No. 81-278 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

JOHN JEFFERY McPARTLIN and 

GREGORY McPARTLIN , 

Plaintiffs and Appellants, 

vs. 

DAVID RANDLE FRANSEN et al., 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Ted L. Mizner, Deer Lodge, Montana 

For Respondents: 

Graybill, Ostrem, Warner & Crotty, Great Falls, Montana 

Submitted on briefs: April 22, 1982 

Decided: July 8, 1982 

298% Filed: bt 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is the second time these parties have been before 

this Court. The first decision, McPartlin v. Fransen & Vose 

(1978), 178 Mont. 178, 582 P.2d 1255, granted the defendants 

a second trial. A chronological account of the events 

preceeding the first trial is reported in our first decision 

and will not be restated here. 

The new trial was held before the Honorable W. W. 

Lessley on November 6, 1980, in the Third ~udicial ~istrict, 

Powell County. The McPartlins now appeal from the judgment 

of the District Court rendered after the second trial. That 

judgment terminated the lease agreement, ordered the McPartlins 

to pay to Fransen certain rent payments and accounts receivable 

which he had collected, and allowed Fransen to retain as 

forfeited the $35,000 paid by the PlcPartlins as a downpayment. 

The following issues are presented by the parties: 

1. Did the District Court err in determining that the 

McPartlins made a unilateral mistake? 

2. Did the District Court err in concluding that 

Fransen had a right to take the radio station off the air? 

Because we find the lease and sales right agreement 

illegal, we do not view the issues framed by the parties to 

be dispositive of this appeal. The primary question is who 

is entitled to what money in the dispute. 

Our holding that the lease and sales right agreement is 

illegal is in agreement with the decision of the Federal 

Communications Commission in In Re Application of Deer Lodge 

Broadcasting, Inc. (1981), 86 F.C.C.2d 1066. This decision 

was released shortly after the District Court's judgment. 

The FCC decision states, in pertinent part: 
"[Tlhere can be no doubt that the license for 

station KDRG was transferred de facto, without 

Commission consent, from ranse sen] to the McPartlins 

by means of the actions that took place pursuant 

to the 'Lease and Sales Right Agreement' (Agreement) 

during the period from September 1, 1976 to February 

1, 1977. The terms of the Agreement and the manner 

in which it was implemented, as described in 

paragraphs 3 through 13 supra, make it clear that 

Fransen transferred control of KDRG to the 

McPartlins pursuant to the Agreement as of September 

1, 1976, and that this unauthorized transfer of 

control of the station violated Section 310(d) of the 

Communications Act as interpreted by the Commission 

and the courts. As the [Administrative Law Judge] 

observed, the evidence establishes that, during the 

relevant period of time, Mr. McPartlin, who was the 

lessee of KDRG pursuant to the Agreement, paid the 

station's bills, hired the employees, set broadcast 

policy, handled tax matters, obtained insurance, 

changed the station's business accounts to his name, 

set up a checking account for KDRG, kept the books, 

established a $10,000 line of credit to operate the 

station and otherwise assumed control of KDRG. In 

addition, McPartlin could not be fired and was not 

on salary; his compensation depended on the profit 

or loss from station advertising. [Fransen] had to 

give a 30-day default notice for violation of the 

Agreement in order to regain physical control of the 

KDRG assets. . ." 86 F.C.C.2d at 1094. 

"Thus, it appears that Mr. Fransen, who is the sole 

owner of Deer Lodge, did not intend to surrender as 

much control over KDRG's operation as the literal 

wording of the Agreement indicated he would surrender, 

and that he did not understand that, taken literally, 

the Agreement provided for an unauthorized transfer 

of control of station KDRG. . ." 86 F.C.C.2d at 1098. 

Section 28-2-603, MCA, provides: 

"When contract wholly void. Where a contract has 

but a single object and such object is unlawful, 

whether in whole or in part,. . . the entire 

contract is void." 

Section 28-2-601, MCA, defines the "object" of a 

contract: 

"The object of a contract is the thing which 

it is agreed on the part of the party receiving 

the consideration to do or not to do." 

The agreement contemplated a - de facto transfer of the 

license of station KDRG without the consent of the Commission 

required by 47 U.S.C. § 310(d). Such transfer was the single 

object of the contract and because the object is unlawful, the 

agreement is void. Section 28-2-603, MCA. 
The next question is how to deal with the money claimed 

to be owed by virtue of the illegal agreement. The District 

Court's judgment on this question is set out at the beginning 

of the opinion. We partially affirm and partially reverse the 

District Court. 

We adhere to the law in McManus v. Fulton (1929) , 85 

Mont. 170, 278 P. 126, where we stated: 

"As we said in Glass v. Basin & Bay State Min. 

Co., 31 Mont. 21, 77 P. 302, quoting from Dean 

Lawson's article in Cyc. p. 546: 'No principle 

of law is better settled than that a party to an 

illegal contract cannot come into a court of law 

and ask to have his illegal objects carried out, 

nor can he set up a case in which he must necessarily 

disclose an illegal purpose as the groundwork of 

his claim . , . The law, in short, will not aid 

either party to an illegal agreement. It leaves the 

parties where it finds them. Therefore neither - a 

----- court of law nor a court of equity will aid the 

one In enforcing it, or give damages for a breach 

of it, or set it aside at the suit of the other, 

or, when the agreement -- has -- been executed in whole 

or ----- in part by the payment of money -- or thetransfer 

- of other property, ---- lend itsaid to recover it 

back.'" (Emphasis added.) 85 Mont. at 182-183, 2 

P. at 131. 

As applied to the present case, McManus dictates the 

following results: 

1. The $35,000 downpayment paid by McPartlin to Fransen 

shall be retained by Fransen. 

2. The $7,581.80 collected by the McPartlins upon 

accounts receivable owned by Fransen shall be retained by 

the McPartlins. 

3. The McPartlins are not required to pay the $6,000 

in unpaid rent ordered by the District Court. 

Costs to the appellants. 

Justice V 
We Concur: 

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