NO. 12689 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

EDWIN BEIERLE AND AGNES BEIERLE, 

Plaintiffs and Appellants, 

ROBERT A. TAYLOR and WANDA K. TAYLOR, 

UNITED AGENCIES AND FIRST NATIONAL BANK, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Less ley, Judge presiding. 

Counsel of Record: 

For Appellants : 

Allen L. McAlear argued, Bozeman, Montana 

For Respondents : 

Berg, Angel, Andriolo & Morgan, Bozernan, Montana 

Gregory 0. Morgan argued, Bozeman, Montana 

Submitted: May 20, 1974 

Decided g$@plr 

Filed: ixfr - 

' 7/94 
Mr. Justice Frank I, Haswell delivered the Opinion of the Court. 

This is an action by the buyers for rescission of a purchase 

contract on a motel. The district court of Gallatin County granted 

summary judgment against the buyers, dismissing their complaint. 

Buyers appeal. 

Plaintiffs are Edwin and Agnes Beierle, husband and wife, 

who bought the Trail-In Motel in West Yellowstone, Montana. Defendants are the sellers, Robert A. Taylor and Wanda K. Taylor, 

his wife; the real estate agent, United Agencies; and the financing 

institution, the First National Bank of Bozeman, 

Early in 1973 plaintiff Edwin Beierle was contemplating 

retirement. He was looking for a business he could acquire and 

make a living. He contacted United who showed him several business 

properties, 

The Beierles indicated an interest in the Trail-In Motel. 

United compiled and made available to them a brochure containing 

a description of the motel; a cost appraisal of the property; an 

unaudited gross income and expense statement for the years 1969, 

1970 and 1971; and, an analysis of projected income and expense. 

The gross income and expense statements showed net operating 

losses of approximately $5,000 in 1969; $6,800 in 1970; and $4,600 

in 1971. 

The analysis of projected income and expense was based on a 

substantial increase in motel rates, a year-round motel operation 

by the owners, and an estimated future occupancy rate. The 

previous motel operation had been essentially a three month summer 

operation by an absentee owner. 

Several conversations were held between Jack Rosenthal of 

United and the Beierles. The failure of the motel to make money 

and the reasons for this were discussed. Rosenthal told Edwin 

Beierle that he would not be able to make it without outside work 

for a couple of years until the motel business was built up. The 

net operating loss statements were not discussed but were available 
at the discussion. Copies were not furnished the Beierles. 

The Beierles personally inspected the motel property. The 

asking price was $125,000. 

Eventually Beierles purchased the motel property at this 

price, transferring their equity in their home in Three Forks and 

$4,000 cash to the sellers and signing an installment promissory 

note for the balance, secured by a trust indenture. Beierles took 

possession of the motel on May 1, 1973 and have continued to operate 

it since that time. They have made no monthly installment payments 

on the note. 

After the ~eierles' default, the entire balance of the note 

was declared payable. A notice of sale of the motel property was 

served on the Beierles. Thereafter, Beierles served notice of 

rescission of the purchase contract followed by a complaint seeking 

rescission. 

The complaint states two grounds for rescission (1) fraudulent 

misrepresentation of the income-producing capability of the motel 

and (2) partial failure of consideration arising from nondelivery 

to Beierles of a bill of sale on the motel furnishings. 

Issue was joined by denial of misrepresentation and a crossclaim for possession and sale of the motel property. Plaintiffs 

moved for jury trial. Discovery depositions were taken of Edwin 

Beierle and Jack Rosenthal. Defendants moved for summary judgment. 

The district court granted summary judgment to defendants on 

two grounds: (1) the alleged representations were opinion, not 

fact, and (2) no damage resulted from sellers' failure to deliver 

a bill of sale on the motel furnishings. The district court denied 

as moot plaintiffs ' request for jury trial. 

Two issues are presented for review: (1) Was summary judgment 

proper? (2) If not, are plaintiffs entitled to a jury trial? 

Rule 56(c), M.R.Civ.P., provides that summary judgment is 

proper if: 

"* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no 

genuine issue as to any material fact and that the moving 
party is entitled to a judgment as a matter of law." 

The burden of establishing the absence of any issue of 

material fact is on the moving party. Home Insurance Company v. 

Pinski Brothers, Inc., Mont . , 500 P..2d 945, 29 St.Rep. 

705; Gilleard v. Draine, 159 Mont. 167, 171, 496 P.2d 83. But 

where the record discloses no genuine issue of material fact, 

the party opposing the motion must present substantial evidence 

raising such issue. Roope v. The Anaconda Co., 159 Mont. 28, 32, 

494 P.2d 922; Flansberg v. Mont. Power Co., 154 Mont. 53, 58, 

460 P.2d 263. 

The buyers' principal claim of misrepresentation is founded 

on the projected income figures contained in the brochure. The 

complaint states : 

" * * * Defendants falsely and fraudulently represented 

to Plaintiffs that said property so exchanged was capable 

of producing an income of Twenty Seven Thousand Six 

Hundred Forty-eight Dollars * * *.'I (Emphasis added.) 

"Capable" suggests an expression of opinion rather than a 

statement of fact. Only under unusual circumstances, not present 

here, can projected future income be considered a fact. Ordinarily 

future income is but an estimate, subject to the vagaries of the 

marketplace. It is an opinion, not a guarantee. 

A mere expression of opinion, however erroneous, will not 

warrant rescission of a contract. Buhler v. Loftus, 53 Mont. 546, 

555, 165 P. 601; F.B. Connelly Co., v. Schlueter Bros., 69 Mont. 

65, 220 P. 103; Ray v. Divers, 72 Mont. 513, 517, 234 P. 246. 

Although exceptions to this rule exist, none is germane here. 

Buyers were presented gross income figures for three years which 

indicated the projected future income was not based on past performance. Buyers were furnished the details of the computation. 

Lincoln v. Keene, 51 Wash.2d 171, 316 P.2d 899, 901, states 

the controlling law here: 

"* * * any statement * * * as to what appellant's 

future income from the motel would be * * * was a 

matter of opinion and cannot be the basis of an 

action for fraud." 
For a case substantially similar on its facts to the instant 

case where rescission was denied under claims of fraudulent misrepresentations of future motel income, see Miller v. Protrka, 

193 Ore. 585, 238 P.2d 753. 

The Beierles seek rescission on the additional ground that 

sellers' failure to supply a bill of sale for the motel furnishings 

constituted a partial failure of consideration. Sellers admit 

the furnishings were a part of the transaction and that a bill of 

sale was promised. Beierles have had exclusive possession of the 

furnishings since they took possession of the motel on May 1, 1973. 

The failure of sellers to supply a bill of sale here has resulted 

in no damage. 

Section 13-903, R.C.M. 1947, permits rescission: 

"If, through the fault of the party as to whom he 

rescinds. the consideration for his obligation - fails, 

in whole-or in part". 

Under this statute, this Court has denied rescission to a buyer 

who purchased goods from one who did not have title, until the 

buyer was disturbed in his possession. Courtney v. Gordon, 74 

Mont. 408, 417, 241 P. 233. "'courts of equity, like courts of 

law, however, do not concern themselves withwongs which do not 

produce injury. I It Mason v. Madson, 90 Mont. 489, 500, 4 P.2d 475; 

Stillwell v, Rankin, 55 Mont, 130, 134, 174 P. 186. Damage is 

necessary to support a claim for rescission. 

Sonnek v. Universal C,I.T. Credit Corp., 140 Mont. 503, 

374 P.2d 105 is distinguishable. Failure to transfer title an 

automobile automatically damages the buyer because without the title 

the vehicle cannot be registered and licensed for its intended use 

on public highways. 

Absent damage, as here, rescission will not lie for partial 

failure of consideration. 

Our decision on the first issue precludes consideration of 

the second. 
Judgment # affirmed. 

Justice. 

, We concur: 

Chief ~ustice 

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Justices.