### Xo. 83-73 INTHE SUPREMECOURTOF THE 

### STATE OF MONTANA 1983

HOMER

### V. MARTIN and LORETTAMARTIN, d/b/a IURTINREALTY,Plaintiffand Appellants,

COIIIMUNITY GAS AND OILCOMPANY, INC., Defendant and Respondent.

APPEAL FROM: DistrictCourtof the FourthJudicial District, Inand for theCounty of Ravalli, TheHonorable JamesB. Wheelis,Judgepresiding.

COUNSEL OF RECORD: ForAppellants: Datsopoulos,MacDonald & 

### Lind,Missoula, Montana

For Respondent: Boone,Karlberg & 

### Haddon,Missoula,Montana

- - 

### SubmittedonBriefs: June 2, 1983 Decided: August 24, 1983

Filed: 

## AUG

## 24

# 1983

Clerk

### Mr. JusticeL. C. Gulbrandson delivered theOpinion of the Court.

This case comes on appeal from a summaryjudgment rendered in the District Court of the Fourth Judicial District, Ravalli County. The pertinentparties to the action areappellantMartin Realty (Martin) and respondent Community Gas and Oil Co., Inc. (Community). For the reasons stated below, 

### we affirm the judgment of theDistrict Court. Martin arranged for the sale of a tract of land from Community to the Life Evangelistic ~ssociation (Life Evangelistic) for a price of $1,168,926. On October 6, 1975, Community and Life Evangelistic entered into a contract for deed for the sale of the land. The contract for deed called for annual payments according to aparticular schedule. In addition, the contract for deed contained a "deed release" provision allowing Life Evangelistic to obtain tracts of ten acres or more upon the payment of $1,000 per acre. The deed release provision alsocontained the following sentence: "Itis specificallyunderstood and agreed that any such payment (deed release) made to the Escrow Agent shall not relieve the Buyer of the obligationtomake the next annual payment on thepurchase and saleprice and of interest ashereinprovided for

# ." On October 8, 1975, Martin and Community executed a written agreement, drafted by Community, which outlined the terms of Martin's commission incident to the sale of land to Life Evangelistic. Because Life Evangelistic was unable to make the entire down payment from which Martin's 6percent commission was to be paid, Martin agreed to payment of the commission over a period of time. The agreement indicated thatreceipt of the commission payments would occur as each payment under the contract for deed was made by LifeEvangelistic. Inparticular, the commission contract stated: "It 

### is specifically understood that Community Gas willnot be responsible toyou for any of the commission payments specified above unless 

### -- and until the Buyer makes the payment from -- 

### -- which the commission payment 

### is to be made." (emphasisadded)Pursuant to these two documents, Life Evangelistic made 

### its firstpayment on the date the contract for deed was signed and Martin received the corresponding commission payment. The next two payments were made, although not on the dates specified in the contract for deed and the commission contract, and Martin received the corresponding commission payments. Community's final payment to Martin was to occur on December 6, 1978, upon Life Evangelistic making a $110,000 payment to Community. Life Evangelistic was unable tomake theDecember 6 payment, although it did make payments for deed releases both prior to and for severalmonths following the due date. On February 15, 1979, Community and LifeEvangelistic entered into a modification agreement extending the time for payment to July 31, 1979. Life Evangelistic paid $25,000 atexecution of theagreement but failed tomake apayment due on April 15, 1979. Asa result, Community declared the contract forfeited and closed the escrow. On July 11, 1979, the parties made another attempt at extending the due date. When Life Evangelistic missed a payment under that agreement, Community deemed money received to be "rent" and repossessed the land onAugust31, 1979. Martin brought this action in

### District Court contending that it was entitled to the lastcommission payment because Community actually received more money from Life Evangelistic than was required to trigger the final payment under the commission contract of October 8, 1975. Specifically, Martin asserted that Community was obliged tocount themoney paid for "rent"and deed releases toward the$110,000 amount originallydue on December 6, 1978, because at the 

### time of execution of the commission agreement thepartiesdidnot intend toexclude these amounts. Community argued that Martin was paid everything due under the commission agreement of October 8, 1975, because, by the terms of that agreement, conditions precedent to the payment of any additional commission

### were not 

### met. Before commencement of 

### a jury trial, the court grantedCommunity's motion in limine to exclude all evidence as to the intent of theparties to the commission contract except the commission contract itself and contract for deed. In addition, the trial court concluded that although deed release payments for less than ten acres accepted before default on the contract for deed could be counted towards Life Evangelistic

### 's annual payments, those amounts were substantially insufficient to constitute $110,000 and thereby trigger Martin's lastcommission payment. As a result of these rulings, the trial court granted Community's motion for a summaryjudgment. Martin now asserts that the trial court erred in 

### its ruling toexclude extrinsic evidence of the intentof theparties to the commission contract. Specifically, Martin contends that the contract for deed and commission contract cannot be read together because inorder for two contracts to be read asone, theparties must be the same for both. Thus, the only agreement the trial court should have considered 

### is the commission agreement between Martinand Community which Martin argues 

### is ambiguous on 

### itsface because it does not indicate whether the parties would consider deed release payments or rent towards annual payments under the contract for deed. Therefore, because of the alleged ambiguity, the trial court erred in disallowing extrinsic evidence of the parties' intent at the 

### time of entering into the commission contract. Generally, when a contract 

### is reduced to a writing that is plain and unambiguous, the intent of the parties 

### is to be ascertained from that writing alone if possible. Section 28-3-303, MCA; 

### Merritt v. 

### Merritt (1974), 165 Mont. 172, 526 P.2d 1375. Moreover, the parol evidence rule provides that the 

### terms of a written contract cannot be altered or contradicted by extrinsic evidence subject to certain recognized exceptions. Ambiguity is

an exception to theparol evidence rule. Section28-2-905, MCA; Payne v. Buechler (1981), 

### - Mont. ----

## , 628 P.2d 646, 38 St.Rep. 799.The trial court examined the commission contract and the contract for deed and determined the contract for commission of October 8, 1975, was not ambiguous. The contract stated: "It

### is specificallyunderstood that Community Gas willnot be responsible toyou for any of thecommission payments specified above unless and until 

### the Buyer makes the payment from -- - 

### -- which the commission Davment 

### is tobe made." C .' ---- (emphasis added) Clearly, the words of the agreement show that it was the intent of the parties that the commission payments be contingent upon payments owed under the contract for deed. The commission contract cannot be construed otherwise. Payne v. Buechler, supra. Ambiguity onlyexistswhen a contract taken asawhole in 

### itswording orphraseology is reasonably subject to two different interpretations. Keiser v. StateBd. of Regents of Higher Educ. (1981) I Mont

# . , 630 P.2d 194, 38 St.Rep. 674; Williams

v. Ins. Co. of North America (1967), 150Mont. 292, 434 P.2d 395. Because the language of the commission contract was clear and unambiguous it was the duty of the trial court to apply the language, aswritten, to the factsof the case and decide accordingly. Section 1-4-101, MCA; Kartes v. Kartes (1981), Mont. 

## ,636 P.2d 272, 38 St.Rep. 1941; Danielsonv. Danielson (1977),172Mont. 55, 560 P.2d 893. Thus, the trial courtby way of Communityls motion in limine, properly disallowed extrinsic evidence of the parties' intent that would modify, alter, or contradict the terms of thewrittencommission contract. Martin argues further thatbecause the trial court looked to thecontract for deed inmaking itsdecision, additional evidence of the parties1intent should have been allowed. In determining the 

### terms of a contract, however, the courtwas allowed to refer to the circumstances under which it was made and the matter to which it relates. Section 28-3-402, MCA; Mathis v. Daines (1982)t Mont

# . ,639 P.2d 503, 39 St.Rep. 73. Application of thisrule does not ipso factoopen the door to nonapplication of the par01 evidence rule. On the contrary, it only aids the court in ascertaining whether there 

### is an ambiguity in thecontract. The contract for deed inparagraph 16relating to deed releasepayments states,

# ".

.

# .thatany suchpayment made to the Escrow Agent shall not relieve the Buyer of the obligation to make the next annualpayment." Once it was clear to the trial court that deed release payments made under the contract for deed were not to be counted toward the annual payments, it properly concluded that the commission contract was not ambiguous and that it governed the intent of the parties. Extrinsic evidence could only be considered if the commission agreement had, on 

### its face, appeared to be ambiguous or uncertain. HillCattleCorp. v. 79Mont. 327, 256 P. 497. In addition, the appellant argues that the commission agreements could not have been considered along with the contract for deed because the parties to the two agreements were not the

same. See28-3-203, MCA. However, it was not the purpose of the trialcourt to examine the contract for deed inorder that it be taken together with the commission contract as a single agreement. Rather, the contract for deed was utilized to determine ifthe commission contract was ambiguous, and 28-3-402, MCA, provides that a contract "may be explained by reference to the circumstances under which it was made and the matter to which it relates." Although Martin 

### asserts that the commission agreement should be construed most strongly against Community, it has long been held that to interpret the language of 

### a contract against the draftor, the draftor must cause--- the uncertainty. Parkhill v. Fuselier (1981), Mont. 

## ,632 P.2d 1132, 38 St.Rep. 1424; Glacier Campground v. Wild Rivers, Inc. (1978), 182 Mont. 389, 597 P.2d 689. In the case atbar the trial court properly held thatthe commission contract lacked any uncertainty. Inhis reply brief, Martin maintains that, inany event, the commission agreement does not contain a valid condition precedent and, therefore, payment of the commission must be made.Martin argues thatthe contract language providing thatCommunity would not be responsible for making any commission payments "unless and until the Buyer [Life Evangelistic] makes the [contract]payment

# . . .I1establishes only a

### time for payment and not a conditionprecedent to payment. Appellant cites a 

### listof

cases from otherjurisdictions for theproposition thattimecontingencies alone willnot excuse payments. See, e.g., Mignot v. Parkhill (1964),237 Or. 450, 391P.2d 755. We do not disagreewith appellant's statementof the law with respect to time contingencies. Nevertheless, we believe the agreement does establish a specific and unambiguous condition precedent. The parties agreed thatCommunity would not make commission payments "unless and until" Life Evangelistic fulfil led 

### its duties under the contract for deed. The word "unless" suggests thatone has a reservation or an option to change one's mind provided a certain event occurs. See, Black's Law Dictionary 1378, (rev. 5th ed. 1979). By use of the word "unless" Community reserved the right to withhold commission payments in the event that Life Evangelistic failed to fulfill its contractual duties. The time contingency, which arises from the use of the word "until", does not come into play until the conditionprecedent occurs. Cases relied upon by appellant speak to contracts containing only 

### time contingencies. See, e.g., Mignot, supra. Community was acting within contractualbounds by withholding the final commissionpayment unless Life Evangelistic came up with the finalbuyer's payment. Finally, Martin argues that because it did not receive the final commission payment of $23,378.52 on top of the $46,757.04 it had previously received, it was somehow subjected to an "abhorent" forfeiture. In order fox a forfeiture to occur, however, the party whose property 

### is divested must have a right inthatproperty. See, Ridgeway v. City of Akron (1940 Ohio Ct. App.), 42 N.E.2d 724, 726. Martin cannot claim a right to the final commission payment. Any right he might have obtained wasconditioned on the final payment by Life Evangelistic under the contract for deed. Since there was no valid contract payment, therewas no enforceablerightinthecommissionpayment. With no enforceable right, Martin cannot make a valid claim that he has suffered a forfeiture. ~7 In sum, 

### we find no reversible error, and &refore affirm.

I Justice

### /

We concur: 

# /