Cimarron West Properties, Inc. v. Lincoln Loan Co.

860 P.2d 871 (1993) 123 Or. App. 614

CIMARRON WEST PROPERTIES, INC., an Oregon corporation, Appellant,
v.
LINCOLN LOAN CO., an Oregon corporation, Respondent.

9201-00374; CA A75721.

Court of Appeals of Oregon.

Argued and Submitted March 19, 1993. Decided October 6, 1993.

Gordon R. Hanna, Salem, argued the cause and filed the briefs, for appellant.

Melinda B. Wilde, Portland, argued the cause and filed the brief, for respondent.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

LEESON, Judge.

Plaintiff appeals a judgment dismissing its complaint for failure to state a claim, ORCP 21A(8), and awarding defendant attorney fees and costs. We affirm.

We accept the facts alleged in the complaint as true for the purpose of this review. Emmert v. O'Brien, 72 Or.App. 752, 754, 697 P.2d 222 (1985). Both plaintiff and defendant are Oregon corporations. In August, 1990, defendant sold plaintiff real property in Portland for $24,950. The parties used a preprinted form entitled "Contract—Real Estate," on which they filled in a line providing for a down payment of $4,000 and added the following clause:

"The remainder of the purchase price to-wit $20,950.00 to be paid in regular monthly installments of $230 per month including interest at the rate of twleve [sic] per cent per annum on the unpaid balance, said paymen[t]s to be made on or before the 15th day of each and every month hereafter beginning with the month of September, 1990 and continuing thereafter for a period of five years at which time the entire remaining unpaid principal balance shall be paid in full to[g]ether with any accrued interest thereon." (Emphasis supplied.)

The contract contained no separate prepayment clause. In January, 1992, plaintiff asked defendant to tell it the "payoff" amount due on the contract. Defendant refused, contending that the terms of the contract did not allow plaintiff to prepay. Plaintiff's president then sent defendant a copy of a cashier's check for the amount it believed would satisfy its payment obligation under the contract. It also sent a letter requesting a meeting to exchange the original of the cashier's check for defendant's deed to the property. Defendant did not respond.

Plaintiff brought this action for specific performance. Defendant moved to dismiss the complaint on the ground that the contract did not allow plaintiff to prepay the entire contract price. It also requested attorney fees. Plaintiff then moved for summary judgment. After a hearing, the trial court denied plaintiff's motion for summary judgment, granted defendant's motion to dismiss and awarded defendant attorney fees and costs.

Plaintiff assigns error to the order granting defendant's motion to dismiss and to the award of attorney fees and costs. Plaintiff contends that the complaint stated ultimate facts sufficient to constitute a claim, because it stated that plaintiff made tender of the full amount due and defendant nevertheless refused to surrender the deed.

Whether a complaint states a claim is a question of law. Hansen v. Anderson, 113 Or.App. 216, 831 P.2d 717 (1992). Defendant contends that the terms of the contract do not allow plaintiff to prepay and that, therefore, as a matter of law, plaintiff has not stated a claim. Plaintiff argues that the contract allows for prepayment, because it does not expressly prohibit prepayment and includes the phrase "on or before" in its payment terms.^[1] Plaintiff relies exclusively on the written terms of the agreement and does not allege that the parties contemplated prepayment outside the terms of the agreement.

The contract requires plaintiff to make a payment "on or before" the 15th day of "each and every month * * * for a period of five years." (Emphasis supplied.) Essentially, plaintiff is asking us to apply the "on or before" phrase outside of its context to create a prepayment term. In interpreting a contract, our task is to attempt to give meaning to all of its terms, Standley v. Standley, 90 Or.App. 552, 752 P.2d 1284, rev. den. 306 Or. 413, 761 P.2d 531 (1988), not to focus on one term to the exclusion of others. Plaintiff had the opportunity to negotiate a contract with a prepayment clause, but it did not.^[2] We will not rewrite the contract to reflect what plaintiff now wishes it had agreed to. The trial court did not err in dismissing plaintiff's complaint for failure to state a claim.

In the light of our disposition of the first assignment of error, we affirm the trial court's award of attorney fees to defendant.

Affirmed.

NOTES

[1] Plaintiff relies on Phillips v. Johnson, 266 Or. 544, 514 P.2d 1337 (1973), in support of its argument that the "on or before" language controls the entire clause. Phillips is inapposite. The clause in that case provided that the balance due under an earnest money was to be paid at "`$750.00 plus in. at 6% to be paid on or before July 30—1972 and $750.00 plus interest at 6% to be paid on or before July 30—1973 which will be final payment.'" 266 Or. at 557-58, 514 P.2d 1337. (Emphasis in original.) Nothing in the clause indicated the intent of the parties to create an installment contract with monthly payments of a specific amount over a specified period of time.

[2] As a general rule,

"a debtor has no right, without the consent of the creditor, to anticipate the payment of a debt payable at a future day, and bearing interest; nor may a creditor be compelled * * * to accept such a payment. If a debt is payable in instal[l]ments at fixed dates, the instal[l]ments cannot be paid before their due dates unless the creditor consents to receive the prepayments.

"However, the agreement may expressly provide a prepayment option." 60 Am.Jur.2d § 14. (Footnotes omitted; emphasis supplied.)