No. 13607 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

EDWIN A. SEIFERT, JR., 

Plaintiff and Appellant, 

EDWIN A. SEIFERT and CHRISTINE 

SEIFERT and EDWIN A. SEIFERT RANCH, 

a Montana Corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

William Gilbert argued, Bozeman, Montana 

For Respondents: 

Bennett and Bennett, Bozeman, Montana 

Lyman Bennett, Jr argued, Bozeman, Montana 

Submitted: May 24, 1977 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

This is an appeal from a judgment entered in the district 

court, Gallatin County, denying plaintiff's motion for summary 

judgment, but granting defendants' motion for summary judgment. 

This case comes to this Court from the district court 

where the parties stipulated no disputed facts existed and the 

district court might consider the parties' motions for summary 

judgment upon the filed briefs. 

The district court granted defendants' motion for summary judgment. No reasons for its conclusion were given by 

the district court. 

On March 1, 1965, the parties here entered into a written 

lease and option agreement. From this lease option agreement, 

plaintiff, Edwin A. Seifert, Jr., was granted the option to purchase the real property owned by defendants Edwin A. Seifert and 

Christine R. Seifert for the sum of $150,000. The lease period 

was 5 years beginning March 1, 1965. The terms of the lease included 2000 acres of the Edwin A. Seifert Ranch, together with 

all equipment, farm machinery and buildings, except defendants' 

residence. Plaintiff was given the privilege to renew the lease 

for an additional 5 years, upon the same terms, at any time 

during the original term. 

Under the lease portion of the agreement, defendants 

were to receive 1/2 of all crops harvested and pay 1/2 of all 

expenses for fuel, seed, repairs and other incidental farm expenses. 

For the consideration of $1.00, plaintiff was given the 

exclusive option to purchase the Edwin A. Seifert Ranch at any 

time during the term of the lease, or any renewal thereof, for 

the sum of $150,000. 

On February 28, 1970, plaintiff sent a written notice 
to renew the lease and option for an additional 5 years. $1.00 

consideration was submitted with the notice. Defendants requested 

their attorney return the $1.00 consideration and refused to 

sign acknowledging receipt of the notice. 

Plaintiff and defendants continued operating the ranch 

as before, but defendant, Edwin, Sr., stated in his deposition: 

"Q. Up to that time, Ed, had you and Eddy 

been working back and forth farming, you helping 

him with his farming and he helping you with yours? 

A. Right. 

"Q. Has there ever been any real change in that? 

A. Well, not until starting of 1971, where it 

got to be more of a load for me and he has done 

less. 

"Q. Has Ed Jr. ever made any arrangements to 

give you any compensation for your labor? A. 

Never mentioned it. 

"Q. Was it ever discussed? A. No. 

"Q. Was the fact of repair ever discussed? A. 

No. 

"Q. Did it seem to you like you had a tenant? 

Or, it was the same old ranch? A. Well, I began 

to think I was the boss and the hired man both." 

On January 17, 1975, plaintiff sent a letter to defendants with his personal check of $150,000 in payment of the 

purchase price under the option agreement. In that letter, 

plaintiff gave notice he was exercising his option to purchase 

the land as outlined in the lease option agreement dated March 

1, 1965. On January 21, 1975, defendants through their attorney, 

refused to accept the personal check of plaintiff. A second 

tender of a bank money order was submitted, but this also was 

rejected by defendants. 

After various attempts to settle their dispute failed, 

plaintiff filed suit for specific performance. Following joint 

motions for summary judgment the district court ruled in favor 

of defendants. Plaintiff appeals from that order. 

The issues on appeal are: 
1. Did the district court err by not granting plaintiff's 

motion for summary judgment? 

2. Did the district court err by granting defendants' 

motion for summary judgment? 

Plaintiff brought this suit to compel specific performance of the contract dated March 1, 1965. Specific performance 

is an equitable remedy which compels the performance of a contract in the precise terms agreed on. The foundation of a suit 

for specific performance of a contract is that, by compelling 

the parties to do the very things they agreed to do, more complete and perfect justice is attained than by giving damages 

for breach of a contract. Specific performance is purely an 

equitable remedy; presenting a purely equitable controversy and 

is governed by equitable principles. 81 C.J.S. Specific Performance S1, p. 408. See also: State ex rel. Victor's Inc. v. 

District Court, Mont . , 545 P.2d 1098, 33 St.Rep. 23, 27. 

In 81 C.J.S. Specific Performance S3, p. 411, it is 

stated: 

" * * * specific performance will be ordered 

only on equitable grounds in view of all the 

conditions surrounding the particular case. * * * 

"A bill in equity for specific performance is an 

appeal to the conscience of the court, and generally, in such a proceeding, the inquiry must be 

whether, in equity and good conscience, the 

court should specifically enforce the contract. 

Accordingly, specific performance will be 

granted when it is apparent from a view of all 

the circumstances of the particular case that 

it will serve the ends of justice, and it will 

be withheld when, from a like view, it appears 

that it will produce hardships or injustice to 

either party * * *." (Emphasis added.) 

Section 17-809, R.C.M. 1947, states that specific performance cannot be enforced in favor of a party to a contract 

if that party "has not fully and fairly performed all conditions 

precedent on his part to the obligation * * *." In Si*well v. 

New Mine Sapphire Syndicate, 130 Mont. 189, 197, 297 P.2d 299, 
this Court stated: 

"Section 17-803, supra, was construed in 

McDonald v. Stewart, 127 Mont. 188, 199, 259 

P.2d 799, 805, where the court in affirming 

a judgment for defendant said: 'Before 

McDonald is entitled to specific performance 

by Stewart, he must show that he has performed 

his part of the agreement. This he has failed 

to do. R.C.M. 1947, section 17-803, provides: 

"Neither party to any obligation can be compelled 

specifically to perform it, unless the other 

party thereto has performed * * *". 

"'Unless performance is waived or excused, a 

plaintiff seeking to enforce a contract must 

perform his obligations thereunder, and plaintiff's wilful violation of an essential covenant 

of a contract is a defense to specific enforcement 

of the contract. 81 C.J.S., Specific Performance, 

section 94, page 614.'" 

Therefore, this Court is required to examine the facts and circumstances of this case to determine whether plaintiff fully 

and fairly performed his obligations under the contract. 

The facts show plaintiff farmed approximately 500 acres 

as his own, and defendants farmed approximately 2000 acres during 

the time the contract was in existence. Defendants and plaintiff 

exchanged work and machinery between the two properties, but 

no showing was made that plaintiff took possession or control 

of the ranch in any manner different from the operation before 

the contract. 

According to the contract, defendants were to receive 

1/2 of the crop as rent and pay 1/2 of all expenses for fuel, 

seed, repairs and other incidental farm expenses. In reality, 

Seifert Sr.'s statements show this was not the case. 

"Q. You took a little more because of the extra 

work. A. Of course a11 the way through and all 

the time he has had that farm or supposed to have 

been renting and when his lease was up -- we t 

when I say we, the wife and I, have paid for all 

fuel, paid for all the oil, paid for all the grease, 

we have paid for all repairs, and all the farm 

machinery, plus all repairs on the combines, plus 

I am safe in saying 95 percent of the hired help 

we have paid for. When I say 'we', I say the wife 

and I. So when you figure that all out, that runs 
into quite a little sum of money. 

"Q. That is the reason you have taken more of 

the crop, then? A. Right. 

"Q. Did the two of you provide various parts 

of the work that went in to operate your ground in 

1972? A. He didn't help much after I got that 

big tractor at my place. I done my own work on 

my own place, and then he was there to get the 

tractor to go down and do his. 

"Q. So, therefore, since you were doing most of 

the work on your place, you took most of the crop? 

A. Right. 

"Q. He only took a smaller portion of the crop, 

and he didn't get any 50 percent; is that correct? 

A. Right." 

Seifert Sr.'s statements also show plaintiff did not take 

over the ranch repair work: 

"A. Well, there was times when we were caught 

up, there was a lot of fence fixing, things he 

could do. But he didn't. He hasn't set a fence 

post even on his own place since he bought it. 

What fence fixing has been done, I have had done 

or done myself and paid for it. 

"Q. I see. And then you have taken a little more 

of the crop because of that? A. Yeah." 

Under the circumstances, plaintiff failed to show he 

fully and fairly performed the lease according to its terms. 

For plaintiff to secure the desired relief (specific performance) 

he is required to come into court with clean hands, and with a 

cause whose ethical qualities were such as to commend it to the 

conscience of the court. Schlegel v. Moorhead, Mont . I 

wP.2d 1009, 33 St.Rep. 836, 840; section 49-109, R.C.M. 1947. 

This action seeks an equitable remedy. In view of the 

fact plaintiff did not perform his obligations under the contract, this Court cannot in good conscience grant specific 

performance to plaintiff. We agree with the district court in 

not granting plaintiff's motion for summary judgment. 

Plaintiff's second issue challenges the granting of 
of defendants' motion for summary judgment. 

The facts show plaintiff continued the work-trade 

arrangement from 1970 through 1974 with the knowledge of defendants' contention as to the lease. Defendant, Seifert Sr., 

stated: 

"Q. Ed, after you sent back the document that was 

sent to you in 1970, I mean after you had me do it 

for you by certified mail--and that is a document that 

is here as a copy--what did Eddy say; anything? 

And you are looking at Exhibit 2. Did he protest to 

you when you sent that back? A. Nope. 

"Q. Did he continue to work with you the same as 

before? A. Right. 

"Q. Right up to about 1974? A. Yeah. But as I say, 

he started slacking off the last few years and he 

has been doing less. 

"Q. Well, I understand. But, I mean, did he start 

asserting any rights until last fall? A. No." 

Plaintiff admitted this in his deposition of December 

11, 1975: 

"Q. You talked to your folks. And did they 

repeatedly advise you that they thought you didn't 

have a lease? A. Yes. 

"Q. And from the spring of 1970, did they so advise 

you everytime it came up? A. Sometime after that we 

mentioned it. 

"Q. Everytime it came up for discussion, they 

didn't change their position, did they? A. Well, 

I suppose they didn't. 

"Q. And it was known to you that that was their 

position throughout the period; wasn't it? I mean, 

from 1970 on? A. Yes; yes." 

Thus, from 1970 to 1974, plaintiff did nothing to enforce his 

claim, knowing defendants contended that he had no lease. 

Plaintiff brought this suit in equity. Since plaintiff 

raised this question in equity, the equitable defense of laches 

and unreasonable delay is applicable. 

In Adair v. Capital Invest Co., 165 Mont. 26, 29, 525 

P.2d 548, this Court reviewed the equitable doctrine of laches, 

quoting from Riley v. Blacker, 51 Mont. 364, 152 P. 758, 759: 
"'Laches, considered as a bar independent of 

the statute of limitations, is a concept of equity; 

it means negligence in the assertion of a right; 

it is the practical application of the maxim, 

"Equity aids only the vigilant"; and it exists 

when there has been unexplained delay of such 

duration or character as to render the enforcement of the asserted right inequitable. Therefore has it often been held by this court that: 

While a mere delay short of the period of the 

statute of limitations does not of itself raise 

the presumption of laches [citing cases], yet 

"good faith and reasonable diligence only can call 

into activity the powers of a court of equity, 

and, independently of the period fixed by the 

statute of limitations, stale demands will not 

be entertained or relief granted to one who has 

slept upon his rights. Considerations of public 

policy and the difficulty of doing justice between the parties are sufficient to warrant a 

court of equity in refusing to institute an 

investigation where the lapse of time in the 

assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, 

no matter how apparently just his claim may be; 

and this is particularly so where the relations 

of the parties have been materially altered in 

the meantime." * * *'" 165 Mont. 29, 30. 

In the instant case, plaintiff waived his claim by doing 

nothing to enforce his rights once defendants' contention of no 

lease came to his knowledge. Further, plaintiff allowed defendants to change their circumstances. Defendant, Seifert Sr., 

bought larger and more expensive equipment to farm all of the 

land, he testified: 

"A. Right. It was getting to be more work. And 

in 1971, I bought that big four-wheel tractor, 

the first one, because with his tractor and the 

one I had and him buying the rest of that ranch was 

too much. 

"Q. That was in 1971 that you bought the big outfit? A. Yes, sir. 

"Q. Was the reason you bought that, was that so 

you could get all the land taken care of? A. Right." 

Also, in 1974 the ranch belonging to Seifert, Sr. and 

his wife, was incorporated. This incorporation took place with 

the knowledge of plaintiff and was aided by suggestions of 

plaintiff. 

As a result of plaintiff's negligence in asserting his 
rights, and the change in defendants' circumstances, the ends 

of justice are served by granting defendants' motion for 

summary judgment. 

The order of the district court is affirmed. 

1 /' 

Chief Justice R