(dissenting).
I do not agree with my associates that the amended complaint is insufficient to state a cause of action. It is true that the contract called for payment of $65,000 in cash and payment is required to be made at once upon the ratification of the agreement by the stockholders and notice thereof to the vendee. It is required to be paid to the credit of the vendor but according to the fair import of the contract this should be done upon delivery of the bill of sale and the deeds for the property. The contract on this point states, “Said sum of sixty-five thousand dollars shall be paid to the credit of the vendor '* * * with *199the delivery of the bill of sale and the deeds for said property. ’ ’ It seems to me that under this contract the payment of the purchase price and the delivery of the deeds and bill of sale were intended to be concurrent in point of time. The contract provided that the vendor shall furnish abstracts of title showing clear and marketable title. The abstracts were required to be delivered for examination at least two weeks before the stockholders’ meeting. The vendee was required to pay all legal fees for the calling of the stockholders’ meeting and escrow charges which it is alleged he did.
The amended complaint alleges upon information and belief that the stockholders approved the agreement at a duly called meeting on July 13, 1950. It alleges that plaintiff was not notified of the meeting and has received no notice of the action taken at the meeting. This simply means that plaintiff did not receive such notice from the corporation so as to fix the time when payment shall be made under the contract. But I do not rest my opinion on this point. It is alleged in substance that defendant refused to cure the defects in the abstract of title which plaintiff’s counsel required, and declared that the defects would be remedied only if plaintiff paid to the defendant the sum of $65,000.
It is alleged that plaintiff, in order to adjust the matter, made a trip to London, England, to consult with the officers of the corporation and they refused to talk with him; that plaintiff, to show* his good faith in the matter, deposited with the First National Bank of Lewistown a substantial sum of money as a part of the purchase price and alleged that he was ready, willing and able to deliver the $75,000 par value shares of stock of the Yogo Sapphire Mining Corporation as agreed, and plaintiff further alleged that he is and has been at all times since the contract was made ‘' ready, willing and able to perform the contract” and all its terms and conditions.
I do not believe it was incumbent upon plaintiff to deposit to the credit of defendant the whole $65,000 when, as here, *200there was a bona fide difference between the parties with respect to the title of the property.
If the allegations of the amended complaint are true, and we must on demurrer admit them to be so, then defendant’s officers seem to have changed their minds and have in common parlance given plaintiff the run-around. It is alleged specifically that defendant refuses to perform the contract or any part of it and that the officers are all without the jurisdiction of the court. Where, as here, defendant (whose officers and directors live in London and are not in the jurisdiction of the court) has indicated a purpose not to comply with the contract, no one could be expected to deposit to its credit the $65,000 before obtaining the deeds showing a good and marketable title, and a fair reading of the contract does not call for such a deposit until then. Once the $65,000 got to London plaintiff was warranted in suspecting difficulty in either getting it back or obtaining good title to which he was entitled!
He had ample cause to be apprehensive about the good faith of defendant corporation and its officers.
He alleged in his amended complaint that he had purchased 300 shares of stock of defendant corporation in July 1949 and sent the certificates to the officers of the corporation for transfer to his name; that the corporation advised that the transfer would be made if and when plaintiff paid the transfer fee; that plaintiff thereupon sent the transfer fee to defendant but it has failed and refused to transfer the certificates of stock to him and does not recognize him as a stockholder. The amended complaint was filed on June 9, 1953. Hence plaintiff cannot in the light of his experience be expected to deposit $65,000 to the credit of defendant corporation and then embark upon expensive and protracted litigation in an effort to get defendants to carry out their part of the contract by making the title good and giving deeds and bills of sale and I think the contract does not contemplate such an absurdity.
I think the tender was sufficient by alleging that plaintiff was ready, willing and able to perform his part of the contract.
*201The rule which I think is applicable here is stated in 81 C.J.S., Specific Performance, section 101, page 622, as follows: “In connection with mutual and concurrent covenants, where payment of the price and delivery of the conveyance are to be simultaneous acts, an offer to pay by the purchaser, coupled with an ability to pay, on condition that the vendor concurrently performs his part by executing a deed, is a good and sufficient tender.”
I have no quarrel with the authorities cited in the majority opinion defining the word “cash.” Here plaintiff, according to the amended complaint, is ready, willing and able to put up the cash when good and marketable title is produced and that is all that the contract requires. I see nothing in McDonald v. Stewart, 127 Mont. 188, 259 Pac. (2d) 799, that militates against my views here. There is nothing in this case, as in that one, that indicates a failure upon the part of the plaintiff to perform his part of the contract. Neither do I see wherein R.C.M. 1947, sections 17-803 and 17-809, have been ignored or violated.
I think the amended complaint states facts sufficient to constitute a cause of action and that defendant should be required to file its answer. If upon the trial plaintiff should prevail, a court of equity will shape its decree so as to require cash on the part of plaintiff rather than promissory notes or other substitutes for cash and that is all the contract means when it speaks of cash. The time for the deposit of the cash is fixed by other provisions of the contract which contemplate the furnishing of deeds conveying good and marketable title as a condition precedent.
I think the general demurrer to the amended complaint should be overruled.