No. 85-602 INTHE SUPREME COURT OFTHE STATE OFMONTANA 1986

THOMAS LYTHGOE, CHUCK NOTBOHM, GARY LYTHGOE and JEANNIE LYTHGOE, Plaintiffsand Appellants,


### -vsFIRST SECURITY BANK OF HELENA, Defendant

### and Respondent.

APPEAL FROM: DistrictCourt

### of theFirst

### JudicialDistrict, 

### In

### and fortheCounty

### of Lewis & Clark, The HonorableThomas Honzel, 

### Judge presiding.
COUNSEL OF RECORD:
For Appellant: 

### Peterson, Schofield & Leckie; V. 

### Joe Leckie, Billings, Montana
For Respondent: DonaldA. Garrity, Helena, Montana

Submitted

### on Briefs: April24, 1986 Decided: 

### June 19, 1986

ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of theCourt.
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
asrequired by Rule 17(a),M.R.Civ.P. Weaffirm. 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 topay 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 theLythgoes arenamed plaintiffsinthisaction. In August of 1983, defendant accelerated the note due from Flahertys. The restaurant closed inOctober 1983, and pursuant to terms of the note and the security agreement between defendant and Flahertys, defendant soldthe assetsof 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. Flahertyswere not named as plaintiffs inthe action. Defendant responded to the complaint with a motion to dismiss pursuant to Rule 17(a),M.R.Civ.P., which requires thatevery action shallbe prosecuted inthename of thereal party in interest. Defendants contended Flahertys were theonly 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 realparties ininterestand by orderdated October 30, 1985, granted defendant's motion todismiss. Plaintiffs appeal and raisethe followingissue: 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 statea 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 shallbe prosecuted in the name of the real party ininterest." We agree with the District Court that plaintiffs in this action are not the real party ininterest in so farasthe 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 inpart: "The collateral securing your loan has been sold leaving an unpaid balance of $24,399.38 plus interest. A definite arrangement must be made fortheorderly settlementof thisdebt." 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 attemptby defendant to collect a loan from Tomas Lythgoe; 

### it does not establish the 

### terms nor the existence of an implied contract betweendefendant 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 toplaintiffs. Plaintiffs allege defendant wrongfully accelerated the note due from Flahertys. An essential element of an action for interferencewith contract rights 

### is the intentional doing of a wrongful act without justification or excuse. Taylor 

### v. Anaconda Federal Credit Union (1976), 170Mont. 51, 550 P.2d 151. Plaintiffs have not alleged any facts supporting their allegation that defendant wrongfully accelerated Flahertys' note. A statement of legalconclusion 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 torelief. Finally, we findplaintiffs' claimof defendant's breach of the duty of good faith and fair dealing tobe entirely without merit. The complaint contains no factsestablishing defendant owed such a duty toplaintiffs. The District Court was correct in dismissing the case. Affirmed.

### We 

### Concur: 

## /-