No. 12348 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

THE PACK RIVER COMPANY, a corpora tion, 

Plaintiff and Respondent, 

DONALD W. YOUNG, d/b/a FLATHEAD LAKE 

REALTY, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Emet Glore, Judge presiding. 

Counsel of Record: 

For Appellant : 

Mulroney, Delaney and Dalby, Missoula , Montana. 

Dexter L. Delaney argued, Missoula , Montana. 

For Respondent: 

Turnage and McNeil, Polson, Montana. 

C. B. McNeil argued, Polson, Montana. 

Submitted: May 30, 1973 

Decided : JUN 1 5 1973 

Filed: JUN 15 1973 
Mr, Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by defendant Donald W, Young, d/b/a 

Flathead Lake Realty, from a summary judgment granted by the 

district court of Lake County on June 20, 1972, in favor of 

plaintiff The Pack River Company. 

On or about March 31, 1971, Young represented to Pack 

Xiver that he was the agent for the owners of certain Flathead 

Lake property known as the Bird Point property and that he had 

a listing from the owners for the sale of the property. 

On March 31, 1971, Young, as agent for the owners of the 

Bird Point property, prepared a Receipt and Agreement to Sell 

and Purchase, a copy of which was attached to plaintiff's cornfl 11 plaint as Exhibit A and incorporated by reference in young's 

answer and cross complaint. Pursuant to the Receipt and Agreement, Pack River deposited the sum of $5,000 with Young as 

earnest money. The Receipt and Agreement to Sell and Purchase 

contains a provision that if the seller does not approve the 

sale within ten days the earnest money would be returned to the 

purchaser on demand. Neither Pack River nor Young have any copy 

of such Receipt and Agreement signed by the owners of the Bird 

Point property, 

On or about April 19, 1971, Young, as agent for the owners 

of the Bird Point property, prepared another Receipt and Agreement to Sell and Purchase, a copy of which was attached to Pack 

River's complaint as Exhibit "B" and incorporated by reference 

in ~oung's answer and cross complaint. This Receipt and Agreement 

refers to the same Bird Point pr,operty,the same total consideration, and recites the same earnest money payment of $5,000 by 

Pack River; it differs from Exhibit flAfl only in the proposed down 

payment and payment schedule. Exhibit "B", like Exhibit "A", 

contains a provision that if the seller does not approve the sale 

within ten days the earnest money was to be returned to the 
purchaser on demand, Neither Pack River nor Young have a copy 

of this Receipt and Agreement signed by the owners of the Bird 

Point property as sellers, 

On May 27, 1971, Young prepared an Addendum to Agreement, 

a copy of which was attached to Pack River's complaint as 

Exhibit "C" and incorporated by reference in Young's answer 

and cross complaint. The Addendum states, in part, that upon 

approval of all parties at interest it shall be made a part of 

the April 19, 1971 agreement. Neither Pack River nor Young have 

any copy of such Addendum to Agreement signed by the owners of 

the Bird Point property. 

On July 13, 1971, and again on July 23, 1971, Pack River 

demanded that Young return the $5,000 earnest money pursuant 

to Exhibits "A" and "B". In reply, Young demanded payment of 

$15,000 for a realtor's commission. 

The sole question on appeal is whether the district court 

was correct in granting Pack River's motion for summary judgment. 

In its complaint Pack River seeks return of $5,000 earnest 

money deposited with Young as a realtor and young's cross complaint seeks recovery of $15,000 as a realtor's commission; 

therefore the pleadings of both parties established that both 

claims are based upon a proposed sale and purchase of real estate. 

Section 13-606, W.C.M. 1947, provides in pertinent part: 

"What contracts must be in writing. The following 

contracts are invalid, unless the same, or some 

note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent: 

"5. An a reement authorizing or employing an 

agent or %rbker to purchase or sell real estate for 

compensation ox a commission. I I 

Section 74-203, R.C.M. 1947, provides: 

I1 Contract for sale of real property. No agreement 

for the sale of real property, or any interest 

therein, is valid, unless the same, or some note 

or memorandum thereof, be in writing and subscribed 

by the party to be charged, or his agent, thereunto 

authorized, in writing; but this does not abridge 
the power of any court to compel the specific 

performance of any agreement for the sale of 

real property in case of part performance thereof." 

Pack River as the movant for the summary judgment had the 

burden of proving there was no genuine issue of material fact. 

On January 5, 1972, the district court ordered Young to 

produce any and all written documents purporting to establish 

him as the agent for the owners of the Bird Point property; any 

and all written instruments to support his claim of having a 

listing for the sale of the property; and any copy of Exhibit 

I' 11 C signed by the owners of Bird Point property, Young did not 

produce any of the documents in response to the district court's 

order, thus wholly failing to meet the statutory requirements 

of the statute of frauds. 

This Court finds that the pleadings, answers to interrogatories, response to order for production, and hearing on the 

motion for summary judgment satisfied Pack River's burden of 

establishing there was no genuine question as to any material 

fact. The district court was correct in granting judgment for 

Pack River as a matter of law. 

Young failed to establish by material and substantial evidence that there was a genuine issue as to material fact, Mager 

v. Tandy, 146 Mont. 531, 537, 410 P,2d 447. In his memorandum 

in opposition to motion for summary judgment, Young recited two 

arguments purporting to meet his burden of showing a genuine 

question as to material fact. 

young's first argument was that there was a written memorandum of employment, which was Exhibit "C" attached to Pack River's 

complaint and incorporated in young's answer and cross complaint. 

In response this this argument, Pack River states that 

Exhibit "C" on its face requires approval of all parties at 

interest, including the owners of the Bird Point property, and 

that upon approval the Addendum shall be made a part of the April 

19, 1971 agreement (Exhibit "E"). Although Young claimed under 

oath to have a copy of the Addendum signed by the owners of the 

Bird Point property, none was ever produced. 
Concerning young's second argument, the record is absolutely 

devoid of any pleading, interrogatory, deposition, or any evidence which could be considered by the district court that there 

had been any performance or part performance of an alleged contract of employment. Both the district court memorandum and 

young's brief on appeal contain a statement of counsel, unsupported by any pleadings or evidence in the record, that there 

was a performance of the alleged contract. Young therefore 

wholly failed to meet the requirements as set forth by this Court 

in Silloway v. Jorgenson, 146 Mont. 307, 310, 406 P.2d 167, that 

the party opposing a motion for summary judgment must present 

material and substantial facts in proper form and that mere 

conclusions will not suffice, 

Young did not produce any pleading or evidence to support 

his argument and therefore Brown v. Thornton, 150 Mont. 150, 155, 

432 P.2d 386, is authority for affirming the summary judgment: 

"Plaintiff argues on appeal that had he been 

allowed to go to trial he would have presented 

further proof that defendants were co-owners of 

the property and made an agreement to pay for the 

materials. Notice was given and a hearing had 

before the motion for summary judgment was granted 

and again notice was given and a hearing had before 

 lai in tiff's motion to vacate judgment was denied. 

Nowhere in the record is there any hint of this 

further proof. When on the record there is no 

genuine issue as to any material fact before the 

court the burden is on the party opposing the 

motion for summary judgment to present facts of a 

material and substantial nature raising a genuine 

issue. The trial judge has no duty to anticipate 

possible proof that might be offered. To impose 

such a duty would be to demand clairvoyance not 

~ossessed by even a trial judge. Silloway v. 

Jorgenson, 146 Mont. 307, 406 P. 2d 167. * * * 

As to the requirement that there be no genuine 

issue as to any material fact the granting of the 

motion for summary judgment was correct. 11 

The 

favor 

order o 

of Pack 

qurt granting summar judgment I" 
We Concur; 

\ Associate ~ustices.