No. 79-49
I N THE SUPREME COURT O F THE STATE O F MONTANA
1980
DR. JAMES S I L V A , DONALD C. ROBINSON,
B I L L MARKOVICH, S R . , B I L L MARKOVICH,
J R . , BOYD TAYLOR e t a l . ,
P l a i n t i f f s and R e s p o n d e n t ? ,
FRANK F. McGUINNESS, DOROTHY F.
McGUINNESS, EARL BRITTON and MARY
E . BRITTON,
D e f e n d a n t s and AppeIZants.
Appeal from: D i s t r i c t C o u r t of t h e Second J u d i c i a l D i s t r i c t ,
I n and For t h e C o u n t y of S i l v e r Bow.
H o n o r a b l e J a m e s F r e e b o u r n , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t s :
D. L. Holland, B u t t e , Montana
For R e s p o n d e n t s :
M c C a f f e r y and P e t e r s o n , B u t t e , Montana
S u b m i t t e d on b r i e f s : A p r i l 2 4 , 1980
Decided: AU G I 3 1988'
Filed: AUG 1 3 19@7
Mr. J u s t i c e John C. Sheehy d e l i v e r e d t h e Opinion of
t h e Court.
Defendants a p p e a l from a summary judgment i n D i s t r i c t
C o u r t , Second J u d i c i a l D i s t r i c t , S i l v e r Bow County, which
g r a n t e d s p e c i f i c performance i n f a v o r o f t h e p l a i n t i f f s
i n s e v e r a l land purchase c o n t r a c t s .
The d e f e n d a n t s w e r e t h e owners of l a n d n e a r B u t t e ,
Montana, which had been s u r v e y e d and s u b d i v i d e d i n t o f o r t y -
e i g h t t r a c t s , f o r t y - s e v e n of which w e r e t o be s o l d t o
p l a i n t i f f s and o t h e r s . T r a c t 48, a s shown on t h e c e r t i f i c a t e s
of s u r v e y i n t h e c l e r k and r e c o r d e r ' s o f f i c e , was d e s i g n a t e d
a s a p r i v a t e roadway which f o l l o w e d a horseshoe-shaped
c o u r s e p a s t t h e v a r i o u s l o t s w i t h two c o n n e c t i o n s t o Four
M i l e Road. Each e x e c u t e d c o n t r a c t f o r deed c o n t a i n e d an
agreement by t h e d e f e n d a n t s t o i n s t a l l t h e r o a d by December
1, 1977, o v e r T r a c t 48 a s shown on t h e c e r t i f i c a t e s o f
s u r v e y . Each g r a n t deed i n c l u d e d t h e conveyance o f an
easement f o r t h e roadway " a s shown on T r a c t 48 on C e r t i f i c a t e
of Survey." The roadway was a l s o d e s c r i b e d i n a n e x h i b i t "A"
a t t a c h e d t o e a c h deed and was r e f e r r e d t o i n t h e r e c o r d e d
d e c l a r a t i o n of r e s t r i c t i v e c o v e n a n t s .
The roadway on T r a c t 4 8 w a s s t a k e d on t h e ground some-
t i m e d u r i n g September 1977 by s u r v e y o r s h i r e d by Bruce Daly,
a Missoula r e a l e s t a t e d e v e l o p e r a c t i n g a s a g e n t f o r t h e
defendants. Defendant Frank F. McGuinness, owned a home
l o c a t e d on t h e n o r t h end of t h e p r o p e r t y n e a r t h e e a s t e x i t
of t h e T r a c t 48 roadway. When t h e roadway was s t a k e d , McGuinness
l e a r n e d t h a t i t would p a s s w i t h i n e i g h t t o t w e l v e f e e t from
h i s house. McGuinness t h e r e a f t e r i n s t r u c t e d Daly t o amend
t h e p l a t t o r e l o c a t e t h e r o a d s o it would e x i t on c o n t i n e n t a l
D r i v e , r a t h e r t h a n n e a r h i s house on Four ~ i l ~ o a d . ~ a l y
e
had t h e east e x i t of t h e r o a d r e s u r v e y e d , and n o t i f i e d t h o s e
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p u r c h a s e r s w i t h whom he w a s d e a l i n g , of t h e change. The
c e r t i f i c a t e s of s u r v e y w e r e n o t amended however.
A t this time, a l l p u r c h a s e r s e x c e p t Boyd T a y l o r had
s i g n e d e a r n e s t money r e c e i p t s . Boyd T a y l o r had s i g n e d a
p u r c h a s e c o n t r a c t , which had n o t been s i g n e d by t h e s e l l e r s .
Some p u r c h a s e r s p r o t e s t e d t h e roadway change and a m e e t i n g
was a r r a n g e d between McGuinness and Don Robinson, an a t t o r n e y
a s w e l l a s a purchaser. A t t h e meeting McGuinness n o t i f i e d
Robinson t h a t t h e r o a d would n o t be completed on T r a c t 4 8
b u t would e x i t on C o n t i n e n t a l D r i v e . Robinson d i s p u t e d
McGuinness' r i g h t t o make t h e change and r e f u s e d an o f f e r e d
r e f u n d o f h i s e a r n e s t money p l u s $2,500 p r o f i t .
The p l a i n t i f f s , i n c l u d i n g Robinson, s i g n e d p u r c h a s e
c o n t r a c t s between December 16 and 1 9 , 1977, e x c e p t f o r
T a y l o r who had s i g n e d on November 1 8 , 1977. Daly had n o t
amended t h e w r i t t e n c o n t r a c t s t o r e f l e c t t h e a l t e r e d roadway
a s i n s t r u c t e d by McGuinness. Consequently, t h e w r i t t e n
c o n t r a c t s p r o v i d e d t h a t t h e r o a d would be l o c a t e d on T r a c t
48 a s o r i g i n a l l y planned. McGuinness s i g n e d t h e c o n t r a c t s
w i t h o u t r e a d i n g them, b e l i e v i n g t h e changes had been made.
The r o a d was completed by McGuinness as a l t e r e d , e x i t i n g on
C o n t i n e n t a l Drive.
P l a i n t i f f s t w i c e f o r m a l l y demanded t h a t t h e roadway be
c o n s t r u c t e d a s p r o v i d e d i n t h e agreements. his l i t i g a t i o n
was i n i t i a t e d a f t e r t h e r o a d was completed w i t h t h e e a s t
e x i t on C o n t i n e n t a l Drive. The D i s t r i c t C o u r t , a f t e r h e a r i n g
t e s t i m o n y of t h e p a r t i e s , g r a n t e d summary judgment of
s p e c i f i c performance t o t h e p l a i n t i f f s .
Defendants r a i s e t h r e e i s s u e s :
1. The D i s t r i c t C o u r t e r r e d i n r e f u s i n g o r a l t e s t i m o n y
r e l a t i n g t o t h e a l l e g e d mistake i n t h e w r i t t e n agreements.
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2. The District Court erred in granting summary
j udgment .
3. The District Court erred in granting specific
performance.
Defendants contend that the written agreements contain
mistaken terms, either by mutual or unilateral mistake, as
to the location of the roadway. Defendants urge that
because of the mistake, par01 evidence should have been
admitted under section 72-11-304(1)(a), MCA (also section
28-2-905(1) (a), MCA) to show the intended terms of the
agreements.
Defendants cannot prevail on the contention that the
oral testimony was admissible in this case for at least
three reasons: (1) the provisions of section 28-2-904,
MCA, (2) the evidence in any event was insufficient to
establish either mutual or unilateral mistake and, (3) the
settled case law of this state in this fact situation is
against the defendants.
Section 28-2-904, MCA, provides that the execution of a
contract in writing supersedes all the oral negotiations or
stipulations concerning its matter which preceded or accompanied
the execution of the instrument.
The oral testimony, heard by the District Court under a
continuing objection, showed McGuinness' contention that
some if not all of the prospective buyers had actual know-
ledge of McGuinness' changed intentions as to the roadway.
He testified that a "gentlemen's agreement" reached between
Robinson and himself at the December 15 meeting, was that
the roadway would temporarily utilize the Continental Drive
exit, and would later be completed as originally planned.
There was a lack of effective communication between ~cGuinness
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and his agent, Daly, with respect to amending the certi-
ficates of survey to show the new road provisions. The
oral testimony also showed that at the time of the execution
of the contracts, McGuinness failed or neglected to read the
written agreement before signing.
The oral testimony fails to establish either a mutual
mistake of the parties, or a mistake on the part of McGuinness
which the other parties knew or suspected. It is significant
that McGuinness did not ask in his pleadings for reformation
of the contracts. The written instruments themselves are
clear and unambiguous and this Court will not read ambiguity
into a contract where the language itself is unambiguous.
company
Nelson v. Combined Insurance/of America (1970), 155 Mont.
105, 113, 467 P.2d 707, 712. The burden of failing to read
the contracts before execution falls upon McGuinness, whose
agents and attorneys prepared the contracts.
"A party to a contract cannot avoid the contract
on the ground that he made a mistake where there
has been no misrepresentation, no ambiguity in the
terms of the contract and the other party has no
notice of such mistake and acts in good faith.
Furthermore, even if one of the contracting
parties believes the words of the contract mean
something different, the parties to the contract
are bound by the plain meaning of the words used
in the agreement as properly interpreted, unless
the other party knows of such mistake. (Citation
omitted. )
"One who executes a written contract is presumed
to know the contents of the contract and to assent
to those specified terms, in the absence of fraud,
misrepresentation, or other wrongful act by the
other contracting party. Absent incapacity to
contract, ignorance of the contents of a written
contract is not a ground for relief from liability.
(Citation omitted.)
"If a contracting party acts negligently and in
such a manner as to lead others to suppose that
the writing is assented to by him, the contracting
party will be bound in law and in equity, even
though the contracting party supposes the writing
is an instrument of an entirely different character.
(Citation omitted.)
"The integrity of written contracts would be
destroyed if contracting parties, having admitted
signing the instrument, were allowed to rescind
the contract on the basis they neither read nor
understood the expressed agreement. (Citation
omitted.)" Quinn v. Briggs (1977), 172 Mont. 468,
475-476, 565 P.2d 297, 301.
If McGuinness failed to discover the clearly
provided roadway provisions of the sales agreements it was
not due to McGuinness' unilateral mistake known to or suspected
by the buyers. McGuinness ". . . was under a legal duty to
execute the sale agreement with the prudence and care of a
reasonable and cautious businessman. Having failed to
exercise such care, [McGuinnesd cannot seek relief from a
court of equity on the ground of unilateral mistake of
fact." Quinn, supra, 172 Mont. at 478, 565 P.2d at 302.
However, McGuinness contends that under section 72-11-
304(l) (a) and (b), MCA, the oral testimony was admissible
because in the language of the statute the mistake or imper-
fection of the writing was put in issue by the pleadings,
and because the validity of the agreement is the fact in
dispute. Here McGuinness did contend in his pleadings that
the terms of the agreements were the result of a mistake and
the agreements were not valid because of the mistake. While
that appears to bring his case within the broad language of
section 72-11-304, MCA, still that statute must be read and
harmonized with other statutes bearing on the same subject.
State ex rel. Jensen Livestock Co. v. Hyslop (1940), 111
Mont. 122, 134, 107 P.2d 1088, 1093. Section 28-2-904, MCA,
concerning oral negotiations preceding the execution of the
instrument, is to be given the greater weight when the
profferred evidence as here, is insufficient to establish
mutual or unilateral mistake. Furthermore, the alleged oral
agreement to change the exit of the road is barred by the
Statute of Frauds, section 28-2-903(d), MCA, since it
involves an agreement to transfer an interest in real
property. Aye v. Fix (1978), Mont . , 580 P.2d 97,
99, 35 St.Rep. 667, 671. The written agreements themselves
must be presumed to represent all of the transactions
regarding the roadway terms. Hosch v. Howe (1932), 92 Mont.
405, 410-411, 16 P.2d 699, 700. These rules are not changed
by oral testimony relating to the safety conditions of the
Continental Drive exit, the alleged attorney-client relation-
and
ship between Robinson/ other plaintiffs and the individual
plaintiffs' knowledge of the proposed roadway changes.
With respect to the plaintiffs' second issue, whether
summary judgment was permissible here, since no material
issue of fact remained after the court denied the admission
of the oral testimony, summary judgment was proper. Rule
56 (c), M.R.Civ.P.
The District Court granted specific performance to the
plaintiffs in its summary judgment. Defendants argue that
money damages were the more appropriate remedy. However,
specific performance of an obligation may be compelled where
money damages for nonperformance would not provide adequate
relief. Section 27-1-411(2), MCA. Money damages are
presumed an inadequate remedy for breach of an agreement to
transfer real property. Section 27-1-419, MCA. The right
to a roadway granted in the agreements is an interest in
real property. Section 70-17-101(4), MCA. Specific per-
formance therefore was an appropriate remedy under the facts
of this case and the District Court did not err in granting
such relief.
Judgment affirmed.
Justice
We Concur:
Chief Justice