No. 13335 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 6 

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 : DEC 14 1376 
Chief Justice James T. Harrison delivered the Opinion of the 

Court. 

Defendant Fred Alcorn d/b/a Alcorn's Trailer City, appeals 

from a judgment for plaintiffs 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 doublewide mobile 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 not match up on 

the outside; the carpet was not properly laid along the seam of 

the two halves; the damaged dining room table was 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-over air duct, heat transfer systems, 

and electrical connection between 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 bedroom was hanging 

loose; the shelves in the china closet were not assembled; there 

was no T joint connecting the Wtkz bath to the hot water tank; 

the heater unit was loose in its alcove; and a full set of keys was 

not delivered with the home. 

- 2 - 
Compton telephoned Alcorn on three separate occasions to 

inquire about this delay in completing the installation, during 

the period of July 14, 1975 to August 18, 1975, during which period 

Mrs. Compton was in Alabama. Furthermore, he and his son finished 

leveling and blocking the home, and fixed the cabinet support 

around the dishwasher. 

The only other work Alcorn did was the repair to the carpet, 

and the securing of the heater unit on August 1 and 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 utilities were hooked up, and such 

was the obligation of Comptons. 

-During the last of July, water damage and stains appeared 

in the ceiling of the family room and the hall in the north end 

of the home from roof leaks after a 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 

ceiling was also present 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 his notice of rescission 

to Alcorn 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 there was a substantial failure of consideration 

promised by Alcorn to Comptons; 

3) That rescission of the contract was in order; and 

4) Comptons were entitled to reasonable attorney fees. 

The scope of review applied to a district court's findings 

of fact and conclusions of law is that this Court will not disturb 

such if they are supported by the evidence and the law. Brady 

v. State Highway Comm'n, 163 Mont. 416, 517 P.2d 738; Timmerman 

v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. 

Morgan Elec. Co., 152 Mont. 126, 448 P.2d 683. 

As to the first issue for review, the record discloses 

that Comptons had paid all monies then owing under the contract, 

which was their only obligation within the terms of this contract. 

The contract itself makes no mention of the Comptons' obligation 

to have the utilities in working order before final installation. 

There, also, was conflicting evidence as to the understanding 

of the parties that complete hookup of the utilities was essential 

to final installation of the mobile home. Both Comptons testified 

that the water, sewer, and gas lines had been extended to the site 

of the home, but were not connected because they did not intend 

to keep the mobile home because of its many defects. Furthermore, 

we fail to see that the utilities were 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 

there was a substantial failure of consideration promised by 

Alcorn. Comptons sold their family home in Great Falls, Montana 

as a result of marital problems. Then, after reconciliation, 

the family moved into a small three room house in Vaughn, Montana, 

in which 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 to purchase a - new mobile home to 

provide readily available housing 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 to use and as such violated sections 69-2122 and 

69-2123, R.C.M. 1947, which adopts national construction standards 

for mobile homes issued by United States of America Standards 

Institute. He also testified the mobile home violated these 

standards for its failure to have another smoke detector in the 

hall leading to the two bedrooms at the opposite end of the home 

from the master bedroom. This evidence combined with the other 

defects substantiates the district court's finding there was a 

substantial failure of consideration promised by the seller Alcorn. 

Alcorn next alleges the district court abused its discretion in allowing rescission of the contract. It is not 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., 160 Mont. 293, 502 P.2d 

41. The district court concluded that the partial breach was 

so substantial and fundamental as to defeat the object of the 

parties in making the agreement, and that the Comptons did all 

that was necessary to effectuate rescission. This is a correct 
statement of the law allowing rescission of a contract for 

partial breach, Johnson v. Meiers, 118 Mont. 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 did pr~vide attorney fees to the 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.to attorney fees to - all parties to the contract 

in any action on the contract. We reject Alcorn's interpretation 

of section 93-8601.1, R.C.M. 1947, that the reciprocal right to 

attorney fees exists on'ly when the party who has the right to 

attorney fees under 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 the nature of a contract, made and entered into after the effective 

date of this act, one party to such contract or 

obligation has an express right to recover attorney 

fees from any other party to the contract in the 

event the party having that right shall bring an 

action upon the contract or obligation, - then in any 

action on such contract or obligation - all parties 

to the contract or obligation shall be deemed to 

have the same right to recover attorney fees, and 

the prevailing party in any such action, whether 

by virtue of the express contractual right, or by 

virtue of this act, shall be entitled to recover 

his reasonable attorney fees from the losing party 

parties." (Emphasis supplied.) 

Seller Alcorn is correct in his contention that evidence 

is required to be introduced at trial to allow an award of attorney 

fees to either party. Crncevich v. Georgetown Recreation Corporation, Mont . , 541 P.2d 56, 32 St. Rep. 963. However, such evidence was introduced when the district court on 

motion of Comptons, allowed the case to be reopened after a motion 

to amend the findings and conclusions by the seller Alcorn, 
Alcorn contends the motion of Comptons was one governed 

by Rules 52 and 59, M.R.Civ.P., and as such was not made within 

the time allowed under those rules, and that the court lost 

jurisdiction to entertain the motion pursuant to those rules. 

These rules govern motions to amend the district court's findings 

and motions for a new trial, respectively. Comptons made neither. 

What they did was move the district court to reopen the case 

for taking further testimony; they did not want the findings and 

conclusions altered. 

It is well settled that the ruling upon a motion to reopen 

a case for taking further testimony is within the sound discretion 

of the district court, which will only be reversed on appeal 

for manifest abuse of that discretion. Gilcrest v. Bowen, 95 

Mont. 44, 24 P.2d 141; Nadeau v. The Texas Company, 104 Mont. 558, 

69 P.2d 586; Kipp v. Wong, 163 Mont. 476, 517 P.2d 897. 

The testimony .as to attorney fees was offered to support 

an affidavit previously 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 case by 

Comptons' attorney, up to and including motions to amend 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 in reopening the.xase to allow this testimony under 

these circumstances. 

The j udgmen t 
We Concur: 

Q_//Lt 

on. Jack L. Green, District 

fludge , sitting for Justice 

Wesley Castles. 
Mr.,Justice Gene B. Daly dissenting: 

I dissent. 

I do not agree with the fault assigned in the factual 

recitation by the majority opinion. The purchasers had improperly prepared the site for such a large building and thereafter many 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 testimony was a manifest 

abuse of discretion. The cause should be reversed and remanded 

,*' , 

7 f / for a new trial. /,' 

-" 

Justice.