No. 14965 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

JOSEPH FRASER, 

Plaintiff and Appellant, 

VS . 

DONALD D. EDMISTEN, 

Defendant and Respondent. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Chester L. Jones, Virginia City, Montana 

For Respondent : 

Burgess, Joyce, Prothero & Whelan, Butte, Montana 

Submitted on briefs: April 25, 1980 

Decided : SEP 8 - 798p 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

plaintiff, Joseph H. Fraser, appeals from a judgment in 

Madison County District Court denying his claim for 

restitution of payments made under an oral contract for the 

purchase of defendant's tavern. The defendant, Donald D. 

Edmisten, counterclaimed in the alternative for specific 

performance or forfeiture to him of the downpayments made by 

Fraser. The trial court granted only forfeiture of the 

downpayments. 

Although plaintiff Fraser raises four issues, three of 

them are moot because they are directed at Edmisten's 

counterclaim for specific performance which the trial court 

did not grant. Nor has Edmisten appealed from the trial 

court's order refusing to grant his counterclaim for 

specific performance. Accordingly, the sole issue on appeal 

is the sufficiency of the evidence to support the judgment 

permitting forfeiture of the payments. We affirm. 

A purchaser of real property under an oral agreement 

who voluntarily terminates the contract cannot recover 

partial payments on the purchase price so long as the seller 

is willing and able to perform his part of the agreement. 

Perkins v. Allnut (1913), 47 Mont. 13, 15, 130 P. 1, 1-2. 

Although Fraser relies in part on section 28-1-104, MCA, 

which codifies an exception to this general rule the statute 

has no application here. It provides: 

"Whenever by the terms of an obligation a party 

thereto incurs a forfeiture or a loss in the 

nature of a forfeiture by reason of his failure 

to comply with its provisions, he may be 

relieved therefrom upon making full 

compensation to the other party, except in the 

case of a grossly negligent, willful, or 

fraudulent breach of duty." 
We have construed this statute to mean "that a person 

may obtain relief under it in any case where he sets forth 

facts which appeal to the conscience of a court of equity." 

Lewis v. Starlin (1954), 127 Mont. 474, 477-78, 267 P.2d 

127, 128-29. Forfeiture cases involve two competing social 

policies. The general rule set forth in Perkins, supra, 

encourages enforcement of agreements though they may be 

technically deficient. Lewis v. Starlin, supra, 127 Mont. 

at 477, 267 P.2d at 128. On the other hand, we have noted 

that the law does not favor needless forfeitures. Parrot v. 

Heller (1976), 171 Mont. 212, 215, 557 P.2d 819, 820, 

relying on Yellowstone County v. Wight (1943), 115 Mont. 

411, 417, 145 P.2d 516, 518. Section 28-1-104, MCA, strikes 

a balance between these competing policy considerations. It 

grants relief from forfeitures in most instances, but 

upholds forfeiture in the case of a "grossly negligent, 

willful, or fraudulent breach of duty by the person seeking 

relief from forfeiture." Here the trial court found that 

Fraser had indeed repudiated the contract. 

To be entitled to relief, Fraser had to establish 

either (1) that the seller, Edmisten, was unwilling or 

unable to carry out the contract; or (2) that he, Fraser, 

had committed no "grossly negligent, willful, or fraudulent 

breach of the contract, while affirmatively setting forth 

facts that appeal to a court of equity." The trial court 

was not satisfied with his proof nor do we see any reason to 

upset the trial court's decision. 

The trial court found that Edmisten was willing and 

able to carry out the contract. Thus, the fact that the 

contract was not in writing and therefore in violation of 

the statute of frauds, should not permit Fraser to prevail 

in his attempt at recovering his contract payments. A clear 
factual dispute existed on this question, and it was 

resolved in favor of Edmisten. Fraser contends that the 

federal tax liens on the property still existing at the time 

of trial demonstrated Edmisten's inability to transfer clear 

title. But Edmisten testified at length concerning his 

assets, solvency and ability to pay off the lien and provide 

clear title to Fraser. He said he would have provided a 

clear title when the parties signed a contract. The 

evidence suffices to justify a finding in favor of Edmisten 

on this issue. 

The trial court also found that Edmisten made no 

misrepresentations to Fraser and thus concluded that Fraser 

had not made a showing sufficient to move a court of equity 

to relieve him of the forfeiture. The evidence supports 

this conclusion. The evidence is sufficient to justify the 

finding that Edmisten was "ready, willing, and able" to 

furnish either title insurance or an abstract of title to 

Fraser. Edmisten testified that he would have provided one 

or the other when the contract was signed. He further 

testified that the proposed written contract between the 

parties expressly required him to guaranty clear title to 

Fraser. The trial court found that Edmisten had discharged 

all of the liens encumbering the property except for the 

federal tax lien that was "of record." The evidence 

supports these findings. Fraser admitted he knew that 

Edmisten had renewed the tavern's liquor license and had 

paid the back state taxes on the premises. Furthermore, 

Fraser 's attorney introduced into evidence a certified copy 

of the notice of a federal tax lien encumbering the 

premises. At that time, he stated that it was on file in 

the Madison County Clerk and Recorder's Office. The details 

of the lien against the property were readily accessible to 
Fraser. He cannot complain, therefore, that he was not able 

to learn the specifics of the tax liens. 

The judgment of the District Court is affirmed. 

We Concur: 

Chief Justice / 

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,'/ Justices V