Bauer v. Monroe

• Citation: 158 P.2d 485,117 Mont. 306
• Decision Date: 04 May 1945
• Docket Number: 8509.
• Parties: BAUER v. MONROE et al.
• Court: Montana Supreme Court

158 P.2d 485

117 Mont. 306

BAUER v. MONROE et al.

No. 8509.

Supreme Court of Montana

May 4, 1945

Appeal from District Court, Seventeenth District, Phillips County R. M. Hattersly, Judge.

Action by Henry H. Bauer against R. G. Monroe, as administrator of the estate of Albert Tetrault, deceased, and others, for specific performance of a contract or in alternative for reasonable value of services and improvements or reasonable value of premises to plaintiff. From a judgment for plaintiff, defendants appeal.

Reversed and remanded with directions.

James T. Harrison, of Malta, for appellants.

Clarence H. Roberts, of Glasgow, for respondent.

ADAIR Justice.

Albert Tetrault, an elderly bachelor, owned two ranches, 15 miles apart, located on Beaver Creek in Phillips county, Montana. The upper ranch comprised over 2,000 acres and the lower ranch, called 'the hay ranch', comprised 640 acres.

Tetrault first employed the plaintiff Henry H. Bauer as a ranch hand and for a number of years plaintiff continued in such employment working for wages. In the year 1921 Tetrault and plaintiff entered into a lease agreement whereby plaintiff agreed to operate the hay ranch and to give to the landlord Tetrault, as rental therefor one-half of all the hay produced thereon. Pursuant to such lease agreement plaintiff and his wife moved to the hay ranch where they have continuously resided since 1921.

On November 30, 1935, Tetrault and plaintiff entered into a formal written contract, duly signed, witnessed and acknowledged, whereby Tetrault agreed to sell and the plaintiff, Bauer, agreed to buy the hay ranch at the agreed consideration of $6,400, payable at the First State Bank of Malta, Malta, Montana, in twelve installments.

The contract provides that if the plaintiff, Bauer, 'shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed' then Tetrault 'covenants and agrees to convey and assure' to him 'in fee simple clear of all encumbrances whatever, by a good and sufficient Deed' the lands comprising the Tetrault hay ranch.

By the terms of the contract Bauer agreed to pay $1,000 on the signing of the contract and thereafter the sum of $500 annually on or before the 1st day of each December of the years 1938 to 1947, inclusive; the sum of $400 on or before December 1, 1948, and also to annually pay interest at the rate of five per cent per annum on the whole sum of the purchase price remaining from time to time unpaid, and to pay all taxes, assessments or impositions that may be legally imposed upon said land subsequent to the year 1935.

The written contract so entered into was deposited by Tetrault for safe-keeping in the First State Bank of Malta where it has since remained at all times and where such payments as have been made thereon were received and credited.

On April 16, 1942, Albert Tetrault died intestate at the age of 80 years and the defendant R. G. Monroe, vice-president of the First State Bank of Malta, was appointed and qualified as administrator of his estate.

On July 15, 1942, plaintiff presented and filed with the administrator his verified claim against the said estate to which he attached a copy of said written contract for deed of November 30, 1935. In said claim plaintiff represented that he had paid on said written contract the down payment of $1,000; the sum of $500 paid on principal on November 30 1938, and three interest payments of $270 each paid on October 20, 1936, January 5, 1938 and November 28, 1938, respectively. The claim recites that in 'February, 1939, Albert Tetrault expressed his desire to terminate the contract for deed above-mentioned and enter upon a new agreement in the following words: 'Henry,' he said, 'you have done too much for what this place is worth. If you will keep up the tax and water payments, put in more alfalfa, build up those dikes, and give me a home here with you folks, I'll give you the deed to this place. You don't have to pay anymore.' To which claimant replied: 'I'll do those things, Tet, you can always make your home with us.'' The claim further states, that in reliance upon said mutual promises and pursuant to said oral agreement 'that Albert Tetrault stayed with and made his home with claimant and his wife continuously each year from fall until spring and during the summer months when not away looking after his other interests; that claimant re-sowed seventy acres of alfalfa during the spring of 1941, built new dikes totalling two and three-quarters miles in length, kept all taxes and water charges paid up and did all things required of him by the new agreement; * * * that he (claimant) would not have performed the said work and labor, nor furnished the home, nor made the improvements as directed, nor made the sacrifices required of himself and wife were it not for the said agreement as aforesaid, and he and his wife did so in reliance upon the promise and agreement of said Albert Tetrault, as aforesaid; * * * that claimant is entitled to all of said property and estate therein described and no part of the same has yet been turned over, conveyed or paid to claimant; that claimant has received nothing for said services.

'That because of the nature of the work required of claimant and which was rendered by claimant and his wife to the said Albert Tetrault, and because of the work done in improving the premises beyond that required by the said Albert Tetrault, and because of the sentimental value attached to a place where claimant and his wife have spent twenty-three years of their lives working and improving, claimant feels it is difficult, if not impossible to estimate the reasonable value of the premises to him by any pecuniary standard, but claimant alleges the reasonable value for all services, improvements, and sentimental value to be at least the sum of Six Thousand Dollars ($6,000.00).'

The claim concludes with the demand that the described premises now under the control of the administrator 'be turned over, conveyed and transferred to claimant, or if for any reason it is found that claimant is not entitled to the specific performance of said contract, that he be paid the sum of Six Thousand Dollars ($6,000.00), the reasonable value of said services and premises as aforesaid.'

The administrator refused to turn over and convey the property to plaintiff whereupon plaintiff commenced this action against the administrator and certain of the heirs of deceased praying that the defendant administrator 'be required to execute deed to the real property above described to the plaintiff' and that 'if, for any reason, it be determined that plaintiff is not entitled to the specific performance of said agreement that he be paid the sum of Six Thousand Dollars ($6,000.00), the reasonable value of said services and improvements or the reasonable value of the premises themselves to the plaintiff, and that the same be paid in the due process of the administration of said estate.'

The plaintiff attached to and made a part of his complaint a copy of the original written contract for deed and a copy of his claim against the estate of deceased.

In their amended answer defendants admit the making and signing of the written contract for deed dated November 30, 1935; admit that plaintiff had paid thereon $1,500 of the purchase price and the three interest installments alleged; but as to the allegations concerning the making of the alleged oral contract of February 1939, defendants allege that they do not have any knowledge or information thereof sufficient to form a belief and therefore deny the same and the whole thereof and deny that plaintiff is entitled to the land and allege 'that said contract for deed has not yet been fully paid and that there is now due and owing thereon by the plaintiff the sum of $4,900.00 with interest thereon at the rate of 5% per annum from and after the 1st day of December of 1938.'

It is well settled in this state that where the making of the oral contract alleged in the complaint is put in issue by the answer, the defendant may avail himself of the statute of frauds without pleading same. Christiansen v. Aldrich, 30 Mont. 446, 76 P. 1007; Mitchell v. Henderson, 37 Mont. 515, 97 P. 942. However, in the instant case, defendant specially pleaded the statute.

As a second defense defendants allege that the action is barred by the provisions of section 7519 of the Revised Codes of Montana, 1935. This statute, in part, provides: 'The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent: 1. An agreement that by its terms is not to be performed within a year from the making thereof. * * * 5. An agreement * * * for the sale of real property, or of an interest therein; * * *.'

As a third defense defendants allege that the action is barred by the provision of section 10613 of the Revised Codes of Montana, 1935. This statute, in part, provides: 'In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, therefore of the agreement cannot be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof. * * * 5. An agreement * * * for the sale of real property, or of an interest therein; * * *.' As a fourth defense defendants allege that the action is barred by the provisions of section 7593 of the Revised Codes of Montana, 1935. This statute provides: 'No agreement for the sale of real property, or of any interest therein, is valid, unless the same, or some note or...