ho. L3L75 

IN THh SUPKbHE XUKT OF THE STAL'E 'JF MON'l'kNA 

1976 

LKMA TAYLOR, 

Piainrif f and Appellant, 

THE ANALONIIA FEDEKAL CKLDLT LJNION 

AND CHARLES McLEAN individually 

and its agent, 

Defendants and Respondents. 

Appeal frorn: District Court of the Third Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Zounsel of Record : 

For Appellant: 

Edward D. Yelsa argued, Anaconda, Montana 

For Respondents: 

Corette, Smith and Dean, Butte, Montana 

Gerald R. Allen argued, Butte, Montana 

Submitted: April 21, 1976 

Decided : %$\ 2 & 1976 

Filed : .,.;! -;(Fp 
Hon. Robert J. Nelson, District Judge, sitting in place of Mr. 

Chief Justice James T. Harrison, delivered the Opinion of the 

Court . 

This is an appeal from the district court, Deer Lodge 

County, the Honorable James D. Freebourn, presiding. 

Plaintiff, Irma Taylor, filed an action in the district 

court, Deer Lodge County, on June 26, 1975. Count One of the 

complaint alleges that defendant Charles McLean, agent of the 

Anaconda Federal Credit Union, promised Taylor that purchasers 

(Hodacks) would have enough equity to be able to borrow money 

from defendant Credit Union to pay a $3,000 promissory note from 

Hodacks to Taylor. The balance of Count One essentially alleges 

that Taylor had to hire an attorney to pursue her remedies against 

Hodacks to collect the note, and further attempts to impose a 

duty upon defendants for plaintiff's loss upon her sale to de6~dci ck/ fendant Credit Union at discount of another of Hod&3' notes in 

the sum of $1,500 and also for her attorney's fees. Taylor alleged $800 as special damages and $50,000 as general damages under 

Count One. 

Count Two alleges Taylor had a contract with Hodacks for 

the payment of $3,000. It is alleged defendants McLean and the 

Credit Union interfered with the contract by using the premises 

purchased by Hodacks from Taylor as security for the original 

loan made to Hodacks of $4,000, which money was used as the downpayment on the purchase of the premises, and in making further 

loans to the Hodacks on the same security, As damages under 

Count Two, Taylor alleges special damages of $800, general damages of $50,000 and exemplary damages of $70,000. 

Count Three of the complaint is a repetition of the allegations made in Count Two. 

Defendants McLean and Credit Union moved to dismiss the 

complaint and the motion was treated as one for summary judgment 
by counsel for plaintiff and defendants. The district court 

granted judgment for McLean and the Credit Union. Taylor appealed 

from the order and judgment of the district court. 

The facts are admitted. Taylor is a resident of Anaconda, 

Montana. The Credit Union is a corporation organized under the 

laws of the United States and doing business in Montana, and 

Charles McLean is the treasurer of the Credit Union. 

On May 7, 1969, Taylor agreed to sell certain real property located west of Anaconda to Stephen and Patricia Hodack. 

The agreed purchase price for the property was $7,000 and it 

is not clear whether or not a written contract of sale was 

drafted. The agreement between Taylor and Hodacks provided for 

a downpayment of $4,000. The remaining $3,000 was payable, without interest, 4 years from May 7, 1969. The promissory note was 

executed by the Hodacks and delivered to Taylor. 

Taylor did not take any steps to secure her interest 

as a creditor upon the real property. The Hodacks borrowed from 

the Credit Union through its duly authorized agent, McLean, the 

sum of $4,664.83, representing the agreed downpayment plus Hodacks' 

share of taxes on the property sold. This check was issued on 

May 8, 1969 and delivered to plaintiff by Hodacks. In return 

for the loan to Hodacks, the Credit Union filed a mortgage upon 

the property sold for the amount of the loan. This mortgage 

was duly recorded in Deer Lodge County. 

The promissory note running from the Hodacks to Taylor 

fell due on May 7, 1973. The Hodacks did not make payment upon 

the note and fell into default. Due to this default, Taylor 

sued Hodacks and the Credit Union for breach of contract. A 

settlement was reached in which the Credit Union agreed to loan 

Hodacks an additional $1,500 to be paid to Taylor. It was also 

agreed Hodacks would execute a new promissory note for $1,500 
payable in 3 years or in 1977. Under the new agreement, Taylor 

took a second mortgage on the real property. 

A check for $1,500 was delivered to Taylor by her attorney and defendant Hodack, as was the promissory note for $1,500 

and the case was settled. In November 1974, the Credit Union 

agreed to extend Hodacks' line of credit and paid Hodacks the 

sum of $1,500 which was used by them to pay off the second promissory note running to Taylor. In return for this payment, Taylor 

executed a "Satisfaction of Mortgage and Releaseu to the Hodacks. 

The sole basis for Taylor's claim against McLean and the 

Credit Union is an oral statement made by McLean, apparently to 

plaintiff, at the time the downpayment on the premises was made 

and Taylor accepted the $3,000 unsecured note for the balance 

due, to the effect that at the time the note became due May 7, 

1973 Hodacks would have sufficient equity in the premises for 

them to borrow more money from the Credit Union to pay the note. 

The admittedly gratuitous oral statement made by McLean 

was not a promise to answer for the obligation of the Hodacks 

and was not a guaranty or of suretyship as the same are defined 

by Montana's codes. McLeanls statement necessarily presupposed, 

and of necessity had to be understood by anyone who heard it, 

that if nothing happened to the Hodacks, and if they made their 

payments on the mortgage which the Credit Union was taking on 

the premises, and if nothing happened to the premises, the Hodacks 

in four years would have sufficient equity in the premises for 

the Credit Union to make a further loan to Hodacks to pay their 

promissory note to Taylor for the balance of the purchase price. 

Such statement did not constitute a legally enforceable promise 

to loan Hodacks' the money. 

With regard to Counts Two and Three of Plaintiff's 

claim, to the effect the Credit Union interfered with the contract 
between Taylor and the Hodacks because it took a mortgage on 

the premises when it loaned Hodacks the downpayment, and thereafter before the due date of Hodacks' note to Taylor for the 

balance of the purchase price, loaned the Hodacks an additional 

sum or sums which was secured by the mortgage, such acts standing alone do not constitute interference with the contract. The 

acts of the Credit Union were legal acts, for which it was 

organized and authorized to do. Standing alone, the acts do not 

give rise to any presumption or inference that the acts were 

done to induce or cause Hodacks not to pay their note. The 

action of interference with contract rights is a tort action, 

tort meaning wrongful or unlawful or without justification. The 

element of malice (not malice as it is understood in the popular 

sense of spite or ill will, but malice in the legal sense) meaning 

the intentional doing of a wrongful act without justification or 

excuse, is an essential element of an action for interference 

with contract. Such malice is not presumed and cannot be inferred 

from the commission of a lawful act. Simonsen v. Barth, 64 Mont. 

95, 208 P. 938; Burden v. Elling State Bank, 76 Mont. 24, 245 P. 

958; Quinlivan v. Brown Oil Co., 96 Mont. 147, 29 P.2d 374. 

Nothing more being shown than the commission of a lawful 

act by McLean and the Credit Union the burden was on Taylor to 

present evidence of a material and substantial nature raising a 

genuine issue of fact on the element of malice. 

The governing law on a motion for summary judgment is 

stated in DeWinter v. Capp Homes, Inc., 162 Mont. 19, 24, 507 

"The trial judge was faced with a set of facts 

that could only produce one conclusion. Initially, the burden was on defendant to show an 

absence of any issue of material fact. When 

defendant met the burden, it was incumbent upon 

the plaintiff to present evidence to raise a 

genuine issue. As we recently said in Roope v. 
The Anaconda Company, 159 Mont. 28, 494 P.2d 

922, 29 St.Rep. 170, 174: 

"'The burden of establishing the absence of any 

issue of material fact is on the party seeking 

summary judgment. Byrne v. Plante, 154 Mont. 6, 

459 P.2d 266, and citations therein. But where, 

as here, the record discloses no genuine issue 

as to any material fact, the burden is upon the 

party opposing the motion to present evidence of 

a material and substantial nature raising a genuine 

issue of fact. Flansberg v. Mont. Power Co., 154 

Mont. 53, 460 P.2d 263, and authorities cited 

therein.' (Emphasis added) 

"In State ex rel. Burlington Northern v. District 

Court, 159 Mont. 295, 496 P.2d 1152, 29 St.Rep. 

380, we affirmed that rule: 

"'Failure of the party opposing the motion to 

either raise or demonstrate the existence of a 

genuine issue of material fact, or to demonstrate that the legal issue should not be determined in favor of the movant, is evidence that 

the party's burden was not carried. Summary 

judgment is then proper, the court being under no 

duty to anticipate proof to establish a material 

and substantial issue of fact.'" 

Finally, when the Hodacks did not pay the $3,000 note on 

the due date, Taylor not only sued Hodacks, but McLean and the 

Credit Union as well. This suit was settled by the Hodacks 

borrowing $1,500 from the Credit Union and paying it to Taylor, 

who accepted a note from the Hodacks at that time for the remaining $1,500 which note Taylor this time secured by a second mortgage on the premises. Later on November 20, 1974, Taylor filed 

a satisfaction of the second mortgage when Hodacks paid the $1,500 

note with money again borrowed from the Credit Union. This constituted not only an accord and satisfaction and any extinguishment of the claim she had against Hodacks, but also any possibility 

of a claim she could have had against McLean and the Credit Union. 

The district court's order granting summary judgment to 

defendants is affirmed. 
We concur: 

Justices u