No. 13197
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1977
MARION C S M N McMAHON,
UH A
P l a i n t i f f and Respondent,
FALLS MOBILE HOME CENTER, I N C . , a
Montana C o r p o r a t i o n ,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
Honorable P a u l G . H a t f i e l d , Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
LaRue Smith a r g u e d , G r e a t F a l l s , Montana
Cameron Ferguson, G r e a t F a l l s , Montana
For Respondent:
John McCarvel a r g u e d , G r e a t F a l l s , Montana
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Submitted: l l a r c h 1 6 , 1977
Decided : ^,JUL - 1 1977
Filed:
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Honorable Gordon Bennett, District Judge, sitting in place of
Mr. Chief Justice Paul G. Hatfield, delivered the Opinion of
the Court.
This is an appeal by Falls Mobile Home Center, Inc.
(hereinafter referred to as "seller") from an order of the
district court, Cascade County, granting damages and attorney
fees to Marion C. McMahon (hereinafter referred to as "buyer").
The appeal was also from "every action [of the trial court] in
this case."
In her complaint, filed March 7, 1974, the buyer asked
rescission of her 1972 contract to purchase a mobile home on
the ground of fraudulent inducement. She asked return of her
payment on the contract and offered to return the home to the
seller. After hearing, the court on April 29, 1975, ordered the
seller to repair a "tip out section" and replace the back door
within 30 days. It added that if defendant failed to carry out
the order " * * * a rescission will be ordered to be carried Out in
more specific detail * * *." It also awarded attorney fees
in an amount to be determined. On July 28, 1975, the court
issued the order appealed from. This order noted the previous
order had not been complied with and ordered one Martin Tries,
otherwise unidentified in the order, to make an estimate of the
cost of the repairs and that the amount thus determined would
be assessed as damages. It also awarded attorney's fees in the
amount of $1,200. No judgment was entered of record on either
order.
The question of whether rescission was authorized or
justified was argued and briefed extensively. The question is
not germaine because rescission was never ordered or otherwise
effectuated. While the court in its first order threatened to
rescind the contract, it did not attempt or purport to do so in
its second order.
Also copiously argued and briefed was the question of
whether the court acted properly in granting specific perform-
ance, and then damages, when the prayer of the complaint asked
for rescission only. In the first place, the prayer was not
only for rescission but also for " * * * such other and further
relief as to the court may seem just and equitable in the
premises." With or without such a prayer, however, the prayer
for rescission invoked the equitable powers of the court. The
court having assumed equity jurisdiction could dispose of all
questions properly raised, equitable or legal. Citizens State
Bank v. Duus, 154 Mont. 18, 459 P.2d 696; Thisted v. Country
Club Tower Corp., 146 Mont. 87, 405 P.2d 432. Here, the equit-
able question of specific performance was raised and litigated.
Under Rule 15(b), M.R.Civ.P. the issue could be decided in either
law or equity, even if it had not been pleaded. The court heard
substantial evidence of an amendatory oral contract to make re-
pairs without objection. It was shown that the contract escaped
the statute of frauds by being performable in less than a year,
and being partly performed within that time. Consideration for
the contract was provided by the buyer's agreement to release
liability for damages upon completion of the repairs. Having
found, upon substantial evidence, that the contract was unperformed,
the court in its April order directed the seller to fully perform,
thus discharging its purely equitable function. When the court
found in July that the seller had failed to perform, it resorted
to a legal remedy, damages. We find no error in this approach.
We do question, however, the delegation by the court of
the determination of the amount of damages to an appraiser, as
was done in the July order. The order specified: " * * * that
Martin Tries make an estimate of the cost of labor and materials
to effect the said repairs * * * and that the amount thus deter-
mined be and the same is hereby assessed as damages against the
defendant herein." I t i s n o t a t a l l c l e a r from t h e t r a n s c r i p t
t h a t t h i s i s what t h e c o u r t i n t e n d e d . On t h e c o n t r a r y , it
seems c l e a r t h e c o u r t i n t e n d e d t h a t T r i e s be c o n s t i t u t e d a kind
o f master under Rule 53, M.R.Civ.P., t o determine t h e c o s t of
r e p a i r which t h e c o u r t would assess as damages. But t h e o r d e r
a p p e a r e d t o a d o p t i n p r a e s e n t i any damages t h a t T r i e s might
determine i n futuro. T h i s i s i m p e r m i s s i b l e on two grounds:
it makes t h e award i n d e f i n i t e and d e l e g a t e s a n e x c l u s i v e j u d i c i a l
function t o a nonjudicial agent. Money judgments must be s t a t e d
i n d o l l a r s and c e n t s ( s e c t i o n 93-4710, R.C.M. 1947) and t h e
amount may n o t be l e f t t o a m i n i s t e r i a l o f f i c e r t o be d e t e r -
mined from d a t a o u t s i d e t h e r e c o r d . Thomas v. McElroy, 420 S.W.2d
530, 243 Ark. 465; Hendryx v. W. L. Moody C o t t o n Co., 257 S.W.
The f i n a l q u e s t i o n r a i s e d i s a s t o t h e awarding o f $1,200
i n a t t o r n e y f e e s t o t h e buyer i n t h e J u l y o r d e r . A s t h e r e i s no
s t a t u t o r y b a s i s f o r such an award, t h a t p a r t o f t h e o r d e r must
be r e v e r s e d .
The c a u s e i s remanded f o r d e t e r m i n a t i o n by t h e d i s t r i c t
c o u r t of s p e c i f i c money damages under t h e o r i g i n a l w r i t t e n c o n t r a c t
o r t h e amendatory o r a l c o n t r a c t , o r b o t h .
/R
Hon. Gordon B e n n e t t , D i s t r i c t
Judge, s i t t i n g i n p l a c e of M r .
Chief J u s t i c e P a u l G. H a t f i e l d .
W concur:
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A
Justices C/
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