*1 VIII, transcripts relating preparation Rule subd. to the lawyers appeal, requires alphabetical Many index. an apparently compliance think that this rule there is a with inserting papers chronologi- an index listed with various cally they appear transcript. Such index leaves “alphabetical.” out of consideration of such the word Absence always delay an index results in records examination of VIII, might meaning within the of subd. 8 of Rule and well appeal penalty result a dismissal of the we have decided —a forego in this case. Finding judgment no error in reversible the record affirmed.
MR. CHIEF JUSTICE HARRISON and MR. JUSTICES BOTTOMLY, CASTLES and concur. STEEN,
MR. DONALD H. Respondent, Plaintiff RUSTAD, HUBERT E. RUSTAD and EVELYN T. Husband Appellants. Wife, Defendants No. 9373. April 30, August 1, 1957. Submitted 1957. Decided Rehearing August 19, 1957. Denied *2 Lucas, George Allen, Messrs. Leavitt & Livingston, J. Mr. Anderson, Helena, appellants. City, Ralph for Miles and Mr. J. respondent. Young, Young, Baker, Messrs. Martin & *3 orally. argued Mr. Arthur B. Martin Mr. Anderson and HARRISON: JUSTICE MR. CHIEF and plaintiff made 1950, and 2, defendants On November Option to “Lease "With entitled agreement a certain executed by the de- lands owned describing certain Buy Agreement” — part As a of year 1951. farming of which covered fendants provided: its terms agrees to tenant foregoing premises, “In consideration following plans: one of the under pay the landlord on or before Nov. Tenant shall deliver “Plan No. 1. at the nearest the landlord so raised to the wheat one-third of rental for constitute elevator, payments to grain accessible such year 1951. before Nov. pay on or shall Tenant “Plan No. 2’No. ‘Plan chosen In the event the landlord. $1,500.00 of his prior to said date landlord notify tenant, shall tenant of the rental then constitute payment shall such choice, year pay- land for shall a down further, constitute land, ment shall contract for sale of said which contract up following be drawn at that shall time and contain the be a memorandum said contract: “ ‘Memorandum’ agrees buy, agrees
“Landlord to sell and tenant the land $8,500.00. hereinbefore described sum The sum of for the $1,500.00 shall constitute a as hereinbefore set payment, down forth. $7,000.00 paid by may balance thereafter be by delivering tenant crop unto the landlord two-thirds of the year, raised each crop and the going market value of the share shall payment landlord constitute owing due and on the year. contract for that
“The foregoing paragraph pro- shall constitute the minimum visions under may which tenant his option buy, exercise but it is parties may understood that mutually agree to other terms payment as to the of the balance.
“It Is Further Agreed Understood and that in the event that the tenant is called into military services of the United States he option before exercises his then the tenant cannot ex- option ercise said and the shall landlord not be bound ten- ant’s buy. However, plan No. 1 shall then inbe full effect, force and and the thereby. bound “The under the landlord contract of sale shall be bound to title, showing good furnish abstract of and merchantable ’’ title to said land. above-quoted portions the defendants landlord, plaintiff are referred to as the as the tenant. agreement plaintiff possession Under this went into premises. Following farmed the harvest in the fall of 1951 the defendant, Rustad, went to see Hubert E. Living- at ston, Montana, w’here then residing, he was and advised him *4 ready finish payment, he was to the deal and make the but defendant, E. Rustad, the Hubert advised that he wouldn’t sell rights go, mineral if plaintiff let the but the buy wanted to without the minerals he could have land. the $1,500 pay down plaintiff this offered to the conversation Rustad,
payment, defendant, E. but it was refused. The Hubert up brought admits that the matter conversation this reservation of the minerals. 27, 1951, by registered under date of September
Thereafter mail, defendant, sent a Hubert E. plaintiff letter to Rustad, which reads as follows: you me
“According agreement by our leased with to Range option 14, Township 9, to the North half Section to 60,1 notify you now wish to that I wish to exercise buy, as set Plan No. 2. forth up,
“We forth should have a drawn which will set contract I wish to essential features stated in the memorandum. $1,500.00 payment time, make down at this and wish to directly you deposit know whether I should to or to forward your credit in one of the here at The contract banks Baker. itself provide should that. you
“If will have a in line with prepared contract which is previous sign our agreement, me, forward it I shall to ’’ your you. copy and return to Receiving reply letter, plaintiff no to this on October defendant, Rustad, wrote the Hubert E. as follows: my reply Sept. as I no letter of have had “Inasmuch make on our or a new payment contract asking where buy the North for, by asked which I’m to which I also 60, I 9, Range deposited have Township half Section your here The $1,500.00 payment set forth as down credit Baker, give reply.’’ Please Baker, Montana. me Bank of Rustad, that he received defendant, Hubert E. admitted $1,500.00' regard deposit bank with a letter from the stated later refused to defendant he paid $508.22 admits that bank took from accept payment, but anything a note of Defendants never did pay his. his account prepared. the contract having toward regard the bank account of the defend- The situation with $1,- Rustad, 19, 1951, that on indicates October ant, Hubert E. *5 500.00 deposited credit; 24, 1951, $508.22 was Ms October to on by was apparently withdrawn the bank without defendant’s knowledge pay bank; to a note which defendant had at the $1,000 19, 1951, November by was the defendant withdrawn charge then left a $177.37. balance of Thereafter a service of 46 cents was deducted from the account on December 1951, leaving 27, 1951, a balance then $176.91. On December a deposit $1,429.40 was defendant, made and the Hubert E. Rustad, testified this money paid upon was con- another land in tract escrow deposited that was his the bank to credit. Plaintiff tendered into covering $540 court two-thirds of the crop year raised brought
Plaintiff this action specific performance for of the agreement. Defendants by cross-complaint answered and de- manded an accounting payable of the rents the use of the year lands for the 1951 under the lease. The action was tried to the court jury; without a the court that agreement found was a valid and subsisting contract; that the defendants ac- cepted the payment; down unpaid that the $6,460; balance was plaintiff and that was specific entitled to a perform- decree of Judgment ance. was entered in findings. accordance with the From judgment such appeal defendants specifi- cations error contend complaint that the did not state facts sufficient to constitute a action, cause of and that the court compel specific could not performance agreement. of the Although specifications the defendants set forth nine of error they may grouped headings: (1) plain- be under three That the granted option, tiff an right buy was not exclusive being his to upon prior sell; conditioned defendants’ decision (2) That agreement merely agreement was an to entered into an agreement in future, lacked cer- tainty; (3) That mutuality lacked required 17-803, R.C.M. section and was calling unenforceable as performance personal for the services under R.C.M. 17-807,
section subd. 1. plaintiff granted Was the option buy exclusive or was to sell! upon first decision conditioned defendants’ not, upon rests Defendants’ contention that following hereby agrees “Landlord words the contract: option let and the tenant, give lease unto the tenant a first ~buy.” as set Emphasis supplied. arguing the words give plaintiff only opportunity out first if defendants sell, rely wish to certain definitions defendants buy” Phrases, words “first in Vol. Words and *6 in Cumulative Pocket While authorities cited that Part. those may instances, notable work be in some suffice it relied say they inapplicable in present to are the case. It is well estab court, instrument, lished in interpreting that a a written phrases garner not in isolate certain of that instrument order to parties, by the grasp intent of the but will the instrument its light instrument, four in ascertain corners and of the entire the paramount the guiding parties. the Mere iso intention of tracts, prevail lated clauses and words will not be allowed to general over in the R.C.M. language the utilized instrument. 13-707; 387, Carmichael, 102 Mont. 58 section Snider v. 1004; (2d) Dwire, (2d) Pac. 94 Mont. 23 Pac. Johannes v. 971; Co., 592, 230 Mining Lee v. Gold 71 Mont. Pac. in lease is examined following language
If in paramount rule construction the light the above immediately apparent: tent of the becomes by tenant, 2’ tenant shall No. is chosen “In event ‘Plan choice, pay- said date of his and such notify prior to landlord year 1951, land for rental of the shall then constitute ment payment upon for down a contract further, shall constitute a * * * of said land sale agrees buy the agrees and tenant land sell to “Landlord to * * * $8,500.00. the sum of described for hereinbefore pro- the minimum paragraph shall constitute foregoing “The may buy his to option exercise under which tenant visions Agreed, that the event Further Understood “It Is military into the services of United called that the tenant
103 buy, option to then the tenant his States before be exercises landlord not be bound option and the shall cannot exercise said option buy.” supplied. Emphasis tenant’s “first language does the term above-quoted in the Nowhere buy” contrary language entire option appear. On the interpretation; of the tends toward one given option property was exclusive exercising his lease; method described under his defendant, option tendering $1,500.00 to the as called by “Plan No. 2.” strikingly similar, question For a case on the facts and both involved, Snider, (2d) of law see Roth v. 25 Wash. (2d) 819, option
Pac. 82 where that held “first court the words purchase,” light contract, in the other language gave plaintiffs an option purchase exclusive the land in question. purchase that an
It has been well-settled will be D’Orazi, 120 specifically enforced. Brubaker v. Mont. 538; (2d) Morton, McLaren Gold Min. Co. v. Pac. page Mont. 97. In the latter case on 393 of (2d), page citing 124 Mont. on 980 of Pac. the court from Lindley (3d ed.), 859, pages 2123-27, Mines section said: *7 “ land, any ‘An sell more than option to or other form of contract, contemplates specific performance terms; a of its it right specifically imparts is the to have them enforced that However, to them their usefulness and value’.” it should be options specific purchase gov added that enforcement of is applicable specific erned the same rules as are enforce generally. Specific Performance, ment of contracts 81 C.J.S. 31, pages 479, 485; Jur., Specific section 49 Am. Performance, 120, pages 141, section is controversy
Thus the court faced -with the main involved appeal, Option in this whether or not “Lease Buy— with Agreement” case, which is involved in this comes within scope granting specific performance. of those cases
Examining argument, defendants’ second as above, set out deciding whether proposition of
we are faced with the
elements
parties
the essential
actually
had
intended to set down
realty, whether the
of a
sale
or
purchase
contract for the
a
merely
enter into
contract
agreement
instrument was
If the latter
realty
in the future.
purchase
and sale of
equity
it
that
parties
was the true intent of the
is well-settled
Sullivan,
agreement.
will not
such an
Dineen v.
enforce
Littlefield,
241;
203,
195,
Mont.
213 Pac.
Reeves v.
75,
47 Mont.
482,
(2d) 879;
Allen,
Mont.
Pac.
Monahan v.
if the
equally
the above rules from 55 N.W. wherein it was said: consideration, upon a persons, valid two “A contract between future, at the elec- in the they specified time will, at some that specifying contract, particular a them, enter into of one of tion * * But an binding *. undoubtedly terms, is its they may such contract in the future make they An to enter nothing. upon amounts agree then contract, if the terms of a agree upon negotiations into of action.” basis of a cause made the can, [47 cannot be they 75, 130 Pac. Mont. 771]. Needham, supra, Long is enunciated same doctrine Mr. page 735, Justice at where 423, page at
37 Mont. Law, pages 666, stated: citing Current Holloway from contract, a written “ necessary, in order to make ‘It is not way writing in formal reduced to thereof be the terms *8 by or piece paper, one of but it is a written offer sufficient if other, the party accepted by behalf of behalf of one is or on on some language meeting and the used shows a of the minds particular subject-matter. * * [*] An to contract is, course, is left something of not a final contract because open. Thus, parties where the make the reduction of the con- writing signature by tract to and precedent its them a condition completion, to its it it will not be a until is reduced to writing signed. But, they and its where assent to all of terms, writing the mere in reference to a future contract negative not the present completed existence one’.” Defendants support quote following their contention the
language from “In 2’ the lease: the event ‘Plan No. is by tenant, chosen notify prior tenant shall landlord to said date choice, of his payment and such shall then rental constitute year land for further, shall constitute a down payment upon a contract land, for sale of said which contract shall up- be drawn at that time following and contain the which shall be a memorandum of said contract.” The words “which contract shall be drawn up at that time and contain the follow ing” purportedly are significant light ones. However of the rules set Long Needham, supra, as out in and Monahan Allen, supra, apparent that the agreed, had one- of them to sell and the other property described in lease; that a valid offer contemplated of sale was under 2,” and the thereunder, “Plan No. memorandum re quired acceptance to transform it into a Further, validity enforceable contract. the reference to a con up tract to be drawn future was referring only to a not a parties, formal contract future for the- as; already agreed parties had what the contract would contain words, following.” indicated “and contain the The “fol lowing” gone had what before constituted the contract, not incorporate formal instrument which would more agree already entered into. ment
However the defendants contend the contract w
incomplete provisions in its under the and uncertain terms 6, of 1947, 17-807, R.C.M. declares fol section subd. which lowing- terms agreement, “6. An contracts unenforceable. precise of sufficiently which are not certain to make act is It well- clearly to be done is of course ascertainable.” that a must specifically settled to be enforceable be contract all complete and certain in essential matters included within its scope. Nothing conjecture surmise, or must be left to or be so glean it intent vague impossible to make for the court to sought of be en from the or the acts instrument, Littlefield, supra; Sullivan, supra; Dineen forced. v. Reeves v. Allen, Long Needham, supra. supra; Monahan v. v. certainty is a equally
It well-settled absolute nd every prerequisite spe is not a completenessin detail certainty and performance, only completeness cific reasonable merely subsidiary, col being required. Those matters which are are not lateral, go or which performance essential, expressed in informal and therefore need not be agreement. 597, (2d) 218 Elliot, Johnson v. 123 Mont. Pac. 348, Sullivan, supra; Aronow, v. 77 Mont. 703; Dineen Lewis v. Tobin, 146; Long Needham, supra; 251 v. 132 Pac. v. Edwards Ely. 562; City Lexington, 141 Or. 284 Pac. Slade v. Hotovy, 328; 404; 101 N.W. Ruzicka v. Neb. S.W. 329; Lewis, 528, 45 A. Kleinschmidt v. (2d) v. 185 Md. Trotter 598; Co., Ruzich, v. Trust 103 Or. Pac. Boro Central (2d) 535, 51; Specific 81 C.J.S. Per App. Cal. 31, pages 479, section formance, one rest present held that cases like universally is It also Rarely and circumstances. peculiar own facts their another, or so fashioned fact one case identical find do we say fours with another. There one on all law, can that we denying situation and equity giving relief in one find fore we be, quite not, but are identical. the facts seem to in another where supra, Needham, and Reeves Long The Montana cases proposition contro- each supra, illustrate Littlefield, its facts and circumstances. own be bottomed versy must bound not be will by precedent, although guided court, This There- problem. peculiar presents its own thereby each case since any guided not be result, just we fore, arriving at in the of this ease facts case, interpret but rather will one decided. already been many have cases which light of the gave Defendants this: agreement was case the present In the the land option purchase exclusive exer method of $8,500; plaintiff’s existing lease for under the $1,500 November before pay cising the defendants payment on the down sum constitute the 1951. That would by the provided for payment balance was property. The of the crop two thirds plaintiff delivering the defendants payment due and year, crop coA^erthe raised such share to *10 each provided It further year. for that owing on the contract land forty-five acres of summer fallow that the was to that there year 1951. The defendant stressed the fact during the security, acreage planted taxes, interest, to be was no mention of many holding cases performance. or time of However there are essential to that these are all collateral matters which are not validity Elliot, supra, v. states of the contract. Johnson for, implies the law payment provided that no time of where payment that will be made within a reasonable time or de See, also, Lommasson, Hall 113 Mont. 124 mand. v. Pac. 893; 694; (2d) 109 164 (2d) Jones, Johnson v. Utah Pac. 718; 56 Pietros, Droesch Homes v. 185 Misc. N.Y.S. Dapper, App. 104; Mahanay Pollak 219 220 v. Div. N.Y.S. Lynde, App. (2d) 79, (2d) 430; 48 Cal. Pac. Thomas v. 437; City Lexington, Johnson, Utah Pac. Slade v. supra; Faylor, App. 533, (2d) 339; 60 N.E. Schafer Ohio Hotovy, supra. Ruzicka v. by the pointed items out defendants be
Thus, though the equity still give a court of relief agreement, absent from the stands, stipulated. the essentials are as it if, from the contract rely language in the memorandum The defendants also foregoing paragraph shall “The constitute the- which states: may under which tenant exercise provisions his minimum buy, but is understood parties may mutually agree that ’’ other payment terms as to the Defendants balance. con- language tend that this indisputably points parties out that the intended the incomplete, to be that terms other might agreed conditions upon. be But defendants overlook it states the “foregoing paragraph shall constitute provisions minimum under may op- which tenant his exercise tion.” Emphasis supplied. parties impliedly agreed if no amicable concord at, could be then arrived nevertheless the parties were bound provisions.” the “mininmm
At the trial of action, the defendant, Hubert E. Rustad
testified that parties signed contract, when the had only there was item agree one mentioned which the would subsequent to on a formal agreement, and that item was the rate; nothing interest else regard changing was discussed with existing memorandum provisions. and lease It is apparent the only reason defendants now contend that the contract is in complete and uncertain is the fact the land covered lease is now an development area; oil rights that the mineral have taken on a new If value. reservation minerals had been intended to be contract, included that would have provided been for. It that thought only is evident occurred to defendants when the rig'hts value of the mineral increased. The defendants attempt up now specious legal argu throw a wall of surmount, ments for this court to apparent when it is from the testimony evidence adduced the trial at reason *11 they had refusing for to be bound the lease and memorandum the new value attributed to the mineral estate. Needham, supra, page
In 37 Mont. at Long 420, v. 96 at Pac. 735, quoted approvingly the from Turner page court v. McCor 161, 28, Rep. Am. mick, 904, 56 W. Va. S.E. St. wherein stated: that court “ ‘Property rights are sacred and be guarded by should well but, deliberately law; when man has made a fair the contract it ought permitted not to sale, flimsy he be avoid some of bargain’.” avail himself of a better pretext in order to mutuality lacks the argument that Defendants’ next Gold authority McLaren upon the of merit without Development Gas supra; & Morton, Mines v. Bull Creek Oil Co. D’ (2d) 960; v. Bethel, 222, 258 Brubaker v. 127 Mont. Pac. 607. Hogan Thrasher, 318, 233 Pac. Orazi, 72 Mont. supra; v. in this case is Finally maintain that the contract defendants proscription it within the of unenforceable because comes 17-807, that since They contend 1947, R.C.M. section subd. price is to out two-thirds purchase paid of be of balance they rely upon grain crop, plaintiff’s then must year’s of each the courts are ada Although for that personal service balance. refusing performance to contracts which re specific mant in protracted personal service re quire supervision the court’s applicable is not in this case. "What lationships, rule property, not defendants contracted for was a sale'of their thing for com personal plaintiff. services of the looked to pensation personal plaintiff, is not but rather the services purchase price, crop. as measured two-thirds of Cali 17-807, fornia has a identical subd. their statute to section they Code, Although always Civil which is section 3390. have statute, refused enforce personal service contracts under the they distinguished actually have also between contracts which personal to, for appearing called services those do not. App. Weston, George Cal. problem was faced with the of en (2d) 110, the court to lease certain forcing of defendants drilling development gas. thereof for the for oil and lands performance grant specific on the same The court refused to Williard, Templeton this court refused grounds 522, namely, mutuality lack in that 317, 272 Pac. Mont. terminate the have lease lessee would holding not call However, did $1. tender of part plain personal service on the performance said: tiff, the California Court seen, proposed has been also that the claim
“Respondents, obligate appellant perform personal serv lease undertakes *12 and, ices performance since this decreed, it, cannot be that in respect that also, mutuality, alia, lacks inter Los citing, Angeles Bakersfield Oil & Development] [& Co. v. Occiden [of Arizona] tal Co., Oil 144 Cal. respon Pac. 25. In this contention is dent on ground. less solid In Angeles Los Oil & Bakersfield [& Development] Co. mutuality v. Occidental Oil Co. [of Arizona] was, indeed, be, held to for reason, absent, this but there the personal services Martin, to be one including rendered his obligation personally organizing to see proposed corpora a tion for contemplated the exploitation, as well as to see that rights various gotten together were it, in in vested were volved. the insant only plain case the runs not tiff but to his assigns heirs and that it is so is clear that there no question of a requirement of personal any of services particular individual. Neither think respondent do we right in claiming that specific performance sought is of a succes sion of different It executing acts. is of one act—the act of a in agreed lease form.”
Although pointed George the court out in the that case assigns, lease ran distinguished to heirs and the case was further grounds on the execution contemplated, of lease was drilling See, also, not the of the well. Gersick Shilling, App. (2d) (2d) Cal. 583; Reed, 218 Pac. Harms v. 73 Cal. App. (2d) 853, (2d) Capps Joiner, court in App. 1934, Texas Tex. Civ.
S.W. 853, 856, granting specific performance of an George case, almost identical to that in the held that general denying specific performance rule personal automatically encompass every service contracts did not con- covering gas or They tract lease oil and lands. held: “* * * the contract here under consideration was [not] particular purpose entered into with the intent and of obtain- ing performance actual personal services of the obli- gated parties. We are not of opinion that such a contract necessarily its nature alone a contract performance personal part the contractor, service and is not for under would equity a court such reason ’’ performance. any refuse to enforce circumstances all instant con- opinion is of the Therefore this court *13 personal services. performance call tract does not arguments of defendants’ remainder We examined the have merit. find them without respondent. judgment is affirmed with costs ANGSTMAN, BOTTOMLY and CASTLES, MR. JUSTICES concur. ADAIR:
MR. JUSTICE judgment, district court’s I affirmance of the concur foregoing opinion. not all that in the but said J. D. OLSON, JEANNE D. Executrix Estate Respondent, KENNEDY, Plaintiff Deceased, Appellant. McLEAN, Defendant GEORGE No. 9439. July May 16, Submitted 1957. Decided 1957. Rehearing August 19, 1957 Denied