No. 80-7 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

ELIZABETH FULLER CHADWICK, Plaintiff and Respondent, -V8- CHARLES HOWARD GIBERSON AND 

### LURA B. GIBERSON, husband and wife, Defenc1ant.s and Appellants.

Appeal from: DistrictCourt of The Eleventh J'udicial District, In and for: the County of Flathead, The Hortorable Robert C. Sykes, Judge presidincj. Counsel of Record:

For Appellant: Murphl

## , Rcbinsor~,Heck~.thorn 6( Phj.lljps, Kalispell, Montana Karden, Christiansen & Johnson, Kalisy:ell, Montana For Respondent: Robert Skelton, Fissoula, Montana

Submitted on Briefs: Aug~ist13, 1980 Decided: C~xc+Lc&

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Filed: 

## OCT

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# - 7980 

# 91 ClerkMr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal arises from 

### a judgment entered by the Honorable Robert C. Sykes, Flathead County DistrictCourt, granting plaintiff specific performance and ordering defendants toconvey by contract for deed a parcel of land located inFlathead County. Defendants Charles and Lura Belle Giberson listed for salewith Douglas Johns Real Estateof Kalispell, Montana, four forty-acre tracts inFlathead County (ParcelsA, B, C, and D). InAugust 1976, plaintiff Elizabeth Chadwick viewed theproperty in the presence of F. E. McHenry, an agent of Douglas Johns Real Estate. Inviewing the property, the two parties discussed access to the various parcels. Inparticular, McHenry testified that he informed Chadwick that there would be a need toprovide access toParcel B. Atthe 

### timeof the showing, however, 

### a survey showing the exact location and dimensions of any proposed access 

### was not available. As a resultof theAugust viewing, Chadwick submitted an offer topurchase allfour tracts. The Gibersons counteroffered, but plaintiff was unable toaccept, and the earnestmoney paid was returned. On September 

### 25, 1976, Chadwick made an offer topurchase only Parcel A. An earnestmoney receipt and agreement to 

### sell and purchase was prepared by McHenry on thatdate, which was signed by plaintiff and then sent to the Gibersons for their signatures. Earnest money inthe amount of $1,000

was paid by Chadwick. Defendants signed the agreement and returned it to defendants' other real estate agent, Douglas Johns, who on October 1, 1976, added the special provisions: "Seller 

### willprovide legal access from the south to this property.

### "On October 18, 1976, Mr. Johns mailed toChadwick her copy of the earnestmoney receipt and enclosed a copy of the preliminary title report issued on October 

### 5, 1976. The report disclosed that the only easement of record atthe time the parties signed the September 

### 25 agreement 

### was one recorded on July 26, 1967, which reserved for defendants' predecessor, Vernon and Marva Schmid, a right of way for ingress and egress across Parcel A (theSchmid easement). Subsequent toreceiving the 

### title insurance report, however, Chadwick 

### was forwarded a copy of the certificate of survey for Parcel A. The certificate showed a sixty-foot roadway easement along an existing logging road and running north-south just west of the easternboundary of Parcel A. It narrowed to thirty feetnear 

### itsnorthern terminal and provided access toParcel B. A thirty-foot roadway easement



### was also shown across the southeast corner of Parcel A into Parcel B. Chadwick objected to the easements shown on the survey--particularly to the length and location of the northsouth easement to Parcel B. As 

### a result of this objection,

a revised certificate of survey

### was prepared eliminating the long north-south easement but increasing the width of the shorteasement across the southeast corner of Parcel A from thirty to sixty feet. On December 15, 1976, Chadwick received a proposed contract for deed for the purchase and sale of Parcel A. The contract not only reserved the Schmid easement, but also contained a reservation unto defendants, their heirs and assigns, of the sixty-foot roadway and utilityeasement across the southeast corner of the parcel. 

### hadw wick would not sign the contract or tender the balance of the down-payment in that she continued to object to the sixty-foot easement which was not provided for in the September 25, 1976, earnestmoney receipt and agreement to 

### sell and purchase. Chadwick brought suiton February 

### 14, 1977, for specific performance of the September 25 agreement to sell and purchase, alleging that atthe 

### time the parties entered into the agreement, the only easement of record was the Schrnid easement. She also filed on this date 

### a lispendens in regard to Parcel A, thereby giving notice of her claim to said parcel. Defendants answered and counterclaimed, alleging that plaintiff was fully advised of the sixty-foot easement and that it would be reserved toprovide access to an adjoining parcel of land. On February 15, 1977, defendants filed with the Flathead County clerk and recorder a notice of purchasers' interestwherein notice was given thatdefendants granted to Vester and Theila Banta Parcel B, aswell 

### as an interest in the sixty-foot roadway and utility easement through Parcel A. The contract for deed between defendants and the Bantas

was dated January 

### 14, 1977. Defendants forwarded toplaintiff on March 2, 1977, a notice demanding thatplaintiff execute the contract of sale

orforfeit the earnestmoney previously paid. Plaintiff refused toperform or offer toperform 

### as demanded in the notice. Trial on plaintiff's claimwas held on August 7, 1979, after which the DistrictCourt found for plaintiff and granted specific performance. Defendants have appealed* The firstissue raised on appeal iswhether the 

### istrictCourt erred inconcluding there was an enforceable agreement between the parties.From the filing of plaintiff's complaint and defendants' answer and counterclaim toeventual trial, both parties have contended that the September 25, 1976 agreement to 

### sell and purchase was valid and enforceable as against the other. The issue inthe proceeding was not the validity of the contract, but whether it embraced certain alleged easements. Defendants now argue on appeal that although the parties executed the same agreement, they never agreed on the same terms concerning the reservation of an access road across Parcel A; thus, no contract

### was created. It 

### is a well-established rule that theremust be mutual assent or a meeting of theminds on allessential elements

or 

### terms to form 

### a binding contract. See Johnson v. Smith (1954), 127 Mont. 594, 289 P.2d 384; 17Arn.Jur.2d Contracts, 818 at354. However, 

### it 

### is also a well-settled rule of law that alleged error asto issues not raised in the 

### trial court

### willnot be considered on appeal. Statev. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129; Spencer v. Robertson (1968), 151Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 146Mont. 374, 406 P.2d 822. Here, defendants have failed to allege 

### atthe 

### ~istrict Court level, asevidenced by the pleadings and pretrial order, that there

### was any lack of mutual consent, and thus,

no enforceable contract. With thisbeing the case, defendants' argument as to lack of mutual consent

### willnot be considered on this appeal. The final issue raised on appeal iswhether the istrictCourt erred ingranting specificperformance of the September 25, 1976 agreement to selland purchase.Defendants contend that the agreement 

### is not specific enough in

### its terms towarrant specific performance as prayed. In support of theirposition, defendants argue that the easement across Parcel A, for use as access to Parcel B,

was an essential element of the agreement, and since the agreement as to easements was not complete or specific, the contract 

### isnot specifically enforceable. In rejecting defendants' argument, 

### we need only note that it was defendants' real estate agentwho prepared the agreement. Had defendants wished to include this alleged "essential" element dealing with 

### a reservation of the proposed access across Parcel A, they could very easily have done so. Defendants should not now be able to rely upon their failure inthisregard inconcluding the agreement 

### is not specifically enforceable. Defendants alsocontend that sinceplaintiff did not perform pursuant to the 

### sell and purchase agreement, inthat she failed to tender the balance of the downpayment owing, plaintiff 

### isnot entitled tothe relief of specific performance. In support of this contention, defendants cite Seifert

### v. Seifert (1977), 173Mont. 501, 568 P.2d 155, and McDonald v. Stewart (1953), 127 Mont. 188, 259 P.2d 799, for the general proposition thatunless performance 

### iswaived or excused, a plaintiff seeking to enforce a contractmust perform his obligation thereunder, and any willful violation of

an essential covenant of the contract is a defense to specificperformance of the contract. See also 81C.J.S. Specific Performance, S109 at958. Defendants then conclude the purchase price and itspayment are essential covenants to a contract, and sinceplaintiff failed to tender per-

### formance of this covenant, her action for specific performance cannot be enforced. We agree with defendants' general statement of the 

### law

as 

### set forth in the above cases; however, we conclude that plaintiff's failure to tender performance should be excused inthis instance. Prior tothe suitbeing brought by plaintiff, defendants conveyed to a third party an interest inthe sixtyfootroadway and utilityeasement atissue, thereby indicating toplaintiff their refusal, and inability, to sell to her Parcel A 

### absent said easement. Under these circumstances, when by reason of encumbrances placed on the 

### title, defendants areunable toconvey such titleas the plaintiff contracted for, to require a tender of the purchase price would be useless and idleceremony, and it is 

### therefore excused. See Ceizyk v. Goar Service and Supply, Inc. (1973), 21

### Ariz.App. 119, 516 P.2d 61; Leche v. Stout (Okla. 1972), 514 P.2d 1399; Greenstone v. Claretian Theological Seminary, Claretville (1959), 173 C.A.2d 21, 343 P.2d 161; 81C.J.S. Specific Performance, 8112 at965. Plaintiff, by way of her pleadings, stood ready, willing and able topay the purchase price under the specific

### terms of the parties' agreement topurchase and sell. Under the facts of this case, her failure to tender the purchase price

### willnot preclude her the equitablerelief of specificperformance. Nor do we findmerit

### with defendants' contention that specific performance in this instance results inan unconscionable advantage toplaintiff. Plaintiff 

### ismerely receiving, under the terms of the parties' initial agreement topurchase and sell, thatportion of the property defendants

### arenow able to convey. The factthat defendants 

### are only able to convey the very same title, including the encumbrance of the sixty-foot roadway easement which plaintiff refused inthe firstinstance, has no effectupon the outcome of thismatter. The judgment of the District Court 

### isaffirmed. 

# LL Justice 

# kfW+

We 

### concur: 

# %-w,&&4

Chief Justice

Justices