600 P.2d 505 | Or. Ct. App. | 1979
The issue presented in this appeal is whether the trial court erred in denying attorney fees to plaintiff where attorney fees are provided for in the contractual agreement between the parties but where defendant offers and plaintiff accepts a compromise for the exact amount prayed for in the complaint. We reverse.
The only facts pertinent here are the following: Defendant borrowed money from the Oregon Bank under the Oregon Guaranteed Student Loan Program.
ORS 20.096(1),(3) and (4) provide:
"(1) In any action or suit on a contract, where such contract specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, at trial or on appeal, shall be entitled to reasonable attorney fees in addition to costs and necessary disbursements.
* * * *
"(3) As used in this section and ORS 20.097 'prevailing party’ means the party in whose favor final judgment or decree is rendered.
"(4) As used in this section and ORS 20.097 'contract’ includes any instrument or document evidencing a debt.”
"Except as provided in ORS 17.065 to 17.085, the defendant may, at any time before trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect therein specified. If the plaintiff accepts the offer, he shall by himself or attorney indorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him; and thereupon judgment or decree shall be given accordingly, as in case of a confession. * * *”
Defendant argues that where there is an acceptance of an "offer of compromise” pursuant to ORS 17.055 there is no "prevailing party” as required in ORS 20.096. We disagree.
Although the document signed by defendant and the attorney for plaintiff was entitled "Offer of Compromise,” it was in fact an offer to allow judgment against defendant. The document stated
"Defendant hereby offers to allow judgement to be given against him in the sum of $1583.66 (fifteen-hundred and eighty-three dollars and sixty-six cents) which is plaintiff’s prayer plus prayed for interest.”
A judgment order was entered on March 1,1979 which stated
"* * * plaintiff shall have judgment as prayed for in the complaint * *
Final judgment was rendered for SSC, which is, therefore, the prevailing party and entitled to attorney fees.
The facts of this case are strikingly similar to those in Colby v. Larson, 208 Or 121, 297 P2d 1073, 299 P2d 1076, (1956), in which the court noted
"* * * if the defendant’s position here were to be sustained, [the] purpose [of the law] would be defeated by the defendant ignoring a demand made pursuant to [the statute], secure in the knowledge that if action should be brought he could escape payment of an attorney’s fee and other costs by*365 offering before trial to allow judgment to be given against him as provided in ORS 17.055.” 208 Or at 126.
See also Dean Vincent, Inc. v. Krishell Lab., 271 Or 359, 532 P2d 237 (1975); Bivvins v. Unger, 263 Or 239, 501 P2d 1262 (1972); Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977).
Reversed and remanded for the determination of plaintiff’s attorney fees.
See ORS 348.530(9) and 348.570.
