No. 85-602 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THOMAS LYTHGOE, CHUCK NOTBOHM, 

GARY LYTHGOE and JEANNIE LYTHGOE, 

Plaintiffs and Appellants, 

-vsFIRST SECURITY BANK OF HELENA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

Peterson, Schofield & Leckie; V. Joe Leckie, 

Billings, Montana 

For Respondent : 

Donald A. Garrity, Helena, Montana 

Submitted on Briefs: April 24, 1986 

Decided: June 19, 1986 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Plaintiffs appeal the October 30, 1985, order of the 

First Judicial District Court dismissing their complaint 

because it was not prosecuted by the real party in interest 

as required by Rule 17(a), M.R.Civ.P. We affirm. 

In December of 1982, defendant bank loaned $47,000 to 

Patrick and Joan Flaherty for the purpose of purchasing a 

restaurant in Helena, Montana, from plaintiffs Chuck and 

Betty Notbohm. Flahertys agreed to pay Notbohms $28,000 and 

assume a Small Business Administration loan of $62,000. 

Shortly thereafter, Tomas Lythgoe borrowed $15,000 from Gary 

and Jeannie Lythgoe, and invested those funds in the 

Flaherty's restaurant. Each of the Lythgoes are named plaintiffs in this action. 

In August of 1983, defendant accelerated the note due 

from Flahertys. The restaurant closed in October 1983, and 

pursuant to terms of the note and the security agreement 

between defendant and Flahertys, defendant sold the assets of 

the restaurant. Following closure of the restaurant, 

Flahertys were without means to pay debts owed to Notbohms 

and Tomas Lythgoe. 

Lythgoes and Notbohms filed suit against defendant 

alleging interference with the contracts between Flahertys 

and plaintiffs, breach of implied contract with plaintiffs, 

and breach of the duty of good faith and fair dealing. 

Flahertys were not named as plaintiffs in the action. 

Defendant responded to the complaint with a motion to 

dismiss pursuant to Rule 17(a), M.R.Civ.P., which requires 

that every action shall be prosecuted in the name of the real 

party in interest. Defendants contended Flahertys were the 
only party to the contract with defendant, and without 

Flahertys named as plaintiffs no action could be commenced. 

The District Court agreed Lythgoes and Notbohms were not the 

real parties in interest and by order dated October 30, 1985, 

granted defendant's motion to dismiss. Plaintiffs appeal and 

raise the following issue: 

Does plaintiffs' complaint set forth a cause of action 

upon which relief may be granted? 

First, we must determine whether Lythgoes and Notbohms 

can rely on the contractual relationship between Bank and 

Flahertys. To state a cause of action, plaintiffs must show 

they are the real party in interest. Lefebure et.al. v. 

Baker et.al (1923) 69 Mont. 193, 220 P. 1111. Rule 17(a), 

M.R.Civ.P. requires that "Every action shall be prosecuted in 

the name of the real party in interest." We agree with the 

District Court that plaintiffs in this action are not the 

real party in interest in so far as the Flaherty contract is 

concerned. 

Plaintiffs' complaint alleges defendant breached an 

implied contract between defendant and plaintiffs. Plaintiffs cite a letter from a vice president of the defendant 

bank addressed to Tomas Lythgoe as evidence of an implied 

contract. The letter reads in part: "The collateral securing your loan has been sold leaving an unpaid balance of 

$24,399.38 plus interest. A definite arrangement must be 

made for the orderly settlement of this debt." 

An implied contract is defined in S 28-2-103, MCA, as 

"one the existence and terms of which are manifested by 

conduct. I' The above letter reflects an attempt by defendant 

to collect a loan from Tomas Lythgoe; it does not establish 

the terms nor the existence of an implied contract between 
defendant and Lythgoe. Plaintiffs offer no other evidence. 

We agree with the District Court that there is insufficient 

evidence to raise the issue of breach of implied contract. 

The next issue is whether defendant interfered with 

plaintiffs' contract rights. Defendant accelerated the note 

due from Flahertys. Flahertys defaulted on the note, and 

defendant sold the assets of the restaurant. Subsequently, 

Flahertys were unable to pay the debts owed to plaintiffs. 

Plaintiffs allege defendant wrongfully accelerated the note 

due from Flahertys. 

An essential element of an action for interference with 

contract rights is the intentional doing of a wrongful act 

without justification or excuse. Taylor v. Anaconda Federal 

Credit Union (1976), 170 Mont. 51, 550 P.2d 151. Plaintiffs 

have not alleged any facts supporting their allegation that 

defendant wrongfully accelerated Flahertys' note. A 

statement of legal conclusion without any supporting facts is 

insufficient as a claim for relief. Meinecke v. McFarland 

(1949) 122 Mont. 515, 206 P.2d 1012. We find plaintiffs' 

claim of interference with contract rights to be a mere 

conclusion of law and shows no entitlement to relief. 

Finally, we find plaintiffs' claim of defendant's breach 

of the duty of good faith and fair dealing to be entirely 

without merit. The complaint contains no facts establishing 

defendant owed such a duty to plaintiffs. 

The District Court was correct in dismissing the case. 

Affirmed. 
We Concur: /-