No. 13494
IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

RAMON ARCHER, Plaintiff and Respondent,

LarJIARCH CREEK RANCH OF MONTANA., d/b/a Sundance Lodge, Defendant and Appellant, DAVID CHRISTENSEN, Intervenor and Appellant.
Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellant: Greg J. Skakles argued, Anaconda, Montana For Respondent: Hash, Jellison and O'Brien, Kalispell, Montana Kenneth E. O'Brien argued, Kalispell, Montana
Submitted: September 21, 1977Mr. JusticeFrank I. Haswell delivered the Opinion of the Court.
David Christensen appeals from the denial of hismotion tointervene and the entryof defaultjudgment againstdefendant LaMarch Creek Ranch. Weaffirm thejudgment. Plaintiff, Ramon Archer, commenced thisaction for foreclosure of a promissory note on March 14, 1973. The complaint alleged thatdefendant executed and delivered a promissory note toplaintiff inthe amount of $13,876.98. The complaint further alleged thatthe note waspast due and no payment had been received. Personal servicewashad on Robert Cope, president of LaMarch Creek Ranch, a Montana corporation. On July 25, 1973, a motion todismisswas submitted on behalf of defendant. The motion was denied and defendant was given twenty days inwhich tofurtherplead. An answer inthe form of
a general denialwas submitted on March 7, 1974. Four affirmative defenseswere contained therein. Trialwas setforJune 23, 1975. Atthebeginning of the trialwithout jury, counsel fordefendantmade a motion tointervene on behalf of Christensen. Atthattime counsel stated that he was no longer representing defendant and thatthe intervener's
casewould basically consistof the four affirmative defenses found inthe answer previously filedon behalf of defendant. Counsel further statedhe was without authority to appeal inbehalf of defendant. The motion tointervenewas taken under advisement and trialwashad. Christensen was allowed tointroduce both oraland documentary evidence concerning the four affirmative defenses. On May 7, 1976, the DistrictCourt entered findingsof fact, conclusions of law and judgment which denied Christensen's motion tointervene and entered default againstdefendant inthe amount of $13,876.98 plus costsand attorney fees.The cogent facts leading up to the filing of this action
are as follows: On June 30, 1971,a stock purchase agreement
was executed wherein plaintiff acquired 100 shares of stock in defendant corporation. The total purchase price was $10,000. Robert Cope, the president of defendant corporation,was listed
as the seller. Christensenwas also listed as a purchaser of stock and was a signatory to the stock purchase agreement. The purchase agreementprovided that if Christensenorplaintiff wished to sell any or all of their stock, the defendantmust purchase it. The stock certificates were endorsed to that end. InNovember, 1972,plaintiff met with Cope in order to discuss the repurchaseof his stock by the corporation. Thereafter, onNovember 22, Cope, aspresident of defendant corporation, executed a promissory note to plaintiff in the amount of $13,876.98. This sumwas full compensation for the repurchase of plaintiff's stock,back salary and earned interest. The note
was payable on or before January 1,1973;no payments have been made on the note. Christensen apparently learned of the promissory note in January, 1973. At that time he was a stockholder, director and secretary of defendant corporation. Christensen took no action to rescind the note or intervene on behalf of defendant until the day of the district court hearing. Four issues are before this Court on appeal; 1. Whether the District Court erred in denying Christensen's motion to intervene. 2. Whether the District Court erred in entering default judgment against defendant. 3. Whether the affirmative defenses raised by Christensen
were effective. 

### 4. Whether the District Court erred in refusing to admitdefendant's exhibits A and D and in refusing to allow Christensen to testify concerning the solvency of defendant. Christensen alleges error in the District Court's refusal to allowhim to intervene in thismatter. We disagree. Christensen'smotion to intervene was made for the first time at the beginning of trial. The District Court judge took the motion under advisement and did not rule until all evidence had been presented. Christensenwas allowed to fully present his defense. He was given the opportunity to present evidence on each of the four defensesupon which he relied. After hearing all the evidence, the judge correctly denied Christensen'smotion to intervene on the basis of untimeliness. This party cannot claim he
was denied the opportunity to be heard. There is no doubt that Christensenwas dilatory in his attempt to intervene. He first learned of the note involved herein in January, 1973. The record is barren of any attempt by Christensen to assert his claimed rights until June, 1975. In effect, Christensen sat on his claimed right for some two and one-half years. Under these circumstances it is clear that Christensen,by his failure to act,waived his right to contest the validity of the note and is now estopped from doing so. The notion that onemay waive a rightby inaction is far from novel in this jurisdiction. InNorthwestern Fire and Marine Insurance Co. v. Pollard, 74 Mont. 142, 149, 238 P. 594, it is stated: 

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## * * * waiver is a voluntary relinquishmentor renunciation of some right,a foregoing or giving UP of some benefit or advantage,which, but for suchwaiver, a party would have enjoyed. Itmay be proved by express declarations

## * * * or by a course of acts and conduct,or by so neqlectinq and failinq to act,as to induce the belief that itwas his intention and purpose to waive." (Emphasisadded.) See also Farmers Elevator Company of Reserve v. Anderson,Mont. 

### , 552 P.2d 63, 33 St.Rep. 614. Christensen's second alleged error requires little discussion. Rule 55(a), M.R.Civ.P., governs default judgments and provides in pertinent part: "When a party againstwhom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact ismade to appear by affidavit or otherwise, the clerk shall enter his default." (Emphasis supplied.) The record clearly reflects that defendant failed to appear at trial. Counsel for Christensen, who had previously represented defendant, specifically stated that he was not authorized to appear on behalf of defendant. No one having appeared on behalf of defendant at the trial, the District Court had no alternative but to grantplaintiff's motion for default j

udgment

# . The answer originally filed on behalf of defendant contained four affirmative defenses. The affirmative defenses alleged that: (1)the promissory note was givenwithout sufficient consideration; (2) the repurchase of the stock by means of a promissory note was a violation of the statutory requirement that such purchases be made with "surplus"funds; (3) the repurchase of stock rendered the corporation insolvent; and 

### (4)the president lacked the authority to execute the promissory note on behalf of the corporation. These defenses substantially comprised Christensen's case and he alleged that these defenseswere effective and the court erred in entering judgment againstdefendant. An analysis of each of the above affirmative defenses convinces us that the District Court ruled correctly. As to the firstdefense of lack of consideration,we find an abundanceof substantial evidence supporting the District Court decision. The rule in this jurisdiction is that a written instrument is presumptive evidence of a good and sufficient consideration and theburden of attacking the sufficiency of such consideration is on the party seeking to invalidate the instrument. Section 13- 510, R.C.M. 1947; Bielenberg v. Higgins, 85Mont. 69, 227 P. 636. The record herein does not reflect even a scintilla of evidence tending to prove a lack of good and sufficient consideration for the note. Christensen, in his second affirmative defense, alleges that the purchase of the stock by use of the promissory note
was void as a violation of section 15-2205,R.C.M. 1947. In essence this statute prohibits the use of funds other than "surplus" funds for the repurchase of stock. Christensen concludes that no "surplus"fundswere available at the time of the purchase and the transaction is thereforevoid. The burden of proving an affirmative defense rests on the defendant. Baker National Bank v. Lestar, 153 Mont. 45, 453 P.2d 774. We find absolutely no proof that surplus funds were not available at the time the note was executed. In the absence of such proof in the record,we have no alternative but to deny the defense. For a third affirmative defense, Christensen alleges that the repurchase of the stock occurred at a time when the corporation was insolvent,a violation of section 15-2260,R.C.M. 1947. Insolvency is defined as the 

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## * * * inability of a corporation to pay its debts as they become due in the usual course of its business." Section 15-2202(n), R.C.M. 1947. The district court found that the defendant corporationwas not insolvent on the date of the execution of the note. We agree. Again Christensen has not met his burden of proving the affirmative defense and
we have no alternativebut to deny the defense. Christensen's final affirmative defense concerns his claim that the president lacked the authority to execute the note onbehalf of the corporation. Absolutely no evidence is found in the record to support this contention. The note was admitted without objection as to foundationby Christensen's attorney. Hence the final affirmative defense must fail for lack of proof. The final issue concerns the admissibility of certain items of evidence sought to be introducedby Christensen. The first item,ExhibitA,was a copy of the stock purchase agreement involved herein. Objectionwas made on the basis of relevancy and foundation. We have stated that generally 

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## * * * whatever naturally and logically tends to establish a fact in issue is relevant,and that which fails to qualify in this respect is not relevant." 1 Jones on Evidence, 5th Ed., section 151,page 270; Brion v. Brown, 135Mont. 356, 340 P.2d 539. The record reflects that the repurchase of plaintiff's stock was not made pursuant to the stock purchase agreement. The District Court concluded,and we agree, that the stock purchase agreement was not relevant to establish any fact in issue. The second item of evidence in question was Exhibit D which
was an income statement for the period 12/1/72 to 1/31/73. Objection wasmade on the basis of relevancyby plaintiff. This statement showed the defendant corporation operated at a loss during this period. This exhibit was offered by christensen in an attempt to prove that the corporation was insolvent. The District Court correctly ruled that this statementwas irrelevant. An income statement, standing alone, does not prove insolvency of a corporation. The final item of evidencewas the refusal of the court to allow Christensen to answer the question, "And could youplease describe briefly what the financial situation of the corporation
was at that time?" A best evidence objectionwasmade andsustained. The corporate records would be thebest evidence of the financial condition of the corporation. No attempt
was made toexplain the absence of these records. The ruling of the DistrictCourt is therefore correct. We affirm the DistrictCourt judgment initsentirety.

Justice

Chief ~ustice /"\