Sharbono v. Darden, 85-241

Citation220 Mont. 320,43 St.Rep. 400,715 P.2d 433
Decision Date04 March 1986
Docket NumberNo. 85-241,85-241
CourtUnited States State Supreme Court of Montana
PartiesDorothy L. SHARBONO, Plaintiff and Appellant, v. Thomas F. DARDEN and Norma J. Darden, Defendants and Respondents.

Garnaas, Hall, Riley & Pinsoneault, J. Robert Riley, Christopher Daly, argued Missoula, for plaintiff and appellant.

Datsopoulos, MacDonald & Lind, Christopher B. Swartley, argued, Missoula, for defendants and respondents.

HARRISON, Justice.

This is an appeal from a judgment issued by the District Court, Fourth Judicial District, Missoula County, Montana. After a bench trial, the Honorable Jack Green awarded plaintiff a judgment of $4,488.46 including certain interest amounts.

Plaintiff filed consolidated post-trial motions moving the court for an amended judgment in conformity with her proposed findings of fact and conclusions of law, or in the alternative, for a new trial under Rule 59(a) to set aside or modify the court's findings of fact and conclusions of law and judgment. An amended post-trial motion was filed setting forth with more particularity the grounds in support of the motions. The motions were denied. We affirm.

Plaintiff-appellant, Dorothy Sharbono, with her now deceased husband, L.G. Sharbono, purchased a five acre tract of land in Missoula County from J. Dean Roach, sometime after October, 1969. The land was conveyed by warranty deed. Roach had purchased a ten acre tract from Alex N. Ogilvie in October, 1969, on a contract for deed. These ten acres were part of a 160 acre tract which Ogilvie had acquired prior to 1964. The Federal Land Bank of Spokane, Washington, held a mortgage on the 160 acres, which was recorded in Missoula County, Montana, in 1964. A re-amortization agreement modifying the terms of payment was recorded in May, 1967. In September, 1974, Sharbonos sold their five acres, on which was located a modular home, to Orian and Ngoc Alexander on a contract for deed. Two years later Alexanders assigned their buyers' interest in the contract to Thomas F. and Norma Jean Darden, husband and wife, defendants-respondents in this action.

Dardens assumed all of Alexanders' obligations under the contract. The monthly payments of $229.78 were made to First State Bank of Missoula, escrow agent, which was to forward $30.50 a month to Farmers State Bank in Victor, Montana, to be applied on the Ogilvie-Roach contract held in escrow there. An addendum to the contract provided that the escrow agent was to forward $144.41 per month to Western Montana National Bank of Missoula for payment on the modular home. The balance of the payment, $54.87, was forwarded to Sharbonos in Newton, Kansas.

The entire balance was due and payable on or before five years from the date of the contract. The contract provided the buyers were to "keep the improvements on the property insured for fire and extended coverage in at least the amount of the unpaid interest due ..., payable as interests appear." Dardens purchased fire insurance naming themselves and Western Montana Bank as insureds, but did not name the Sharbonos.

Dardens did not make the tax payment for 1978 when the first half was due November 30, 1979. Nor did they make any thereafter. They did make timely monthly payments on the contract until the balloon payment was due. They did not tender the balance due September 23, 1979, under the balloon payment, and a notice of default was delivered October 8, 1979.

Meanwhile, Roach paid off the contract with Ogilvie in April, 1979, but a mortgage release from the Federal Land Bank was not recorded until February, 1980.

L.G. Sharbono died December 29, 1979. As a result, the balance due the Western Montana National Bank on the modular home was paid by a credit life insurance policy on his life. In March, 1980, the Dardens entered into a lease and option to purchase with David L. and Paulette M. Pittsley. The Pittsleys took actual possession of the property. In June, 1981, a fire totally destroyed the modular home. The Dardens received $33,500 proceeds from the insurance policy they carried on the property.

After the Dardens received this money, a second default notice was delivered in September, 1981. On October 1, 1982, Mrs. Sharbono filed suit alleging breach of contract for deed, demanding specific performance from defendant and a judgment for $36,253.02, or in the alternative, rescission of the contract for deed and ownership of the property plus judgment for $12,453.02.

There is an abundance of chaff in this case. Once it is removed, the only substantive issue is whether the judgment of the District Court is proper, or whether it results from an abuse of discretion.

Mrs. Sharbono argues six findings of fact omitted by the District Court resulted in erroneous conclusions of law detrimental to her. Specifically, she claims she is entitled to a larger judgment. She acknowledges any one of the abuses would not be sufficient to mandate a new trial or amended judgment, but together they constitute sufficient abuse to warrant action. This Court will not disturb findings of fact in a non-jury civil action unless they are clearly erroneous. Rule 52 M.R.Civ.P., Price Building Service, Inc. v. Christensen (Mont.1985), 697 P.2d 1344, 1348, 42 St.Rep. 440, 444. The Court will not disturb the District Court's findings as being clearly erroneous in this case.

Dardens did not tender the balloon payment when due. The question is whether failure of Mrs. Sharbono to convey good title excuses Dardens' default, thereby entitling Dardens to keep the insurance money they received when the modular home burned. The District Court's findings did not include the fact that Dardens' failure to make the balloon payment constituted a default under the terms of the contract:

DEFAULT:

... if the Buyers fail to make the payments herein provided for or fail to perform any of the other covenants and agreements on their part to be kept and performed when the same are due or to be performed, or within thirty days after written notice is given to them by the Sellers, then and in that event the Sellers may, at their option, terminate this agreement and declare it to be null and void, in which event all of the buyer's rights hereunder shall be terminated, and all monies theretofore paid by the...

To continue reading

Request your trial
6 cases
  • Turner v. Ferrin
    • United States
    • Montana Supreme Court
    • May 24, 1988
    ...... must contain an adequate description of the property to be conveyed.' " Vaught, 738 P.2d at 1279. In Sharbono v. Darden (Mont.1986), 715 P.2d 433, 436, 43 St.Rep. 400, we held that a vendee is excused from failure to make a balloon payment because the vendor might never be in the positi......
  • Schlosser v. Norwest Bank South Dakota, N.A.
    • United States
    • South Dakota Supreme Court
    • September 8, 1993
    ...(3) under Montana case law the risk of loss is with the buyer once the contract is signed citing the decision of Sharbono v. Darden, 220 Mont. 320, 715 P.2d 433, 435 (1986). The trial count also made a separate ruling as to Norwest Bank, Otto Borchgrevink's trustee, holding that upon his de......
  • Wise v. Sebena
    • United States
    • Montana Supreme Court
    • March 28, 1991
    ...33, 759 P.2d 966, for example, the underlying mortgages were not released by the date specified in the contract. In Sharbono v. Darden (1986), 220 Mont. 320, 715 P.2d 433, the vendor had not obtained satisfaction of the underlying mortgage by the time the balloon payment was due. Here relea......
  • Stark v. Borner, 86-396
    • United States
    • Montana Supreme Court
    • April 9, 1987
    ...but remand so that the court may conduct a hearing to consider whether its findings were proper in light of Sharbono v. Darden (Mont.1986), 715 P.2d 433, 43 St.Rep. 400 and other cases cited Maynard and Opal Borner entered a contract for deed in November, 1983, for the purchase of a 3,700 a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT