dissenting:
I am not able to subscribe to the conclusion reached in the majority opinion.
I do not find in the record anything to justify the assertion made in the majority opinion that plaintiff had in view the matter of selling his stock of liquor and giving a lease on his hotel property upon the expiration of his state retail beer and liquor licenses (June 30, 1944).
As I read the record he decided to sell his stock of liquor and lease his property because he was unable by reason of sickness to operate the business and it was sickness and not the expiration date of his licenses that motivated his actions.
The lease was not made at the expiration date of his liquor licenses (June 30, 1944) but was made by written instrument of May 27,1944.
The record shows that when Marsh and Tappa applied for a liquor license and a beer license on June 1, 1944, they were informed by the liquor control board that they must obtain an assignment of the liquor and beer licenses then held by plaintiff. To accomplish the intention of the parties plaintiff did execute *428an assignment of .the licenses on June 9, 1944, without any additional consideration than that appearing in the lease.
I think Judge Padbury was right in finding for plaintiff.
In ascertaining the intention of the parties to a contract it is proper to consider the subject matter of the contract and the purpose of its execution; Lee v. Lee Gold Mining Co., 71 Mont. 592, 230 Pac. 1091.
"It is plain to me from the evidence including the lease and assignment of the liquor and beer licenses that defendant Marsh was taking over for the period of the lease the liquor business theretofore operated by> plaintiff, and that at the expiration of the period of the lease defendant was to return to plaintiff the same liquor business.
There was no intention on the part of either plaintiff or defendant that defendant should speculate in or traffic in liquor licenses as such. They were simply incidental to the liquor business and it was contemplated that the entire business be restored to plaintiff at the expiration of the period of the lease. I think the court properly reformed the contract to make it specifically relate the intention of the parties, but I also think it was unnecessary to reform it because it already contemplated restoration by defendant at the end of the term of everything received from plaintiff incidental to the business.
Furthermore this court has held that a liquor license is applicable only to the premises for which it was issued. State ex rel. Jester v. Paige, 123 Mont. 301, 213 Pac. (2d) 441. I did not agree with the opinion in the Jester case, but it is the law in Montana, and I accept' it, as such under the doctrine of stare decisis. State ex rel. Boulds v. Paige, 124 Mont. 353, 224 Pac. (2d) 141.
Under that ruling I think the liquor license passes with the change in the rightful occupancy of the premises much as an automobile license follows the ownership of the automobile, subject, of course, to the right of the liquor control board to pass upon the fitness of the new occupant of the premises. Brubaker *429v. D’Orazi, 120 Mont. 22, 179 Pac. (2d) 538. This is the view I took in Light v. Zeiter, 124 Mont. 67, 219 Pac. (2d) 295, involving a somewhat similar case.
Eehearing denied January 13, 1951.I think the judgment of the district court should be affirmed.
MB. JUSTICE FKEEBOUBN concurs in the dissenting opinion of ME. JUSTICE ANGSTMAN.