No. 12178 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

ROBERT W. MYERS and GLORIA JEAN MYERS, 

husband and wife, 

Plaintiffs and Appellants, 

OTTO BENDEWALD and EVELYN BENDEWALD , 

husband and wife, 

Defendants and Respondents. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Rxord: 

For Appellants : 

Tipp, Hoven and Brault, Missoula, Montana. 

Raymond W. Brault argued, Missoula, Montana. 

William T. Kelly argued, Billings, Montana. 

For Respondent: 

William F. Meisburger argued, County Attorney, 

Forsyth, Montana. 

Submitted: September 27, 1972 

Decided : wm $ - 197'2 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal from a judgment and an order denying 

a new trial in Rosebud County. The district court, the Hon. 

Alfred B. Coate, district judge, sitting without a jury, entered 

findings of fact, conclusions of law, and judgment for the defendants in an action brought by plaintiffs for conveyance of a 

disputed one-half interest in lands situated near Forsyth, Montana. The court held that the statute of frauds barred plaintiffs' 

action and rendered judgment for defendants. Plaintiffs appeal. 

In 1967, plaintiff, Robert Myers, desired to purchase 

land near Forsyth, Montana, suitable for operating a bowling 

alley. In researching the records in the Rosebud County courthouse, Myers located two separate tracts of land designated the 

"Harris tract" and the "Caskey tract". Myers purchased the Harris 

tract in May, 1967, and continued to inquire about the Caskey 

tract which was involved in probate proceedings. Later in the 

summer of 1967, the Caskey tract became available but Myers was 

without funds to purchase it. At that time, Myers was working in 

the service station of the defendant, Otto Bendewald, and Myers 

told Bendewald about the Caskey tract and that the attorney for 

the of the tract said the Caskey tract might be valuable 

for speculation if certain interstate highway construction materialized. The circumstances and conditions under which Myers 

imparted his knowledge of the Caskey tract to Bendewald remain 

controverted but in July 1967 Bendewald purchased the Caskey 

tract taking title in Bendewald and his wife's name. 

At the time Myers discussed the Caskey tract with Bendewald there was an oral discussion of a proposed partnership between Myers and Bendewald involving Myers' proposed construction 

of a bowling alley and potentially an undertaking to include a 

possible trailer park. Myers, later at trial, testified that in 
their "gentlemen's agreement", Bendewald purchased the Caskey 

tract subject to Myers' right to repurchase a one-half interest 

at a later date. However, Bendewald denied that the purchase of 

the Caskey tract was involved in the proposed partnership events 

which later developed. 

Subsequently, pursuant to the proposed future partnership 

between Myers and ~endewald, Myers sold Bendewald a one-half 

interest in the Harris tract in November 1967. In May, 1968, Myers 

and Bendewald executed written articles of partnership to do business as "Evergreen Lanes" and to operate the bowling alley 

which was eventually constructed on the Harris tract. 

In December 1969, it was ascertained that the highway 

department would, in fact, use some of the Caskey land for highway construction and Myers contacted Bendewald and together they 

drove to the land to observe the highway stakes. Myers then 

offered to buy a one-half interest in the Caskey tract and pressed 

Bendewald for a response. Bendewald asserted then, and again at 

trial, that he conditioned any sale upon the status of the partnership which was then in existence and operating. Bendewald did, 

however, give Myers a dollar figure required to reimburse Bendewald 

fully for one-half the purchase price, taxes, interest, and abstract costs. With this figure Myers had a deed prepared conveying a one-half interest in the Caskey tract from Bendewald and 

his wife to Myers and his wife. Later Myers attached a check to 

the unsigned deed and left the deed and check with Bendewald's 

attorney. Bendewald's attorney informed him that the deed and 

check were in his office but Bendewald never picked them up or 

ever saw them. 

Shortly thereafter, while the deed and check were being 

held by Bendewald's attorney, Bendewald on January 4, 1970, examined the books of the partnership and discovered that the 
partnership was ailing financially. Bendewald then told Myers 

he would not sell in view of the financial condition of the 

partnership and refused to discuss the matter further. In due 

time the partnership between Myers and Bendewald was dissolved, 

whereupon Myers then brought this suit seeking specific performance of an alleged contract for the sale of a one-half interest 

in the Caskey tract. 

In Myers' complaint, he asserted two theories: (1) Bendewald was trustee for the benefit of Myers; and (2) Bendewald was 

unjustly enriched at the expense of Myers. Bendewald, in his 

answer, asserted the affirmative defense of the statute of frauds. 

The court, sitting without a jury, entered findings of fact and 

conclusions of law applying the statute of frauds and entered 

judgment in favor of the defendants, Bendewald and his wife. 

Following a denial of plaintiffs' motion for a new trial, plaintiffs appeal from the judgment and the denial of their motion 

for a new trial. 

Appellants' issues on appeal substantially encompass the 

questions of whether the district court erred in failing to hold 

that the respondents were trustees for the benefit of the appellants and that the respondents were unjustly enriched at the expense of the appellants; whether the district court erred in its 

conclusion of law that the respondents were the sole owners of 

the Caskey land and that the statute of frauds was applicable; 

whether the district court erred in failing to accept the appellants' proposed findings of fact and conclusions of law; and 

whether the district court erred in failing to grant appellants' 

consolidated motion for new trial. 

In substance these issues are confined to the central 

issue of what was the nature of the agreement, if any, between 

the parties Myers and Bendewald, the operative facts of that 
agreement, and the law applicable in the resolution of the 

action brought before the district court. 

Appellantshaveargued the existence of an oral "gentlemen's 

agreement" between the parties providing for a purchase of a 

one-half interest in the Caskey land pursuant to a larger scheme 

involving a partnership between Myers and Bendewald. Alternarively appellants argue that there was a valid contract entered 

into in December 1969,which was fully executed on Myerst part, 

consisting of memorandums in writing in the form of the check 

given in payment and the deed of conveyance which was drafted 

although never signed by Bendewald. Thus appellants argue that 

the statute of frauds does not apply following the holding of 

Besse v. McHenry, 89 Mont. 520, 527, 300 P. 199, stating the 

exception to the statute of frauds in the instance where there 

is complete performance of an oral contract by one of the parties. 

Under the two theories of appellants' argument there are 

two facts which remain as a common problem underlying any theory 

of recovery in this case; specifically, the absence of any written 

agreement regarding the terms of any subsequent conveyance between 

Myers and Bendewald. In the first instance of appellantst argument, 

at the time of Bendewaldts purchase of the Caskey tract in July 

1967, there was no writing between Myers and Bendewald that pertained to either the Caskey tract or to any proposed partnership 

which was subsequently created in May 1968. Finding no written, 

enforceable agreement between the parties, the district court 

properly concluded that the statute of frauds was applicable in 

the absence of a written agreement. 

In the second instance of appellants' argument, the tender 

of payment and draft of a deed are offered as proof of a memorandum and executed performance on the part of Myers which constitutes 

an exception to the statute of frauds. Standing alone, the actions 
of Myers are unsupported by the conflicting testimony of the 

parties regarding both the existence of any oral agreement and 

the terms of such agreement,if any, The lack of evidence to 

support the claimed oral agreement and its claimed performance 

by appellants relates again to the inadequacy of an oral agreement for conveyance of land, the inescapable difficulty of 

determining the nature of such oral agreements and any claimed 

performance thereof. The problems involved in enforcing oral 

agreements for the conveyance of land as attempted in this case 

are nothing more than those constituting the basic purpose of 

the statute of frauds. 

Without reference to the legislative history or the legion 

of cases giving rise to the statute of frauds, section 93-1401-7, 

R.C.M. 1947, expressly states which contracts must be in writing: 

"Agreement not in writing when invalid. 

In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed 

by the party charged, or by his agent; evidence, thereof, of the agreement cannot be 

received without the writing or secondary evidence of its contents: 

"4. An agreement for the leasing for a longer 

period than one year, or for the sale of real 

property, or of an interest therein; and such 

agreement, if made by an agent of the party 

sought to be charged, is invalid, unless the 

authority of the agent be in writing, subscribed by the party sought to be charged. * * *" 

There being no evidence present in the case other than 

conflicting oral statements relating to an oral agreement between 

Myers and Bendewald, erstwhile business partners, for the conveyance of a one-half interest in the Caskey tract, the district 

court properly ruled that the statute of frauds barred recovery 

on plaintiffs' claim. We agree. 

Accordingly, the judgment of the district court is 

af firmed. 
Associate . Justice