*1 67 same, enter and cut acquiescence and remove the possession, after into acts of came equivalent Shadoans was a new license until it bringing pre- revoked them as was action injunction. liminary
Such a above, contract as the to cut tim- standing and remove ber, cannot be revoked as to acts done under it. The revocation prospective, is retrospective. it Therefore cannot affect the title to the prior vendee of trees severed to revocation.
Finding no error, judgment reversible is affirmed.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUS- ANGSTMAN, TICES FREEBOURN and METCALF concur. Appellants. LIGHT et al., ZEITER Respondents, et ux., v. 8932 No. February May Submitted 1950. Decided (2d) 219 Pac. *2 Cavan, Har- Harlowton, Mr. John J. O’Sullivan,
Mr. Emmet argued Mr. and Cavan lowton, appellant. Mr. O’Sullivan for appellants. orally for the cause Mr. Billings, respondent. Longan, for
Mr. Franklin S. orally respondents. Longan argued for the cause ADAIR: MR. CHIEF JUSTICE Suit, Suit, H. Edna H. Lucy Light, R. plaintiffs, Light, Six Ed of a and are the owners Green, were Horace Green and Hazel county of situate parcel of land described lot or certain buildings and all stock and thereon together Wheatland with the building. fixtures G. Baeh- and Herman April 2, 1947, plaintiffs as vendors
On Zeiter, C. as Zeiter and Cecelia ler, Baehler, C. Alice Y. Archie signed written contract for made, into, and vendees, entered agreed to and the vendees plaintiffs agreed to sell deed wherein county land situate of buy parcel certain lot or of “that Tracts as follows: Wheatland, Montana and described State of (15) in Section (14) and Fifteen (13), Fourteen Thirteen Liberty Park Sub- North, Range 15 East situated Township 8 the build- County, Montana, together with in Wheatland division building, less land in said and ings thereon and all stock fixtures (em- Highway purposes,” for of Montana deeded State $27,000 to be consideration of agreed supplied) phasis signing of $500 cash on the as follows: installments paid five $2,500 15, 1947; on or April $10,000 before contract; on or January 1, 1948, $3,500 ánd 1947; on September before. carry interest payments January deferred $10,500 on per annum. of at the rate % good placing escrow of for the provides contract vendees warranty be delivered to general deed of
sufficient provides and further performance of the contract buildings improvements now the land “all fix- building not be removed from said lands tures within the shall part parties shall of the first remain completely performed until this shall [vendors] **' * parties the deed delivered the said second [vendees] payment money if it is the notice [the [the default] necessary shall contain the amount to cure the breach thereof] days if thirty is within same not cured the lands the buildings improvements payments and all made as stock, original stock which shall be substituted for the per agreement, shall proper- be and forever remain the absolute ty parties part first and the [vendors] ” part the second shall have no claim thereto. [vendees] Emphasis supplied. April
On 2, 1947, signing contract, on the vendees paid April the first installment $500 cash and on 15, 1947, paid $10,000 the vendees the further sum called for *3 contract, receipt whereof on the date such and. payment, possession property of the described was delivered to the vendees. Prior to at possession and the time was so delivered to the ‘‘ ’’
vendees a bar known as operated the Corral Club was on the premises by described “H. one F. Green” under retail beer license liquor and a retail license licensee, issued to such as owner, by liquor board, the Montana covering control and year license 1946-1947. part
In the 1947, latter of June being almost months three after the execution of deed, the contract for “H. F. Green” exe- cuted and delivered to the defendants Archie C. Zeiter and Ce- Zeiter, wife, celia C. his assignment a written 1946-1947 liquor retail beer and so standing licenses in the name of the as- signor “H. F. Green.”
Following making delivery and to them of assignment licenses defendants Zeiter Archie C. and Cecelia C. liquor assign-
Zeiter with filed the Montana control board the together ment applica- of the “H. Green” licenses with their F. liquor retail and tion to them of beer retad issuance year July beginning licenses for the for the new license 1, 1947. approved Montana and consented to
The control board and, July 1, F. assignment executed “H. Green” so Zeiter issued to C. the names of Archie and Cecelia Zeiter, owners, C. as retail 1483 and beer license No. retail 1387, authorizing No. defendants sell beer and license authority premises, pursuant at in and to which retail from 1, 1947, operated July April until a bar thereon 20, 1948, being day following the this commencement of suit. which, pay part vendees of the installments failed September 1947, and on contract,
under the became due on 1, 1948, January respectively. September 22,
On served the manner vendees were signed by provided writing in the with a Cancelling designated Terminating and Contract for “Notice stating owing Deed,” amount due days from notifying that “on or before 30 date here- the vendees rights described your of all and interest above be, by these and the contract shall shall cease terminate terminated, you required are presents, cancelled give up and surrender of said real demanded * * undersigned same to personal property and deliver the pay part the installment due failed to The vendees days at all and on October September 1947, within said vendees, viz., Alice 29, 1947, Herman G. Baehler and two of the Ed R. Light, delivered to H. Baehler, wife, Y. his executed and all quitclaim deed Green, grantees, Suit and Horace *4 equity and the Baehlers interest, possession right, title, deed. Thus did the contract for described the property all turn over to three of surrender and Baehlers through acquired them contract. equity the interest pay September 15, 1947, installment due failure Sep part days thereof before 30 from and after on or 22,1947, tember on served which date vendees were with terminating cancelling deed, notice and the contract for forfeited all a rights defendants’ of such thereunder made occupation dead instrument and rendered the continued premises trespass. part January 1948,
No of the installment which due became paid February 3, 1948, was with defendants were served “ signed by a second notice To: Archie C. addressed: Zeiter wife, Montana,” C. his Zeiter, Harlowton, Cecelia at notifying setting defendants of default and forth verbatim provisions notice, default, pertaining the contract for- feiture, and cancellation of the contract.
On signed by plaintiffs March third notice stating served defendants the amount which defendants were then in that, default and concluded further with the notice provisions “You further quoted are under the notified above that this is notice likewise that no further notice of cancellation given forfeiture shall be if cured, the breach is not parties shall, following expiration days, thirty (30) ’’ sue to cancel contract and to the same. forfeit
April 19, 1948, plaintiffs equity commenced this suit against defendants, C. Zeiter, Archie Zeiter Cecelia C. day and on that caused the latter to be served with process herein.
On following day, April 1948, the Zeiter plaintiffs possession delivered to premises the whole and property described in the contract deed have since continued in thereof.
When the Zeiters so vacated and turned plaintiffs, over to retained took with them the retail license and beer the retail so issued license them board, Montana control approval on its assignment the written from “H. F. Green” and of defendants’ *5 1947-1948, upon pay- and the application for new licenses for by statutory therefor. ment the fees defendants of standing so in their names at Defendants value the licenses $7,000 assign plaintiffs to for that sum. and offer to them rejected offer, claiming that words
Plaintiffs defendants’ the “in- employed in for “stock the contract deed and fixtures” the return of the same default cluded said licenses and of and seek to have court described the contract” here same, and and equity contract; so to revive reform construe the by decree, compel assignment plaintiffs of a transfer “upon by plaintiffs to defendants payment defendants’ licenses the pro-rata thereof between dates the of the share of the cost ex- use thereof their acquired possession and the piration “pro-rata of cost” was found date.” Such share the by $77.74. sum of the district court to be the
Complaint. jurisdiction the of a Plaintiffs seek to invoke by ten persons of “mutual mistake” of the equity pleading court April 2, 1947. signing the written contract of ’ ‘‘ ’ by complaint plaintiffs aver: That mutual mistake In their truly express parties; the intention of the the contract does not embody by parties the written contract was intended that understanding agreement part that an evidence assign all agreement “was an to also transfer consideration licenses, year local, beer and for the state and federal H. by plaintiffs standing in name N. owned of Green, Green, as Horace otherwise known one operation named, for their use and to the defendants herein * * * dispens- ‘Corral Club’ an establishment the sale for mutual mistake ing that “said consists liquors;” beers and of incorporate of into the writ- inadvertent failure understanding that all licenses for the ten contract oral liquors plaintiffs, beers and dispensing of issued to sale and others, them convenience one operation necessarily them were used necessity could not be con- were, and to the defendants sold part otherwise, consideration con- the substantial sidered knew; well defendants, as defendants paid to be tracted purchasers, prospective in that said was excusable that mistake vending beers and purchasers actual of establishments part are that beer and licenses liquors granted take for said the establishment where for the sale of consideration not, agreement or used, expressed in licenses are whether operate; said otherwise the could not establishment granted said licenses and defendants took for ‘‘ them; between part of the for said sale consideration *6 truly parties agreement express intention the to does the of default provide plaintiffs’ reacquiring upon for said licenses performance the of all and condi- defendants in covenants the provided contract; tions in said the inadvertence of the said that parties signatory failing provide for reacquiring to the owner- ship possession and of said licenses is excusable in that neither plaintiffs any experi- the them, nor had defendants of with ence the or sale con- beer licenses transfer of parties same; tract and all the were unaccustomed to that the of until defendants payments defaulted their under said contract plaintiffs employed rights counsel ascertain their there- against under defendants, plaintiffs im- labored under the pression that ‘stock the word said included licenses fixtures’ upon and the return the same described the con- of default tract; that the defendants likewise labored under the im- same pression until differently; were advised that said mistake defeats the intentions of the hereto in that defendants by payment of only could first installment acquire absolute ownership in valuable beer and licenses without re- plaintiffs; for plaintiffs dress that if said reacquire cannot said licenses in action and prevent this defendants removal and same, plaintiffs transfer of the will suffer irreparable damage gross injustice upon repossession premises by if voluntary relinquishment judgment before defendants herein, by judgment court, of this the defendants remove said premises licenses from the will have forthwith close down said establishment operating same;” cease ‘im- contract as was described
that “said ‘Corral Club’ plaintiffs cannot have provements’ upon premises; that “the original application licenses issued to them beer or Board; that without said licenses Liquor Control State will be almost possession defendants- alleged; for the reasons heretofore valueless to the plain- threatened allow the the defendants have likewise have consist- premises, but reacquire tiffs title possession of ently reacquire cannot asserted supplied. Emphasis to said licenses.” plaintiffs’ complaint demurred to Demurrer. Defendants nonjoinder parties defendant grounds: (1) Defect of V. Baehler who and Alice omitting to Herman Gr.Baehler make action; (2) parties to the signed the for deed defendants, against action complaint fails to state a cause of of them. or either demurrer, overruling Upon
Answer. admits answer, portion specifically first whereof filed an specifically denies other complaint, allegations certain allegations not thereof, generally denies all the allegations specifically de- The answer specifically admitted or denied. so making of the con- a mutual mistake nies that there express does not the true or that such contract tract for deed *7 affirmatively alleges such that parties thereto intent of the intent of express and did the actual intended to contract “was thereto. parties” they im- “deny that were specifically under Defendants fixtures’ included said li- ‘stock and that the words pression phrase “understood its allege that censes” they sought upon the meaning” allege that advice ordinary only plain- agreement when informed that interpretation of said alleged complaint. in their words as is such tiffs construed paragraph XI of the equity pleaded offer to do As to the deny plaintiffs’ pay that offer to “the complaint, equitable licenses is an offer cost” of the share of the pro-rata it should be a cash offer in the equitable allege that to $7,000; allege sum of that contract for deed cancelled 22, 1947, by defaults and fully terminated on October by plaintiffs; allege them that at all the notices so served times since the for deed that defend- termination of the contract ready willing ants have been ever to turn over to the said property contract, described such and that de- actually property fendants delivered of said have , plaintiffs. the said separately separate
The answer also states five affirmative de- In separate fenses. the first alleged defense defendants payment Sep- made default of the installment due 15, 1947; tember September 22, 1947, they duly that on plaintiffs’ terminating served with notice cancelling the con- deed; tract for defendants failed to make pay- necessary ments to cure the breach on 22, 1947, or before October all, at and that “under the terms of said notice the said con- tract terminated on that date prop- and the [October 1947] erty described in said contract became the of said plaintiffs and the defendants had no thereto, or claim termination, reason of said the said contract ceased to exist and subject could not become the of reformation.”
We necessary do not deem it in our determination ap- of this peal separately review the other four affirmative defenses pleaded in the answer.
Reply. By reply plaintiffs placed in issue the affirmative pleaded matters in the answer.
Trial. A trial of the issues so made was had before court, sitting jury, following without a which, written findings of fact and conclusions of law were filed and decree entered plain- tiffs. adjudged:
Decree. The decree ordered and 1. That the contract be reformed inserting and including “among property sold to defendants the beer and liquor standing licenses for 1946-1947 in the name of H. F. * * Green 2. That defendants “forthwith surrender and turn over *8 * * * and-liquor the absolute the beer assigned
licenses which are renewals of the licenses the de- Green, including 1949-1950 fendants H. F. licenses” and assign said “defendants shall forthwith current beer liquor plaintiffs;” licenses to the
3. That the clerk of court “shall surrender to the defendants lodged $77.74 the sum of her when with the defendants have complied preceding paragraphs decree; with” the two hereby
4. That the “contract for deed as reformed is can- rights celled payments and the of the defendants are for- right, title, feited and the defendants have no interest or estate * * * * * * whatever and the licenses title of the ’’ good valid; thereto is permanently enjoined any 5. That “defendants are from disposing manner beer or licenses now their possession, thereof, applying renewals Mon- to the Liquor assignment tana Control Board for the transfer or ’’ parties plaintiffs; the same other than the jurisdiction 6. The court “reserves to settle determine any controversy may per- arise between the ’’ formance them of the terms of this decree. specify
Defendants overruling as error the of their demurrer complaint, making of the trial court’s conclusions of making entering law and the of the above decree. The chief in this suit became and issue is the of the six authority equity to demand and the a court of adjudge and order the defendants to “forthwith surrender and plaintiffs” involuntary assign- turn over to the an make plaintiffs of ment to the retail beer license the retail July 1, 1947, by license so issued on the Montana control board, defendants, and in the names of the Archie C. Zeiter Zeiter, only. and Cecelia C. authorizes defendants
The statute “with the consent of the 4-410 board,” voluntary R. C. M. to make a assign- qualified person to a qualified per- ment of licenses or to sons, 4-401, 4-402, 4, 4-403, 4-408, R. M. subd. 4-409, C. secs. 4-412, 5, having occupancy and of “the subd. use *9 4-410, 1947, sec. respect [they issued,” R. C. M. to which are] carrying for on provided “premises are suitable the such plaintiffs Assuming 4-408. that 1947, R. C. M. sec.. business.” premises suitable for qualified are persons are and that their business, with consent of the carrying plaintiffs, the the on the for a board, privileged to deal with the defendants are make a voluntary trans- voluntary However, of transfer the licenses. involuntary assignment coerced thing fer is while an one by making surrender, after for the effected court decree lawfully agree, is they a contract to which did not and could not quite matter. another premises
The 1946-1947 licenses not transferred for the were April 2, 1947, the contract for deed was defendants on when signed entered into and transferred to defendants nor were by any provisions of terms or set forth in such contract. the affirmatively appears allegations plaintiffs’
It the complaint findings as well as from court’s of fact the trial at the no licenses signing time of the of the contract for deed had neither had been issued to five of the transfer; only beer at time liquor nor license such the only retail retail for the beer license license premises standing in the name of licenses issued to Green,” only, “H. Green” F. “H. F. no transfer and that made for deed assignment of his in the written contract licenses “H. did F. executed, nor at the time such contract was nor assignment for Green” transfer licenses make 1947, being until in June almost months after the three 30, shortly June signing the contract for deed before expire. 1946-1947 1947, midnight licenses would at whereof the immediately expiration assignment made, The so before merely assignees licenses, transferred to the “H. F. Green” assignor preferential privilege to have new accorded year beginning his the new assigns license licenses issued July 1947, irrespective the limitations established 1, “Quota Law,” Chapter 226, Session Laws of R. C. M. 4-403. through
Thus acquire defendants did not their licenses April 2, 1947, written contract of ask the here acquired preferential privi- court to reform. Defendants lege granted through 1947-1948 licenses the much later assignment written executed June licensee “H. Green,” F. in favor Zeiter and defendants Archie C. C. Zeiter. Cecelia assignment
It Green,” was this from “H. F. Montana consenting, control board that effected transfer to de- fendants of the 1946-1947 retail beer and licenses for the premises. validity assignment F. “H. Green” challenged nor did that it ask be reformed. April
Neither 2,1947, the contract for nor deed of the “Notice *10 Terminating Cancelling and Contract for Deed” served on de- September 22, 1947, quitclaim- fendants on nor the deed of 29, 1947, Baehlers, grantors, plaintiffs October from the to the Light, Ed Suit, Green, grantees, H. R. and Horace nor the notice upon February 3, served nor the notice served 18, 1948, March any any makes mention whatever of beer or liquor licenses. ‘‘ In XI paragraph complaint plaintiffs allege: of their That equity offer follows: pay to do as defend- To pro-rata original ants the share of the cost all licenses issued to plaintiffs’ defendants for 1947-1948 for the until use thereof license; renewal date of each and to cancel note as defendants’ paid purchase full in for from the of 62 of whis- cases key in a Billings, Montana, warehouse in pro- said contract supplied. Emphasis vided.” “defendants’ note” last apparently
The above referred to is promissory given a provisions note under the next April 2, last clause the written contract for deed of provides: agreed “It is further parties that the of part [plaintiffs] whiskey first have cases of in a warehouse in Montaná, Billings, and the part the second [the April as of place tbe market buy at agree to tbe same vendees] same, purchase price sign a 2nd, 1947, and note for whiskey price agreed purchase is further it ’’ contract. completion this or before the paid shall be any of the not, did it does not allow However, the law or to con- operate a bar on to own selling sale keeping for duct the business of thereon having obtained from Montana liquor without first alcoholic li- liquor license and a retail board retail beer control owning duly person name of each so cense issued to operating bar such and business. act, under this “Any person has been issued license who not keep liquor, shall who shall sell or for sale alcoholic guilty felony not be fined of a conviction thereof shall ($1000.00) less more than five than one thousand dollars nor prison imprisoned in state ($5,000.00), thousand dollars or be (1) (5) years, for than one than five or both not less nor more M. 4-420. So imprisonment.” such R. C. fine reads the law. only not has but it demands to know the
The state grants engag- identity persons privilege it of all whom ing requires per- business. law that all such open sons out reveal the state their come there trafficking in interest, participation exact concern and when may liquor. participants A hide their iden- number of such tity standing permit- the law back shadows ting forth, speak, of their number come act and front but one requires grant- The state that all licenses it issued them. ing privilege to sell at retail within its borders *11 by licensees; in signed posted be that the licenses be a con- spicuous premises respect they in to place on the are is- 1947, 4-410; sued, person and that no R. C. M. shall sell or keep liquor liquor sale alcoholic otherwise traffic for duly 84, under the cept person be a licensed law. Ch. Laws he sees, 1947, secs. 4-401 1 and R. C. M. and 4-420. of ‘‘ whiskey 62 cases lawfully to sell in a For ware- 80
house Billings, writing Montana” as contracted' do, required granting that first a license have them that duly privilege by liquor them the Montana control issued board. affirmatively plead
Plaintiffs that the “Corral Club” was dispensing an establishment for the sale and of beers and liquors. operators The owners and such re business were quired by liquor law to first obtain both beer and a license dispensing before their wares. Should the “Corral Club” bar by operated partners, be owned and the six then requires partner the law must be issued to the licenses ship persons forth “the conducting must set names of the ” partners the business. R. M. All C. see. 4-410. must qualified persons. be The disqualification single partner of a disqualification works a partners. Perry Luding, of all the v. 123 (2d) 207, Mont. 217; Pac. Coletti v. State Board Equalization, (2d) App., Cal. Pac. affirmatively
In complaint plead their six the 1946-1947 licenses for the Club” bar were “owned “Corral by plaintiffs standing in N. the name of H. Green” and by inadvertently “mutual mistake” the thereto failed incorporate “to into the written oral under- standing dispensing that all licenses for the sale and of beers and liquor plaintiffs, issued to them one conveni- others, ence necessarily and which were used them in operation thereby sold to the defendants” establishing that at least five of their number were unlicensed illegal operators owners and of such bar. No bar in this lawfully may operated by persons state owned and under six person, issued and in license the name of but one nor permit persons, does the law six under a license issued to person, ownership the name but one to establish granted by privilege to exercise the such license standing so issued the name of but one of their number regardless arrangement brought of whether such about
81 “for ignorance, experience or the convenience design, lack may comply their failure the others.” Nor excuse they by pleading that requirements with the of the law trafficking owning operating “unaccustomed bars or to” they under “labored beer licenses or because impression included said the words ‘stock and fixtures’ licenses.” person, except named,
The law is “no the licensee therein any privileges granted shall exercise thereunder.” R. C. 1947, M. sec. 4-410.
A qualified retail license issued the state to right, per licensee “is a matter of rather privilege than of a licensee, property, sonal and is neither nor a right, legal contract or or constitutional sense Emphasis supplied. S., Intoxicating of those terms.” 48 C. J. Liquors, 99, 72, 76; Perry Luding, page 223, supra. sec. n. v. “It does not run privilege with business conducted under the grants it an S., Intoxicating is not asset of it.” C. J. Liquors, 109, 228, sec. is page “lands,” n. 44. neither It “build ings,” “improvements,” nor “stock and fixtures.”
When the contract for executed deed was no one other than “H. F. the lone licensee Green” had retail or beer ‘premises and, having license for the no licenses transfer assign, it is clear at least five of the had none “to incorporate agreement.” into written their omis- Hence incorporate sion and failure to that which owned never any right had to transfer cannot said to a be evidence “mutual mistake” from are entitled to relief in court of equity. Jur., See: 45 Am. Instruments, 46,' Reformation of secs. 609, 611, 47, pp. 610, 18-20; 49, 15; 50, pp. 611, n. sec. n. p. sec. 612, 19, 20; 79, p. n. 632, 4, 5; see. p. n. sec. n. 16.
“A court of equity cannot reform an except instrument allegations equitable remedy which make out a case for the asked. actions, necessary in other all As facts to make a ease must out pleaded. complaint And if the in- seeks reform written reformed, allegations and also to enforce it when strument Jur., Reforma- purposes.” 45 Am. for both must be sufficient Compare: Auerbach 644, 4, Instruments, p. n. 6. tion of Healy, 60, 161 174 Cal. Pac. v. only facts sufficient to complaint not fails to state
Plaintiffs’ affirmatively question but it them to the licenses entitle *13 right thereto. shows that have no by: (1) acquired right licenses their Defendants through written contract with Acquiring suitable their F. Green” an licensee “H. plaintiffs; (2) obtaining from the (3) assignment premises; for the of the 1946-1947 licenses to the as- obtaining Montana control board’s consent qualifications application signment approval of their wholly plead failed to 1947-1948licenses. Plaintiffs have for the bjr equity, right have a court of a in themselves to or establish acquired or to licenses so decree, wrest from defendants their assignment making there- into a transfer coerce voluntarily decline to on an offer or terms which defendants accept. remanded with directions
The is reversed and the cause decree plaintiffs for defendants’ costs judgment against to enter action. for dismissal of the FREEBOURN and BOTTOMLY JUSTICES ASSOCIATE concur. in result. METCALF concurs
MR. JUSTICE (dissenting) : MR. JUSTICE ANGSTMAN a contract for the sale brought action to reform Plaintiffs this property and for its cancellation. personal of real judgment en- fact, law and Findings of conclusions of At against defendants. plaintiffs and in favor of tered not been furnished with noted that we have it should be outset The transcript evidence. containing exceptions a bill of appear appeal on the are those presented questions They alleged defects in have to do with judgment roll alone. majority opinion trial court on reverses the pleadings. The suggested in presented matters the trial court and not not majority opinion suggests pleadings or briefs of The counsel. voluntary involuntary an that there is a difference between a assignment of licenses. point
That is agreed here because if defendants beside plaintiffs return the licenses to defaulted case under found, obligation contract as the court then their to return the licenses to with the other became effect voluntary assignment they voluntarily because assumed that ob- ligation. majority opinion
The stresses the fact that the licenses not did belong only to all the to one of them. I think wholly evidently this is immaterial and counsel so it considered question because no was raised on this score. rights between themselves or their liquor collectively
to sell when only the licenses were issued name of one of them was involved the case. No such issue presented pleadings argument and counsel make no point. complete this I think a answer to this contention is that *14 acquired if defendants the part licenses as a of purchase the price property involved, of they did, the court found the as then upon in default the contract the licenses should be returned to plaintiffs, the or words, H. F. Green. In other all that defend- acquired by ants the upon contract should be returned their de- in performing fault the terms of contract. The the courts should permit part defendants to hold sup- on the position plaintiffs may guilty of have been some miscon- holding duct in in plaintiff license name of one for the If benefit of all. there is merit in the in claim asserted majority persons opinion that six cannot sell under a person, question license issued to one then that should be settled by proceeding in some where that issue is pleadings tendered heard, parties opportunity have notice and to be where nothing rights. and even if true it adds to defendants’ points by given appellants consideration to raised I have 84 by
in their brief to see if I reached could concur result majority I but find no merit in of those contentions. point urged denying The first is in de- that the court erred separately fendants’ motion to and number the causes of state in complaint. action set out Defendants contend that complaint sep- contains three causes of action which should be sec, arately by 1947, R. stated and numbered of M. reason C. fallacy 93-3203. The this contention rests on the fact that of recognize defendants fail to the difference between cause remedy sought. There action and the relief or is here one though cause relief asked. of action different forms of Pomeroy pointing distinction Mr. on Code After out this say: Remedies, Edition, 353, p. Fifth sec. this to has brought writing, such reform instruments “Actions contracts, policies mortgages, and other deeds of insurance conveyance, like, as reformed and the and to enforce the same recovery money contracts, due on the judgments for the recovery mortgages, or for the foreclosure conveyed deeds, fall within the land only stated in general principle. One of action is same cause may reliefs eases, such however be the demanded various granted.” Jur., similarly in 45 Am. “Reformation
The rule is stated 641. effect: Instruments,” 91, p. And see the same Rep. Pac. 2 Am. St. Ainsworth, 452, 15 73 Cal. v. Hutchinson 423; Depuy 823; Winbigler, Cal. Pac. Horton v. 185 Pac. Selby, 76 Okl. v. sep- denying defendants’ motion to did not err court supposed causes of action.
arately and number the state overruling urged is that the court erred point The next ground that complaint defendants’ demurrer this, to- nonjoinder defendant there “is a defect Baeh- complaint that Herman G. wit, appears that it necessary de- proper parties V. are Alice Baehler ler and *15 complete determination of action, that a the fendants ’ ’ presence. without their- controversy had cannot be
85 for the sale complaint The sets out as an exhibit the contract pur- property which shows on its face the involved Herman Y. Zeiters and G. and Alice chasers were defendants Baehler. alleged
In that Herman G. and Y. Baeh- the answer it is Alice a gave ler after default under contract of sale copy is covering question, deed a of which deed attached the answer. parted
“Where one with all interest he ever had in has subject controversy, longer matter of the so that he is no necessary result, party, interested in he is a relief not unless * * *” sought against S., Equity, is 135f, page him. C. J. see. 152,-page same effect is sec. though complaint And on its face shows defect of objection thereto is waived where defendant answers in such way necessary party complaint as to show that a under the is indispensable necessary party. S., not in fact an or C. J. Equity, 155, page 597, sec. n. 42. presented here, point
The so far circumstances as this is con- cerned, application 93-3909, call for R. C. M. read- ‘‘ ing must, every action, : stage disregard any The court of an .pleadings proceedings error defect does rights parties, judgment affect substantial no ’’ shall be reversed or affected reason of such error or defect. It should be noted that found that the court the beer and licenses, subject reformation, matter stand —the name of the defendants. is not us we must Since the evidence before assume that the supports finding. properly evidence this The court overruled ground alleged non-joinder the demurrer on the defect or parties. urged by point complaint The next defendants is that the does justifying sufficient mutual not state facts show mistake majority opinion contains sufficient reformation. complaint complaint
allegations of the to show that states to constitute a cause of action for facts sufficient reformation *16 86 ground
on the mistake under R. 1947, C. M. section .mutual 17-901, and within requirements specified in Thielbar Realties, Inc., v. Co., 525, Union 91 National Fire Ins. Mont. (2d) 9 469, Pac. D’Orazi, Brubaker v. 120 22, see Mont. 179 (2d) 538, Pac. which involved reformation relative- a license. allegations complaint true,
If the be as we must assume ease, under the circumstances this then the reformation does making not amount to the parties of a new contract for the may of course the court not do. Comerford v. United States Fidelity Guaranty Co., 243, & 59 Mont. 196 simply Pac. 984. It gives actually agreed upon by effect to what was inadvertently writing. which was omitted from the complaint Defendants contend that the is insufficient because allegation is no agreement there consideration for the reacquire ownership upon of the licenses de- argument fault under the contract. This overlooks the fact that is but one contract and there one consideration for the entire con- consideration, separate tract. There was no assignment for the Compare Chessman, 326, the licenses. Parchen v. 49 Mont. 142 1916A, Pac. 146 Pac. Ann. 681. Cas. bj^ is per-
Contention made defendants that the licenses are 121 property agree. Stallinger Goss, sonal and with I v. this (2d) They Mont. complaint Pac. contend that the if is insufficient that it shows that at most the contract is re- upon security formed have lien the licenses as purchase upon the balance due on the contract of and that de- fault of defendants be forfeited and would that such an 45-112, under M. agreement reading: is void R. C. “All subject property lien, contracts for the forfeiture of sat- obligation thereby, isfaction of the secured and all contracts redemption lien, from a I restraint of the are void.” anything question how this section has to do with the fail to see before us. part personal property
The court found that which de- buying was the beer fendants were all payments If were met defendants then would licenses. have all the If defaulted then were to well. giving cancella- returned to them notice of on this complaint
tion of the The is not insufficient contract. account. pur- contract of
The next contention of defendants is that the brought for chase was cancelled before the suit was reformation nothing and that left to reform at the time the action there was commenced. provided part default on case of purchasers option given privi- the sellers at their
lege cancelling by giving thirty days’ in of the notice contrast writing, designate should complained which notice the breach payment money of if default in the of the notice shall necessary contain the amount to cure the breach and if it is not thirty days property cured in payments as well as all made property shall be the of the sellers. purchasers pay $2,500
Under the contract the prin- ’were to cipal September 15, they and accrued interest on 1947. This September failed to do. Plaintiffs on 22d notified defendants of payment $2,500 default and demanded the with interest n thirty days on receipt or before after notice. payments thirty Defendants failed to make the within the days. The court found after that service the notice defend- negotiated plaintiffs ants with a proposition to work out where- proprietors defendants would be sole the business con- represented at plaintiffs ducted the Corral Club and that position be in a would better to take care payments plaintiffs bought Baehlers, if out the so that defend- operation ants could obtain all of the from revenue of the business; plaintiffs purchase that as a result did the interest of $900; thereupon Baehlers for remained in possession following expira- and the licenses thirty days from receipt notice; tion of the the date of ability plaintiffs relied of defendants to fulfill the they purchased terms of contract after Baehler’s interest. February 2, 1948, again The court also found specified their default but notice on defendants of served written $17,279.79 many which was thousand dollars the amount due as delinquencies; of the amount of that the mistake excess figuring; that defendants amount was due to inadvertence notice, possession, continued to transact ignored the remained business and the revenues therefrom. received 10, 1948, by regis-
On March served another notice 18th, March mail which defendants on tered was received amount then due. It contained this specified the correct provisions paragraph: “You are further notified under the above further of can- quoted that this is likewise that no notice notice cured, given if cellation and forfeiture shall be the breach is not thirty (30) shall, following expiration of but that the ’’ days, forfeit the sue to cancel said contract and same. pointed As court found that defendants after above out the purchase induced received the first notice Baehlers, legal interest of the -and thus effect to waive the by giving estopped notice and defendants are benefits derived contending that the contract was cancelled. It was of at an so far as the Baehlers were concerned but course end as to defendants. full force and effect obviously and the defendants The second notice defective nullity by continuing it otherwise treated given it. fact that an ineffectual notice was does ignoring *18 deprive giving of the benefit derived from the Lincoln, 87 Mont. 287 good of a notice. Huffine v. Pac. lapse days after the of 30 629. But defendants contend that giving of the third notice the contract was cancelled and from the nothing was left to reform. there pointed specified out The third notice as above it would by provision giving in this an action. The be followed days’ right the contract on 30 to terminate notice they right plaintiffs which had the to for the benefit of the was Co., 47 133 Daniel-Jones Mont. Pac. 700. Fratt v. waive. Slattery, 67 Mont. 216 see, Co. v. And Hammond-Dodson
89 remedy men- pursue the not bound to 323. Plaintiffs Pac. were They privileged its for cancellation. in the contract tioned in addition to affords any remedy which the law pursue to remedy provided as here contract where provided Jewett, White v. exclusive. not declared to be the contract was (2d) 416, 78 Pac. 106 Mont. form as to notice such right draw the had the to
Plaintiffs bringing to re- action purpose alive for keep the contract default under to cure the defendants it the failure of form after it. by urged questions
I the other have considered judgment. disturbing I find no basis parties, for the as if ease, counsel I as did have considered the necessary in order for contract was reformation of the reacquire liquor licenses. necessary reform the con- it was not As matter of law tract.
Since this case tried in the district court this court Paige al., case of ex rel. Jester v. State et Mont. (2d) 441, Mr.
Pac. Preebourn I dissenting, Justice held that liquor applicable only premises licenses are in respect to the may are issued and not be transferred to other premises. by
Hence other conclusion than that reached the trial court permit would the defendants to retain licenses which applicable only would be them are valueless to since by premises plaintiffs. holding now owned effect of the the Jester case is that licenses attach to the pass subject to successive to the consent owners person fitness of the control board as to be- come licensee. reached the trial court was and the
The conclusion majority leaves a result “which not conclusion reached plaintiffs “poor makes indeed” enriches” the defendants but presumptively sufficient the court found on evidence since *19 practically involved are valueless to with- question. out the licenses in any error,
I not find that the court committed do and in con- judgment I sequence think the should be affirmed. Rehearing June denied