No. 80-7 

IN THE 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: District Court 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~ist 13, 1980 

Decided : C~xc+Lc& f, / q@ 

Filed: OCT 8 - 7980 

91 

Clerk 
Mr. 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 District Court, 

granting plaintiff specific performance and ordering defendants to convey by contract for deed a parcel of land located 

in Flathead County. 

Defendants Charles and Lura Belle Giberson listed for 

sale with Douglas Johns Real Estate of Kalispell, Montana, 

four forty-acre tracts in Flathead County (Parcels A, B, C, 

and D). In August 1976, plaintiff Elizabeth Chadwick viewed 

the property in the presence of F. E. McHenry, an agent of 

Douglas Johns Real Estate. In viewing the property, the two 

parties discussed access to the various parcels. In particular, McHenry testified that he informed Chadwick that 

there would be a need to provide access to Parcel B. At the 

time of the showing, however, a survey showing the exact 

location and dimensions of any proposed access was not 

available. As a result of the August viewing, Chadwick 

submitted an offer to purchase all four tracts. The Gibersons 

counteroffered, but plaintiff was unable to accept, and the 

earnest money paid was returned. 

On September 25, 1976, Chadwick made an offer to purchase only Parcel A. An earnest money receipt and agreement 

to sell and purchase was prepared by McHenry on that date, 

which was signed by plaintiff and then sent to the Gibersons 

for their signatures. Earnest money in the 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 will provide legal access from the south to this 

property. " 
On October 18, 1976, Mr. Johns mailed to Chadwick her 

copy of the earnest money receipt and enclosed a copy of the 

preliminary title report issued on October 5, 1976. The 

report disclosed that the only easement of record at the 

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 (the Schmid easement). 

Subsequent to receiving 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 eastern boundary of Parcel A. 

It narrowed to thirty feet near its northern terminal and 

provided access to Parcel 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 

short easement 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 utility easement 

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, earnest money receipt and agreement to sell and purchase. 

Chadwick brought suit on February 14, 1977, for specific 

performance of the September 25 agreement to sell and purchase, alleging that at the time the parties entered into 

the agreement, the only easement of record was the Schrnid 

easement. She also filed on this date a lis pendens 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 to provide access to an adjoining 

parcel of land. 

On February 15, 1977, defendants filed with the Flathead County clerk and recorder a notice of purchasers' 

interest wherein notice was given that defendants granted to 

Vester and Theila Banta Parcel B, as well 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 to plaintiff on March 2, 1977, a 

notice demanding that plaintiff execute the contract of sale 

or forfeit the earnest money previously paid. Plaintiff 

refused to perform or offer to perform as demanded in the 

notice. 

Trial on plaintiff's claim was held on August 7, 1979, 

after which the District Court found for plaintiff and 

granted specific performance. Defendants have appealed* 

The first issue raised on appeal is whether the istrict Court erred in concluding there was an enforceable 

agreement between the parties. 
From the filing of plaintiff's complaint and defendants' answer and counterclaim to eventual 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 in the 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 there must be mutual 

assent or a meeting of the minds on all essential elements 

or terms to form a binding contract. See Johnson v. Smith 

(1954), 127 Mont. 594, 289 P.2d 384; 17 Arn.Jur.2d Contracts, 

818 at 354. However, it is also a well-settled rule of law 

that alleged error as to issues not raised in the trial 

court will not be considered on appeal. State v. Armstrong 

(1977), 172 Mont. 296, 562 P.2d 1129; Spencer v. Robertson 

(1968), 151 Mont. 507, 445 P.2d 48; Clark v. Worrall (1965), 

146 Mont. 374, 406 P.2d 822. 

Here, defendants have failed to allege at the ~istrict 

Court level, as evidenced by the pleadings and pretrial 

order, that there was any lack of mutual consent, and thus, 

no enforceable contract. With this being the case, defendants' argument as to lack of mutual consent will not be 

considered on this appeal. 

The final issue raised on appeal is whether the istrict Court erred in granting specific performance of the 

September 25, 1976 agreement to sell and purchase. 
Defendants contend that the agreement is not specific 

enough in its terms to warrant specific performance as 

prayed. In support of their position, 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 is not specifically enforceable. 

In rejecting defendants' argument, we need only note 

that it was defendants' real estate agent who 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 in this regard in concluding the agreement is 

not specifically enforceable. 

Defendants also contend that since plaintiff did not 

perform pursuant to the sell and purchase agreement, in that 

she failed to tender the balance of the downpayment owing, 

plaintiff is not entitled to the relief of specific performance. In support of this contention, defendants cite 

Seifert v. Seifert (1977), 173 Mont. 501, 568 P.2d 155, and 

McDonald v. Stewart (1953), 127 Mont. 188, 259 P.2d 799, for 

the general proposition that unless performance is waived or 

excused, a plaintiff seeking to enforce a contract must perform his obligation thereunder, and any willful violation of 

an essential covenant of the contract is a defense to specific performance of the contract. See also 81 C.J.S. 

Specific Performance, S109 at 958. Defendants then conclude 

the purchase price and its payment are essential covenants 

to a contract, and since plaintiff 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 

in this instance. 

Prior to the suit being brought by plaintiff, defendants conveyed to a third party an interest in the sixtyfoot roadway and utility easement at issue, thereby indicating to plaintiff 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 are unable to convey such title as the plaintiff 

contracted for, to require a tender of the purchase price 

would be useless and idle ceremony, 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; 

81 C.J.S. Specific Performance, 8112 at 965. 

Plaintiff, by way of her pleadings, stood ready, 

willing and able to pay the purchase price under the specific terms of the parties' agreement to purchase and sell. 

Under the facts of this case, her failure to tender the 

purchase price will not preclude her the equitable relief of 

specific performance. 

Nor do we find merit with defendants' contention that 

specific performance in this instance results in an unconscionable advantage to plaintiff. Plaintiff is merely 

receiving, under the terms of the parties' initial agreement 

to purchase and sell, that portion of the property defendants 
are now able to convey. The fact that defendants are only 

able to convey the very same title, including the encumbrance of the sixty-foot roadway easement which plaintiff 

refused in the first instance, has no effect upon the outcome of this matter. 

The judgment of the District Court is affirmed. 

LL Justice kfW+ 

We concur: 

%-w,&&4 Chief Justice 

Justices