Xo. 83-73 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

HOMER V. MARTIN and LORETTA MARTIN, 

d/b/a IURTIN REALTY, 

Plaintiff and Appellants, 

COIIIMUNITY GAS AND OIL COMPANY, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Datsopoulos, MacDonald & Lind, Missoula, Montana 

For Respondent: 

Boone, Karlberg & Haddon, Missoula, Montana 

- - 

Submitted on Briefs: June 2, 1983 

Decided: August 24, 1983 

Filed: AUG 24 1983 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. 

This case comes on appeal from a summary judgment rendered in 

the District Court of the Fourth Judicial District, Ravalli 

County. The pertinent parties to the action are appellant Martin 

Realty (Martin) and respondent Community Gas and Oil Co., Inc. 

(Community). For the reasons stated below, we affirm the 

judgment of the District 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 a particular 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 

also contained the following sentence: 

"It is specifically understood and agreed that 

any such payment (deed release) made to the 

Escrow Agent shall not relieve the Buyer of 

the obligation to make the next annual payment 

on the purchase and sale price and of interest 

as herein provided 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 6 percent commission was 

to be paid, Martin agreed to payment of the commission over a 

period of time. The agreement indicated that receipt of the commission payments would occur as each payment under the contract 

for deed was made by Life Evangelistic. In particular, the commission contract stated: 

"It is specifically understood that Community 

Gas will not be responsible to you 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." 

(emphasis added ) 
Pursuant to these two documents, Life Evangelistic made its 

first payment 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 to make the December 6 payment, although 

it did make payments for deed releases both prior to and for 

several months following the due date. 

On February 15, 1979, Community and Life Evangelistic entered 

into a modification agreement extending the time for payment to 

July 31, 1979. Life Evangelistic paid $25,000 at execution of 

the agreement but failed to make a payment due on April 15, 1979. 

As a 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 on August 31, 1979. 

Martin brought this action in District Court contending that 

it was entitled to the last commission 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 to count the money paid for "rent" and deed 

releases toward the $110,000 amount originally due on December 6, 

1978, because at the time of execution of the commission 

agreement the parties did not intend to exclude 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 granted 
Community's motion in limine to exclude all evidence as to the 

intent of the parties 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 last commission 

payment. As a result of these rulings, the trial court granted 

Community's motion for a summary judgment. 

Martin now asserts that the trial court erred in its ruling 

to exclude extrinsic evidence of the intent of the parties to the 

commission contract. Specifically, Martin contends that the 

contract for deed and commission contract cannot be read together 

because in order for two contracts to be read as one, the parties 

must be the same for both. Thus, the only agreement the trial 

court should have considered is the commission agreement between 

Martin and Community which Martin argues is ambiguous on its face 

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 the parol evidence rule. Section 28-2-905, 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 specifically understood that Community 

Gas will not be responsible to you for any of 

the commission payments specified above unless 

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

which the commission Davment is to be 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 only exists when a contract taken as a whole in 

its wording or phraseology is reasonably subject to two different 

interpretations. Keiser v. State Bd. of Regents of Higher Educ. 

(1981) I Mont . , 630 P.2d 194, 38 St.Rep. 674; Williams 

v. Ins. Co. of North America (1967), 150 Mont. 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, as written, to the facts of the case and decide accordingly. Section 1-4-101, MCA; Kartes v. Kartes (1981), 

Mont. , 636 P.2d 272, 38 St.Rep. 1941; Danielson v. Danielson 

(1977), 172 Mont. 55, 560 P.2d 893. Thus, the trial court by way 

of Communityls motion in limine, properly disallowed extrinsic 

evidence of the parties' intent that would modify, alter, or 

contradict the terms of the written commission contract. 

Martin argues further that because the trial court looked to 

the contract for deed in making its decision, additional evidence 

of the parties1 intent should have been allowed. In determining 

the terms of a contract, however, the court was 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 this rule does not ipso facto open 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 the 
contract. The contract for deed in paragraph 16 relating to deed 

release payments states, ". . . that any such payment made to the 

Escrow Agent shall not relieve the Buyer of the obligation to 

make the next annual payment." 

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. Hill Cattle Corp. v. 

79 Mont. 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. See 28-3-203, MCA. However, it was not the purpose of the 

trial court to examine the contract for deed in order that it be 

taken together with the commission contract as a single 

agreement. Rather, the contract for deed was utilized to determine if the 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 at bar the trial court properly held 

that the commission contract lacked any uncertainty. 

In his reply brief, Martin maintains that, in any event, the 

commission agreement does not contain a valid condition 

precedent and, therefore, payment of the commission must be made. 
Martin argues that the contract language providing that Community 

would not be responsible for making any commission payments 

"unless and until the Buyer [Life Evangelistic] makes the 

[contract] payment . . .I1 establishes only a time for payment and 

not a condition precedent to payment. Appellant cites a list of 

cases from other jurisdictions for the proposition that time contingencies alone will not excuse payments. See, e.g., Mignot v. 

Parkhill (1964), 237 Or. 450, 391 P.2d 755. 

We do not disagree with appellant's statement of the law with 

respect to time contingencies. Nevertheless, we believe the 

agreement does establish a specific and unambiguous condition 

precedent. The parties agreed that Community would not make commission payments "unless and until" Life Evangelistic fulfil led 

its duties under the contract for deed. The word "unless" 

suggests that one 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 

condition precedent occurs. Cases relied upon by appellant speak 

to contracts containing only time contingencies. See, e.g., 

Mignot, supra. Community was acting within contractual bounds by 

withholding the final commission payment unless Life Evangelistic 

came up with the final buyer'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 

in that property. 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 was 
conditioned on the final payment by Life Evangelistic under the 

contract for deed. Since there was no valid contract payment, 

there was no enforceable right in the commission payment. 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: /