Dunjo Land Co. v. Hested Stores Co. of Wyoming

• Decision Date: 31 October 1973
• Docket Number: No. 12532,12532
• Citation: 163 Mont. 87,515 P.2d 961
• Parties: DUNJO LAND COMPANY, a copartnership, composed of Joanne K. Hargraves and Dungan H. McCauley, Plaintiff and Respondent, v. HESTED STORES COMPANY OF WYOMING and J. J. Newberry Company, Defendants and Appellants.
• Court: Montana Supreme Court

Page 961

515 P.2d 961

163 Mont. 87

DUNJO LAND COMPANY, a copartnership, composed of Joanne K Hargraves and Dungan H. McCauley, Plaintiff and Respondent, v. HESTED STORES COMPANY OF WYOMING and J. J. Newberry Company Defendants and Appellants.

No. 12532.

Supreme Court of Montana.

Submitted Sept. 14, 1973.

Decided Oct. 31, 1973.

Jones, Olsen & Christensen, Billings, Robert L. Zimmerman, argued, Billings, for appellants.

Hibbs, Sweeney & Colberg, Billings, Hugh Sweeney, argued, Billings, for respondent.

CASTLES, Justice.

Defendants appeal from the granting of summary judgment for plaintiff in an action for damages founded on the provisions of a lease.

From admissions contained in the pleadings and an agreed statement of facts, the district court of the thirteenth judicial district, Yellowstone County, found these facts: That on September 11, 1959, defendant Hested Stores Company, the predecessor in interest to defendant J. J. Newberry Co., entered into a lease with plaintiff Dunjo Land Company's predecessor in interest. Laurel Security Company. The lease term commenced on October 1, 1959. The lease provided in part:

'The removal of the walls between the Bateman Laurel Security Company building shall be at the lessee's expense. In the event the lessor herein requires the replacing of the wall at the expiration of the lease or any extension thereof, the lessee agrees to replace said wall at lessee's expense.'

By its terms the lease expired on February 28, 1969. On October 28, 1969, plaintiff lessor requested that defendant lessee replace the wall. Defendant refused to replace the wall on the grounds the request for replacement was not timely made. The district court concluded from these facts that the request was timely made and granted summary judgment for plaintiff.

The sole issue on appeal in whether the district court was correct in concluding that notice was timely given of the lessor's request for replacement of the wall.

Defendant lessee's position is essentially that the term of the lease which required replacement of the wall 'at the expiration of the lease' required plaintiff lessor to make demand for replacement of the wall on the day the lease expired. Plaintiff contends there is nothing in the lease requring the request be made on the day the lease expired and its request, made within a reasonable time after the expiration of the lease, was timely.

Defendant's contention that the lease term which required replacement of the wall on request at the expiration of the lease required delivery of the request on the day that lease expired is untenable. This Court cannot rewrite the contract entered into by the parties. In Guidici & Meine v. Minerals Eng. Co., 136 Mont. 389, 403, 348 P.2d 354, 361, this Court said:

'* * * a new contract may not be made for the parties, nor other language read into or eliminated from the lawful terms thereof * * *.'

To accept defendant's contention as to this point would require the addition of a term to the contract specifying the time for the delivery of the request to replace the wall. This we do not do.

By statute, when no time is specified for the doing of an act, a reasonable time must be allowed. Section 13-723, R.C.M.1947, provides in pertinent part:

'If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.'

Here, since the parties did not specify the time for delivery of the request to replace the wall, plaintiff is entitled to have its request for replacement honored if it was made within a reasonable time.

Guidelines for the determination of what constitutes a reasonable time in any given stituation have been long...