I dissent. The utility of a dissenting opinion has long been doubted. The chief beneficiary of their promulgation is the public printer, and thereby an additional burden is placed upon the taxpayer and the buying public. Bearing these conclusions in mind, I shall record my views as briefly as possible.
The majority of the court has agreed upon a result but is divided within itself upon the reasons for arriving at a decision. The diversity of opinion is upon the meaning to be given to the words appearing in the closing paragraph of the contract, namely: "This contract is made subject to the approval of the Secretary of the Interior." Mr. Justice Morris advances the view that by these words a covenant or promise was made, and that their effect was to declare that the parties to the contract would be bound by rules and regulations promulgated by the Secretary of the Interior. Mr. Justice Angstman asserts that these words are not a covenant, but in effect a condition; that if it is a condition precedent it has been waived; and if a condition subsequent, it has not been broken. Both, therefore, conclude that the contract is valid and binding. *Page 31
It appears clear from a reading of the contract and these words that a condition precedent was created. It is useless in this jurisdiction to resort to adjudicated cases for a definition of a "condition precedent" or of a "condition subsequent," as they are defined by statute. Section 7402, Revised Codes, provides: "A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." Section 7404 declares: "A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition."
A "covenant" is nothing more than a promise. The distinction between a promise, or covenant, and a condition as to the effect, is well stated by Professor Williston in his work on Contracts, Revised Edition, section 665, where it is written: "The distinction between a promise or covenant, on the one hand, and a condition on the other, both in their legal effect and in their wording, is obvious and familiar. Breach of promise subjects the promisor to liability in damages, but does not necessarily excuse performance on the other side. Breach of nonoccurrence of a condition prevents the promisee from acquiring a right, or deprives him of one, but subjects him to no liability. Words appropriate to promise and to condition make this distinction. which is clear in the legal effect produced, also clear as a matter of English construction."
"The language of a contract is to govern its interpretation if the language is clear and explicit." (Sec. 7529, Rev. Codes.) In the case of Story Gold Dredging Co. v. Wilson, 99 Mont. 347,42 P.2d 1003, 1006, we said: "`Where a contract is plain and clear in its terms, neither interpretation nor construction is permissible. * * * When the language employed by the parties "is free from ambiguity or uncertainty, it is beyond the power of the court to enlarge or restrict its application or meaning."' (McDaniel v. Hager-Stevenson Oil Co., 75 Mont. 356,243 P. 582, 584, and cases cited.) `Courts must enforce contracts as made, not make new ones for the parties, no matter *Page 32 how unreasonable the terms may appear.' (McConnell v.Blackley, 66 Mont. 510, 214 P. 64.)"
In the case of State ex rel. Nagle v. Stafford, 97 Mont. 275,34 P.2d 372, 379, we had under consideration the meaning of the words "subject to confirmation," and in arriving at a conclusion said: "`Subject to' means subservient or subordinate to (Englestein v. Mintz, 345 Ill. 48,177 N.E. 746; Byrne v. Drain, 127 Cal. 663, 60 P. 433), and embodies the command that the act shall not be effective until the condition is complied with. Thus orders taken by a representative, `subject to confirmation' by his house, do not ripen into contracts until confirmed (Allen v. Simmons, 97 W. Va. 318,125 S.E. 86; Royal Dairy Products Co. v. SpokaneDairy Products Co., 129 Wash. 424, 225 P. 412), and when a city council is authorized to extend and make changes in streets `subject to' the approval of the mayor, the changes cannot be made until the mayor has acted, or the time within which he is permitted to act has elapsed. (Makemson v. Dillon, 24 N.M. 302,171 P. 673.)"
As an illustration of a condition as distinguished from a promise we find the following given in the Restatement of the Law of Contracts, section 260: "1. A insures B's house against fire. In the policy prepared and signed by A it is stated `the insured is not to keep gasoline on the premises.' Refraining from keeping gasoline on the premises is a condition of A's promise. The words are not a promise by B."
The following commonplace illustrations serve to demonstrate the fallacy of the conclusions of the majority: If Jones meets Smith, who is a dealer in automobiles, and invites Smith for a demonstration, and at its conclusion Jones states to Smith, "I will buy this automobile subject to the approval of my wife," Smith demonstrates the automobile to Mrs. Jones who expresses neither approval or disapproval, no one would contend on this state of facts that Jones had purchased the automobile. If Brown and Henderson, who are attorneys each representing clients on different sides of a number of lawsuits pending between their respective clients, discuss the terms of settlement, draft and sign a stipulation embodying the details of the settlement *Page 33 upon which they have agreed, but as a concluding paragraph to their stipulation they say, "This stipulation is entered into subject to the approval of the respective clients represented by the undersigned," again no one would seriously contend that the litigation was settled until approved by the principals.
According to the views of the majority, all of these illustrations would result in binding contracts without any approval.
It is difficult to imagine a clearer case of a condition precedent being expressed in a contract than the one in question. The contract was subservient or subordinate to the approval of the Secretary of the Interior, and his approval could be manifested by acts which sanction officially, ratified or confirmed the contract. Although the Secretary of the Interior knew of the contract, the record fails to show any acts on his part which would amount to sanctioning it officially, approving it or confirming it.
But has the condition of the contract been waived? Waiver is a matter of intention. It must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. (Williams v. Anaconda Copper Min. Co., 96 Mont. 204,29 P.2d 649.) A mere silence at the time when there is no occasion to speak is not a waiver nor evidence from which a waiver may be inferred, especially where such silence is unaccompanied by any act calculated to mislead. (NorthwesternFire Marine Ins. Co. v. Pollard, 74 Mont. 142,238 P. 594.)
Under the foregoing rules, I am unable to say that this condition in the contract was waived. I think the judgment should be reversed.