No. 13607
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
EDWIN A. SEIFERT, JR.,
Plaintiff and Appellant,
EDWIN A. SEIFERT and CHRISTINE
SEIFERT and EDWIN A. SEIFERT RANCH,
a Montana Corporation,
Defendants and Respondents.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
William Gilbert argued, Bozeman, Montana
For Respondents:
Bennett and Bennett, Bozeman, Montana
Lyman Bennett, Jr argued, Bozeman, Montana
Submitted: May 24, 1977
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
This is an appeal from a judgment entered in the district
court, Gallatin County, denying plaintiff's motion for summary
judgment, but granting defendants' motion for summary judgment.
This case comes to this Court from the district court
where the parties stipulated no disputed facts existed and the
district court might consider the parties' motions for summary
judgment upon the filed briefs.
The district court granted defendants' motion for sum-
mary judgment. No reasons for its conclusion were given by
the district court.
On March 1, 1965, the parties here entered into a written
lease and option agreement. From this lease option agreement,
plaintiff, Edwin A. Seifert, Jr., was granted the option to pur-
chase the real property owned by defendants Edwin A. Seifert and
Christine R. Seifert for the sum of $150,000. The lease period
was 5 years beginning March 1, 1965. The terms of the lease in-
cluded 2000 acres of the Edwin A. Seifert Ranch, together with
all equipment, farm machinery and buildings, except defendants'
residence. Plaintiff was given the privilege to renew the lease
for an additional 5 years, upon the same terms, at any time
during the original term.
Under the lease portion of the agreement, defendants
were to receive 1/2 of all crops harvested and pay 1/2 of all
expenses for fuel, seed, repairs and other incidental farm ex-
penses.
For the consideration of $1.00, plaintiff was given the
exclusive option to purchase the Edwin A. Seifert Ranch at any
time during the term of the lease, or any renewal thereof, for
the sum of $150,000.
On February 28, 1970, plaintiff sent a written notice
to renew the lease and option for an additional 5 years. $1.00
consideration was submitted with the notice. Defendants requested
their attorney return the $1.00 consideration and refused to
sign acknowledging receipt of the notice.
Plaintiff and defendants continued operating the ranch
as before, but defendant, Edwin, Sr., stated in his deposition:
"Q. Up to that time, Ed, had you and Eddy
been working back and forth farming, you helping
him with his farming and he helping you with yours?
A. Right.
"Q. Has there ever been any real change in that?
A. Well, not until starting of 1971, where it
got to be more of a load for me and he has done
less.
"Q. Has Ed Jr. ever made any arrangements to
give you any compensation for your labor? A.
Never mentioned it.
"Q. Was it ever discussed? A. No.
"Q. Was the fact of repair ever discussed? A.
No.
"Q. Did it seem to you like you had a tenant?
Or, it was the same old ranch? A. Well, I began
to think I was the boss and the hired man both."
On January 17, 1975, plaintiff sent a letter to de-
fendants with his personal check of $150,000 in payment of the
purchase price under the option agreement. In that letter,
plaintiff gave notice he was exercising his option to purchase
the land as outlined in the lease option agreement dated March
1, 1965. On January 21, 1975, defendants through their attorney,
refused to accept the personal check of plaintiff. A second
tender of a bank money order was submitted, but this also was
rejected by defendants.
After various attempts to settle their dispute failed,
plaintiff filed suit for specific performance. Following joint
motions for summary judgment the district court ruled in favor
of defendants. Plaintiff appeals from that order.
The issues on appeal are:
1. Did the district court err by not granting plaintiff's
motion for summary judgment?
2. Did the district court err by granting defendants'
motion for summary judgment?
Plaintiff brought this suit to compel specific perform-
ance of the contract dated March 1, 1965. Specific performance
is an equitable remedy which compels the performance of a con-
tract in the precise terms agreed on. The foundation of a suit
for specific performance of a contract is that, by compelling
the parties to do the very things they agreed to do, more com-
plete and perfect justice is attained than by giving damages
for breach of a contract. Specific performance is purely an
equitable remedy; presenting a purely equitable controversy and
is governed by equitable principles. 81 C.J.S. Specific Per-
formance S1, p. 408. See also: State ex rel. Victor's Inc. v.
District Court, Mont . , 545 P.2d 1098, 33 St.Rep. 23, 27.
In 81 C.J.S. Specific Performance S3, p. 411, it is
stated:
" * * * specific performance will be ordered
only on equitable grounds in view of all the
conditions surrounding the particular case. * * *
"A bill in equity for specific performance is an
appeal to the conscience of the court, and gener-
ally, in such a proceeding, the inquiry must be
whether, in equity and good conscience, the
court should specifically enforce the contract.
Accordingly, specific performance will be
granted when it is apparent from a view of all
the circumstances of the particular case that
it will serve the ends of justice, and it will
be withheld when, from a like view, it appears
that it will produce hardships or injustice to
either party * * *." (Emphasis added.)
Section 17-809, R.C.M. 1947, states that specific per-
formance cannot be enforced in favor of a party to a contract
if that party "has not fully and fairly performed all conditions
precedent on his part to the obligation * * *." In Si*well v.
New Mine Sapphire Syndicate, 130 Mont. 189, 197, 297 P.2d 299,
this Court stated:
"Section 17-803, supra, was construed in
McDonald v. Stewart, 127 Mont. 188, 199, 259
P.2d 799, 805, where the court in affirming
a judgment for defendant said: 'Before
McDonald is entitled to specific performance
by Stewart, he must show that he has performed
his part of the agreement. This he has failed
to do. R.C.M. 1947, section 17-803, provides:
"Neither party to any obligation can be compelled
specifically to perform it, unless the other
party thereto has performed * * *".
"'Unless performance is waived or excused, a
plaintiff seeking to enforce a contract must
perform his obligations thereunder, and plain-
tiff's wilful violation of an essential covenant
of a contract is a defense to specific enforcement
of the contract. 81 C.J.S., Specific Performance,
section 94, page 614.'"
Therefore, this Court is required to examine the facts and cir-
cumstances of this case to determine whether plaintiff fully
and fairly performed his obligations under the contract.
The facts show plaintiff farmed approximately 500 acres
as his own, and defendants farmed approximately 2000 acres during
the time the contract was in existence. Defendants and plaintiff
exchanged work and machinery between the two properties, but
no showing was made that plaintiff took possession or control
of the ranch in any manner different from the operation before
the contract.
According to the contract, defendants were to receive
1/2 of the crop as rent and pay 1/2 of all expenses for fuel,
seed, repairs and other incidental farm expenses. In reality,
Seifert Sr.'s statements show this was not the case.
"Q. You took a little more because of the extra
work. A. Of course a11 the way through and all
the time he has had that farm or supposed to have
been renting and when his lease was up -- we t
when I say we, the wife and I, have paid for all
fuel, paid for all the oil, paid for all the grease,
we have paid for all repairs, and all the farm
machinery, plus all repairs on the combines, plus
I am safe in saying 95 percent of the hired help
we have paid for. When I say 'we', I say the wife
and I. So when you figure that all out, that runs
into quite a little sum of money.
"Q. That is the reason you have taken more of
the crop, then? A. Right.
"Q. Did the two of you provide various parts
of the work that went in to operate your ground in
1972? A. He didn't help much after I got that
big tractor at my place. I done my own work on
my own place, and then he was there to get the
tractor to go down and do his.
"Q. So, therefore, since you were doing most of
the work on your place, you took most of the crop?
A. Right.
"Q. He only took a smaller portion of the crop,
and he didn't get any 50 percent; is that correct?
A. Right."
Seifert Sr.'s statements also show plaintiff did not take
over the ranch repair work:
"A. Well, there was times when we were caught
up, there was a lot of fence fixing, things he
could do. But he didn't. He hasn't set a fence
post even on his own place since he bought it.
What fence fixing has been done, I have had done
or done myself and paid for it.
"Q. I see. And then you have taken a little more
of the crop because of that? A. Yeah."
Under the circumstances, plaintiff failed to show he
fully and fairly performed the lease according to its terms.
For plaintiff to secure the desired relief (specific performance)
he is required to come into court with clean hands, and with a
cause whose ethical qualities were such as to commend it to the
conscience of the court. Schlegel v. Moorhead, Mont . I
w P . 2 d 1009, 33 St.Rep. 836, 840; section 49-109, R.C.M. 1947.
This action seeks an equitable remedy. In view of the
fact plaintiff did not perform his obligations under the con-
tract, this Court cannot in good conscience grant specific
performance to plaintiff. We agree with the district court in
not granting plaintiff's motion for summary judgment.
Plaintiff's second issue challenges the granting of
of defendants' motion for summary judgment.
The facts show plaintiff continued the work-trade
arrangement from 1970 through 1974 with the knowledge of de-
fendants' contention as to the lease. Defendant, Seifert Sr.,
stated:
"Q. Ed, after you sent back the document that was
sent to you in 1970, I mean after you had me do it
for you by certified mail--and that is a document that
is here as a copy--what did Eddy say; anything?
And you are looking at Exhibit 2. Did he protest to
you when you sent that back? A. Nope.
"Q. Did he continue to work with you the same as
before? A. Right.
"Q. Right up to about 1974? A. Yeah. But as I say,
he started slacking off the last few years and he
has been doing less.
"Q. Well, I understand. But, I mean, did he start
asserting any rights until last fall? A. No."
Plaintiff admitted this in his deposition of December
11, 1975:
"Q. You talked to your folks. And did they
repeatedly advise you that they thought you didn't
have a lease? A. Yes.
"Q. And from the spring of 1970, did they so advise
you everytime it came up? A. Sometime after that we
mentioned it.
"Q. Everytime it came up for discussion, they
didn't change their position, did they? A. Well,
I suppose they didn't.
"Q. And it was known to you that that was their
position throughout the period; wasn't it? I mean,
from 1970 on? A. Yes; yes."
Thus, from 1970 to 1974, plaintiff did nothing to enforce his
claim, knowing defendants contended that he had no lease.
Plaintiff brought this suit in equity. Since plaintiff
raised this question in equity, the equitable defense of laches
and unreasonable delay is applicable.
In Adair v Capital Invest Co., 165 Mont. 26, 29, 525
.
P.2d 548, this Court reviewed the equitable doctrine of laches,
quoting from Riley v. Blacker, 51 Mont. 364, 152 P. 758, 759:
"'Laches, considered as a bar independent of
the statute of limitations, is a concept of equity;
it means negligence in the assertion of a right;
it is the practical application of the maxim,
"Equity aids only the vigilant"; and it exists
when there has been unexplained delay of such
duration or character as to render the enforce-
ment of the asserted right inequitable. There-
fore has it often been held by this court that:
While a mere delay short of the period of the
statute of limitations does not of itself raise
the presumption of laches [citing cases], yet
"good faith and reasonable diligence only can call
into activity the powers of a court of equity,
and, independently of the period fixed by the
statute of limitations, stale demands will not
be entertained or relief granted to one who has
slept upon his rights. Considerations of public
policy and the difficulty of doing justice be-
tween the parties are sufficient to warrant a
court of equity in refusing to institute an
investigation where the lapse of time in the
assertion of the claim is such as to show in-
excusable neglect on the part of the plaintiff,
no matter how apparently just his claim may be;
and this is particularly so where the relations
of the parties have been materially altered in
the meantime." * * * ' " 165 Mont. 29, 30.
In the instant case, plaintiff waived his claim by doing
nothing to enforce his rights once defendants' contention of no
lease came to his knowledge. Further, plaintiff allowed defen-
dants to change their circumstances. Defendant, Seifert Sr.,
bought larger and more expensive equipment to farm all of the
land, he testified:
"A. Right. It was getting to be more work. And
in 1971, I bought that big four-wheel tractor,
the first one, because with his tractor and the
one I had and him buying the rest of that ranch was
too much.
"Q. That was in 1971 that you bought the big out-
fit? A. Yes, sir.
"Q. Was the reason you bought that, was that so
you could get all the land taken care of? A. Right."
Also, in 1974 the ranch belonging to Seifert, Sr. and
his wife, was incorporated. This incorporation took place with
the knowledge of plaintiff and was aided by suggestions of
plaintiff.
As a result of plaintiff's negligence in asserting his
rights, and the change in defendants' circumstances, the ends
of justice are served by granting defendants' motion for
summary judgment.
The order of the district court is affirmed.
1 /
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Chief Justice
R