ho. L3L75 

### IN THh SUPKbHE 

### XUKTOF 

### 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:

### .,.;! -;(FpHon. Robert J. Nelson, District Judge, sitting inplace of Mr. Chief JusticeJames T. Harrison, delivered the Opinion of the Court

# . This 

### isan appeal from the district court, Deer Lodge County, the Honorable James D. Freebourn, presiding. Plaintiff, 

### IrmaTaylor, 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 tobe able toborrow money from defendant Credit Union topay a $3,000 promissory note from Hodacks toTaylor. The balance of Count One essentially alleges that Taylor had tohirean attorney topursue her remedies against Hodacks tocollect the note, and further attempts to impose a duty upon defendants for plaintiff's lossupon her sale tode

## 6~dci ck/ fendant Credit Union atdiscount 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 asgeneral damages under Count One. Count Two allegesTaylor had a contract with Hodacks for the payment of $3,000. It 

### is alleged defendantsMcLean and the Credit Union interfered with the contract by using the premises purchased by Hodacks from Taylor as security for the original loan made toHodacks of $4,000, which money was used 

### as the downpayment on the purchase of the premises, and inmaking further loans tothe Hodacks on the 

### same security, Asdamages 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 inCount Two. Defendants McLean and Credit Union moved todismiss the complaint and themotion was treated asone for summary judgmentby counsel for plaintiff and defendants. The districtcourt 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 inMontana, and Charles McLean 

### is the treasurer of the Credit Union. On May 7, 1969, Taylor agreed to sellcertain real property located west of Anaconda toStephen and Patricia Hodack. The agreed purchase price for the property was $7,000 and 

### it isnot 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 toTaylor. Taylor did not take any steps to secure her interest

asa 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 theproperty sold. This check 

### was issued on May 8, 1969 and delivered toplaintiff by Hodacks. In return for the loan toHodacks, the Credit Union filed a mortgage upon the property sold for the amount of the loan. This mortgage


### wasdulyrecorded inDeer Lodge County. The promissory note running from the Hodacks toTaylor felldue on May 7, 1973. The Hodacks did not make payment upon the note and fell intodefault. Due tothis default, Taylor sued Hodacks and the Credit Union for breach of contract. A settlement was reached inwhich the Credit Union agreed to loan Hodacks an additional $1,500 tobe paid toTaylor. It was also agreed Hodacks would execute a new promissory note for $1,500payable 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 toTaylor by her attorney and defendant Hodack, aswas thepromissory note for $1,500 and the case 

### was settled. In November 1974, the Credit Union agreed toextend Hodacks' lineof credit and paid Hodacks the

sum of $1,500 which 

### wasused by them topay off the second promissory note running to Taylor. Inreturn for thispayment, Taylor executed a "Satisfaction of Mortgage and Releaseutothe Hodacks. The sole basis for Taylor's claim against McLean and the Credit Union is an oral statement made by McLean, apparently to plaintiff, atthe 

### timethe downpayment on the premises 

### wasmade and Taylor accepted the $3,000 unsecured note for the balance due, tothe effect that at the 

### timethe note became due May 7, 1973 Hodacks would have sufficient equity inthepremises for them toborrow more money from the Credit Union topay the note. The admittedly gratuitous oral statementmade by McLean

was not a promise toanswer for the obligation of theHodacks and was not a guaranty or of suretyship asthe same aredefined by Montana's codes. McLeanls statement necessarily presupposed, and of necessity had tobe understood by anyone who heard 

### it, that if nothing happened tothe Hodacks, and if they made their payments on themortgage which the Credit Union 

### was taking on the premises, and if nothing happened tothe premises, the Hodacks in four years would have sufficient equity inthe premises for the Credit Union tomake a further loan toHodacks topay their promissory note toTaylor for the balance of thepurchase price. Such statement did not constitute a legally enforceable promise to loan Hodacks' themoney. With regard toCounts Two and Three of Plaintiff's claim, tothe effect the Credit Union interferedwith the contractbetween Taylor and the Hodacks because it took a mortgage on the premises when it loaned Hodacks the downpayment, and thereafterbefore the due date of Hodacks' note toTaylor for the balance of the purchase price, loaned theHodacks an additional

sum or sums which was secured by themortgage, such acts standing alone do not constitute interferencewith the contract. The acts of the Credit Union 

### were legal acts, forwhich it was organized and authorized todo. Standing alone, the 

### acts do not give 

### rise toany presumption or inference that the acts

### were done to induce orcause Hodacks not topay their note. The action of interferencewith contract rights is a tortaction, tortmeaning wrongful orunlawful orwithout justification. The element of malice (notmalice 

### as it isunderstood inthe popular

sense of spiteor ill will, but 

### malice inthe legal sense) meaning the intentionaldoing of a wrongful actwithout 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 StateBank, 76 Mont. 24, 245 P. 958; Quinlivan v. Brown OilCo., 96 Mont. 147, 29 P.2d 374. Nothing more being shown than the commission of a lawful actby 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 inDeWinter 

### v. Capp Homes, Inc., 162Mont. 19, 24, 507

"The trialjudge 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 

### metthe burden, 

### it 

### was incumbent upon the plaintiff topresent evidence to

### raise a genuine issue. As

### we recently said inRoope 

### v.The Anaconda Company, 159 Mont. 28, 494 P.2d 922, 29 St.Rep. 170, 174: "'The burden of establishing the absence of any issueof material fact is on the party seeking summary judgment. Byrne v. Plante, 154 Mont. 6, 459 P.2d 266, and citations therein. But where, ashere, the record discloses no genuine issue as to any material fact, the burden 

### isupon the party opposing themotion topresent 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, 159Mont. 295, 496 P.2d 1152, 29 St.Rep. 380, 

### we affirmed that rule: "'Failure of the party opposing themotion to either 

### raise or demonstrate the existenceof a genuine issue of material fact, or todemon

### strate that the legal issue should not be determined in favor of themovant, 

### is evidence that the party's burden 

### was not carried. Summary judgment 

### is then proper, the court being under no duty toanticipateproof toestablish 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 suitwas settledby the Hodacks borrowing $1,500 from the Credit Union and paying 

### it toTaylor, who accepted a note from the Hodacks atthat 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 satisfactionof 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