NO. 87-487
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
FRED WALTERS and JUDY WALTERS,
P l a i n t i f f s and A p p e l l a n t s ,
-vs-
WILLIAM R. GETTER and KATHERINE M.
GETTER,
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G l a c i e r ,
T h e H o n o r a b l e R. D. M c P h i l l i p s , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
L a w r e n c e A. A n d e r s o n , G r e a t F a l l s , M o n t a n a
R o b e r t J . Y u n c k , C u t B a n k , Montana
For R e s p o n d e n t :
D o r i s M. P o p p l e r , B i l l i n g s , Montana
J o h n R. D a v i d s o n , B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : April 7, 1988
Decided: June 2 , 1988
F i l e d ' ~2~ ~1988
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This action arose from a real estate transaction.
Plaintiffs Walters sought rescission of the contract or in
the alternative damages for breach by defendants Getter, the
sellers. The Getters counterclaimed for payment of the
balance due under the contract. Both parties moved for
summary judgment, which motions were denied. The trial court
allowed the matter to go before the jury on the issue of
whether the Getters performed under the contract within a
reasonable time. The jury returned a verdict for defendants.
The Walters then moved for judgment notwithstanding the
verdict or for a new trial. The court denied both motions,
and the Walters appeal. We affirm. Two questions are pre-
sented for review:
1. Did the District Court err when it denied plain-
tiffs' motion for summary judgment?
2. Were plaintiffs entitled to a new trial?
William Getter owned a number of lots near Cut Bank,
Montana. These lots lay to the east of town along Highway 2.
Further to the east, Phillips Petroleum Company (Phillips)
had built a shop. Phillips wanted water and sewer lines
constructed along the highway and connected to the city's
existing lines. Phillips contacted Mr. Getter and two other
individuals who owned property between the city and the
Phillips property to see if they would share the cost of
extending the services to that area. Mr. Getter and one of
the other property owners eventually agreed to cover a pro-
portionate share of the cost. Mr. Getter's share was antici-
pated to be approximately 35% of the total estimated cost of
$46,816. The completion date was expected to he December 15,
1981.
Fred Walters agreed to buy three of Mr. Getter's lots
along Highway 2 so he could relocate his business there. Mr.
Walters owned a service company which cements oil wells for
oil producers in the area. His contract work for Phillips
constituted about 40% of his income at the time. He was
aware of the cost-share agreement between Mr. Getter and
Phillips, and he wanted to avoid any possibility of problems
arising between himself and Phillips. To protect himself
from such contingency, he had the following clause included
in the agreement to buy and sell which both he and Mr. Getter
signed:
The purchase price includes a water, sewer and
gas line to the three lots with any fees or charges
due to Phillips Petroleum Company paid in full by
the Seller. It is understood that the lines are in
the process of being run through the lots at this
time and the Sellers agree to see that the con-
struction of the lines does get completed and is
paid for so that the Purchasers have those lines
fully paid for and intact at the time of closing.
Future maintenance and utility charges are the
responsibility of the Purchasers.
Mr. Walters also agreed to pay $5,000 down and $85,000 upon
closing. On the day scheduled for closing, January 15, 1982,
the lines were not completed, and Mr. Getter had not paid
Phillips. Mr. Getter demanded payment of the $85,000 from
Mr. Walters who refused because Mr. Getter had not paid
Phillips. The parties agreed that Mr. Getter would receive
$65,000 and that Mr. Walters would retain $20,000 until the
lines were completed. Both parties believed the construction
would be completed within a short time.
In fact, the project was not completed until the spring
of 1982, and Mr. Getter was not assessed for his share of the
cost until October 1982. Phillips assessed him for $61,528,
well over the earlier estimate. Mr. Getter contested the
assessment and, when negotiations broke down, eventually
filed a suit against Phillips. Mr. Walters contacted Mr.
Getter several times during 1982 and 1983 regarding Mr.
Getter's refusal to pay the Phillips assessment.
Later in 1983 or early 1984, Mr. Walters again ques-
tioned Mr. Getter concerning payment of the assessment and
was advised to go ahead and hook up to the water and sewer
lines. However, Phillips would not allow him to hook up
until the assessment was paid. About this time, Mr. Getter
tendered the deed to Mr. Walters, but because the lines still
were not paid for, Mr. Walters would not accept the deed.
On February 7, 1984, the Walters' attorney sent a letter
to the Getters informing them that unless they were ready,
willing, and able to perform all conditions of the contract
and close the sale within 7 days of receipt of the letter,
the Walters would consider them in default. Several letters
were exchanged, but the Getters did not perform within the 7
days. The Walters declared the sellers to be in default on
March 1. They rescinded the contract and demanded repayment
of $70,000 plus interest. The Getters denied default and
refused to return the money. They were in the midst of
settlement negotiations with Phillips, and on March 22, 1984,
Mr. Getter signed a settlement agreement with Phillips and
paid for the lines. Thus, the Getters paid for the lines 42
days after receipt of the Walters' February 7 demand.
I
Did the District Court err when it denied plaintiffs'
motion for summary judgment?
The lower court, in its order denying summary judgment
to both parties, made the following conclusion:
Plaintiffs have never waived the contractual
requirement that the utility lines be installed and
paid for before they were obligated to pay full
consideration and accept a deed to the premise.
The parties, by their conduct, mutually agreed to
extend the date of performance of a condition
precedent by Getters (install the utilities and pay
for the same). No certain date of performance was
set, but the evidence clearly shows that at the
time of the extension, the expectation of closing
the deal was in the very near future.
Roughly two (2) years expired before Plain-
tiffs' attorney wrote a letter to Defendants de-
manding performance of the contract within seven
(7) days after Defendants received the letter
(February 16, 1984). Section 28-3-601, M.C.A.
provides, "If no time is specified for the perfor-
mance of an act required to be performed, a reason-
able time is allowed. . ." Section 28-3-206,
M.C.A. provides that uncertainty in a contract
should be interpreted most strongly against the
party who caused the uncertainty to exist. Time of
performance was uncertain due to litigation between
Defendants and Phillips. Where no time of perfor-
mance of a contract is fixed, the law implies a
reasonable time for performance or performance on
demand. Johnson v. Elliot, 123 Mont. 59?.
The court went on to conclude that what constituted a reason-
able time to perform was a question of fact.
The Walters' argument is that they were entitled to set
the 7 day deadline for the Getters' performance, and, when
the Getters failed to perform within that time, they had the
right to rescind the contract. In other words, they contend
that 7 days notice, as a matter of law, was reasonable in
this case.
The parties originally intended to close the sale on
January 15, 1982. When that day passed and the contract was
not fully performed, the parties, as concluded by the Dis-
trict Court, agreed to extend the date of performance. The
parties did not specify a date upon which the Getters must
perform, and the Walters did not demand performance at any
time prior to February 7, 1984.
As the District Court noted, "If no time is specified
for the performance of an act required to be performed, a
reasonable time is allowed." Section 28-3-601, MCA.
Plaintiffs argue that 7 days was reasonable as a matter of
law. In Henderson v. Daniels (1922), 62 Mont. 363, 373-74,
205 P. 964, 967, this Court discussed what constituted rea-
sonable time:
"Reasonable time" is defined to be so much time as
is necessary, under the circumstances, to do conve-
niently what the contract or duty requires should
be done in a particular case.
The Court then added,
When the facts are clearly established or are
admitted or undisputed, the question of what is a
reasonable time is one of law.
Henderson, 205 P. at 967. In Dunjo Land Co. v. Hested Stores
Co. of Wyoming (1973), 163 Mont. 87, 90, 515 P.2d 961,
962-63, the Court clarified the law in this area:
The question of whether a given length of time
is reasonable can be either a question of fact or a
question of law. When the surrounding circumstanc-
es are clearly established or undisputed the ques-
tion is solely one of law for resolution by the
court. Henderson, supra. On the other hand, when
the surrounding circumstances are in dispute the
question is at least partially one of fact and
requires resolution by the trier of fact.
The District Court here concluded that "[wlhat is a
reasonable time to perform is a question of fact." If this
were a material fact and genuine issue between the parties,
then summary judgment would not have been appropriate under
Rule 56(c), M.R.Civ.P. The record at trial demonstrates that
there were a number of facts and circumstances which were not
clearly established at the time of the summary judgment
ruling.
At the time of summary judgment, the affidavits and
other information available to the court did not establish
whether it would have been reasonable for the Getters to pay
for the pipeline improvements within the 7 day period demand-
ed by the Walters or whether it was reasonable for the Get-
ters to have taken 42 days in which to make such payment. In
addition, there were factual issues as to whether the conduct
of the Getters was reasonable during the 2 year period after
the entry of the contract. That determination of course
required proof as to the nature and extent of their actions
during that period. The record at the time of summary judg-
ment did not demonstrate whether it was reasonable for the
Getters to proceed as they did without proposing any other
resolution to the Walters' concerns. The record did not
indicate whether the Getters had acted reasonably in seeking
to settle the dispute. We conclude that the facts surround-
ing the transaction with regard to the question of reason-
ableness had not been clearly established at the time of
summary judgment. As a result, there were factual questions
for the trier of fact to determine. Dunjo Land Co., 515 P.2d
at 963.
Plaintiffs contended that the demand was reasonable as a
matter of law because Johnson v. Elliot (1950), 123 Mont.
597, 218 P.2d 703, allows for performance within a reasonable
time or performance - demand. However, when demand is made,
on
the other party still must be given reasonable time after
demand in which to perform. We hold that the trial court
properly denied summary judgment.
I1
Were plaintiffs entitled to a new trial?
The Walters filed a motion in limine to exclude evidence
of the dispute between the Getters and Phillips. The trial
court denied the motion and allowed evidence and testimony
concerning the dispute. After trial, the Walters moved for a
new trial, and the court denied that motion.
The Walters contend that the evidence was irrelevant
because "unexpected hardships do not excuse a party's perfor-
mance." However, the Getters did not claim that their dis-
pute with Phillips excused their performance. The question
at trial was whether the Getters performed within a reason-
able time. As indicated in our discussion of Issue I, a
determination of whether the Getters performed within a
reasonable time requires a consideration of the facts under-
lying the dispute. We conclude that the evidence regarding
the dispute was relevant to the question of reasonableness.
Further, the trial court gave the jury instruction no.
18 which read as follows:
If no time is specified for the performance of
an act required to be performed, a reasonable time
is allowed. If the act is in its nature capable of
being done instantly (for example, if it consists
of the payment of money only), it must be performed
immediately upon the thing to be done being exactly
ascertained.
This is an exact quote from 5 28-3-601, MCA. The court then
gave instruction no. 19:
The word "ascertain" means to make sure or
certain; to establish; to determine and to settle.
In a legal sense it means "to find out or to learn
for certain; to make sure by investigation. It
requires a determination of the actual amount of an
indebtedness.
We conclude that the facts surrounding the transaction were
relevant to a determination by the jury of the issue of
reasonable time of performance.
The Walters also argue that the evidence was insuffi-
cient to justify the verdict. If there is substantial evi-
dence to justify the verdict, we will not disturb the jury's
determination. Kukuchka v. Ziemet (Mont. 1985), 710 P.2d
1361, 1363, 42 St.Rep. 1916, 1917-18. The evidence will be
viewed in the light most favorable to the party prevailing at
trial. Kukuchka, 710 P.2d at 1363.
Although the Getters received an assessment for their
share of the costs for the pipe lines, they quickly disputed
the assessment. It appears from the record that they were
seriously negotiating a settlement with Phillips when the
Walters made their demand for performance. Within 30 days
they accepted an offer of settlement from Phillips. Within
42 days they paid for the lines. Under the circumstances we
cannot sal7 that this was an unreasonable time for perfor-
mance. Error exists only when probative facts are completely
absent from the record. Kukuchka, 710 P.2d 1363.
We conclude that sufficient evidence exists in the
record to support the verdict. We hold that the District
Court did not err by denying plaintiffs a new trial.
Finally, the Walters argue that the trial court should
have granted a judgment notwithstanding the verdict. A
judgment notwithstanding the verdict will be granted only
when the evidence presents no room whatever for honest dif-
ference of opinion over the factual issue in controversy.
Jacques v. Montana National Guard (1982), 199 Mont. 493, 505,
649 P.2d 1319, 1325. We hold that this test is not met in
the present case.
Affirmed.
We Concur: A
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