S058156, Opinion — Malan v. Tipton

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Argued and submitted September 14, 2010, decision of Court of Appeals reversed;
judgment of circuit court affirmed February 19, 2011
Eric MALAN,
as Personal Representative of
the Estate of James Harold Woodard,
Respondent on Review,
v.
Linda TIPTON,
Art Mills,
dba Credit Bureau of Klamath County;
and Eugene V. Anderson,
Defendants,
and
Lucille JENNER,
as Personal Representative of
the Estate of Linda L. Tipton, aka Linda Spears,
Petitioner on Review.
(CC 06-00801-CV; CA A136333; SC S058156)
247 P3d 1223

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CJS, Mortgages § 463.

On review from the Court of Appeals .*

Eugene V. Anderson, Medford, argued and submitted the
brief for petitioner on review.

Andrew C. Brandsness, Klamath Falls, argued and sub-
mitted the brief for respondent on review.

Scott A. Shorr and Keil M. Mueller of Stoll Stoll Berne
Lokting & Shlachter P.C., Portland, filed the briefs for
amicus curiae Oregon Trial Lawyers Association.

Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices .**

WALTERS, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.

\* Appeal from Klamath County Circuit Court, Cameron F. Wogan, Judge.
232 Or App 464, 222 P3d 754 (2009).

** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

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# WALTERS, J.

An Oregon statute provides that, when a debtor
makes a written offer to pay a particular sum of money to a
creditor and the creditor does not accept the offer, the offer is
equivalent to the actual production of the money. ORS
81.010.1 In this case, we apply that statute and decide that
the trial court was correct in concluding that defendant, a
debtor, made a valid written offer of payment under ORS
81.010; that plaintiff, a creditor, did not accept it; and that
defendant's offer was equivalent to the actual production of
the sum offered. As a result, the trial court also was correct in
concluding that defendant was relieved from liability for the
consequences of nonpayment other than liability for the debt
itself-in this case, from foreclosure of the trust deed on the
home that secured the debt. We reverse the contrary decision
of the Court of Appeals.

The relevant facts in this case are undisputed. On
July 15, 2002, defendant borrowed $61,500 from James
Woodard, executed a promissory note and trust deed agree-
ing to repay that sum, and secured that agreement with her
residence.2 Woodard died in March 2004, and plaintiff was
appointed as the personal representative of Woodard's
estate. Plaintiff hired an attorney, Henderson, to represent
the estate.

After reviewing the estate's records, plaintiff con-
cluded that defendant had failed to make timely payments on
the note and commenced a nonjudicial foreclosure of the trust
deed. Defendant contested the foreclosure and, in December
2004, hired an attorney, Anderson, to file an action in circuit
court to halt it. While that proceeding was pending, defen-
dant attempted to continue making the required monthly
payments. Plaintiff instructed Henderson not to accept such
payments, but defendant nevertheless sought to perform by
slipping the checks under Henderson's office door or running

1 ORS 81.010 provides:

"An offer in writing to pay a particular sum of money or to deliver a written
instrument or specific personal property is, if not accepted, equivalent to the
actual production and tender of the money, instrument or property."

2 Defendant died shortly after trial of this case and defendant on appeal is the
personal representative of her estate. ORAP 8.05(1); ORCP 34 B.

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in and dropping a check at his front desk. Eventually, defen-
dant obtained a court order permitting defendant to make
the monthly payments to the court.

Before the case could be tried, the parties entered
into a settlement agreement, dated September 12, 2005, that
permitted defendant to retain the home that constituted
security for payment of the debt.3 The agreement provided
that the funds that defendant had paid into court would be
released to plaintiff, and required that defendant set up a col-
lection escrow account with a title company. The first pay-
ment to that account was due January 10, 2006.4

When defendant sought to set up the collection
escrow account, the title company informed her that it could
not do so without additional information from both parties.
Defendant discussed the title company's request for infor-
mation with plaintiff, but, when defendant took her payment
to the title company in early January, the title company
would not accept it, asserting that it still had been unable to
establish the account.

On January 5, 2006, Anderson, defendant's attor-
ney, mailed and faxed a letter to Henderson, plaintiff's attor-
ney, stating the following:

3 The relevant portion of the settlement agreement provides:

"IN CONSIDERATION of the Releases set forth below in Section 2, the
parties agree as follows:

"a. The trust deed and note, copies of which are attached hereto and by
this reference incorporated herein are paid current and the trust deed and note
currently have a balance of $51,977.00.

"b. That all funds paid by [defendant] into court as payments on the trust
deed and note shall be released by the court to [plaintiff].

"c. The [defendant] will set up a collection escrow at [the title company]
and the expenses of the escrow set up and monthly collection for the trust deed
shall be paid by [defendant].

"d. The interest rate on the trust deed and note shall be 6.7 percent.

"e. Each party shall pay their own attorney's fees incurred in this
litigation."

4 Although the settlement agreement was dated September 12, 2005, defen-
dant did not sign the agreement until December 5, 2005. Until that date, defendant
continued to make monthly payments into court.

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"If the account is established before January 10, 2006[,
defendant] will make the payment directly to [the title com-
pany]. In the event that the account is not established
before January 10th, I have asked my client to mail me a
payment (in the old amount) so that I can hold those funds
as soon as the account is established, or pay them to your
trust account. Alternatively I can instruct my client to
tender the payment directly to you before January 10th. In
any event, my client intends tendering the January 2006
payment on a timely basis in any way you deem appropri-
ate. Please let me know how you would like to receive that
payment, assuming your client is not able to review the col-
lection account agreement, or deliver the note and trust
deed on time."

Neither Henderson nor plaintiff answered that letter. On
January 6, 2006, Anderson and Henderson discussed the
debt by telephone, but did not discuss where defendant
should make payment. That same day, Anderson sent a letter
to the title company and faxed a copy of that letter to
Henderson stating the following:

"[Defendant] has deposited the January, 2006 payment
in my trust account, in the amount of $579, which I will pay
either to [the title company] as soon as the collection
account is established, or to Mr. Henderson, if he would like
to accept the payment into his trust account in the
meantime.

"I have faxed this letter and the enclosures[5] to
Mr. Henderson for his comment. I would like to get his cli-
ent's approval as soon as possible, so that we may open the
account before the January payment is late."

Neither the title company nor Henderson responded to the
letter or fax. On January 9, 2006, Anderson mailed and faxed
a final letter to Henderson, enclosing a check drawn on
Anderson's trust account and made out to Henderson's trust
account, stating:

5 Enclosed with the letter was a printout from the circuit court showing all of
the payments that defendant had made to the court throughout the history of the
case and an amortization table for the original loan amount.

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"Please find enclosed a check, made payable to 'Blair
Henderson, Lawyer Trust Account', in the amount of
$579.00 as [defendant's] payment for January 2006. Please
let me know if there are any other issues with establishing
the [escrow] collection account."

On January 12, 2006, two days after the January 10
due date, Henderson received the check at his office. The
amount of the check was greater than the required monthly
payment and Anderson's trust account had sufficient funds
to cover the check. Nonetheless, Henderson did not cash the
check. On February 23, 2006, plaintiff commenced this judi-
cial foreclosure action, declaring, in the complaint, that
defendant was in default and that payment was due in full.

The trial court conducted a bench trial, issued a let-
ter opinion, dismissed the foreclosure action, and entered
judgment for defendant. In its letter opinion, the trial court
concluded that defendant had satisfied the requirements of
ORS 81.010.

The trial court found that defendant had made a
written offer to pay a sum greater than that due under the
settlement agreement, that Anderson had sufficient funds in
his trust account to make that payment, and that the estate
had not responded to defendant's offer. The court concluded
that defendant had made a valid written offer of payment
and that plaintiff was not entitled to foreclose.

Plaintiff appealed, and the Court of Appeals
reversed. Malan v. Tipton, 232 Or App 464, 222 P3d 754
(2009). First, the Court of Appeals concluded that the
January 5 letter did not comply with ORS 81.010. The court
reasoned that that letter

"does not inform plaintiff that the money for the payment is
available in counsel's trust account or that it can be with-
drawn on or before the date that it is due. Rather, the letter
states that counsel has asked his client to mail the payment
to him so that it can be held in his trust account."

Id. at 469. As a result, the court agreed with plaintiff that the
letter was "at best only a naked offer to pay, unaccompanied
by any readiness or ability to pay[.]" Id.

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Second, the Court of Appeals concluded that even if
the January 5 letter had "included the necessary statement
of the availability of the money," plaintiff did not respond by
stating that he would not accept a check from defendant. Id.
at 470. Had plaintiff done so, the court reasoned, defendant's
offer, in addition to plaintiff's rejection, would have relieved
defendant of her duty to pay. However, in the absence of any
response from plaintiff, defendant had a continuing duty to
make timely payment and did not do so. Id. Defendant
sought review of the decision of the Court of Appeals, which
we allowed.

In this court, defendant claims that the Court of
Appeals erred in two respects. First, defendant claims that
the court erred in concluding that the January 5 letter did not
constitute a valid written offer of payment. Defendant argues
that the court incorrectly considered that letter in isolation
and failed to note that the letter of January 6 clearly indi-
cates that the money necessary for payment is available in
counsel's trust account. Defendant also argues that although
a debtor must demonstrate, at the time of trial, that the nec-
essary funds were available at the time of the offer, ORS
81.010 does not require that the written offer contain an
express statement to that effect.

Second, defendant claims that the Court of Appeals
erred in concluding that plaintiff's failure to reply to defen-
dant's written offer was insufficient to trigger the statute's
application. Defendant argues that the import of plaintiff's
failure to reply to that offer was that the offer was "not
accepted" as that phrase is used in ORS 81.010. As a result,
ORS 81.010 requires that the written offer be treated as
"equivalent to the actual production" of the sum offered.

Both of defendant's claims of error require us to con-
strue ORS 81.010. At the first level of our analysis we con-
sider the statute's text and context, including preexisting
common law and prior relevant case law. State v. Gaines, 346
Or 160, 171, 206 P3d 1042 (2009); Ram Technical Services,
Inc. v. Koresko, 346 Or 215, 232, 208 P3d 950 (2009); State v.
Toevs, 327 Or 525, 532, 964 P2d 1007 (1998).

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ORS 81.010 has not been amended since it was
enacted in 1862. General Laws of Oregon, Civ Code, ch X,
title I, § 842, p 277 (Deady & Lane 1843-1872). It provides:

"An offer in writing to pay a particular sum of money or
to deliver a written instrument or specific personal prop-
erty is, if not accepted, equivalent to the actual production
and tender of the money, instrument or property."

Separated into its parts and simplified as relevant here, the
text of that statute provides that when (1) a debtor makes "an
offer in writing to pay a particular sum of money," and (2) the
creditor does not accept that offer, (3) the offer is "equivalent
to the actual production and tender" of the money.

At common law, when a contract required payment,
whether in money or goods, the debtor did not complete per-
formance until he or she delivered the money or goods and
the creditor accepted the delivery. Steel v. Island Milling Co.,
47 Or 293, 297, 83 P 783 (1906). If the debtor produced the
money, and the creditor did not accept it, the debtor had "ten-
dered," but had not completed, performance. The sole differ-
ence between "tender" and "payment" was that payment was
accepted; tender was not. Bembridge v. Miller, 235 Or 396,
402, 385 P2d 172 (1963).

When a contract required payment of money, a law-
ful "tender" of that money required the "'actual production,
in current coin of the realm, of a sum not less than the
amount due.'" Equitable Life Assur. Soc. v. Boothe, 160 Or
679, 683, 86 P2d 960 (1939) (quoting Douglas v. Patrick, 3 TR
683, Rev Rep 793, 6 Eng Rul Case 589, 26 RCL, p 622). An
offer to make a payment without the actual production of the
money was not a "tender"; it was "at best only a naked offer to
pay." Bembridge, 235 Or at 402.

If the debtor actually produced, or "tendered," the
coin of the realm and the creditor did not accept it, the debtor
was relieved from liability for the consequences of nonpay-
ment other than the debt, such as interest on the debt, but
not from liability for the debt itself. The debtor had done all
that the contract required and the debtor's "liability should
not be increased simply because the proffered sum [was] not
accepted by the creditor." Id. at 403.

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The common law of tender still applies in this state,
except as modified by statute. Id. In enacting ORS 81.010,
the legislature intended to modify one significant aspect of
the common law of tender-that is, that the money, the coin
of the realm, actually be produced for acceptance.

"[The statute] simply dispenses with the necessity of actu-
ally producing and offering the money in the outset. It is a
statute for convenience. It is a hardship to require a party
who wants to pay off a debt or discharge an obligation, and
the amount is large, to make an actual offer of it, and the
legislature has substituted another mode[.]"

Holladay v. Holladay, 13 Or 523, 536-37, 11 P 260 (1886).
That conclusion follows from the text of the statute, which
provides that "an offer in writing to pay a particular sum of
money," if not accepted, is "equivalent to the actual produc-
tion and tender" of that sum.

With that text and context in mind, we turn to defen-
dant's first claim-that the Court of Appeals erred in con-
cluding that defendant did not make a valid "offer in writing
to pay a particular sum." To constitute a valid offer of pay-
ment under ORS 81.010, a communication must contain a
present offer of timely payment and cannot include any con-
tradictory indication that the debtor is not ready and able to
make that offer good. Although the text of ORS 81.010
does not so provide, its context makes that requirement
apparent.

A tender, at common law, required the actual pro-
duction of the money that was owed. ORS 81.010 permits a
debtor to substitute a written offer of payment for the pro-
duction of money. In Bembridge, this court interpreted that
statute to require that the debtor making such an offer have
the present ability to produce the sum offered. The court
stated:

"The legislature, in enacting ORS 81.010, did not intend to
supersede the common law requirement that the person
making the written tender have the present ability to make
the tender good if it is accepted."

235 Or at 403. Although the court was discussing the debtor's
burden of proof at trial, not the content of the written offer, it

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follows, necessarily, that the terms of the offer must be con-
sistent with the facts that a debtor must prove. Thus, to serve
the same function as the production of money, and to satisfy
the requirements of ORS 81.010, a written offer of payment
must communicate a present offer of timely payment.

Measuring defendant's communications to plaintiff
by that standard, we agree with plaintiff and the Court of
Appeals that the letter from defendant's attorney, Anderson,
dated January 5, standing alone, was insufficient. Although
the letter indicated that defendant intended to make timely
payment, it did not state that defendant was presently offer-
ing to do so. The letter indicated that at least one of two steps
was required before payment could be made. Anderson had to
ask for and receive funds from defendant or Anderson had to
instruct defendant to pay Henderson directly.

The January 5 letter was not the only communica-
tion that defendant's attorney sent, however. On January 6,
Anderson informed plaintiff's attorney, Henderson, that
Anderson had received the sum of $579.00 from defendant
and that Anderson "will pay" that sum to Henderson. The
January 6 letter provided:

"[Defendant] has deposited the January, 2006 payment
in my trust account, in the amount of $579, which I will pay
either to [the title company] as soon as the collection
account is established, or to Mr. Henderson, if he would like
to accept the payment into his trust account in the
meantime."

(Emphasis added.) Thus, on January 6, Anderson, defen-
dant's attorney, communicated, in writing, a present offer to
timely pay a particular sum-$579.00-to plaintiff's attor-
ney, Henderson. The Court of Appeals erred in not consider-
ing the letter of January 6 in its analysis and in concluding
that defendant had not made a present offer of timely pay-
ment in compliance with ORS 81.010.

Although plaintiff does not take up the argument
that, under ORS 81.010, a written offer of payment must
include an express statement that the debtor has the funds
necessary for payment, the Court of Appeals opinion could be
read to impose that requirement, and we think it important

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to negate it. It is true that a debtor who seeks the benefit of
ORS 81.010 must prove, at trial, that he or she had the funds
necessary for payment at the time the offer of payment was
made. Bembridge, 235 Or at 402. But the court in Bembridge
did not decide that a debtor must include an express state-
ment to that effect in the written offer of payment. The court
instead decided that the debtor had failed to meet his "bur-
den of proof" at trial. Id. In reaching that decision, the court
reviewed the facts of other cases which also considered the
availability of funds to be an evidentiary matter. See, e.g.,
Short v. Rogue River Irrigation Co., 82 Or 662, 673, 162 P 845
(1917) (facts demonstrated that debtor had not arranged to
borrow money necessary for payment until after making offer
of payment); Eastern Oregon Land Co. v. Moody, 198 F 7, 19
(9th Cir 1912) (facts showed that debtor's bank account over-
drawn on date of offer). Neither precedent nor ORS 81.010
requires that a debtor's offer to pay a particular sum include
an express statement that the debtor has the funds necessary
to do so.

We now turn to defendant's second claim of error-
that the Court of Appeals erred in deciding that, even if
defendant made a valid written offer of payment, plaintiff's
silence was insufficient to meet the requirements of ORS
81.010. The Court of Appeals decided that plaintiff's "mere
inaction," was not sufficient to "discharge [defendant] from
her duty to pay." Malan, 232 Or App at 470.

In reaching that conclusion, the Court of Appeals
may have been under the misapprehension that a creditor's
response to an offer of payment could result in the discharge
of a debtor's payment obligation. It is important to reiterate
that, at common law, the actual production of money did not
relieve a debtor of the duty of payment; the production, if not
accepted, only relieved the debtor of liability for the conse-
quences of nonpayment, such as payment of interest or fore-
closure. Under ORS 81.010, a written offer of payment, if not
accepted, substitutes for and is equivalent to the actual pro-
duction of money, but it does not serve to improve the debtor's
position. In other words, a written offer to make payment
under ORS 81.010, that is not accepted, does not serve to
extinguish the underlying debt.

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Resolution of the dispute between the parties in this
case depends on the legal effect of a creditor's failure to
respond to a debtor's offer of payment. Defendant contends
that to accept a written offer of payment a creditor must do
more than remain silent. Defendant does not dispute that if
plaintiff had accepted defendant's offer of payment, defen-
dant would have been required to make that offer good by
delivering payment to plaintiff by January 10. However,
defendant contends, plaintiff did not accept defendant's writ-
ten offer to pay the sum of $579.00; plaintiff simply remained
silent and the offer was "not accepted." Therefore, defendant
argues, the offer was equivalent to the actual production of
$579.00 and relieved defendant of liability for the conse-
quences of nonpayment other than for the debt itself-in this
case, foreclosure.

Plaintiff argues that when a creditor does not affir-
matively reject a written offer of payment, he or she accepts
it, in turn requiring that the debtor make good on the offer by
making actual, timely payment. Plaintiff contends that, in
this case, he did not affirmatively reject defendant's offer to
pay and, therefore, defendant was required to make that
offer good by making actual, timely payment. When defen-
dant concededly did not do so, plaintiff contends, plaintiff was
entitled to foreclose.

Plaintiff bases his argument not on the wording of
the statute, but on the "unworkable scenarios" that, plaintiff
contends, would ensue if a creditor's failure to respond to a
written offer of payment were sufficient to satisfy the terms
of ORS 81.010. For instance, plaintiff argues, if a creditor
were to receive the following letter, he or she should not be
required to respond in order to avoid the application of ORS
81.010:

"I moved across town. Can I send the payment to a different
branch of your bank or should I use the same one? If it's
okay with you, I could mail it to your PO box."

We assume that plaintiff intends to pose the problem
of an offer that seeks to modify the underlying agreement,
rather than to pay in accordance with that agreement. Given
that assumption, the hypothetical that plaintiff poses does
not meet the requirements of ORS 81.010. To make a valid

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offer of payment under ORS 81.010, a debtor must make an
unconditional offer to pay in accordance with the terms of the
underlying agreement. If the creditor believes that the terms
of the offer do not meet that standard, the creditor may object
to its validity. See ORS 81.020 (providing for waiver of cer-
tain objections to an offer of payment); State Highway Com.
v. Efem Whse. Co., 207 Or 237, 246, 295 P2d 1101 (1956)
(quoting proposition that creditor may waive objection to
amount, place, or medium of tender if that tender not uncon-
ditional). Just as a debtor at common law could not obtain the
benefits of the actual production of money if he or she deliv-
ered the coin of the realm at a place to which the creditor did
not agree and to which the creditor objects, so, too, a debtor
cannot obtain the benefits of ORS 81.010 by offering to make
payment at a place to which the creditor did not agree and to
which the creditor objects.

The problem that plaintiff poses does not engage the
facts of this case, however. Plaintiff did not at the time,
and does not now, object that defendant's written offer was
invalid because it proposed payment in the wrong amount or
place. In fact, key to the result in this case, plaintiff insists
that Henderson's trust account was "a proper place to make
the payment."6 Plaintiff does contend, in this court, that
defendant's offer was invalid because it attempted to extend
the time for payment by offering to make payment to the title
company after the account was established. Plaintiff did not
voice that objection at the time of defendant's offer, but, even
if plaintiff had done so, that objection would not have been
well taken. Defendant's letter of January 6 clearly proposed
timely payment to Henderson's trust account.

Plaintiff's next objection to defendant's proposed
interpretation of ORS 81.010 is again a practical, not a tex-
tual, one. Plaintiff argues that a debtor with no uncertainty
about whether a creditor would accept performance could

6 There is a legal and factual basis for plaintiff's position. The settlement
agreement required that defendant set up a collection escrow account but did not
specifically require defendant to make payments to that account or provide that
that account was the exclusive place of payment. A debt also may be payable at the
place where the creditor resides, at the creditor's place of business, " 'or wherever
else [the creditor] may be found.'" See Lent v. Towery, 271 Or 41, 46, 530 P2d 77
(1975) (stating principle and quoting 70 CJS 217, Payment § 6).

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wait, deliberately, until just before payment was due and,
instead of making timely payment, make only a written offer
of payment. In that circumstance, plaintiff asserts, the cred-
itor would be forced to act affirmatively to accept the offer or
to accept late payment-a burden or consequence that the
legislature could not have intended.

In this case, as plaintiff sees it, defendant engaged in
precisely that ploy. According to plaintiff, defendant knew,
without question, that Henderson's trust account was "a
proper place to make the payment." Instead of simply making
timely payment there, defendant made a written offer to do
so, requiring plaintiff to respond and accept defendant's offer
or accept a payment that was two days late.

The answer to the plaintiff's concern is two-fold.
First, the legislature enacted ORS 81.010 as a statute of con-
venience for use in situations in which a debtor has both a
good faith uncertainty about whether a creditor will accept
the debtor's tendered performance and a present ability to
make timely payment. A debtor who acts in bad faith to delay
payment does not satisfy the requirements of the statute.

In this case, the trial court found that the collection
escrow account that the parties contemplated had not been
established by the time payment was due; that plaintiff had
previously instructed his attorney, Henderson, not to accept
payments from defendant; and that defendant was legiti-
mately uncertain about where to make payment. The trial
court also found that defendant had provided the funds nec-
essary for timely payment to defendant's attorney, Anderson,
and that Anderson had those funds in his trust account on
January 6. Thus, the trial court found facts that established
that defendant's written offer was a legitimate effort to deter-
mine whether plaintiff would accept payment to Henderson's
trust account and not a deliberate effort to evade the contrac-
tual requirement of timely payment.

Second, and most importantly, the text and context
of ORS 81.010 indicate that the legislature intended to
require a creditor who receives a valid offer of payment to
accept that offer or have the offer deemed equivalent to
actual payment. A creditor who receives a valid written offer
of payment is entitled to choose whether or not to accept it. As
a general rule, silence does not indicate acceptance of an

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offer. See Suitter v. Thompson et ux., 225 Or 614, 623, 358
P2d 267 (1960) (silence functions as acceptance only in lim-
ited circumstance where "a duty arises requiring a party to
speak"). The same is true of a written offer of payment under
ORS 81.010. If a creditor does not affirmatively indicate that
he or she accepts an offer of payment, and instead remains
silent, the offer is "not accepted." See Comstock Mfg. Co. v.
Schiffmann et al., 113 Or 677, 686-87, 234 P 293 (1925)
(defendants made no objection to offer of payment, remained
quiet until time for payment, then attempted, but were not
permitted, forfeiture).

At common law, when a debtor produced the coin of
the realm and the creditor did not accept it, the debtor had
tendered, but had not completed, performance. The differ-
ence between tender and performance was the affirmative
act of acceptance. Bembridge, 235 Or at 402. If "mere inac-
tion" could constitute acceptance, there would be no differ-
ence between tender and performance.

When a debtor makes a written offer of payment, the
debtor must have a good faith intent to ascertain whether the
creditor is willing to accept the performance that is offered. If
the creditor agrees to do so, the debtor is required to actually
and timely perform and produce the payment. If a creditor's
failure to respond were to constitute acceptance of an offer of
performance, the statute would cease to be one of "conven-
ience." The debtor would be required to perform despite con-
tinued uncertainty that the offered performance would be
accepted. For all of those reasons, we conclude that defendant
is correct that a creditor's silence in the face of valid offer of
payment does not indicate acceptance of that offer.

In summary, on January 6, defendant made, in good
faith, a timely written offer to pay the sum of $579.00 to
plaintiff. Plaintiff did not reply to or accept that offer. There-
fore, under the terms and for the purposes of ORS 81.010,
defendant's offer of payment was the equivalent of the actual
production of the sum of $579.00 on January 6. Plaintiff was
not entitled to foreclose the trust deed, and the trial court was
correct in entering judgment for defendant.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.