No. 87-437 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

ALEX WEINGART, JR., Individually and 

as Personal ~epresentative for 

RITA WEINGART, deceased, and 

NORMA J. WEINGART, 

Plaintiffs and Appellants, 

-vsAPR 11 199: 

C & W TAYLOR PARTNERSHIP, CHARLES 

R. TAYLOR, WYMAN D. TAYLOR, J. ANTHONY 

DEDE, M.D., ROBERT McCROSKEY, M.D. and CJ sm ,lf~ 

CLERK OF SUPREI)~; COUR7 

JENNIE OSTLER, STATE OF iM~l~+,qpJ~ 

Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Robert L. Johnson, Attorney at Law, Lewistown, 

Montana 

For Respondents: 

Keith A. Maristuen; Bosch, Kuhr, Dugdale, Warner, 

Martin & Kaze, Havre, Montana (for Respondent 

McCroskey) 

J. Michael Young, Attorney at Law, Great Falls, 

Montana (for Respondents W.D. Taylor, C & W 

Partnership and C.R. Taylor) 

Carl A. Hatch, Attorney at Law, Helena, Montana (for 

Respondent Ostler) 

Filed: 

Submitted on Briefs: December 13, 1990 

~ecided: April 11, 1991 
Justice William E. Hunt, Sr., delivered the Opinion of the 

Court. 

Alex Weingart, Jr., individually and as personal 

representative for Rita Weingart, deceased, and Norma J. 

Weingart appeal from a decision of the District Court of the 

Tenth Judicial District, Fergus County, Montana, granting 

summary judgment to respondents, J. Anthony Dede, M.D., Robert 

McCroskey, M.D., and Jennie Ostler on the ground that they were 

not personally liable to the Weingarts on a contract for deed. 

We affirm. 

The sole issue is whether the District Court erred in 

granting summary judgment to respondents for breach of the 

contract between appellants as sellers and Charles R. Taylor 

and Wyman D. Taylor as buyers, to purchase appellants1 ranch. 

Appellants argued that respondents, J. Anthony Dede, M.D., 

Robert McCroskey, M.D., and Jennie Ostler, were personally 

liable to appellants on one or more of three theories: first, 

a general partnership; second, a joint venture; and third, an 

agency. 

Brothers Charles W. Taylor and Wyman D. Taylor formed the 

C & W Taylor partnership to purchase the Weingart ranch. 

Respondents, J. Anthony Dede, M.D., Robert McCroskey, M.D., and 

Jennie Ostler, contributed $55,000 each Ifto enable Charles R. 

Taylor and Wyman D. Taylor to purchase the ranch lands1' on or 
before December 18, 1981, and signed the "Agreement To Share 

General Partner Interest." 

This agreement was created in advance of formation of a 

limited partnership to make the purchase of the Weingart ranch 

possible. The agreement provided that Charles Taylor and Wyman 

Taylor would buy the ranch "with the intent to transfer said 

land to a limited partnership to be known as C & W Limited 

partnership, whereunder they [Charles Taylor and Wyman Taylor] 

would become the general partners and managing partners." The 

agreement noted that the Ivlimited partnership agreement has not 

been effectuated. 

The limited partnership was not formed before the next 

installment on the ranch became due May 20, 1982. C & W Taylor 

could not raise the additional capital to make the payment, and 

the Weingarts served notice of default upon C & W Taylor on 

June 21, 1982. The Weingarts closed the escrow and removed the 

documents from the escrow file. C & W Taylor strongly argued 

that it had 120 days, as provided in the contract, to cure 

default by making payment. 

When the second installment due under the land sale contract 

was not made, Charles Taylor contacted the Weingarts and 

negotiated what C & W Taylor believed was a termination of the 

land sale contract on September 20, 1982. The terms of the 

agreement were alleged to be (1) forfeit of the $210,000 

initial payment to the Weingarts; and (2) reinvestment of title 
and interest in the ranch to the Weingarts by executing and 

delivering a quit claim deed and bill of sale and reassigning 

all BLM leases to the Weingarts. 

The Weingarts brought this action for specific performance 

or damages against C & W Taylor as the buyer designated in the 

contract for deed, and respondents J. Anthony Dede, M.D., 

Robert McCroskey, M.D., and Jennie Ostler, alleged to be 

vicariously liable. 

The action was delayed by bankruptcy proceedings involving 

McCroskey and by resolution of another suit related to this 

transaction. See Taylor v. Weingart (1984) , 214 Mont. 282, 693 

P.2d 1231. All parties moved for summary judgment. On 

September 10, 1987, the District Court granted summary judgment 

in favor of respondents. The District Court denied partial 

summary judgment to the Weingarts and denied summary judgment 

to C & W Taylor on the ground that genuine issues of material 

fact existed between them. From the grant of summary judgment 

to respondents, the Weingarts appeal. 

The Weingarts maintain that the District Court erred in 

granting summary judgment to respondents because respondents, 

as either undisclosed partners, undisclosed joint venturers, 

or undisclosed principals, were personally liable on the 

contract of sale between the Weingarts and C & W Taylor. 

Respondents contend that as investors, rather than partners, 

joint venturers, or principals, they were not liable on the 
contract of sale. 

Summary judgment is proper where no genuine issue of any 

material fact exists and the moving party is entitled to 

judgment as a matter of law. Rule 56(c), M.R.Civ.P. ; First 

Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 

794 P.2d 679, 681. Since the facts are undisputed, the issues 

are matters of law and summary judgment is appropriate. 

Partnership 

A partnership is defined as Itan association of two or more 

persons to carry on as co-owners a business for profit.I1 

Section 35-10-201, MCA. To determine existence of a 

partnership four requirements must be met: (1) the parties 

must clearly manifest their intent to associate themselves in 

a partnership relationship; (2) each party must contribute 

something that promotes the enterprise; (3) each party must 

have a right of mutual control over the subject matter of the 

enterprise; and (4) the parties must agree to share profits. 

Montana Bank of Red Lodge, N.A. v. Lightfield (1989) , 237 Mont. 

41, 45, 771 P.2d 571, 574; Bender v. Bender (1965), 144 Mont. 

470, 480, 397 P.2d 957, 962. 

The Agreement to Share General Partner Interest states the 

clear intent by respondents to eventually become limited 

partners and nowhere shows they had any right of mutual control 

over the Weingart ranch, either in management of the ranch 

itself or in control of the ranch as an investment. Without 
a showing of that control, the third requirement to establish 

a partnership was not fulfilled. Therefore, respondents were 

not general partners of C & W Taylor and could not be liable 

on the contract for deed. The District Court did not err in 

concluding that respondents were not general partners. 

Joint Venturers 

To qualify as joint venturers four elements must be met: (1) 

an express or implied agreement or contract creating the joint 

venture; (2) a common purpose among the parties; (3) community 

of interest; and (4) an equal right of control of the venture. 

Papp v. Rocky Mountain Oil & Minerals (1989) , 236 Mont. 330, 

342 ; 769 P. 2d 1249, 1257. Although management may be delegated 

to one joint venturer while the others retain the right of 

control, Murphy v. Redland (1978), 178 Mont. 296, 583 P.2d 

1049, it must be an equal right of control. Here the 

respondents did not have an equal right of control of the 

venture. Therefore, the court did not err in concluding that 

respondents were not joint venturers with Charles and Wyman 

Taylor. 

Principal/Aqent 

The appellants next contend that the Agreement to Share 

General Partnership Interest created an agency relationship to 

allow the Taylors to acquire the Weingart ranch for the mutual 

benefit of the five investors and that respondents were 

undisclosed principals. 
I 

An agent is "one who represents another, called the 

principal, in dealings with third persons. l1 Section 28-10- 

101, MCA. 'I 'Agency is the fiduciary relation which results 

from the manifestation of consent by one person to another that 

the other shall act on his behalf and subject to his control. 'I1 

Koch v. Yellowstone County (1990), 243 Mont. 447, 453, 795 P. 2d 

454, 458 (quoting Restatement (Second) of Aqency 5 1 (1957)); 

Wolfe v. Schulz Refrigeration (1979), 188 Mont. 511, 517, 614 

P.2d 1015, 1018. An agency relationship did not exist between 

the Taylors and respondents because the Taylors were not 

subject to respondents1 control. Although respondents supplied 

capital, the Taylors did not represent respondents in dealing 

with the Weingarts. As we determined above, respondents were 

not general partners of C & W Taylor. The Land Sale Contract 

is between the Weingarts and I1Charles R. Taylor and Wyman 

Taylor, co-partners, doing business as C & W Taylor 

Partnership.I1 The court did not err in concluding that 

respondents were not joint venturers with Charles and Wyman 

Taylor. 

The judgment of the District Court is affirmed. 
w 

Justice John C. Sheehy did not parti .cipate in this decision.