### 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?

# -11974 Filed: 

### APR 

## -11974

ClerkMr. 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 infavor 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 intoFebruary 10, 1971, and provided for purchase by plaintiffs from defendant of "Lot No. 14" inthe "Bridger Pines Subdivision" located in Gallatin County, Montana, near the "Bridger Bowl" skiarea. Under the 

### terms of the contract, plaintiffs paid $100 earnest money and agreed to pay $5,900 asthe balance of the purchase price: "Balance tobe paid when Plat isapproved and Covenants are filed and title and Warranty Deed aregiven." "Lot No. 14" referred tointhe contract was sodescribed
on a "Preliminary Road and Lot Plan" which had not been approved and recorded asa subdivision plat inGallatin County atthe time the contract was signed. In itsanswer defendant contended the Gallatin County city-county planning board and the county commissioners of Gallatin County refused toapprove that preliminary road and lotplan, which necessitated the redesign of the Bridger Pines Subdivision plat. The redesigned plat of Bridger Pines Subdivision eliminated Lot No. 14and 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 toretain 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 toperform. Plaintiffs contended that the redesign of the Bridger Pines Subdivision plat so as toeliminate Lot No. 14was a "sleightof hand trick" done inan attempt todefeat the written contract and thus enable defendant totake advantage of the substantially appreciated values of t h i s a srecreation land. There areno facts in the record before thisCourt to support either contention. The issue before this Court iswhether 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 toa contractual condition precedent. We find no 

### merit inthis contention. It is a principle of contract law that a 

### mere stipulation or covenant ina contract 

### willnot be construed asa condition precedent, particularly where a forfeiturewould 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 alsothat the unforseeable act of the Gallatin County city-county planning board and the county commissioners of Gallatin County indisapproving the original plat of Bridger Pines Subdivision gave rise tothe defense of contractual impossibility asa matter of law. We find no merit in thiscontention. InHein v. Fox, 126Mont. 514, 254 P.2d 1076, this Court said: "Then too, where a party enters into a contract knowing that permission of government officers 

### willbe required during thecourse of performance, that such permission was not forthcoming when required does not constitutean excuse for nonperformance. See 17 C.J.S. Contracts, sec. 463, page 953; Standard OilCo. of New York v. Central Dredging Co. 252 N.Y. 545, 170N.E. 137." See also Corbin on Contracts, Vol. 6, 

### B 1346; 84 ALR2dWe 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 inthe record from which todeterminewhether specific performance asdirected would work an inordinate inconvenience or hardshipupon the defaulting party orupon innocent third persons who may have purchased lots inthe Bridger Pines Subdivision as it 

### isnow platted. Interior Securities Co. v. Campbell, 55 Mont. 459, 178 P. 582; 81C.J.S. Specific Performance §§ 17, 18 and 19; 71Am Jur 2d, Specific Performance §§ 75 and 76. The order of thedistrict court granting specific performance of conveyance of Lot 14asoriginally platted is reversed and thiscause remanded for

/ Justice We concur:

Chief Justice

, Justices