies may not act in an advisory capacity in
recommending or designing conveyances as an extra service to
their customers. They should be allowed, however, as scriveners,
to fill in the blanks in such warranty deeds, purchase-money
mortgages, and satisfactions of mortgages and similar forms as
are selected by their customers. Such an activity, carried out
under the direction of the customer, is not the practice of law.
If the customer asks for the service, and tells the escrow what
he wants, there appears to be no clear and present danger that
the public will suffer.

  One of the facts of modern life is that most routine
conveyancing, as a practical matter, has been allowed to drift
away from lawyers and into the hands of stationers, notaries and
others. This phenomenon may be the result of a default by the
legal profession. It also may be the result of a diffusion of
superficial knowledge in such matters. Whatever the cause, it is
now too late to raise the cry of "<unauthorized> <practice> <of> <law>"
each time a lay conveyancer fills in the names, dates, and
description on the simple form of warranty deed by which one
husband-and-wife combination ordinarily conveys a city lot to
another husband
Page 92
and wife as tenants by the entirety.[fn7] Granting that the
drafting of such a conveyance historically was within the
practice of law,[fn8] we hold that the filling-in of forms as
directed by customers under modern business conditions is not the
practice of law.

  The decree should be modified to provide for an injunction
against the preparation of the documents presently named in the
decree, but excepting therefrom the filling-in of blanks under
the direction of a customer upon a form or forms selected by a
Page 93
If the customer does not know what forms to use or how to direct
their completion, then he needs legal advice. If the customer
does know what he wants and how he wants it done, he needs only a

  Decree modified; costs to no party.

[fn1] From Black's Law Dictionary (1957):

    "PRACTICE. Repeated or customary action; habitual
  performance; a succession of acts of similar kind;
  habit; custom; usage; application of science to the
  wants of men; the exercise of any profession. Marker
  v. Cleveland, 212 Mo. App. 467, 252 S.W. 95, 96;
  Columbia Life Ins. Co. v. Tousey, 152 Ky. 447,
  153 S.W. 767, 768.

    "* * * * *

    "Practice of law. Not limited to appearing in
  court, or advising and assisting in the conduct of
  litigation, but embracing the preparation of
  pleadings, and other papers incident to actions and
  special proceedings, conveyancing, the preparation of
  legal instruments of all kinds, and the giving of all
  legal advice to clients. State v. Chamberlain,
  132 Wn. 520, 232 P. 337, 338. It embraces all advice to
  clients and all actions taken for them in matters
  connected with the law. Rhode Island Bar Ass'n v.
  Lesser, 68 R.I. 14, 26 A.2d 6, 7."

[fn2] Cases are collected in the Annotation, 53 ALR2d 788 (1955).
See, also, New Jersey Bar Ass'n v. Northern N.J. Mtge.
Associates, 32 NJ 430, 161 A.2d 257 (1960), and the cases
collected in Note, 36 Notre Dame Lawyer 374 (1960-61), and
Comment, 44 Marquette L Rev 519 (1960-61). A comment in 35 So Cal
L Rev 336 (1962) considers California law in light of the recent
Wisconsin decision which opens the conveyancing field to a
limited class of laymen while conceding that it is the practice
of law (State ex rel Reynolds v. Dinger, 14 Wis.2d 193,
109 N.W.2d 685 (1961)).

[fn3] Plucknett, A Concise History of the Common Law (5th ed,
1956) 226.

[fn4] See, e.g., La Brum et al. v. Com. Title Co., Aplnt., 358 Pa. 239,
56 A.2d 246 (1948), which held that the preparation of
conveyances was not the practice of law within the
unauthorized-practice statute of Pennsylvania. And see
Annotation, 53 ALR2d 788, supra note 2.

[fn5] Whether or not a fee is charged for the service is also
frequently used as a test of determining whether or not the
service is "incidental" to the business for which a fee is
charged. See Hulse v. Criger, 363 Mo 26, 247 S.W.2d 855 (1952).
Washington has rejected the notion that the charging of a fee is
relevant at all. See Wash. etc. Ass'n v. Wash. Ass'n etc.,
41 Wn.2d 697, 251 P.2d 619 (1952).

[fn6] The argument most frequently urged in favor of lay
conveyances is that the preparation of title documents or
contracts is not the practice of law, but is only "incidental" to
some other line of business. Some courts have upheld the
preparation and execution of legal instruments on this
"incidental-to-the-business" test. Ingham Co. Bar Ass'n v. Neller
Co., 342 Mich. 214, 69 N.W.2d 713, 53 ALR2d 777 (1955); Hulse v.
Criger, supra note 5; La Brum et al. v. Com. Title Co., Aplnt.,
supra note 4 (construing a statute and distinguishing practicing
law from practicing conveyancing). Other courts have refused to
accept the test. State Bar of Arizona v. Arizona Land Title &
Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961), 91 Ariz. 293,
371 P.2d 1020 (1962); Beach Abstract & Guaranty Co. v. Bar Assn. of Ark.,
230 Ark. 494, 326 S.W.2d 900 (1959); Ark. Bar Assn. v. Block,
230 Ark. 430, 323 S.W.2d 912 (1959), cert. den. 361 U.S. 836, 80 S Ct 87,
4 L Ed2d 76; Hexter Title & Abst. v. Grievance Com., 142 Tex 506,
179 S.W.2d 946, 157 ALR 268 (1944).

[fn7] The Minnesota court was called upon to decide whether
legislation in that state authorized brokers to draft
conveyances. The court said:

    "* * * The line between what is and what is not the
  practice of law cannot be drawn with precision.
  Lawyers should be the first to recognize that between
  the two there is a region wherein much of what
  lawyers do everyday in their practice may also be
  done by others without wrongful invasion of the
  lawyers' field. We think that ordinary conveyancing,
  part of the everyday business of the realtor, is
  within that region and consequently something of
  which the legal profession cannot under present
  circumstances claim that the public welfare requires
  restraint by judicial decree. It is the duty of this
  court so to regulate the practice of law and to
  restrain such practice by laymen in a common-sense
  way in order to protect primarily the interest of the
  public and not to hamper and burden such interest
  with impractical technical restraints no matter how
  well supported such restraint may be from the
  standpoint of pure logic. Viewing the problem before
  us in that light, we do not think it would be in the
  interest of the public welfare to restrain brokers
  from drafting the ordinary instruments necessary to
  effectuate the closing of the ordinary real estate
  transaction in which they are acting. We do not think
  the possible harm which might come to the public from
  the rare instances of defective conveyances in such
  transactions is sufficient to outweigh the great
  public inconvenience which would follow if it were
  necessary to call in a lawyer to draft these simple
  instruments." Cowern v. Nelson, 207 Minn. 642, 647,
  290 N.W. 795, 797 (1940).

See, also, Reynolds v. Dinger, supra note 2.

[fn8] In State Bar of Arizona v. Arizona Land Title & Trust Co.,
supra note 6, the historical foundation of the professional
practice of law is carefully documented.

  LUSK, J., dissenting.

  I think that the acts and practices of the appellants which the
court below enjoined constitute the practice of law and that the
decree should be affirmed. As it seems to me to be unnecessary, I
prefer not to express an opinion at this time as to how far the
inherent power of the courts goes in regulating the practice of
law. Consideration of that question may well await a case in
which it is squarely presented.

  O'CONNELL, J., dissenting.

  As I understand it the majority opinion holds that the
filling-in of forms constitutes the practice of law in some
circumstances but not in others. But it is not clear what these
circumstances are in relation to the principle which is important
in drawing the line between what is and what is not the practice
of law. The opinion concludes, "* * * we hold that the filling-in
of forms as directed by customers under modern business
conditions is not the practice of law." I do not know what
thought is meant to be conveyed by the phrase "as directed by
customers," or by "under modern business conditions." Obviously,
if the defendant or any other escrow company is instructed
specifically as to what language is to be included in the
document the draftsman is a mere amanuensis and is not engaging
in the practice of law.

  But the question which the parties want us to decide on appeal
is whether the escrow company engages in the practice of law when
it fills out forms
Page 94
without specific directions as to the language to be employed in
carrying out the purposes of the party or parties. The drafting
of deeds and other instruments of conveyance calls for the making
of choices resting upon differences in the legal consequences
which attend the use of particular language. Unless the parties
to the instrument are made aware of these choices and the
consequences of making them, they may end up with a bargain they
did not intend to make. One need only examine a treatise such as
Patton on Titles to realize the multitude of legal consequences
which flow from the use of particular language in an instrument
of conveyance. Customers who "direct" escrow companies to draft
legal instruments ordinarily do not know what should be included
in the instrument. Therefore, they have no way of giving a
meaningful "direction" as to how the instrument should be worded.
Moreover, the escrow company's customers may need legal advice
upon matters which do not relate to the choice of language in the
instrument. Thus the seller may need legal advice as to the tax
consequences of the sale.

  Escrow companies are not licensed to advise their customers as
to the legal effect of instruments drawn for them. It is no
answer to say that most customers of escrow companies do not care
whether or not they have legal advice or are satisfied if a
layman gives it to them. The fact that a person is willing to
submit to surgery by one not licensed to practice medicine does
not constitute a defense to a charge of the unauthorized practice
of medicine. The licensing requirements for doctors, lawyers,
accountants and other professional occupations are designed to
protect the members of the public from the harm which might flow
from the activities of unlicensed practitioners. The
Page 95
need for protection exists where the parties are engaged in
transactions involving the transfer of interests in land. If
escrow companies are to be permitted to draft deeds, the
explanation for the authorization cannot be that they are not
practicing law. Rather it must be that in some way they have been
given the privilege of doing so.

  The majority opinion is confusing in another important
particular. The court declines to express an opinion upon the
question of whether the court or the legislature has the
exclusive power to define the practice of law. The court reaches
this conclusion on the ground that "the legislature has not
attempted to define the practice of law, and, accordingly, there
is no need to inquire whether it has the power to do so." The
fact that the legislature has made no effort to define the
practice of law has nothing to do with the need to decide where
the power to define the practice of law resides. The court
concludes that the drafting of deeds under some circumstances is
not the practice of law. It would be unnecessary to decide
whether the court or the legislature has the power to define the
practice of law only if it could be said that the same conclusion
must necessarily be reached in the interpretation of ORS
9.160.[fn1] I do not think that it can be said categorically that
the legislature intended to exclude from the proscription of the
statute the activities of escrow companies in drafting deeds and
other instruments relating to real property transactions. In fact
the contrary conclusion would seem more reasonable in view of the
fact that historically
Page 96
the drafting of such instruments has been regarded as the
province of the lawyer. The majority has defined the practice of
law without any consideration of what the legislature may have
intended in enacting ORS 9.160. For that reason I think that
there is implicit in the majority opinion an assertion of
inherent judicial power to decide what constitutes the practice
of law.

  I am of the opinion that the court does not have the inherent
and exclusive power to make that decision.[fn2] I recognize that
the weight of authority supports the contrary view.[fn3] However,
I cannot find a satisfactory basis for concluding that the
legislature does not have the right to formulate the state's
policy in this respect. We would not question the power of the
legislature to define the permissible area of other professional
activities, such as the practice of medicine, dentistry, and
accountancy. There is no more reason for questioning the
legislature's power to regulate the practice of law except where
the regulation violates the separation of powers doctrine under
our constitution. The principle of separation of powers is not
violated by legislative regulation of the practice of law unless
the regulation affects the operation of the judicial
process.[fn4] The judicial process would not
Page 97
be affected by legislation which permitted escrow companies to
engage in that part of the practice of law which consists of
drafting instruments required in real estate transactions.

  In the present case the question is whether the legislature has
made this special dispensation in favor of escrow companies.
There is nothing in the statutes or in the legislative history of
ORS 9.160 suggesting that the drafting of deeds and other
instruments of conveyance are to be considered outside of the
practice of law. The court should hold that the defendant is in
violation of the statute since there is no basis for removing
such activities from the proscription of ORS 9.160. If those
activities are to be permitted, it is for the legislature and not
for this court to grant the privilege.

  SLOAN, J., joins in this dissent.

[fn1] ORS 9.160 states: "Except for the right reserved to
litigants by ORS 9.320 to prosecute or defend a cause in person,
no person shall practice law or represent himself as qualified to
practice law unless he is an active member of the Oregon State

[fn2] This view is taken in Beardsley, The Judicial Claim to
Inherent Power Over the Bar, 19 A B A J 509 (1933); Comment,
Control of the <Unauthorized> <Practice> <of> <Law: Scope of Inherent
Judicial Power, 28 U Chi L Rev 162 (1960). A contrary position is
set out in Dowling, The Inherent Power of the Judiciary, 21 A B A
J 635 (1935).

[fn3] Dowling, supra note 2, collects cases at 636, n. 13.

[fn4] This does not mean that the courts may not exercise control
over matters vital to their operation. For example, they may
regulate disciplinary proceedings where the proceedings are
necessary to maintain the proper function and dignity of the
courts. See Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 ALR2d
481 (1959).
Page 98

Inside STATE BAR v. SECURITY ESCROWS, INC., 233 Or. 80 (1962)377 P.2d 334