Kielmann v. Mogan, 11803
| Decision Date | 23 December 1970 |
| Docket Number | No. 11803,11803 |
| Citation | 156 Mont. 230,478 P.2d 275 |
| Parties | Fred KIELMANN, Plaintiff and Appellant, v. Alex B. MOGAN, John W. Mogan and First Security Bank of Glasgow, Defendants and Respondents. |
| Court | Montana Supreme Court |
Bretz & Gabriel, Great Falls, Robert W. Gabriel (argued), Great Falls, for plaintiff-appellant.
Gallagher & Archambeault, Glasgow, Gerald T. Archambeault (argued), Glasgow, for defendants-respondents.
This appeal is taken from the district court's action in granting a motion to dismiss plaintiff's complaint as being without merit in fact or law.
On October 24, 1966, plaintiff Fred Kielmann entered into a contract for deed with the defendants Alex B. Mogan and John W. Mogan. During the contract period the deed to the property was to be in the hands of an escrow agent, defendant First Security Bank of Glasgow, for delivery 'when Buyer shall have performed all terms hereof on his part to be performed.'
No separate escrow document was executed, the contract providing that it, by its terms, would constitute the escrow agreement and instructions. The contract in paragraph 10 provides:
The contract further provided that time was the essence of the agreement; that it was binding on the heirs, successors and assigns of the parties; and that buyers could not sell, assign or sublease their interest in the premises except with the written consent of the seller.
Paragraph 4 of the contract set forth the terms of payment, the interpretation of which gives rise to this action.
'Thus sum of $8,750.00 at execution of this contract.
'The sum of $8,750.00 on or before January 20, 1967.
(Italics supplied for reference hereafter.)
The defendants paid the first installment of $8,750 as per contract on or before January 15, 1968 and then, according to the complaint:
'That on April 22, 1968, there remained payable the sum of $54,937.96 including principal and interest on said contract; that contrary to the terms of said contract, particularly paragraph 4 thereof, defendants Alex Mogan and John W. Mogan paid to the escrow agent, First Security Bank of Glasgow, the said sum which was accepted by said bank all without the consent or knowledge of plaintiff.'
Plaintiff alleges that defendants breached the contract for deed between the parties by accelerating the payments, contrary to the terms thereof. Defendants' only appearance was by motion to dismiss.
Plaintiff raises three issues for review:
1. A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.
2. A purchaser of real estate by contract for deed does not have the right to accelerate the payment provisions therein without the consent of the seller.
3. That even if the words 'on or before' allow acceleration, their use in the context here is ambiguous allowing the admission of parole evidence.
We find the first and third issues controlling. Here the defendants appeared by serving and filing under Rule 12(b)(6), M.R.Civ.P., a motion to dismiss supported by a brief and memorandum. Plaintiff filed a memorandum in opposition to the motion to dismiss. The court hereon granted the motion and subsequent judgment.
It is well settled that a complaint should not be dismissed for insufficiency unless it appears for certain that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Hamman v. United States, 267 F.Supp. 411 (Mont.1967).
The third issue, that the words 'on or before' in the context in which they are used are ambiguous, needs consideration because if indeed they are ambiguous, the complaint at this stage does state a claim.
In our opinion it does not appear to be a certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of his alleged claim. In his brief and argument plaintiff alleges the contract in question was made in the office of defendants' counsel and that he was without counsel. He was given no opportunity to raise any pleadings or discovery as to whether or not discussions were held as to tax liabilities and why time was made the essence of the contract.
After carefully considering both plaintiff and defendants' cited case authorities we find no decisions on point in this jurisdiction. Therefore we will look to other jurisdictions for the prevailing law and we will view same with our applicable statutes. The four applicable Montana statutes which we will consider in arriving at our decision are:
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Rumph v. Dale Edwards, Inc.
...Company v. Munroe (1974), 165 Mont. 185, 527 P.2d 64; Merritt v. Merritt (1974), 165 Mont. 172, 526 P.2d 1375; and Kielmann v. Mogan (1970), 156 Mont. 230, 478 P.2d 275. We have held under Issue No. 1, however, that the lease agreement and lease rider are clear and unambiguous, giving respo......
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Granger v. Time, Inc.
...that plaintiff is entitled to no relief under any state of facts which might be proved in support of the claim." Kielmann v. Mogan, 156 Mont. 230, 233, 478 P.2d 275, 276. Judge Boyd's granting of defendant's Rule 56, M.R.Civ.P., motions for summary judgment, however, was a decision on the m......
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Fillbach v. Inland Const. Corp.
...terms of the contract are clear and unambiguous the Court will not allow parol evidence. (Citations omitted.)" Kielmann v. Mogan (1970), 156 Mont. 230, 235, 478 P.2d 275, 277. When a contract is reduced to writing, the intentions of the parties are to be determined by reference to the langu......
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Glacier Campground v. Wild Rivers, Inc., 13946
... ... Section 13-720, R.C.M.1947. See also Kielmann v. Mogan ... Page 695 ... (1970), 156 Mont. 230, 235, 478 P.2d 275, 277. In the instant case, ... ...