*1 INC., Corp., AVIATION, Plaintiff a Montana SUNBIRD Party Defendant-Respondent, AN ROD Third v. ANDERSON, Defendant DERSON, RODNEY a/k/a Party Plaintiff-Appellant. ANDERSON, ROD Third a/ Plaintiff-Appellant, ANDERSON, v. SUN RODNEY k/a Defendant-Respondent. AVIATION, BIRD INC. No. 81-526. June 1982. Submitted on Briefs Sept. 1982. Decided *2 Anderson. Herriott, L. Ralph Billings, Bozeman, Morrow, Eck, & for Sunbird Olson Sedivy, Aviation. opinion of SHEEHY delivered the
MR. JUSTICE Court. from a
Appeal by defendant Rod Anderson Court, Dis- Judicial Eighteenth him in the District against Sun- trict, pay plaintiff County. Gallatin He was ordered fees, interest, attorney Aviation, $1,297.89, plus bird Inc. the co-owner- accounting arising an affirm the District Court. ship of an We *3 which Aviation, Inc., corporation is a Montana Sunbird a real Anderson is service. Rod provides general aviation experienced pilot. and an agent estate Stanley Lan- parties and one On December co-ownership of gaker into a written entered plane of Piper purchase II Seneca by a Billings of Security First Bank was financed at the $75,000 monthly payments principal, with first of mortgage $1,486.43. the aircraft agreement one-half of co-ownership Under the Anderson and by one-half Rod was owned Sunbird and and routine taxes Stanley premiums, Insurance Langaker. corporate by the paid percent maintenance were to be The ex- individual owners. percent by owner and 30 expenses component major pense engine overhauls owner, and 50 percent by corporate paid were to be agree- parties All percent the individual owners. hour a cost for each use the Seneca at right ment had the for the co-own- accounts usage kept Sunbird $45. from the individ- due amounts ership, would collect the .
ual owners as the expenses debts were incurred. February
On delinquent Anderson was in his pay- co-ownership $1,297.89. ments to the in the sum of He exe- cuted a note to provid- Sunbird for that amount ing percent semi-annual interest at 16 and reasonable attorney fees. May 16, 1980,
On owed the a bal- $17,000 ance of on his acount in settlement of which he transferred his interest in the plane to Sunbird. After date, Sunbird owned and Anderson 75% of the 25% aircraft.
When it was determined that the Seneca would not meet FFA engine standards unless repair out, July was carried purchased and had installed two rebuilt engines at a $23,166.41. cost of
In early parties decided to sell the plane at a price satisfy sufficient the balance on the first owing mortgage. At a time when believed the would be Aviation, sold to Dutton Anderson executed a blank bill of sale and delivered it to Sunbird to be used in the sale to However, Dutton. the sale to Dutton did not oc- cur. Anderson’s blank bill of sale remained with the officers who used it in the the plane on October 30, 1980 Bremerton, to one Tucker of Washington. Tucker’s consideration for $65,000 Seneca consisted in cash to Sunbird, and the airplane, transfer of title to another which was later $19,000. sold Sunbird for These monies were credited Anderson and Sunbird accounts after the security interest at Security First Bank of Billings was satisfied.
During the entire period of co-ownership, Sunbird main- *4 provided tained and accounting Anderson an of all transac- tions. The record shows and the District Court found that hours, Sunbird flew the Seneca 515 and that Anderson and flew it 150.1 hours. Maintenance hours totaled During 15.1 maintenance, hours. this period, expenses for insurance, mortgage $51,298.65. payments and taxes totaled debited The and were accounts Anderson addition, was debited $15,237.27. Anderson’s account In 1980, 30, $5,791.60 As of October engines. for the rebuilt $84,000 $11,336.49. realized Of the Anderson owed Sunbird $59,414.47 satisfy the Seneca, paid to was in the sale $24,585.53, $18,439.15 was Of mortgage. remaining first credit $6,146.38 Anderson. This and credited to Sunbird Sunbird, $5,190.11 by Anderson to owing left a balance note of promissory on the unpaid principal balance less the $3,892.22 $1,297.89. further Anderson owed a Therefore co-ownership agreement. under the An- 7, 1980, against action April Sunbird instituted an On payment full promissory demanding on the note derson an answer attorney fees. Anderson filed interest and plus a and included complaint generally denying Sunbird’s seek- and Sunbird third-party complaint against Langaker aircraft, aircraft and or a sale of the ing partition of the proceeds. division of com- 12, 1980, filed an answer
On December Sunbird $4,490.11 An- owing from demanding an additional plaint 1981, Ander- February interest and costs. On derson with action, Sunbird, separate in a complaint against son filed a of, from the to have resulted damages alleged consolidated. cases were plane. May On July Court on were tried to the District consolidated cases concluded the District Court and thereafter $3,892.22 under Anderson owed on the plus interest agreement, and fees, Dis- attorneys hearing on the issue note. After $2,325 prosecution for the granted trict Court action on the note. the collection judg- entered Court the District September On of Sunbird favor Anderson against ment note, per- account, $1,297.89 plus on the $3,892.22 on the $2,325, thereon, and costs attorneys fees cent 10 percent at $45.74, together with interest on annum. per
Anderson of filed his notice on October presented by The issues Anderson are: 1. Whether the District Court erred in Anderson finding $1,297.89 note, promissory owed Sunbird on the $3,892.22 on the account.
(a) Did the District Court’s consideration of the co-owner- ship joint any as a venture in way prejudice appellant Anderson?
(b) Did Sunbird’s written letter to Anderson that he had no received trade constitute a re- lease from further obligation?
(c) Did the Longaker release Anderson from fur- ther obligation to Sunbird?
There is little doubt
that Anderson
owed Sunbird
the promissory note. He delivered a promissory note to
in recognition
of his account
balance.
note
provided
attorneys
for
fees
percent.
and interest at 16
This
Court follows the
party
rule that a
primarily
ne
liable on a
gotiable promissory
is
instrument
indebted
that amount
John K. Etc. Benev. Corp. v. School District
payee.
No. 17-H
Therefore,
We look other issues raised Anderson to deter- mine whether the judgment account, for the amount proper. is
First Anderson claims that the District Court’s considera- tion of joint as a venture prejudiced him.
Sunbird answers that specific findings by there was no District Court on the joint issue of venture. The Court men- joint tioned venture its memorandum but Sunbird con- tends that this does not affect the outcome of the case. Sunbird notes in its brief explain that Anderson does not the claimed prejudice mention of joint venture the District Court.
A enterprise venture is undertaken “[A]n as persons particularly, several and more an associa jointly, persons carry single on a business tion of two or more defined, somewhat profit. has also been enterprise It undertaking variantly, special persons as combination Cam . Rae v. .” profit,. specific some adventure jointly 1060, 1064. In the eron (1941), 112 definition, par between the arrangement sense *6 an simply agree It was joint ties here was not a venture. in provisions of an aircraft with co-ownership ment for the repair and mainte usage, for the costs of the The parties. the District Court’s among nance to divided be not in the memorandum does “joint reference to a venture” the proper, of interpretation, its which we find be affect the responsibilities parties of the under agreement. that a letter as an issue
Anderson further contends 3, 1980, November consti from Sunbird to Anderson dated further Anderson from ob release of independent tuted an Court made contends the District ligations to Sunbird. He letter of Novem to the findings relating no of fact specific determine review and and that we should ber an re independent whether in fact the letter constituted lease of Anderson. 1980, 3, “In part: view states
The letter November absolutely no claim to you feels have these facts Sunbird on contending is ownership of the C-206.” Anderson the co-owner- terminating legal has the effect that this him releasing the effect of ship language has that co-ownership agreement. under obligations of Anderson’s issue answers that air- 3, 1980, concerning of November under the letter in the lower court. was not raised craft con not be will District Court An not raised issue Giberson, et al. v. Chadwick appeal. sidered us 1723; Stout v. Rei 1213, St.Rep. (1980), 37 Mont., 618 P.2d 992; Kearns v. Mont., St.Rep. ter (1979), P.2d McIntyre Construction Co. (1977), Ruby O’Hanlon v. Gulch Co. 433, 440; Mining 209 P. Anderson further that contends sale the Seneca by Sunbird, and the release of each had the effect of releasing any Anderson from further obligation to Sunbird.
There is no evidence in support the record to Anderson’s Seneca, contention alone, the sale standing con- stituted a release obligations owing by Anderson to Sun- bird. agreed had plane sell the and Anderson had delivered a blank bill of sale to be used plane. nothing There is in the support record to Ander- son’s plane contention that the sale of the was to terminate all of his obligations to arising out of the co-owner- ship agreement.
We do not find anything in the release of Sunbird and the transfer of his interest Sun- bird sufficient constitute a release of the obligations ow- ing by Anderson.
The common law rule is that a release of one ob ligor on a contract v. releases all other obligors. See Collier *7 Field 205, 2 Mont. 320. “The modern view is where or two more obligors jointly are liable for contract, of a breach a release to one does not necessa rily other, release the question that the whether other is (1) released depends upon par the intention of the (2) ties to instrument, the release whether the injured party in (satisfac has fact received full compensation tion). . .” 66 Am.Jur.2d Release §35. regard
With tort-feasors, to release of this Court has stated that:
“Unless specifically otherwise, release states a finder of may fact consider the intent of the in a re- making lease.” Kussler v. Burlington Northern, Inc. (1980), Mont., P.2d St.Rep.
Here Anderson contends findings fact expressly was District do not state whether Court released, was, whether his consti- indeed and if he of Anderson. tuted a release part
Nothing in an intent on the the evidence indicates acquired the interest when it release Anderson appears record, it From the to the simply acquired Langaker’s in the air- that Sunbird Langaker’s obligation exchange assuming to the for craft nothing arrangement. in the termina- We find airplane Langaker’s his interest in the transfer tion implicit, express release, would constitute Sunbird that expenses obligations under the co- from his of Anderson ownership agreement. findings in and conclu- error of fact
Since we find no Court is of the District sions of law on which the founded, affirm the District Court. we DALY, MORRISON WEBER and
MR. JUSTICES concur. concurring: specially
MR. CHIEF JUSTICE HASWELL majority opinion treatment I concur with the rulings thereon. issues raised and our concerning my question However, mind is a there appears attorney It in this case. fees awarded amount performed services award covered that the District Court’s attorney Since of the note. collection in addition to Court, I not would the District this issue was not raised authorities under the it the first time on consider majority opinion. cited