No. 13335 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 19 

### 76

DUANE L. COMPTON and SHIRLEY COMPTON, husband and wife, Plaintiffs and Respondents,

FRED ALCORN d/b/a ALCORN'S TRAILER CITY, Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District, Honorable R. 3. Nelson, Judge presiding. Counsel of Record: For Appellant: John M. McCarvel argued, Great Falls, Montana For Respondents: LaRue Smith argued, Great Falls, Montana Cameron Ferguson appeared, Great Falls, Montana

Submitted

### : October 

### 20, 1976 Decided

# :mC 14

## 1976 Filed: 

## DEC141376

### Chief JusticeJames T. Harrison delivered the Opinion of the Court. Defendant Fred Alcorn d/b/a Alcorn's Trailer City,appeals froma judgment forplaintiffs Duane 

### L. Compton and Shirley Compton,husband and wife, entered in the district court, Cascade County, for rescission of a retail installment contract to purchase
a three bedroom doublewidemobile home for $21,270 ($7,000 down, balance plus interest paid at month). The contract
was entered into June 14, 1975, the mobile home delivered July 10, 1975,after payment of the down payment, andinitial installation
was completed four days later. After this initial installation Comptons discovered these defects: 

### The home was not level; the two halves did notmatch up on the outside; the carpetwas not properly laid along the seam of the two halves; the damaged dining room tablewas not exchanged
as promised; slip covers were not furnished to cover small holes in the ribbing of the couch; the hanging and installation of a dining room light fixture and the master bathroom light fixture was not completed; the cross-overair duct,heat transfer systems, and electrical connectionbetween the two halves were not completed; nine bolts were omitted underneath the trailer in connecting the two halves; the cabinet support around the dishwasher was broken; the shelf in the front closet was not firmly attached; the smoke detector in the hall leading to the master bedroomwas hanging loose; the shelves in the china closetwere not assembled; there
was no 

### T joint connecting theWtkz

### bath 

### to the hot water tank; the heater unitwas loose in its alcove;and a full set of keys was not deliveredwith the home. 

# - 2

# -Compton telephoned Alcorn on three separate occasions to inquire about this delay incompleting the installation, during the period of July 14, 1975 toAugust 18, 1975, during which period 

### Mrs. Compton was inAlabama. Furthermore, he and his son finished leveling and blocking the home, and fixed the cabinet support around the dishwasher. The only otherwork Alcorn didwas the repair to the carpet, and the securing of the heater unit on August 

### 1and 2, 1975. Sometime between July 10, 1975 and August 

### 1, 1975, the T joint to connect the master bath and the hot water tank was also installed. Alcorn contends that the remainder of the installation could not be completed until the utilitieswere hooked up, and such
was the obligation of Comptons. -Duringthe last of July, water damage and stains appeared inthe ceiling of the family room and the hall inthe north end of the home from roof leaks aftera rainstorm. On August 

### 8, 1975 Compton discovered the furnace was not vented to the outside, leaving the furnace unusable and dangerous. Smoke damage to the ceilingwas alsopresent above the heater, indicating the furnace had been started sometime prior to delivery, even though no vent
was installed. Following this last discovery, Compton awaited his wife's return, contacted an attorney and sent hisnotice of rescission toAlcorn Ahgust 25, 1975. Alcorn made no attempt to contact the Comptons, contacted his attorney, and this suit followed. Alcorn questions the findings of fact and conclusions of law of the district court granting rescission, specifically:1) That Comptons had performed their obligations under the contract; 2) That therewas a substantial failure of consideration promised by Alcorn toComptons; 3) That rescission of the contract was inorder; and 4) Comptons were entitled toreasonable attorney fees. The scope of review applied toa district court's findings of fact and conclusions of law 

### is that this Court 

### willnot disturb such if they are supported by the evidence and the law. Brady
v. StateHighway Comm'n, 163Mont. 416, 517 P.2d 738; Timmerman
v. Gabriel, 155Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. Morgan Elec. Co., 152Mont. 126, 448 P.2d 683. As to the first issue for review, the record discloses that Comptons had paid allmonies then owing under the contract, which was their only obligationwithin the terms of this contract. The contract itself makes no mention of the Comptons' obligation tohave the utilities inworking order before final installation. There, also, was conflicting evidence as to the understanding of the parties that complete hookup of the utilitieswas essential to final installationof the mobile home. Both Comptons testified that thewater, sewer, and gas lineshad been extended to the site of the home, but were not connected because they did not intend tokeep the mobile home because of itsmany defects. Furthermore,
we failto see that the utilitieswere essential to complete boltiqg the unit together, fixing the cabinet support around the dishwasher, hanging and installing the light fixtures in the dining room and master bathroom, properly installing the smoke detector, replacing
a damaged dining room table, assembling the china closet shelves, firmly attaching the front closet shelf, and providing a usable and properly vented furnace.The record also supports the district court's finding that therewas a substantial failure of consideration promised by Alcorn. Comptons sold their family home inGreat Falls, Montana
asa result of marital problems. Then, afterreconciliation, the family moved into a small three room house inVaughn, Montana, inwhich 

### Mr. Compton had been living, until adequate housing was found. Alcorn was made aware of this situation and the primary object of the Comptons was topurchase a 

# - new mobile home to provide readily availablehousing for them and their three children. Expert witness testimony from the city of Great Falls mechanical inspector was that the furnace lacked proper venting,
was dangerous touse and as such violated sections 69-2122 and 69-2123, R.C.M. 1947, which adopts national construction standards formobile homes issued by United States of America Standards Institute. He also testified the mobile home violated these standards for its failure tohave another smoke detector inthe hall leading to the two bedrooms atthe opposite end of the home from the master bedroom. This evidence combined with the other defects substantiates the district court's finding therewas a substantial failure of considerationpromised by the sellerAlcorn. Alcorn next alleges the district court abused 

### its discretion inallowing rescission of the contract. It 

### isnot the duty of this Court to determine whether we agree with the district court's conclusions, if supported by the evidence and the law. Stromberg and Brown v. Seaton Ranch Co., 160Mont. 293, 502 P.2d 41. The district court concluded that the partial breach was
so substantialand fundamental as to defeat the object of the parties inmaking the agreement, and that the Comptons did all thatwas necessary to effectuate rescission. This 

### is a correct

### statement of the law allowing rescission of a contract for partialbreach, Johnson v. Meiers, 118Mont. 258, 164 P.2d 1012. Furthermore, there is 

### evidence to support that conclusion. The last issue concerns the award of attorney fees to Comptons. The contract didpr~vide attorney fees tothe holder of the contract, should such holder bring a default action on the contract. Section 93-8601.1, R.C.M. 

### 1947, provides a reciprocal right.toattorney fees to

# - allparties to the contract in

### any action on the contract. We rejectAlcorn's interpretation of section 93-8601.1, R.C.M. 

### 1947, that the reciprocal right to attorney fees exists on'lywhen the party who has the right to attorney feesunder the contract institutes the action. A 

### reading of the section displays the incorrectness of that interpretation: "Whenever by virtue of the provisions of any contract or obligation in thenature of a contract, made and entered into after the effective date of this act, one party to such contract or obligationhas an express right to recover attorney fees from any other party to the contract in the event the party having that right shallbring an actionupon the contract or obligation, 

# - then in

### any action on such contract or obligation

# - allparties tothe contract or obligation shallbe deemed to have the same right torecover attorney fees, and the prevailing party in any such action, whether by virtue of the express contractual right, orby virtue of this act, shallbe entitled torecover his reasonable attorney fees from the losing party parties." (Emphasis supplied.) SellerAlcorn 

### iscorrect inhis contention that evidence is

### required tobe introduced attrialtoallow an award of attorney fees toeitherparty. Crncevich v. 

### Georgetown Recreation Corporation, Mont

# . ,541P.2d 56, 32 St. Rep. 963. 

### However, such evidence was introduced when the district court on motion of Comptons, allowed the case tobe reopened aftera motion to amend the findings and conclusions by the sellerAlcorn,

### Alcorn contends the motion of Comptons was one governed by Rules 52 and 59, M.R.Civ.P., and as suchwas not made within the time

### allowed under those rules, and that the court lost jurisdiction to entertain the motion pursuant tothose rules. These rules govern motions toamend the district court's findings and motions for a new trial, respectively. Comptons made neither. What they didwas move the district court toreopen the case for taking further testimony; they didnot want the findings and conclusions altered. It 

### is

### well settled that the ruling upon a motion toreopen
a case for taking further testimony is

### within the sound discretion of the district court, which will

### only be reversed on appeal formanifest abuse of that discretion. Gilcrest v. Bowen, 95 Mont. 44, 

### 24 P.2d 141; Nadeau v. 

### The Texas Company, 104Mont. 558, 69 P.2d 586; Kipp v. Wong, 163Mont. 476, 517 P.2d 897. The testimony .as toattorney fees was offered to support
an affidavitpreviously filed during the trial, a practice accepted by this particular district court prior to Crncevich. Also a more accurate account of the time spent on the caseby Comptons' attorney, up toand including motions toamend the findings of fact and conclusions of law, could be provided at this time. We find no manifest abuse of the district court's discretion inreopening the.xase to allow this testimony under these circumstances. The j

### udgmentWe Concur: 

# Q_//Lt

on. Jack L. Green, District fludge

## , sitting for Justice Wesley Castles.

### Mr.,JusticeGene 

### B. Daly dissenting: 

### Idissent. 

### Ido not agreewith the fault assigned in the factual recitationby the majority opinion. The purchasers had improperly prepared the site for such a large building and thereaftermany problems did occur on both sides of the agreement. 

### I fail to find any breach by the seller of such a substantial and fundamental nature as to defeat the object of the parties to the contract. 

### I further find, in any event, the purchasers did not proceed lproperly to effectuate a rescission. 

### I further feel the reopening of the case for further testimonywas a manifest abuse of discretion. The cause should be reversed and remanded

,*' ,

### 7 f / 

### for a new trial. /,' 

### -" Justice.