No. 86-495 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ROBERT A. HILLSTROM and PATRICIA 

A. HILLSTR.OM, 

Plaintiffs and Respondents, 

-vsSTEVEN J. O'NEILL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Peter M. Meloy, Helena, Montana 

For Respondent: 

J. Robert Planalp, Bozeman, Montana 

Submitted on Briefs: March 12, 1987 

Decided: April 21, 1987 

Filed: APk i 

9570 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Steven O'Neil appeals the October 29, 1985, 

order of the Eighteenth Judicial District Court granting 

summary judgment in favor of plaintiffs Robert and Patricia 

Hillstrom. We affirm. 

This case involves breach of a buy-sell contract. 

Robert and Patricia Hillstrom were the sellers and Steven 

OINeil the buyer. Hillstroms desired to sell a ten acre 

tract of land located in Gallatin County, Montana. OINeil 

sought land in the area for development purposes. On June 2, 

1983, O'Neil executed a document entitled "Earnest Money 

Receipt and Agreement to Sell and Purchase". Hillstroms 

signed the agreement on June 9, 1983. 

The buy-sell agreement provided for a purchase price of 

$225,000 with $6,000 in earnest money due upon execution of 

the contract, $69,000 due at the time of closing, assumption 

of an $18,000 underlying contract, and the balance of 

$132,000 due in monthly installments with interest accruing 

from the date of closing at 10%. The contract further 

provided for two partial releases. Upon Hillstroms' receipt 

of $100,000 of principal from OINeil, Hillstroms would "deed 

property east of road and west of river" to OINeil. Upon 

receipt of $50,000 of the principal amount, Hillstroms were 

required to deed property west of the road to O'Neil. OINeil 

had choice of first release and was required to pay for all 

costs of releases and surveys. 

The buy-sell contract was drawn by O'Neil's real estate 

agent and contained wording in large print, "THIS IS A 

LEGALLY BINDING CONTRACT, IF NOT UNDERSTOOD, SEEK COMPETENT 

ADVICE". Closing was set for August 1, 1983. O'Neil wired a 

telegram to Hillstroms stating, "Your acceptance on June 9, 
1983, is considered by me to create a valid and binding 

agreement." 

Prior to closing O'Neil became concerned about securing 

the necessary approval of county authorities regarding his 

subdivision plans. The closing date was extended to August 

4, 1983, by agreement of the parties. On August 4, 1983, 

O'Neil refused to close. O'Neil proposed that closing be 

postponed until a survey of the tract could be performed. 

O'Neil also requested documents showing consent by Corcoran 

and Spain to O'Neil's assumption of the contract, and 

transferring all appurtenant water rights to O'Neil. 

Hillstroms provided O'Neil with Corcoran and Spain's 

consent to assignment but refused to delay closing to allow 

survey as requested by O'Neil. The parties were unable to 

come to terms and Hillstroms filed an action for specific 

performance August 19, 1983. Following discovery, both 

parties filed motions for summary judgment. Hearing was held 

and the District Court entered its order October 30, 1985, 

granting summary judgment in favor of Hillstroms. O'Neil 

appeals and raises the following issues: 

1) Whether the District Court erred in granting summary 

judgment? 

2) Whether the District Court erred in granting 

specific performance? 

3) Whether rescission was proper for failure of 

Hillstroms to permit surveying to be completed? 

4) Whether there was a mutual mistake of fact as to 

subdivisibility of the land covered by the contract? 

5) Whether the District Court erred in granting 

specific performance of the buy-sell agreement without 

reference to the proposed closing agreement? 

O'Neil contends there were genuine issues of material 

fact precluding summary judgment in this case. Pursuant to 
Rule 56 (c) , Mont. R.Civ. P. , summary judgment is proper where 

the record discloses no genuine issue of material fact and 

the moving party is entitled to judgment as a matter of law. 

All reasonable inferences that may be drawn from the offered 

proof are to be drawn in favor of the party opposing summary 

judgment. Abell v. Travelers Insurance Co. (Mont. 1983), 663 

P.2d 335, 40 St.Rep. 738. A review of the record in this 

case reveals no genuine issue of material fact and supports 

the summary judgment in favor of Hillstroms. 

O'Neil next contends that specific performance should 

not have been granted because Hillstroms had not fully 

complied with their obligations under the contract. Section 

27-1-416, MCA, requires a party to perform all material 

conditions precedent before specific performance may be 

enforced. O'Neil claims Hillstroms failed to satisfy 3 

conditions prior to closing: 1) failure to allow O'Neil to 

perform a survey; 2) failure to secure a consent to 

assignment from Corcoran and Spain; 3) failure to provide 

title insurance. 

As noted by the District Court, none of these provisions 

are listed in the contract as conditions precedent. Of these 

3 items only title insurance is mentioned but there is no 

requirement that it be due upon closing. In fact, it was 

O'Neills real estate agent who was involved in securing title 

insurance and it was completed July 29, 1983, and delivered 

to O'Neil August 5, 1983. We find no support for OINeills 

contention that failure to have title insurance in hand on 

August 4, 1983, excused his performance nor were there any 

conditions precedent which Hillstroms failed to perform. 

Section 27-1-411(4), MCA, provides that specific 

performance may be compelled when the parties to a contract 

have expressly agreed in writing that specific performance 

shall be an available remedy. The buy-sell agreement signed 
by the parties expressly provided for a remedy of specific 

performance and Hillstroms were entitled to pursue this 

remedy. 

The third issue is whether O'Neil was entitled to 

rescission due to Hillstroms' refusal to permit survey prior 

to closing. O'Neil asserts that subdivisibility of the tract 

is a contractual condition implied by the partial release 

clause of the buy-sell agreement. The release clause allows 

OfNeil to acquire deed to a portion of the land upon payment 

of a percentage of the entire principal owing to Hillstroms. 

However, before partial release can occur, state law requires 

the land to be surveyed, platted, and approved for 

subdivision. 

This issue is merely a rephrasing of O'Neil's previous 

argument that survey was a condition precedent to closing. 

There is no language in the contract indicating completion of 

a survey to be a condition precedent. We find no support in 

the record for O'Neilfs contention that closing should have 

been delayed to permit a survey to be accomplished. 

The fourth issue is whether there was a mutual mistake 

of fact as to subdivisibility of the land covered by the 

contract. The District Court found O'Neil's claim of mistake 

of fact to be meritless because O'Neil has never attempted to 

have the property subdivided. We agree. Mistake of fact as 

found in S 28-2-409(1), MCA, requires, "Unconscious ignorance 

or forgetfulness of a fact, past or present, material to the 

contract." To succeed on a mistake of fact defense, OfNeil 

would have to show that the land cannot be subdivided. 

O'Neil admits he has not made such a showing. 

O'Neil contends that mistake of fact is applicable 

because neither party understood the extent and complexity of 

the regulations concerning subdivision approval. While 

Hillstroms contend O'Neil raises this argument for the first 
time on appeal, we find it was presented in O'Neil's 

supplemental brief filed with the District Court. At any 

rate, O'Neil's argument fails on its merits. 

O'Neil was under the duty to execute the buy-sell 

agreement with the prudence and care of a reasonable and 

cautious businessman. Quinn v. Briggs (1977), 172 Mont. 468, 

565 P.2d 297. The record shows O'Neil is an experienced 

businessman who has operated 6 silver companies including the 

largest silver recycling company in the country, purchased 

and sold numerous homes, and he is the sole stockholder of a 

corporation which owns a ranch in Gallatin County adjacent to 

the land under dispute in this case. 

O'Neil's deposition testimony reveals that he was aware 

of the obstacles to subdivision approval because he was 

experiencing difficulties obtaining subdivision approval for 

the ranch at the time he negotiated the contract with 

Hillstroms. He cannot now claim that he entered the buy-sell 

agreement intending to develop the land yet was unaware of 

the requirements of subdivision approval. 

The final issue is whether the District Court erred in 

granting specific performance of the buy-sell agreement 

without reference to the proposed closing agreement. We find 

no error. The proposed closing agreement was never signed by 

O'Neil and is not enforceable without his consent. Section 

28-2-102, MCA. The District Court order granted specific 

performance of the buy-sell agreement and does not mention 

the proposed closing agreement. 

O'Neil argues both sides on this issue, stating that he 

refused to sign the closing contract yet he is entitled to 

the protections of a closing contract. In this instance, we 

find the essential terms of the parties' agreement are 

contained in the buy-sell agreement and it is specifically 

enforceable. This Court has previously upheld specific 
enforcement of buy-sell agreements. See Chadwick v. Giberson 

(Mont. 1980), 618 P.2d 1213, 37 St.Rep. 1723; ~alcro v. Moon, 

(Mont. 1987), - P.2d - , 44 St.Rep. 504. 

The District Court is affirmed. 

Justices