Smith v. Polish
| Decision Date | 27 December 1967 |
| Docket Number | No. 11306,11306 |
| Citation | 150 Mont. 340,435 P.2d 776 |
| Parties | E. Maynard SMITH and Holley Randall Smith, his wife, Plaintiffs and Respondents, v. Rudolph POLISH and Estella Polish, his wife, Defendants and Appellants. |
| Court | Montana Supreme Court |
Poore, McKenzie, Roth & Pobischon, Robert A. Poore (argued), Butte, for appellant.
Corette, Smith, Dean & Wellcome, Kendrick Smith (argued), Butte, for respondents.
This appeal results from a verdict in favor of the respondents for money damages arising from a breach of an agreement to assign a certain grazing permit as a part of a contract for the sale of appellants' ranch.
In 1963 the respondents visited Montana looking for a ranch. Liking what they saw in the Big Hole Valley they returned in February 1964. They were then guests of the appellants, at the Glen Ranch, and were shown the various ranches during this visit. The appellants' ranch properties consisted of the home ranch, the Glen Ranch, the upper ranch, and the Feeley ranch. During this February visit the respondents were able to see the Feeley Ranch only from the road due to snow conditions. They were informed that in addition to these properties the appellants had a 290 head permit on forest lands. During the visit the respondents evidenced an interest in purchasing the ranch which resulted in a letter to them at their home in California. This letter dated April 7, 1964, set forth more specific details concerning the proposed sale, and set forth the forest permit land as follows: The letter also set forth that the sale would be of some 3,815 acres, plus a state lease of 640 acres.
The respondent Maynard Smith returned to Montana in May and along with the appellants and a Mrs. Gage, a realtor, journeyed over the entire ranch, including the leased or permit property. Again the Anaconda lease permit was discussed. In July the respondents returned to Montana, at which time respondents and appellants entered into a written receipt and agreement to sell and purchase dated July 14, 1964. This agreement was made through the real estate office of Mrs. Camilla Gage. This agreement did not specifically describe the lands but set forth that they were in the counties of Beaverhead and Silver Bow and within certain described sections, townships and ranges. The purchase price was specified at $275,000, payable $5,000 down, $120,000 on or before the 15th day of October, 1964, and the balance by assuming liens, being contracts and mortgages then existing upon the lands. The machinery and equipment included in the sale are listed on the contract, including provision for payment by purchasers of specified sums of money owing on some of the inventoried equipment in addition to the specified purchase price.
This agreement also contained this provision:
The agreement is dated July 14, 1964, and the testimony is that on that date appellants and respondent Maynard Smith were at the home of the appellants. Camilla Gage prepared the agreement, later took it over to the appellants for their signatures and sent it to California to the respondents, as she testified, on July 20th. Maynard and Holley Smith both testified they executed the agreement in California. Maynard Smith stating, in answer to this question:
During each of these visits the respondent Maynard Smith testified that the Anaconda Company permit was discussed, that the appellant had, during the visits they had, also discussed the terms of the agreement, the lease or permit, the number of cattle and how the present Anaconda permit fit into the forest lease permit. In August, about a month after the agreement to sell and purchase was signed, the respondent Maynard Smith went with the appellant to see Mr. Lynn Boe, supervisor of the Anaconda Forest Protection Service, and at that time appellant informed Boe that he was going to sell the ranch to the respondent. According to Mr. Boe's testimony appellant asked him if there was a possibility of his transferring this lease to Mr. Smith. Concerning this transaction the following testimony was given:
'A. At that time I told him I had transferred grazing lease and cabin site permits before, and as far as I could see, there would be no problem, just a matter of formality and going through the proper channels.
'Q. And at that time did you inform the parties about what to do about the transfer of this lease? A. I told Mr. Polish that when the sale was consummated that I would start the necessary machinery rolling, draw up the proper papers, the transfer papers, send it to him, to Mr. Smith for signature, and in turn send it to the Land Management in Bonner for approval.
'Q. All right, now at the time Mr. Polish and Mr. Smith came into your office, did you do anything in respect to getting any papers or anything of that nature? A. At that time all I did was pull out Mr. Polish's file, open it up, showed him the lease, the annual statement, and there was other correspondence in there that was irrelevant, but-and we talked about it.
'Q. Now, Mr. Boe, at that time did Mr. Smith see this lease? A. Yes.
'Q. And how did he see it, that is what did you do with it, so that he could see it? A. It was laying on the desk, the file was open. He looked it over and laid it back down.
'Q. Did he pick it up in his hands? A. As I recall he did.
'Q. And for how long a time did he have it in his hands? A. Oh, just a few minutes.
'Q. Did he look at both sides of the lease? A. I'm quite sure he turned the lease over, back to the back side.
'Q. Did you point out any item from the lease to him? A. I pointed out the annual lease renewal each year.
'Q. That is you pointed out that it was only a one-year lease? A. That is correct.
'Q. And that was renewable each year?
A. Yes.'
In September the respondent Maynard Smith came back to Montana and spent several weeks with the appellant participating in the Fall roundup. In this manner he became further acquainted with the various properties of the ranch including the Forest and Anaconda Company permit lands.
Respondent Maynard Smith later returned to California and later in October he returned for the purpose of finalizing the sale. On October 27th, the various parties to the agreement and Mrs. Gage met at Dillon in the law office of Burns and Collins, and what is entitled a supplemental agreement had been drawn up for the parties by Mr. Burns.
This supplemental agreement describes the Polish lands by legal description, states that appellants have contemporaneously conveyed by warranty deed to respondents all the Polish lands. The purchase price stated is identical with the agreement to sell and purchase but a change was made in the method of payment. Instead of a cash deal as contemplated in the agreement to sell and purchase a time payment arrangement was provided, note executed for the balance due, secured by mortgage on the premises. The agreement to sell and purchase provided the purchasers would be responsible for real estate taxes only from October 15, 1964. The supplemental agreement provides that the taxes for 1964 shall be pro-rated, sellers to pay 19/24th thereof and purchasers 5/24th thereof, being the exact division contained in the agreement to sell and purchase. Burns testified that he left the contract open so that anything could be added prior to the signatures. The fact that the Anaconda permit was not included came up at this conference, and while there is conflict as to which party brought the matter up, the permit was added to the supplemental agreement in paragraph 12 and reads as follows:
'That there is also a Forest lease with the Anaconda Company which lease is herewith assigned to the second parties.'
It is upon the alleged inability of appellants to fully perform this provision of the contract that the respondents base their complaint for demages. Unknown to either party the Anaconda Company had for several years contemplated the sale of what is known as the Mount Haggin Ranch which included the Polish lease. Exactly when the date of the sale was consummated was not given, but the appellants allege that the very first information they had was a letter received from Mr. Boe, the supervisor of the Anaconda property, dated November 20, 1964, which reads:
'11-20-64
'Mr. Polish:
'As a result of the meeting I attended in the Butte office, I informed Mr. Piper of the sale of your ranch holdings and desire to transfer of lease to the new owner.
'Mr. Piper advised me that it would be wise to hold off on the transfer of lease due to the fact that the Company is in the process of selling all of their grazing lands. This sale is in the fire and will undoubtedly become effective before the next grazing season.
'When the sale of these grazing lands were first discussed I was under the impression that it would just be the Mount Haggin lands but I was informed later that all grazing lands would be sold.
'I would gladly discuss this matter with if you wish. I will be in my office Monday morning Nov. 23.
'If you desire more information about this sale and how it will effect your lease, Mr. Dave Piper can tell you more about that I can.
'Mr. Piper's office is in Room 515 in...
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Holenstein v. Andrews
...evidence cannot be disregarded by the court or jury. Faith Lutheran Retirement Home v. Veis, 156 Mont. 38, 473 P.2d 503; Smith v. Polish, 150 Mont. 340, 435 P.2d 776; Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044. But this does not mean that where there is direct testimony in the record, unc......
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Federal Land Bank of Spokane v. Snider, 90-351
...trial disappears. Loucks v. Albuquerque National Bank (1966), 76 N.M. 735, 418 P.2d 191, 194. As we stated in Smith v. Polish (1967), 150 Mont. 340, 349, 435 P.2d 776, 780: ... Whether there is any substantial evidence in the case made by party upon whom the burden rests is always a questio......