delivered the Opinion of the Court.
This is an appeal from a summary judgment rendered by the District Court of the Thirteenth Judicial District of Montana, the Honorable E. E. Fenton, Judge presiding. The action was commenсed by Dale W. Bollinger and Norine J. Bollinger, plaintiffs and respondents, hereinafter referred to as the sellers, to recover the balance due on a conditional sales contract. Judgment was in their favor.
*357 The facts are that on April 5, 1960, the defendants and appellants, Walter C. Jarrett, Lois G. Jarrett and Edna Jarrett, co-partners, hereinafter referred to as the buyers entered into a written contract with the sellers for the purchase of certain parts, tools, stock and equipment of a combined garage and International Harvester dealership. The consideration therefore was $23,328.32, to be paid $10,000 down and $250 per month, until the obligation was satisfied. By August 9, 1962, the buyers were unable to maintain the monthly payments and their business was failing. On that date the parties entered into an agreement as an addendum and amendmеnt to the original contract. This agreement provided that the buyers sell all usable parts to International Harvester Company and assign the proceeds therеof over $1,000, to the sellers in partial satisfaction of the unpaid balance due. It further provided that the monthly payments were to be reduced to $100 per month. On Aрril 26, 1963, with the buyers having missed two payments, the sellers accelerated all installments by demanding the full unpaid balance. Thereafter the sellers instituted this proceeding.
The major question in this case is whether the sellers are limited in their remedy to the security, i.e., the equipment sold, and thereby precluded from suing for the balance due. It is well estаblished that the vendor in a conditional sales contract can have either. First National Bank of Missoula v. Marlowe,
The buyers maintain that this provision was invoked by the addendum agreement which caused them to sell all the usable parts purchased under the original contract, retaining only оbsolete parts. This, so the argument runs, brought into play section 74-207, R.C.M.1947, which provides that after enforcement of the security in a conditional sales contract, the vеndor is not entitled to the balance owing if he has already recovered one-third of the purchase price. In this case $17,901.86, plus interest on the $23,328.32 due, had been paid. Buyers further buttress their argument that this was the sellers’ exclusive remedy by pointing out that the above-quoted provision is expressly provided for in section 74-207, wherein it is stated: “* # * it shall also be lawful for the vendor of any such personal property to insert in any such conditional sale contract, note, or instrument, and make a part thereof, a clause authorizing the sheriff of the county in which said property, or any part thereof, may be, upon request of the vendor and the delivery to him of a cоpy of such contract, note, or instrument, certified by the county clerk and recorder of the county where the same is on file as being a true copy, to take possession of such property in case of such default, and sell the same after notice given therefor for such time and in the manner provided by law for sheriff’s sаle of personal property under execution, and apply the proceeds thereof, first to the payment of the expenses of such sale, and sеcond, to the payment of the amount due on said contract, note, or instrument, and the remainder, if any, shall be paid to the vendee or assigns * *
To treat of first things first, we cannot agree that the terms of the contract limited the remedy available. Nowhere in the instrument is there language limiting the buyers to the procedure in case of default set forth in the quoted con
*359
tract provision. Squarely in point with the instant case on this question is Jensen v. Sire,
Appellants insist, however, that the Jensen case cannot be considered conclusive on the point because it did not consider section 74-207. We find this to be immaterial. Even though the contract does set forth a statutory rеmedy, the fact remains that there is nothing in the instrument limiting the sellers to it.
Nor can we accept the contention that the addendum agreement constituted an eleсtion. It was an alteration of the original contract with consideration on both sides. Under it the buyers “consented” to the sale of the inventory. There was no mention of forfeiture. The sellers did not place the buyers in default. On the contrary the agreement comprehended the continued payment by the buyers on the debt at a. rate of $100 per month. Only with this action did the sellers elect a remedy and that remedy was to seek the balance tO' which they were entitled.
*360 Appellant-buyers appеal on several additional points. One is that respondent-sellers failed to file a brief opposing consolidated motions of the buyers within the time prescribed by the court rules. Buyers cite Buie 6 of the Buies of Practice, Thirteenth Judicial District which provides in part:
“Failure to file briefs within the prescribed time shall subject such motions to summary ruling, and the failure to file a brief by the moving party shall be deemed an admission that, in the opinion of counsel, the motion is without merit, and such failure to file a brief by the advеrse party shall be deemed an admission that, in the opinion of counsel, the motion is well-taken.”
From this, buyers reason that it was error for the court to rule against the mоtions. This is a non-sequitur. The rule refers only to what the opinion of counsel is deemed to be. It does not in any way limit the freedom of the court to rule in accordance with its own opinion.
It is also contended that it was error for the court to render summary judgment against appellant-buyers’ counterclaim. The basis of the counterclaim was that the sellers’ action wrongfully injured the credit standing of the buyers. The only possible grounds for such a claim are libel and malicious prosecution, neither of which cаn be sustained here. There is no libel because any publication made in a judicial proceeding is privileged under B.C.M.1947, § 64-208. And malicious prosecution founded on a civil action is not the proper subject of a counterclaim since it requires proof of termintion of the former proceeding in favor of the defendant thеrein. Baker v. Littman,
Brief argument is made on several other questions, each of which has either been disposed of in this opinion or involved no prejudice to the appellant-buyers.
Judgment affirmed.