No. 86-120 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

RONALD L. NORDWICK, 

Plaintiff and Respondent, 

GEORGE W. BERG, 

Defendant and Appellant, 

STATE CREEK MINING GROUP, RONALD 

TOOMER, DONALD MARSHALL, partners; 

R & R PROSPECTORS, INC., a Montana 

corporation, 

Defendants and Third Party 

Plaintiffs, 

-vsSURETY TITLE COMPANY, 

Third Party Defendant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alley & Burdett; Kelly J. Varnes, Billings, Montana 

Dick A. Weber, Jr., Hamilton, Montana 

Keller, Reynolds, Drake, Sternhagen & Johnson; Glen 

Drake, Helena, Montana 

For Respondent: 

Paul B. Smith, Boulder, Montana 

Submitted on Briefs: July 24, 1986 

Decided: October 2, 1986 

Filed: o@l" 2 - 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the Fifth Judicial 

District, in and for the County of Jefferson, Montana, 

granting partial summary judgment. We affirm. 

The case involves a dispute over the ownership of 

potential mining claims known as the State Creek mining 

claims located near Boulder, Montana. Plaintiff Nordwick and 

defendant Berg entered into a written agreement June 3, 1980, 

to purchase some unimproved property in Jefferson County. 

The agreement provided that Nordwick was to enter into an 

earnest money and buy/sell agreement with the owner of the 

property and negotiate a price not to exceed $46,500. Berg 

was to pay $1,500 earnest money and the balance of the 

purchase price. 

The agreement provided that Berg would have title to 

the surface and exclusive right to all the timber on the 

property. Each party was to own one-half of all of the 

mineral rights. Nordwick had the "right to mine, explore, or 

otherwise develop mineral deposits on the property," and an 

option to repurchase from Berg one-half of the surface rights 

on payment to Berg of one-half of the price paid for the 

property. 

Nordwick was successful in securing a buy/sell with one 

Phil Marthens for a negotiated purchase price of $43,000. 

Berg paid Marthens the earnest money and Berg's name was 

placed on a contract for deed. A warranty deed from Marthens 

to Berg was recorded August 7, 1984. Rerg has since refused 

to convey to Nordwick a one-half interest in the mineral 

rights. 
In May, 1983, Berg entered into a contract with R & R 

Prospectors "to mine, test and develop property" for 120 

days, paying Berg 5 percent of the net mill or smelter 

returns of the ore concentrates. R & R moved equipment onto 

the property and began to work the claims. Nordwick 

indicated to R & R that he owned a 50 percent interest in the 

claims. Berg, however, assured R & R Nordwick had no 

interest in the property and promised to resolve the matter. 

In November R & R ordered a title search which did not 

indicate any interest or claim by Nordwick. 

In March, 1984, Berg entered into an earnest money 

agreement and receipt with State Creek Mining Group, Ronald 

Toomer and Donald Marshall, partners, wherein Berg agreed to 

convey the subject properties to State Creek. Berg again was 

requested, to no avail, to clarify Nordwick's interest in the 

property. Nordwick filed a complaint in September, 1984, 

alleging Berg had wrongfully refused to recognize his 

interest in the property and that both State Creek and R & R 

should have known of his interest, but nevertheless they 

entered into a contract with Berg and refused to give 

Nordwick an accounting or any of the proceeds. 

Subsequently State Creek Mining, Ronald Toomer, Donald 

Marshall, and R & R Prospectors cross-claimed against Berg 

alleging fraudulent misrepresentation for failure to disclose 

any right or claim which might be asserted by Nordwick. Berg 

then filed a cross-claim against the other defendants 

alleging breach of contract. R & R filed a complaint against 

Surety Title Company of Helena for negligence in failing to 

discover the document on which Nordwick bases his claim. The 

action against Surety has been severed and is not germane for 

purposes of this opinion. 
Nordwick moved the District Court for partial summary 

judgment as to the fact he owns one-half interest in the 

mineral rights on the property in question. The motion was 

argued orally and granted. Berg's subsequent motion to amend 

the summary judgment, which requires Berg to warrant title to 

one-half of the mineral rights rather than execute a 

quitclaim deed, was denied. Berg appeals the partial summary 

judgment. 

The only issue on appeal is whether the District Court 

erred in granting plaintiff Nordwick's motion for partial 

summary judgment. 

If there is no genuine issue of material fact, the 

prevailing party is entitled to judgment as a matter of law. 

Rule 56 (c) , M.R.Civ.P. Cerack v. Albertsons, Inc. (1981), 

195 Mont. 409, 411, 637 P.2d 509, 510. This Court will 

uphold a summary judgment issued by a District Court unless 

we find it to be clearly erroneous. The District Court 

determined there was no genuine issue of material fact on the 

question of ownership of the property. 

Resolution of the question before us turns on whether 

the agreement between Berg and Nordwick was a valid 

partnership agreement granting Nordwick a one-half interest 

in the minerals on the property. We find it was. 

Berg argues failure of consideration and failure to 

provide promised consideration results in an invalid 

contract. A basic principle of contract law, that there must 

be consideration to have a valid contract, is codified at 

S 28-2-102 (4) , MCA. The written agreement of June 3 between 

Berg and Nordwick creates a presumption of consideration. 

Section 28-2-804, MCA. Consideration is defined as " [a] ny 

benefit conferred or agreed to be conferred upon the promisor 
by any other person, to which the promisor is not lawfully 

entitled, . . . " Section 28-2-801, MCA. The burden of 

showing a want of consideration sufficient to support the 

June 3 agreement falls on Berg. Section 28-2-805, MCA. He 

fails to meet this burden. 

Berg asserts the agreement did not "recite" any 

consideration. The terms of the agreement speak for 

themselves, however. The agreement provides in pertinent 

part: 

It is agreed George W. Berg shall pay 

earnest money in the amount of $1,500, 

and Ron L. Nordwick will enter into an 

earnest money and buy-sell agreement with 

the owner of the property. 

Pursuant to the terms of the agreement, Nordwick agreed 

to and did negotiate a buy/sell agreement with the seller, 

Marthens, at a bargained for price. He thereby secured a 

legal right to buy the property pursuant to the buy/sell 

agreement between himself and Marthens. Berg agreed to and 

did pay the earnest money to Marthens. Nordwick then 

relinquished any rights to the surface to Berg. Each party 

fulfilled his obligation under the unambiguous terms of the 

contract. Clearly the agreement "recites" consideration. 

There is no evidence in the record indicating this was not a 

fully bargained for exchange between the parties constituting 

good consideration pursuant to 5 28-2-801, MCA. 

If an agreement containes a bargained for exchange in 

legal position between the parties, the agreement becomes a 

legally enforceable contract. State ex rel. Stafford v. 

Fox-Great Falls Theater Corp. /1943), 114 Mont. 52, 67, 132 

P.2d 689, 697. 

[Nor] is it essential that the 

consideration should impose a certain 

gain or loss to either party. It i.s 
sufficient that a party in whose favor 

the contract is made foregoes some 

advantage or benefit, or parts with a 

right he might otherwise exert. 

Schnierle v. Schnierle (Ohio 1940), 33 N.E.2d 674, 675. 

Berg's defense that the failure of consideration 

relates to consideration different than that set forth in the 

June 3 agreement is totally without merit. This is a 

misapplication of the defense. Failure of consideration 

relates to failure of the consideration recited in the 

written terms of the contract, and not to failure of alleged 

oral consideration subsequent to and different from the 

written. Berg is attempting to introduce evidence of terms 

different than those recited in the contract. This he cannot 

do. 

The principle is well established and of 

general application, subject to certain 

exceptions, that when -- a contract has -- been 

reduced to writinq the contents -- of such 

writing cannot be added to, contradicted, 

altered,mrSd -. by parole or extrinsic 

evidence, and that sucx writing 

supercedes all oral neqotiations - 

concerning its matter which preceded, 

accompanied, or led up to its execution. 

This was the rule of common law, and has 

been embodied in the statute law of this 

state. (Emphasis in original.) 

West River Equipment Co. v. Holzworth Const. Co. (1959), 134 

Mont. 582, 588, 335 P.2d 298, 302; Perez-Lizano v. Ayers 

(Mont. 1985), 695 P.2d 467, 470, 42 St.Rep. 208, 212-213. 

The exceptions to this rule are found in S 28-2-905, MCA, 

which provides in pertinent part: 

(1) Whenever the terms of an agreement 

have been reduced to writing by the 

parties, it is to be considered as 

containing all those terms. Therefore, 

there can be between the parties and 

their representatives or successors in 

interest no evidence of the terms of the 

agreement other than the contents of the 

writing except in the following cases: 
(a) when a mistake or imperfection of 

the writing is put in issue by the 

pleadings; 

(b) when the validity of the agreement 

is the fact in dispute. 

(2) This section does not exclude other 

evidence of the circumstances under which 

the agreement was made or to which it 

relates, as described in 1-4-102, or 

other evidence to explain an extrinsic 

ambiguity or to establish illegality or 

fraud . . . 

Berg did not plead any of the exceptions as required by 

Rule 8 (c) , M.R.Civ.P. Although he admitted that pursuant to 

the written terms of the agreement Nordwick had no duty to 

mine, explore, or otherwise develop the mineral deposits on 

the property, he also claimed the writing was modified later 

changing Nordwick's obligation. "Any matter admitted 

. . . is conclusively established unless the court on motion 

permits withdrawal or amendment of the admission. " Rule 

36 (b) , M.R.Civ.P. 

Even if Berg were allowed to introduce parole evidence 

that the written consideration was modified orally after June 

3, the evidence would have no effect by virtue of 

5 28-2-1602, MCA: "A contract in writing may be altered by a 

contract in writing or by an executed oral agreement, and not 

otherwise." Berg did not offer as an affirmative defense and 

did not allege facts that an oral agreement was in fact 

executed, altering the June 3 agreement. 

The evidence being clear there was a bargained for 

agreement and valuable consideration, the agreement between 

Nordwick and Berg is valid. When a contract exists, the duty 

of the court is to enforce it. Gray v. City of Billings 

(Mont. 1984), 689 P.2d 268, 271, 41 St..Rep. 1910, 1913; 

Maxted v. Barrett (1982), 198 Mont. 81, 87, 643 ~.2d 1161, 
1164. Consequently, because there is no genuine issue of 

fact as to the ownership of the property, the District Court 

properly granted summary judgment on the issue of ownership. 

We affirm.