*1 Todd, TODD M. DONALD D. Plaintiffs Rosalie F. HARVEY BERNER Alice V. Respondents, Ber- v. Appellants. ner, Defendants 84-233. No. Sept. Submitted on Briefs 1984. Decided Dec. 1984.
Gregory Bozeman, for O.
appellants. Big Timber,
Josephson Fredricks, Fredricks, B. Conrad & respondents. plaintiffs for Opinion of delivered HARRISON
MR. JUSTICE Court. Judi- appeal Sixth Court the District
This is an for County Montana, in for of the State cial District of involving a contract Grass, of a rescission of Sweet purchase affirm. a ranch. We defend- respondents, November Todds and
ants, whereby Berners entered into an a total purchase Berners the Todds’ ranch for agreed to purchase $2,250,000, payment down price of with a 29% by and the balance to be carried on the contract for deed (Todds) $300,000 a 11% on all but thereof for sellers period years ten-year Marjorie a twenty with balloon. Sizemore, agent, represented parties a real estate this transaction. Provisions were included to accommodate exchange” “three-cornered of the Berners’ Round River date, Ranch if desired the Berners. On the same Bob Siebrasse and Sons made an offer to the Berners on the Round River Ranch deposited an earnest check Realty. Lyle with Watson This information had been through communicated to the Berners their real agent, Sizemore, estate signed before the Berners with the Todds. The offer Bob Siebrasse and Sons entirely on the ranch was consistent the list- ing agreement signed Berners had on their ranch. *3 The sale of the Berners’ Round River Ranch fell through later, one through month no fault of the Todds. February 3,. 1982, On the Berners met with the Todds Billings, Sizemore The Berners’ brief Montana. (Berners) indicates, they they “At time felt owed (Todds’) Todds something hospitality for their (Berners) them had around the ranch.” The Todds felt coming lot more and asserted to the Berners that $100,000 had attorney consulted an and were entitled to the downpayment agreed upon got in the contract. The Todds $32,500 sign the Berners to a note in the amount of to avoid a suit over the that same time downpayment. At agreement between the Todds and the Berners marked by parties. “Void” and initialed Thereafter due, pay the Berners and this ac- refused to the note when tion ensued. complaint promissory
The Todds filed a to recover on the by note executed Berners. There- and delivered to them interposed raising answer, after, affirm- an two promissory seeking note. ative defenses rescission Depositions the Todds filed a motion for were taken and response summary judgment. motion for sum- No to the mary by was filed the Berners. Neither hearing attorney appeared on the Berners nor their presented argument point their motion. the Todds At summary judgment motion took the for and the court court, Thereafter, 1984 the on March under advisement. parte, giving March the Berners until ex entered an order allowing respond the motion brief and 26 to present motion on March oral on the Berners to 29, 1984. third-party leave to file a
The Berners filed a motion for complaint against Marjorie March Sizemore. On again Todds was the motion for present. argued On court, Berners’ counsel to the with the granted 30, 1984, Todds’ motion March the trial court summary judgment, third- leave to file a denied motion for appeal complaint party ensued. Sizemore and this presented Three are for review: issues (1) or fraud as to the Does mistake voiding rescinding grounds constitute settlement? dispute (2) regarding mistake Are facts and/or prevent judgment? which (3) complaint third-party have been Should permitted? respondents, Todds, filed a
It should be noted that complaint and de- note executed recover on a Thereafter, defendants, Berners. livered to them raising interposed de- answer, two affirmative an Berners Deposi- seeking note. fenses rescission *4 Sizemore. of the Todds tions were taken summary judgment and a motion for Todds then filed days fixed the time ten before the same within served response hearing. previously to noted, was no there As
267 Todds’ motion for the Berners and neither attorney appeared. nor their However the court, upon learning why appellants’ the facts counsel matter, overlooked this present allowed Berners’ to counsel argue summary brief and against judgment. argue
While the Todds in al erred lowing argue the Berners to submit briefs and late, judgment motion of the Todds we note there are no point Montana cases in this matter. However several on^ Inc., Foster Inc. v. Apiary, Apiaries, Hubbard cases such as (Mont. 1981), Ac 1213, 1025; St.Rep. 630 P.2d 38 Pacific ceptance Corp. v. McCue (1924), 761; 99, P. 71 Mont. 280 and Robinson v. Peterson (1922), 63 Mont. 206 P. 1092, recognized judicial that there is discretion involved may trial court and it set aside a committed in error 60(b), or because of neglect excusable under Rule M.R.Civ.P.
For the above reason we find no merit in the respondents that the trial court erred in allowing appellants to brief and argue point. find, however,
We it ap- is clear from the pellants note, issued and delivered the which action, the subject of this as a settlement of respondents’ against appellants, claims from arising an agreement of buy the Todds’ ranch. Whether or not the receipt “earnest purchase,” to sell or deposi- considered as an exhibit to the tions, might ultimately proved, have litigation, been after be against appellants unenforceable is immaterial under the circumstances. relinquishment
We find the of the Todds’ claim Berners, though may even the claim not have valid, ultimately proved been is sufficient consideration Murray v. White (1910), 42 Mont. note. See (Iowa 1906), and Brown v. Jennett P. N.W. 747.
268 they
The court in good found the Todds were faith when alleged they had a valid claim under the “earnest receipt and agreement purchase” to sell and referred to depositions. good Whether this came part faith on their not, they from the fact that attorney consulted an or record indicates the contract was enforceable parties. As the record indicates if the Todds had not felt they they had an enforceable have would not cattle; they sold their they kept hay; would have their dispossessed tenants; would not they have their would not have taken their ranch off the market. 15A See Settlement, Compromise and Am.Jur.2d section 16 and 17 790. appellants parties stake neutral to the as argue the to buy/sell material to the compro- of a mise parties. They and settlement the two argue between not, faith, validity in good Todds could assert buy/sell agree pay and Berners would not to upon unless thought was the substance compromise which the was based.
Appellants argue grounds further there was fraud as a for the compromise rescission of the and settlement. Rogers Swingley v. (Mont. 1983), 306,] Mont. 670 P.2d [206 St.Rep. summary judg this Court reversed a upon ment in an a written action based replaced lease which was find with a note. We is applicable above case not view of the fact there no any procurement parties. between the two answer, they
As to the second defense in the Berners’ allege upon “promis there was a mutual mistake which the sory However, note” in the could be rescinded. nowhere complaint anything do the Berners nor is revealed allege, court, before the admissions any complied pertinent regard with to statutes with rescission. rescis- regard 28-2-1713, MCA, specific
Section sion, provides as follows: consent, can be accom-
“Rescission, not effected when rescinding party only by part use on the plished rules: following comply with the diligence of reasonable “(1) the facts discovering promptly upon He must rescind duress, men- if free from which entitle him to rescind he is right his ace, influence, disability is aware of undue or to rescind. everything of
“(2) party He must restore to the other him the contract has from under value which he received *6 such same, that upon condition must offer to restore posi- unable or likewise, unless the latter is party shall do refuses to do so.” tively that allegation showing or
Here there is no There comply with the statute. diligence to used reasonable rescinded proof or that allegation is no allegedly entitled the fact which promptly upon discovering in its order court them As noted the trial to rescind. summary judgment, granting plaintiffs’ motion until dispute this note legal Berners took no action to Todds filed suit. addition, proof or allegation
In there is no value everything of the Todds Berners have restored to contract, under the from them which the Berners received provided same as to restore the or that the Berners offered by statute. Berners, of the
Further, second defense concerning the cannot be MCA, “Rescission 28-2-1725, provides: section it whom party against unless the adjudged for mere mistake posi- same substantially the adjudged can be restored made.” had not been tion as if the contract before proof allegation no noted there is It should be sub- can be restored the Todds had note promissory if as stantially position the same not been made. was alone, Court the District reasons foregoing
For judg- correct the Todds’ motion ruling ment and its is affirmed. addition,
In it should noted in the second defense of be answer, the Berners’ in their brief that the Berners admit promissory compromise note was a settlement of the buy/sell. Todds’ claim on the Whether or not might ultimately prove, litigation, was enforceable or after to be unenforceable the Berners is immaterial. relinquishment buy/sell, The of the Todds’ claim on the though might ultimately proved even the claim not have valid, is sufficient consideration for the note the court so found. parties,
From the it is clear that at the time of the and settlement —the litigation note with which this is concerned—the Berners something hospi- felt owed the Todds for the Todds’ tality them the ranch. The Todds felt had coming compro- much more to them which resulted mise note. appear addition, it would the Berners’ regarding
their brief to the court buy/sell only misleading is not but inaccurate. specified spe- The terms of the sale of the ranch were certainty: purchase price $2,250,000. cific The land sufficiently downpayment, sold was 29% of described. The *7 purchase price, provided for. The balance of purchase price pay- was to be carried on a contract for deed twenty-year ten-year able on a amortization basis with a balloon. Interest on all but of the balance of purchase price $300,000 was an as- was set at 11%. The sumption predecessor in- of a contract with the Todds’ carry terest and it was to the same interest rate as the un- derlying contract of 8%. appellants’
In addition it should be noted that as to the argument, “Explanatory an granted Note” the motion for stated: “I further conclude that there are no facts part misrepresentation plaintiffs [sic] ascertain- fraud or on give a valid the entire as to able from record so defense to the note.” record, in so no error From we find the court made finding. third-party complaint
The third issue is whether permitted by Having should have been the trial court. granting summary judg- found the trial court did not err in unnecessary ment, we to discuss issue. That find it this disposed appellants any matter can be further action desire. of the District Court
judgment is affirmed.
MR. JUSTICES GULBRANDSON and SHEEHY concur. specially concurring: WEBER, MR. JUSTICE I concur in the result.