No. 89-496
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
ALMEDA MOORE, ADELINE BOHLMAN,
DARLENE KILBY and DELORES ROSE,
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Plaintiffs and Respondents, m
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AUGUST WESLEY ADOLPH and .-..
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MRS. AUGUST WESLEY ADOLPH,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ralph L. Herriott, Billings, Montana
For Respondent:
John L. Pratt, Ask & Pratt, Roundup, Montana
Submitted on Briefs: March 8, 1990
Decided: April 9, 1990
Filed: *
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The defendants appeal from an action in the Fourteenth
Judicial District Court, Musselshell County, partitioning the
parties' undivided interests in 173 acres of real property and 150
acre feet of irrigation water. We affirm.
In 1953 August Adolph and Arnold Johnson purchased a 173-acre
tract of land on the Musselshell River. To irrigate the land, they
contracted with the Deadman's Basin Water User's Association to
provide 150 acre feet of water annually. Arnold Johnson eventually
sold his undivided one-half interest in the real property to
August's son and daughter-in-law, the current appellants Wesley and
Lois Adolph. In 1965, Arnold executed a Request for Release and
Transfer of Water Purchase Contract No. 176 to assign the water
contract to Wesley and Lois.
August, however, never signed the water contract release. The
record indicates that Ronald Belcher, secretary of the Water User's
Association, prepared the Request for Release and Transfer at
Arnold Johnson's request. After Johnson signed the request,
Belcher took the document to the home of August and his son Wesley.
August was absent so Wesley signed for his father as he often had
on business checks--"August Adolph by Wesley Adolph.I1 Although
August never saw the release, Belcher testified that during a
discussion of the transfer, August gave his oral consent. Belcher
believed that Wesley was authorized to sign the release because
August and Wesley had an oral agreement that Wesley would receive
the water. The Water User's Association subsequently approved the
transfer and provided Wesley with the 150 acre feet under Contract
No. 176A. Wesley thereafter used the water and made all payments
to the Association.
August Adolph died in 1983. Under his will's residuary
clause, his interest in the 173-acre tract passed in equal portions
to his surviving heirs. The respondents each took an undivided ten
percent. Wesley took ten percent from his father's estate in
addition to the fifty percent purchased from Arnold Johnson.
The respondents petitioned the District Court to partition the
property, to invalidate the water contract transfer from August to
Wesley, and to distribute August's interest in the water contract
under the residuary clause. After a hearing on the issue, the
District Court found that the transfer violated the statute of
frauds and was, therefore, void. The court distributed August's
one-half interest in the 150 acre feet of irrigation water under
the residuary clause. The respondents each took a right to fifteen
acre feet of water. Wesley took fifteen acre feet under the
residuary clause and seventy-five acre feet under Arnold Johnson's
release. Because the real property could not be partitioned
without prejudice to the parties, the District Court ordered it
sold and the proceeds distributed according to ownership interests.
The appellants raise the single issue of whether the District
Court erred in concluding that the assignment of August Adolph's
one-half interest in the water contract to Wesley Adolph was void.
They argue that Wesley acted as August's agent in executing the
transfer and that August ratified the transfer.
Ratification exists upon the concurrence of
three elements:
(1) acceptance by the principal of the bene-
fits of the agent's acts,
(2) with full knowledge of the facts and,
(3) circumstances or an affirmative election
indicating an intention to adopt the unauthor-
ized arrangement.
Safeco Ins. Co. v. Lovely Agency (1982), 200 Mont. 447, 453, 652
P.2d 1160, 1163 (quoting 2A C.J.S., Agency 5 71). The appellants
point to the testimony of Ronald Belcher as undisputed evidence
that August knew about and fully approved the transfer.
Whether August approved is not relevant in the absence of a
writing. See Palin v. Gebert Logging, Inc. (1986), 220 Mont. 405,
407-08, 716 P.2d 200, 202. Under Montana law, "an agreement that
by its terms is not to be performed within a year from the making
thereof1'is invalid unless it is written. Section 28-2-903 (1)(a),
MCA. The present contracts cannot be performed within one year;
they require yearly payments for thirty-two years. I' [A]n authority
to enter into a contract required by law to be in writing can only
be given by an instrument in writing." Section 28-10-203, MCA.
Any authority August gave Wesley assigning the water contract was
invalid because August did not give it in writing. Finally, the
alleged ratification was not effective because it too was not in
writing. ItAratification can be made only in the manner that would
have been necessary to confer an original authority . . . .I'
Section 28-10-211, MCA.
The statute of frauds1 writing requirement for contracts which
cannot be performed within one year is intended to avoid disputes,
such as this one, when the passage of time has made evidence
unreliable and witnesses unavailable. E. Farnsworth, Contracts,
5 6.4 at 391 (1982). Its requirements are mandatory.
Affirmed.
We concur:
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