No. 12816 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

PETER D, KLEIN and 

DANA KLEIN, 

Plaintiffs and Respondent, 

STEPHEN D, BRODIE and MARILYN G. BRODIE, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record : 

For Appellants : 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued, Missoula, Montana 

For Respondent : 

Robert L. Deschamps, County Attorney, argued, 

Missoula, Montana 

- - 

Submitted: April 10, 1975 

Decided : I #/; ?' 
flk. Jusrice John Zorlway Harrison delivered the Opinion of the 

Court. 

This is an appeal by defendants Stephen D. and Marilyn 

G. Brodie from an adverse judgment entered in the district 

court, Missoula County, in an action for the breach of a preernptive right provision contained in a buy-sell agreement. 

Plaintiffs Peter D. and Dana Klein cross-appeal on the issue of 

the amount of damages awarded by the district court. 

The relevant, undisputed facts are: On July 25, 1966, 

the parties entered into a buy-sell agreement whereby defendants 

agreed to convey a parcel of land located in Swan Valley, Missoula 

County, for the consideration of $5,000. An approximate descriptlon of the land was contained in the buy-sell agreement, but the 

exact boundary was to he determined by a survey. Paragraph 8 of 

cne buy-sell agreement contained this clause which is the basis 

of the present litigation: 

"Buyers to nave first refusal on any additional 

tracts Seller may offer." 

Pursuant to the terms of the agreement, a survey of the 

uroperty was effected and approximately 22.2 acres of land were 

conveyed. Thereupon, plaintiffs paid the purchase price and took 

possession. 

However, sometime in the fall 1970, plaintiffs discovered 

that a 90 a.cre parcel of land located south of their land had been 

sold by defendants to one Robert OIConner. Thereupon plaintiffs, 

through their attorney, served a demand upon defendants that 

they be given an opportunity to exercise their pre-emptive right. 

Following defendants' refusal, an action was brought in specific 

performance, or in the alternative, damages for breach of the preemptive right provision. 

Trial without a jury was held before Hon. Jack L. Green 

in the district court, Missoula County. Judgment was rendered 

in favor of plaintiffs and damages were assessed at $8,550. 

From this judgment defendants appeal and raise this issue: 
Is the pre-emptive right agreement unenforceable because 

the 'iiescription of the land to which it applies is incomplete 

and ambiguous? 

Plaintiffs on their cross-appeal raise this issue: 

Did the district court correctly determine the amount 

of damages for the breach of the pre-emptive agreement? 

We hold in the affirmative on defendants' issue. Accordingly, a consideration of plaintiffs' issue is unnecessary. 

In Weintz v. Bumgarner, 150 Mont. 306, 313, 434 P.2d 712, 

this Court examined the nature of a pre-emptive right and distinguished it from an option with these words: 

"The distinction between the two is well explained 

in Volume VI, American Law of Property, B 26.64 

p. 507: 

"'A pre-emption differs materially from an option. 

A11 option creates in the optionee a power to 

compel the owner of property to sell it at a 

stipulated price whether or not he be willing to 

part with ownership. A pre-emption does not give 

to the pre-emptioner the power to compel an unwilling owner to sell; it merely requires the owner, 

when arid if he decides to sell, to offer the property first to the person entitled to the pre-emption, 

at the stipulated price. Upon receiving such an 

offer, the pre-emptioner may elect whether he will 

buy. If he elects not to buy, then the owner of the 

property may sell to anyone."' 

Property that is the subject of the pre-emptive agreement 

should be adequately described and the price must be stated or 

otherwise made determinable. 1A Corbin on Contracts, S 261. In 

the instant case, the fact that no price was mentioned at which 

the pre-emptive right was to be exercised does not make the agreement void for uncertainty, since the use of the words "first 

refusal" is technical. Consequently, these words imply that the 

holder of the right may purchase at the same price offered by a 

third party when the agreement is silent as to price. See: 

Jurgensen v. Morris, 194 App.Div. 92, 185 N.Y.S. 386; Tamura v. 

ile~uliis, 203 Or. 619, 281 P.2d 469; Brenner v. Duncan, 318 Mich. 

1, 27 N.W.2d 320; Barling v. Horn, (Mo. 1956) 296 S.W.2d 94. Here, 
how eve^ cne sre-emptive rignt agreement is fatally defective 

because it is impossible to determine the description of property to which the right applies with accuracy, even though 

resort is had to extrinsic evidence. 

In Mercer v. Lemmens, 40 Cal.Rptr. 803, 230 C.A.2d 167, 

where the sufficiency of a description contained within a pre-emptive agreement was attacked by the defendant in a breach of contract action, the description referred to the "adjoining" 50 

Eoot Lot. The California court upheld the agreement after extrinsic evidence disclosed the seller owned no other real property 

adjoining or contiguous to the tract owned by plaintiff and the 

coart was able to determine with accuracy the description of the 

parcel of property to which the pre-emptive right applied. 

The facts in the instant case are far different and compel 

a ~ifferent result. The record discloses the property purchased 

by plaintiffs was included within a larger parcel of land owned 

by defendants. Defendants were the record owners of the Southwest 

and Sbutheast quarters of section 4, Township 20 North, Range 16 

west. Plaintiffs' acquired land was located in the Southeast 

quarter. Defendants also owned residential property in the 

jlissoula area as well as property in the Northeast quarter of 

3ection 5, Township 12 North, Range 19 West; property in Section 

2, Township 12 North, Range 19 West; and property in Section 19, 

Yownship 15 North, Range 7 West. Thus, the rationale of Mercer 

is not applicable and the agreement must fail because of its 

;+ cenr indefiniteness. 

Here, attempting to ascertain the intent of the parties 

d~ CLI~ time the contract was entered into, we look to statutes 

dealing with the interpretation of contracts. Section 13-709, 

K.Z.M. 1947, requires interpretation of a contract in such a 

manner as to make it operative, if such can be done without violating the intent of the parties. Section 13-720, R.C.M. 1947, 
zouipels ir~cerpretac~osi af the contract most strongly against 

the party causing the uncertainty to exist, (here, the defendant). 

We are cognizant of the above rules, however, we cannot 

ignore the plain implication of section 13-402, R.C.M. 1947, 

which states: 

"The object of the contract must be lawful when 

the contract is made, and possible and ascertainable by the time the.contract is to be performed." 

(Emphasis supplied.) 

To the same effect, see Thrasher v. Schreiber, 77 Mont. 

221, 250 P. 600. 1 Corbin on Contracts, 5 95, p. 394, states: 

"A court cannot enforce a contract unless it can 

determine what it is. It is not enough that the 

parties think that they have made a contract; 

they must have expressed their intentions in a 

manner that is capable of understanding. It is 

not even enough that they have actually agreed, if 

their expressions when interpreted in the light 

of accompanying factors and circumstances, are 

not such that the court can determine what the 

terms of that agreement are. Vagueness of expression, indefiniteness and uncertainty as to any 

of the essential terms of an agreement, have 

often been held to prevent the creation of an enforceable contract." 

Accordingly, the judgment of the district court is reversed and this 

Y 

Justi 

We concur: ,. 1 / 

Justices \)