No, 81-64
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1981
ROBERT BARTMESS,
P l a i n t i f f and A p p e l l a n t ,
-vs-
RITA BOUPASSA,
D e f e n d a n t and R e s p o n d e n t ,
Appeal from: D i s t r i c t Court o f t h e F i f t h J u d i c i a l District,
I n and f o r t h e County o f B e a v e r h e a d , The Honorable
Frank lair,' J u d g e p r e s i d i n g .
Counsel o f Record :
For A p p e l l a n t ;
J o h n C, Doubek, H e l e n a , Montana
F o r Respondent r
B u r n s , Dwyer & C h a f f i n , D i l l o n , Montana
S u b m i t t e d on B r i e f s : J u l y 9 , 1981
Decided: J a n u a r y 1 4 , 1982
~biq. 4'1982
j
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
On August 22, 1980, the appellant filed a petition
in Beaverhead County District Court to fix attorney's fees
in regard to a sale of the respondent's real property under
the terms of a mortgage and promissory note. The respondent's
answer alleged that the mortgage and note were void because
they had been obtained by fraud and because no consideration
had been given. Prior to the hearing, the District Court
granted summary judgment in favor of the respondent, declaring
the mortgage and note void for lack of consideration.
We affirm the District Court's judgment. Because we
hold that there was an unenforceable contract due to a lack
of consideration, we do not reach the appellant's other
arguments as they depend upon the existence of an enforceable
contract.
The respondent, Rita Bourassa, is a 64-year old widow
with a yearly income of approximately $3,300 from her parttime
job at the Parisian Cleaners in Dillon, Montana. Her 41-
year old son, James Bourassa, was arrested in May 1979 in
Lewis and Clark County for the felony theft of $36,000 from
the appellant, Robert Bartmess, in a scheme for the resale
of some allegedly stolen silver dollars. The respondent
contends that she received a telephone call from her son on
May 16, 1979, in which he told her that he was in jail and
needed a $35,000 bail bond. She agreed to mortgage her home
for the bail bond, and later that same day met with her
son's attorney, Lloyd Skedd, who chartered a plane from
Helena to Dillon in order to meet with her. She then executed
a 90-day promissory note for $36,000 in favor of the appellant
and secured the note with a mortgage on her home, although
she contends that she believed these documents were solely
for the purpose of providing her son with a bail bond.
According to her testimony, Skedd did not explain the
mortgage or note to her, she was unaware of the appellant's
involvement and had neither met the appellant nor discussed
the mortgage with him. She stated that she was upset after
discovering that her son had been arrested, and that as a
result, her mind wasn't working as well as it should have
been.
The appellant's deposition testimony reveals that he
had never met the respondent or discussed the mortgage with
her, and in fact, that the mortgage and note came as a
surprise to him. The mortgage and note were apparently
drawn up by Charles Gravely, the Lewis and Clark County
Attorney, and Skedd. It appears from the appellant's testimony
that he did not understand what these lawyers were doing
after he filed his complaint against James Bourassa. The
appellant testified that Gravely gave him the mortgage and
note and explained how to have the mortgage recorded, and
that after Gravely requested a check for the recording fee,
the appellant wrote him one. He also stated that he didn't
give anything to the respondent in exchange for her mortgage
and note, and didn't know that he was supposed to have
furnished anything in exchange.
When the 90-day note became delinquent, the appellant
notified the respondent of the default and then filed a
petition for attorney's fees with respect to the sale of the
mortgaged real property. The respondent contacted her own
attorney who subsequently discovered that James Bourassa had
been released from jail on his own recognizance and that the
purpose of the mortgage and note was not that of a bail
bond. She then rescinded them and moved the District Court
for summary judgment, contending that they were void -
ab
initio because they had been obtained by fraud and without
consideration. The District Court agreed with these arguments
and granted summary judgment in her favor. The appellant
seeks to have the summary judgment reversed.
The rule that consideration is essential to the enforce-
ment of a simple contract is so thoroughly settled that it
is one of the elementary principles of contract law. Section
28-2-102 (4), MCA; Wilson v. Blair (1922), 65 Mont. 155, 211
P. 289. Although a written instrument is presumptive evidence
of consideration, that presumption is rebuttable. Section
28-2-804, K A ; Gerard v. Sanner (1940), 110 Mont. 71, 103
P.2d 314. That presumption has been sufficiently rebutted
here by the appellant's own testimony that he did not furnish
any consideration for the mortgage and note. The appellant
suffered no greater prejudice than that which he was already
lawfully bound to suffer. There is no enforceable contract
between the parties, and therefore, no material issue of
fact exists.
We also award the respondent a reasonable attorney's
fee. The mortgage sought to be foreclosed did expressly
provide that the mortgagee was entitled to a reasonable
attorney's fee in the event he brought an action to foreclose
the mortgage. Section 28-3-704, MCA, provides a reciprocal
right to attorney's fees to - parties to the contract in
all
any action on the contract. See, e.g., Compton v. Alcorn
(1976), 171 Mont. 230, 235-36, 557 P.2d 292, 296.
We therefore affirm the District Court's judgment and
order the District Court to award the respondent a reasonable
attorney's fee for the trial of this cause and for handling
the appeal.
W e Concur:
Chief J u s t i c e
A