NO. 87-487 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

FRED WALTERS and JUDY WALTERS, 

Plaintiffs and Appellants, 

-vsWILLIAM R. GETTER and KATHERINE M. 

GETTER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lawrence A. Anderson, Great Falls, Montana 

Robert J. Yunck, Cut Bank, Montana 

For Respondent: 

Doris M. Poppler, Billings, Montana 

John R. Davidson, Billings, Montana 

Submitted on Briefs: April 7, 1988 

Decided: June 2, 1988 

Filed'~~~ 2 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This action arose from a real estate transaction. 

Plaintiffs Walters sought rescission of the contract or in 

the alternative damages for breach by defendants Getter, the 

sellers. The Getters counterclaimed for payment of the 

balance due under the contract. Both parties moved for 

summary judgment, which motions were denied. The trial court 

allowed the matter to go before the jury on the issue of 

whether the Getters performed under the contract within a 

reasonable time. The jury returned a verdict for defendants. 

The Walters then moved for judgment notwithstanding the 

verdict or for a new trial. The court denied both motions, 

and the Walters appeal. We affirm. Two questions are presented for review: 

1. Did the District Court err when it denied plaintiffs' motion for summary judgment? 

2. Were plaintiffs entitled to a new trial? 

William Getter owned a number of lots near Cut Bank, 

Montana. These lots lay to the east of town along Highway 2. 

Further to the east, Phillips Petroleum Company (Phillips) 

had built a shop. Phillips wanted water and sewer lines 

constructed along the highway and connected to the city's 

existing lines. Phillips contacted Mr. Getter and two other 

individuals who owned property between the city and the 

Phillips property to see if they would share the cost of 

extending the services to that area. Mr. Getter and one of 

the other property owners eventually agreed to cover a proportionate share of the cost. Mr. Getter's share was anticipated to be approximately 35% of the total estimated cost of 

$46,816. The completion date was expected to he December 15, 

1981. 
Fred Walters agreed to buy three of Mr. Getter's lots 

along Highway 2 so he could relocate his business there. Mr. 

Walters owned a service company which cements oil wells for 

oil producers in the area. His contract work for Phillips 

constituted about 40% of his income at the time. He was 

aware of the cost-share agreement between Mr. Getter and 

Phillips, and he wanted to avoid any possibility of problems 

arising between himself and Phillips. To protect himself 

from such contingency, he had the following clause included 

in the agreement to buy and sell which both he and Mr. Getter 

signed: 

The purchase price includes a water, sewer and 

gas line to the three lots with any fees or charges 

due to Phillips Petroleum Company paid in full by 

the Seller. It is understood that the lines are in 

the process of being run through the lots at this 

time and the Sellers agree to see that the construction of the lines does get completed and is 

paid for so that the Purchasers have those lines 

fully paid for and intact at the time of closing. 

Future maintenance and utility charges are the 

responsibility of the Purchasers. 

Mr. Walters also agreed to pay $5,000 down and $85,000 upon 

closing. On the day scheduled for closing, January 15, 1982, 

the lines were not completed, and Mr. Getter had not paid 

Phillips. Mr. Getter demanded payment of the $85,000 from 

Mr. Walters who refused because Mr. Getter had not paid 

Phillips. The parties agreed that Mr. Getter would receive 

$65,000 and that Mr. Walters would retain $20,000 until the 

lines were completed. Both parties believed the construction 

would be completed within a short time. 

In fact, the project was not completed until the spring 

of 1982, and Mr. Getter was not assessed for his share of the 

cost until October 1982. Phillips assessed him for $61,528, 

well over the earlier estimate. Mr. Getter contested the 

assessment and, when negotiations broke down, eventually 
filed a suit against Phillips. Mr. Walters contacted Mr. 

Getter several times during 1982 and 1983 regarding Mr. 

Getter's refusal to pay the Phillips assessment. 

Later in 1983 or early 1984, Mr. Walters again questioned Mr. Getter concerning payment of the assessment and 

was advised to go ahead and hook up to the water and sewer 

lines. However, Phillips would not allow him to hook up 

until the assessment was paid. About this time, Mr. Getter 

tendered the deed to Mr. Walters, but because the lines still 

were not paid for, Mr. Walters would not accept the deed. 

On February 7, 1984, the Walters' attorney sent a letter 

to the Getters informing them that unless they were ready, 

willing, and able to perform all conditions of the contract 

and close the sale within 7 days of receipt of the letter, 

the Walters would consider them in default. Several letters 

were exchanged, but the Getters did not perform within the 7 

days. The Walters declared the sellers to be in default on 

March 1. They rescinded the contract and demanded repayment 

of $70,000 plus interest. The Getters denied default and 

refused to return the money. They were in the midst of 

settlement negotiations with Phillips, and on March 22, 1984, 

Mr. Getter signed a settlement agreement with Phillips and 

paid for the lines. Thus, the Getters paid for the lines 42 

days after receipt of the Walters' February 7 demand. 

I 

Did the District Court err when it denied plaintiffs' 

motion for summary judgment? 

The lower court, in its order denying summary judgment 

to both parties, made the following conclusion: 

Plaintiffs have never waived the contractual 

requirement that the utility lines be installed and 

paid for before they were obligated to pay full 

consideration and accept a deed to the premise. 

The parties, by their conduct, mutually agreed to 
extend the date of performance of a condition 

precedent by Getters (install the utilities and pay 

for the same). No certain date of performance was 

set, but the evidence clearly shows that at the 

time of the extension, the expectation of closing 

the deal was in the very near future. 

Roughly two (2) years expired before Plaintiffs' attorney wrote a letter to Defendants demanding performance of the contract within seven 

(7) days after Defendants received the letter 

(February 16, 1984). Section 28-3-601, M.C.A. 

provides, "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. . ." Section 28-3-206, 

M.C.A. provides that uncertainty in a contract 

should be interpreted most strongly against the 

party who caused the uncertainty to exist. Time of 

performance was uncertain due to litigation between 

Defendants and Phillips. Where no time of performance of a contract is fixed, the law implies a 

reasonable time for performance or performance on 

demand. Johnson v. Elliot, 123 Mont. 59?. 

The court went on to conclude that what constituted a reasonable time to perform was a question of fact. 

The Walters' argument is that they were entitled to set 

the 7 day deadline for the Getters' performance, and, when 

the Getters failed to perform within that time, they had the 

right to rescind the contract. In other words, they contend 

that 7 days notice, as a matter of law, was reasonable in 

this case. 

The parties originally intended to close the sale on 

January 15, 1982. When that day passed and the contract was 

not fully performed, the parties, as concluded by the District Court, agreed to extend the date of performance. The 

parties did not specify a date upon which the Getters must 

perform, and the Walters did not demand performance at any 

time prior to February 7, 1984. 

As the District Court noted, "If no time is specified 

for the performance of an act required to be performed, a 

reasonable time is allowed." Section 28-3-601, MCA. 
Plaintiffs argue that 7 days was reasonable as a matter of 

law. In Henderson v. Daniels (1922), 62 Mont. 363, 373-74, 

205 P. 964, 967, this Court discussed what constituted reasonable time: 

"Reasonable time" is defined to be so much time as 

is necessary, under the circumstances, to do conveniently what the contract or duty requires should 

be done in a particular case. 

The Court then added, 

When the facts are clearly established or are 

admitted or undisputed, the question of what is a 

reasonable time is one of law. 

Henderson, 205 P. at 967. In Dunjo Land Co. v. Hested Stores 

Co. of Wyoming (1973), 163 Mont. 87, 90, 515 P.2d 961, 

962-63, the Court clarified the law in this area: 

The question of whether a given length of time 

is reasonable can be either a question of fact or a 

question of law. When the surrounding circumstances are clearly established or undisputed the question is solely one of law for resolution by the 

court. Henderson, supra. On the other hand, when 

the surrounding circumstances are in dispute the 

question is at least partially one of fact and 

requires resolution by the trier of fact. 

The District Court here concluded that "[wlhat is a 

reasonable time to perform is a question of fact." If this 

were a material fact and genuine issue between the parties, 

then summary judgment would not have been appropriate under 

Rule 56(c), M.R.Civ.P. The record at trial demonstrates that 

there were a number of facts and circumstances which were not 

clearly established at the time of the summary judgment 

ruling. 

At the time of summary judgment, the affidavits and 

other information available to the court did not establish 

whether it would have been reasonable for the Getters to pay 
for the pipeline improvements within the 7 day period demanded by the Walters or whether it was reasonable for the Getters to have taken 42 days in which to make such payment. In 

addition, there were factual issues as to whether the conduct 

of the Getters was reasonable during the 2 year period after 

the entry of the contract. That determination of course 

required proof as to the nature and extent of their actions 

during that period. The record at the time of summary judgment did not demonstrate whether it was reasonable for the 

Getters to proceed as they did without proposing any other 

resolution to the Walters' concerns. The record did not 

indicate whether the Getters had acted reasonably in seeking 

to settle the dispute. We conclude that the facts surrounding the transaction with regard to the question of reasonableness had not been clearly established at the time of 

summary judgment. As a result, there were factual questions 

for the trier of fact to determine. Dunjo Land Co., 515 P.2d 

at 963. 

Plaintiffs contended that the demand was reasonable as a 

matter of law because Johnson v. Elliot (1950) , 123 Mont. 

597, 218 P.2d 703, allows for performance within a reasonable 

time or performance - on demand. However, when demand is made, 

the other party still must be given reasonable time after 

demand in which to perform. We hold that the trial court 

properly denied summary judgment. 

I1 

Were plaintiffs entitled to a new trial? 

The Walters filed a motion in limine to exclude evidence 

of the dispute between the Getters and Phillips. The trial 

court denied the motion and allowed evidence and testimony 

concerning the dispute. After trial, the Walters moved for a 

new trial, and the court denied that motion. 
The Walters contend that the evidence was irrelevant 

because "unexpected hardships do not excuse a party's performance." However, the Getters did not claim that their dispute with Phillips excused their performance. The question 

at trial was whether the Getters performed within a reasonable time. As indicated in our discussion of Issue I, a 

determination of whether the Getters performed within a 

reasonable time requires a consideration of the facts underlying the dispute. We conclude that the evidence regarding 

the dispute was relevant to the question of reasonableness. 

Further, the trial court gave the jury instruction no. 

18 which read as follows: 

If no time is specified for the performance of 

an act required to be performed, a reasonable time 

is allowed. If the act is in its nature capable of 

being done instantly (for example, if it consists 

of the payment of money only), it must be performed 

immediately upon the thing to be done being exactly 

ascertained. 

This is an exact quote from 5 28-3-601, MCA. The court then 

gave instruction no. 19: 

The word "ascertain" means to make sure or 

certain; to establish; to determine and to settle. 

In a legal sense it means "to find out or to learn 

for certain; to make sure by investigation. It 

requires a determination of the actual amount of an 

indebtedness. 

We conclude that the facts surrounding the transaction were 

relevant to a determination by the jury of the issue of 

reasonable time of performance. 

The Walters also argue that the evidence was insufficient to justify the verdict. If there is substantial evidence to justify the verdict, we will not disturb the jury's 

determination. Kukuchka v. Ziemet (Mont. 1985), 710 P.2d 

1361, 1363, 42 St.Rep. 1916, 1917-18. The evidence will be 
viewed in the light most favorable to the party prevailing at 

trial. Kukuchka, 710 P.2d at 1363. 

Although the Getters received an assessment for their 

share of the costs for the pipe lines, they quickly disputed 

the assessment. It appears from the record that they were 

seriously negotiating a settlement with Phillips when the 

Walters made their demand for performance. Within 30 days 

they accepted an offer of settlement from Phillips. Within 

42 days they paid for the lines. Under the circumstances we 

cannot sal7 that this was an unreasonable time for performance. Error exists only when probative facts are completely 

absent from the record. Kukuchka, 710 P.2d 1363. 

We conclude that sufficient evidence exists in the 

record to support the verdict. We hold that the District 

Court did not err by denying plaintiffs a new trial. 

Finally, the Walters argue that the trial court should 

have granted a judgment notwithstanding the verdict. A 

judgment notwithstanding the verdict will be granted only 

when the evidence presents no room whatever for honest difference of opinion over the factual issue in controversy. 

Jacques v. Montana National Guard (1982), 199 Mont. 493, 505, 

649 P.2d 1319, 1325. We hold that this test is not met in 

the present case. 

Affirmed. 

We Concur: A 

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