No. 14355
I N THE SUPREME COURT OF THE STATE OF MONTANA
1978
Plaintiff and Appellant,
-VS-
DOUGLAS F . MARKM;ARD,
Defendant and Respondent.
Appeal f r m : District Court of the Thirteenth Judicial District,
Honorable N a t Allen, Judge presiding.
Counsel of m r d :
For Appellant:
tan. R. Morse, Absarokee, Wntana
For Respondent:
Moses, Tolliver and Wright, Billings, Montana
Subxitted on briefs: October 2, 1978
Filed: /;?. ' -
' fdf8
LC-
L W L
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
Plaintiff appeals from an order of the Yellowstone County
District Court dismissing his complaint against defendant.
By a verbal agreement, plaintiff managed defendant's
feedlots near Laurel, Montana. A dispute had arisen between the
parties as to the terms of their agreement. Litigation had ensued
between them. This action is the third suit between these parties,
This matter arises out of a transaction between plaintiff
and a third party, Leo Ostwalt. Plaintiff sold Ostwalt some
butcher beef for $413.69. Ostwalt did not pay the price immediately
because of a lack of funds. Ostwalt had done some excavating work
for defendant in the sum of $476.27, which defendant owed him.
Ostwalt intended to pay plaintiff when defendant paid him.
On March 9, 1977, defendant wrote out a check to Ostwalt,
himself, plaintiff, and the First National Bank of Great Falls,
who held a lien on some of plaintiff's cattle, for $476.27. By
issuing the check as written, plaintiff alleges that it is not
negotiable. Thus, Ostwalt has not been paid and plaintiff has
not been paid.
On August 10, 1977, plaintiff instituted this action
against defendant. Defendant filed a motion to dismiss on the
grounds that the complaint failed to state a claim upon which re-
lief can be granted. In support of his motion, defendant argued
that the only theory plaintiff could be proceeding under would
be third party beneficiary contract and under this theory plain-
tiff could not recover. In his responsive brief, plaintiff main-
tained that his action was for tortious interference with a business
relationship due to the manner in which defendant made out his check.
The motion to dismiss was argued before the court. On May 30, 1978,
the court granted the motion to dismiss for failure to state a
claim. Plaintiff appeals.
The sole issue on appeal is: Did the District Court
err in granting defendant's motion to dismiss?
Defendant moved to dismiss plaintiff's complaint under
Rule 12(b)(6), M.R.Civ.P. The standard of review from the grant-
ing of a Rule 12(b) (6) motion is:
"A motion to dismiss for failure to state a claim
upon which relief can be granted, Rule 12 (b)(6),
M.R.Civ.P., is equivalent to a demurrer under former
civil procedure. (Citation omitted.) A motion to
dismiss admits to all facts well pleaded and in
considering the motion the material allegations of
the pleading attacked are taken as true. (Citation
omitted.) Where a complaint states facts sufficient
to constitute a cause of action upon any theory,
then the motion to dismiss must be overruled. (Cita-
tion omitted.) However, when a complaint alleges
facts and, assuming the facts are true, there still
is no claim for relief stated under any theory, a
motion to dismiss must be granted." Duffy v. Butte
Teachers Union (1975), 168 Mont. 246, 252, 253, 541
P.2d 1199.
Plaintiff's action here was for interference with contract
rights. Such causes of actions have long been recognized in Mon-
tana. Taylor v. Anaconda Federal Credit Union (1976), 170 Mont.
558
51, 598 P.2d 151; Quinlivan v. Brown Oil Co. et al. (1934), 96
Mont. 147, 29 P.2d 374; Burden v. Elling State Bank (1926), 76
Mont. 24, 245 P. 958; Simonsen v. Barth et al. (1922), 64 Mont.
95, 208 P. 938. A complaint seeking damages for inducing a breach
of contract is sufficient where it alleges that a contract was
entered into, that its performance was refused, that such refusal
was induced by the unlawful and malicious acts of the defendant,
and that damages have resulted to plaintiff. Burden v. Elling
State Bank, supra.
We hold that the District Court erred in granting defen-
dant's motion. The complaint states facts sufficient to consti-
tute a cause of action for tortious interference. In the complaint
it is alleged that the monies Ostwalt owes plaintiff arose out
of a sale of goods. This evidences a contract between these parties
for the sale. The complaint alleges that the goods have not been
paid for. Plaintiff alleges that Ostwalt's failure to pay him
is due to the manner in which defendant made out his check. It
could be inferred from the way defendant made out the check that
he knew the purpose for which Ostwalt sought the payment and de-
fendant did not want plaintiff to obtain any of the money given
Ostwalt.
Since the complaint states a claim, plaintiff should be
allowed to pursue his action. Whether plaintiff can recover is
not at issue now but must await further proceedings.
The order dismissing the complaint is vacated and the
cause is remanded to the District Court for further proceedings.
Chief Justice
.................................
Justices
. Justice John C. Sheehy, deeming himself disqualified,
did not participate in this case.