No. 12565 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

JOHN A. PALMQUIST and BARBARA K. 

PALMQUIST, husband and wife, and 

WAYNE W. WHITNEY and HELEN WHITNEY, 

husband and wife, 

Plaintiffs and Respondents, 

ALLARDYCE PETROLEUM CORPORATION, 

a Colorado corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Hon. W. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellant : 

Berg, ~'Connell, Angel and Andriolo, Bozeman, Montana 

Charles F . Angel argued, Bozeman, Montana 

For Respondents: 

Hughes, Bennett and Cain, Helena, Montana 

George T. Bennett argued, Helena, Montana 

Submitted : January 15, 1974 

Decided: APf? - 1 1974 

Filed: APR - 11974 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Allardyce Petroleum Corporation, brings this 

appeal from a summary judgment entered by the district court of 

Gallatin County in favor of plaintiffs, John A. Palmquist and 

Barbara K. Palmquist, husband and wife, ordering specified performance of a written contract for the purchase of land. 

The contract was entered into February 10, 1971, and 

provided for purchase by plaintiffs from defendant of "Lot No. 

14" in the "Bridger Pines Subdivision" located in Gallatin County, 

Montana, near the "Bridger Bowl" ski area. Under the terms of 

the contract, plaintiffs paid $100 earnest money and agreed to 

pay $5,900 as the balance of the purchase price: 

"Balance to be paid when Plat is approved and 

Covenants are filed and title and Warranty Deed 

are given." 

"Lot No. 14" referred to in the contract was so described 

on a "Preliminary Road and Lot Plan" which had not been approved 

and recorded as a subdivision plat in Gallatin County at the time 

the contract was signed. In its answer defendant contended the 

Gallatin County city-county planning board and the county commissioners of Gallatin County refused to approve that preliminary 

road and lot plan, which necessitated the redesign of the Bridger 

Pines Subdivision plat. The redesigned plat of Bridger Pines 

Subdivision eliminated Lot No. 14 and designated the area it previously occupied as "open space". No contentions were made by 

defendant concerning whether the Bridger Pines Subdivision plat 

could have been redesigned and approved to retain the originally 

designated Lot No. 14. Rather, it simply contended that through 

no fault of defendant, the original plat was not approved, making 

the sale contract impossible to perform. 

Plaintiffs contended that the redesign of the Bridger 

Pines Subdivision plat so as to eliminate Lot No. 14 was a "sleight 
of hand trick" done in an attempt to defeat the written contract 

and thus enable defendant to take advantage of the substantially 

appreciated values of t h i s a s recreation land. There are no 

facts in the record before this Court to support either contention. 

The issue before this Court is whether the summary judgment granting specific performance of the contract was proper on 

the pleadings, motions, evidence, briefs and hearing before the 

distr ict court. 

Defendant contends the hereinabove quoted contract language amounted to a contractual condition precedent. We find no 

merit in this contention. It is a principle of contract law 

that a mere stipulation or covenant in a contract will not be 

construed as a condition precedent, particularly where a forfeiture would result and where it appears a condition precedent, 

if desired, could have been provided for by express agreement. 

17A C.J.S. Contracts B 338; 12 Cal.Jur.2d Contracts B 171; 17 

Am Jur 2d, Contracts S 321. 

Defendant contends also that the unforseeable act of the 

Gallatin County city-county planning board and the county commissioners of Gallatin County in disapproving the original plat of 

Bridger Pines Subdivision gave rise to the defense of contractual 

impossibility as a matter of law. We find no merit in this contention. In Hein v. Fox, 126 Mont. 514, 254 P.2d 1076, this 

Court said: 

"Then too, where a party enters into a contract 

knowing that permission of government officers 

will be required during the course of performance, 

that such permission was not forthcoming when 

required does not constitute an excuse for nonperformance. See 17 C.J.S. Contracts, sec. 463, 

page 953; Standard Oil Co. of New York v. Central 

Dredging Co. 252 N.Y. 545, 170 N.E. 137." 

See also Corbin on Contracts, Vol. 6, B 1346; 84 ALR2d 
We cannot, upon the record before us, affirm the remedy 

of specific performance, which is, under the law, an extraordinary substitute for the legal remedy of compensation and can be 

ordered only on equitable grounds. There is insufficient evidence 

in the record from which to determine whether specific performance as directed would work an inordinate inconvenience or hardship upon the defaulting party or upon innocent third persons who 

may have purchased lots in the Bridger Pines Subdivision as it 

is now platted. Interior Securities Co. v. Campbell, 55 Mont. 

459, 178 P. 582; 81 C.J.S. Specific Performance §§ 17, 18 and 19; 

71 Am Jur 2d, Specific Performance §§ 75 and 76. 

The order of the district court granting specific performance of conveyance of Lot 14 as originally platted is reversed 

and this cause remanded for 

/ Justice 

We concur: 

Chief Justice 

, Justices