No. 86-510 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ELMER A. ERBAN, 

Plaintiff and Respondent, 

-vsJOSEPH F. MONFORTON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrow, Sedivy & Bennett; Lyman H. Bennett, 111, 

Bozeman, Montana 

For Respondent : 

J. David Penwell, Bozeman, Montana 

Submitted on Briefs: March 19, 1987 

Decided:Auqust 3, 1987 

AUG 3 - 1987 Filed: 

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

Court. 

Joseph Monforton appeals a decision from Gallatin 

County District Court finding him liable for unjust 

enrichment as a result of unreasonably withholding written 

consent to an assignment of respondent Elmer Erban's interest 

in a tract of land. The issue on appeal is whether there is 

substantial credible evidence to sustain the decision of the 

District Court. We affirm. 

In 1979, Erban entered into a contract for deed with 

Monforton for the purchase of real property located in 

Gallatin County, Montana. The total purchase price was 

$162,500. Erban made a downpayment of $8,382.12 when the 

contract was signed, a payment of $5,000 in early 1980, and 

in October 1980, a payment of $10,849.13, to bring the total 

payments to $24,231.25. Erban also made improvements to the 

property in the amount of $3,889.77. Erban purchased the 

property for use and occupancy by his daughter and her 

husband, Ray McReynolds. The couple began occupancy in 

October 1979 and the arrangement was that the couple would 

begin making payments in 1981. The couple made the 1981 

payment and were divorced in September 1982. McReynolds, the 

son-in-law, decided to stay on the premises and expressed his 

intentions to Erban. In August 1982, or one month before the 

couple's divorce was completed, Erban executed an "assignment 

and novation" with McReynolds and signed a quitclaim deed 

conveying the property to McReynolds. The quitclaim deed was 

delivered to the escrow agent by the attorney representing 

Erban's daughter in the divorce proceedings. Erban 

acknowledges that the attorney was acting on his behalf. In 

July 1983, or nearly one year later, Erban asked for 

Monforton's written consent to the assignment to McReynolds. 
The 1979 contract between Erban and Monforton provided: 

3. Assignment. This Agreement shall not 

be assigned, nor shall the real property 

which is the subject of this Agreement be 

encumbered by the second party without 

receiving written consent from the first 

party, said written consent not to be 

unreasonably withheld by the first party. 

Monforton responded through his attorney saying that "consent 

was not extended by Joe [Monforton]." No explanation was 

given for Monforton's refusal to consent to the assignment. 

Monforton alleges in his brief that he refused to consent 

because McReynolds was late with the 1982 payment under the 

Erban-Monforton contract and had been recently divorced. 

Notices of default and acceleration were sent to Erban in 

late 1983. Erban failed to respond, assuming that the 

contract with Monforton had been cancelled. In March 1984, 

Monforton accepted a $152,000 cash payment and a promissory 

note for $22,341 from McReynolds. This allowed McReynolds to 

break escrow and record the warranty deed from Monforton to 

Erban, which, together with the deed from Erban to 

McReynolds, provided for a clear chain of title from Erban to 

McReynolds and allowed McReynolds to purchase the property at 

a price of $174,341. Erban then filed suit against Monforton 

for unreasonably withholding his consent to the assignment to 

McReynolds. Erban also filed suit against McReynolds and 

that suit is still pending. Monforton did not appear on the 

trial date and his counsel made motions to withdraw as 

counsel and for a continuance of trial proceedings. Both 

motions were denied. 

The District Court found that Monforton had 

unreasonably withheld his consent to the assignment and that 

Erban had been damaged in the amount of $28,120.96, Erban's 

investment cost. The court also awarded Erban attorney fees 
and costs totalling $2,045.17. If a contract states that 

written consent shall not be unreasonably withheld, equity 

principles will apply. The court stated that reasons of 

sound business judgment, or where the justification for 

refusing consent is clearly explained, would suffice. Here 

the court found a provision in the Erban-Monforton contract 

that written consent to an assignment could not be 

unreasonably withheld; it concluded that Monforton breached 

the contract with Erban by failing to provide sufficient 

reason for refusing to consent to the assignment and 

therefore was responsible for Erban's damages of $28,120.96. 

The standard of review was stated in Lima School Dist. 

No. 12 v. Simonsen (Mont. 1984), 683 P.2d 471, 476-477, 41 

In reviewing findings of fact in a civil 

action tried without a jury, this Court 

may not substitute its judgment in place 

of the trier of facts. Our function is 

confined to determining whether there is 

substantial credible evidence to support 

the court's findings. We view the 

evidence "in a light most favorable to 

the prevailing party, recognizing that 

substantial evidence may be weak or 

conflicting with other evidence yet still 

support the findings. " Lacey v. Herndon 

(Mont. 1983), 668 P.2d 251, 255, 40 

St.Rep. 1375, 1380. 

Upon consideration of the contentions presented by both 

parties, we conclude that there is substantial credible 

evidence to support the decision of the lower court. 

Affirmed. 
We concur: ,A