No. 81-246 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

I. J. HARES and IRMA HARES, 

husband and wife, 

Plaintiffs and Respondents, 

RONALD W. NELSON, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sally M. Johnson, Red Lodge, Montana 

For Respondents: 

Joseph E. Mudd, Bridger, Montana 

Submitted on briefs: July 30, 1981 

Decided : MV 2 3 I$@ 

Filed: 2 5 1981 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant-appellant, Ronald Nelson, appeals from a 

judgment entered in the Thirteenth Judicial District Court 

of the State of Montana, Carbon County, the Honorable 

William Speare presiding. This judgment terminated a contract for deed between the plaintiffs and the defendant due 

to defendant's default; granted possession of the property 

subject of the contract to the plaintiffs; ordered the 

defendant to sign all necessary documents to convey his 

interest to plaintiffs; and awarded reasonable attorney fees 

in the amount of $872.50 plus costs to the plaintiffs. 

Plaintiffs, I. J. and Irma Hares, entered into a 

contract for deed with the defendant, Ronald Nelson, on 

December 29, 1978, whereby Nelson was to purchase 365 acres 

of land plus some buildings. The property, an old town 

site, is located in Carbon County, Montana. After the sale, 

the Hares rented their residence on this property. Other 

renters also remained on the property. The total purchase 

price was $92,750, together with interest of 8 percent per 

annum. Nelson was to pay this in monthly installments of 

$1,000, with no downpayment, beginning April 1, 1979. 

Nelson made payments April through October 1979. 

No payment was made on November 1, 1979. The contract required written notices to be given and to be served 

upon the parties personally or by registered mail. The 

address in the contract for Ronald Nelson was P. 0. Box 

255323, Sacramento, California 95825. 

The plaintiffs gave notice of default by mail and 

also through the Carbon County sheriff. Within the fifteen 

days allowed by contract to cure the default, Nelson made 

the $1,000 payment. However, he did not pay the attorney 

fees requested in the notice and required by the contract. 
No further payments were made on the contract. In 

January 1980, Eric Brabec, a grandson of the Hares, attempted to give Nelson an accounting and a check for rentals 

collected from the buildings on the property. This was 

rejected by Nelson. At the same time, Brabec informed 

Nelson that a default notice was waiting for him at his post 

office box in Red Lodge, Montana. A notice of default was 

also sent to the California address as required by the 

contract. Neither notice was ever claimed. 

The Hares then declared the full outstanding balance 

on the contract due and payable on February 8, 1980. At no 

time did Nelson offer to make full payment on the contract; 

he offered only the amount in arrears. The notice for the 

balance was also mailed but unclaimed. 

No payments were made to cure the default. The Hares 

brought suit seeking to compel Nelson to execute all necessary documents to terminate his interest in the contract for 

deed. 

Nelson answered and counterclaimed for an injunction 

to retain possession of the property pending the outcome of 

the action, as well as for specific performance of the 

contract. Nelson contended that an oral agreement had been 

reached by the parties to forestall payments on the contract 

until a proper accounting of the rents receivable from the 

Hares and collected from other renters by the Hares on 

behalf of Nelson was made. 

Trial on this matter was held June 2, 1980. The 

District Court found that no agreement existed to prevent 

foreclosure proceedings. The District Court entered findings of fact and conclusions of law on January 16, 1981. A 

judgment in accordance with such findings and conclusions 

was entered on February 3, 1981. 
The issues presented on appeal are: 

1. Did the trial court err in declaring a forfeiture? 

2. Did the trial court err in awarding attorney fees 

to the respondents? 

Appellant Nelson contends that this Court should 

apply section 28-1-104, MCAI to prevent a forfeiture. That 

section provides: 

"Relief from forfeiture. Whenever by the 

terms of an obligation a party thereto incurs 

a forfeiture or a loss in the nature of a 

forfeiture by reason of his failure to comply 

with its provisions, he may be relieved 

therefrom upon making full compensation to 

the other party, except in case of a grossly 

negligent, willful, or fraudulent breach of 

duty. I' 

Two important reasons exist for not applying section 

28-1-104, MCA, in this instance. First, there is nothing in 

the record to indicate that appellant ever complied with 

section 28-1-104, MCA, by making full compensation to the 

respondents. Second, appellant made no claim to the District 

Court that section 28-1-104, MCA, was controlling. Therefore, since this section was not addressed by the trial 

court, this Court cannot review the application of the 

statute or the issue presented by it on appeal. See Rules 

8(c) and 12(b), M.R.Civ.P. In Chadwick v. Giberson (1980), 

Mont. , 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726, 

we held: "However, it is also a well-settled rule of law 

that alleged error as to issues not raised in trial court 

will not be considered on appeal." See also, State v. 

Armstrong (1977), 172 Mont. 296, 562 P.2d 1129; Spencer v. 

Robertson (1968), 151 Mont. 507, 445 P.2d 48; Clark v. 

Worrall (1965), 146 Mont. 374, 406 P.2d 822. 

The trial court did not err when it declared a forfeiture and terminated the contract for deed. In Suburban 
Homes Co. v. North (1914), 50 Mont. 108, 117, 145 P. 2, 5, 

this Court held: 

"If payment is to be made in installments, 

default in the payment of any installment is 

a distinct breach and gives the vendor the 

right to declare a forfeiture. The right 

must be promptly exercised, however; otherwise, the right being exclusively that of the 

plaintiff, he will be presumed to regard the 

contract as still valid and existent." 

This rule was reaffirmed in Hansen v. Transamerica Ins. Co. 

(1978), 175 Mont. 273, 573 P.2d 663. This Court in Suburban 

Homes went on to say: 

"If the latter (the vendee) continues in 

default, the vendor, by demand for payment of 

the balance of the purchase money and notice 

of his purpose to terminate the contract in 

case of further default, may put the vendee 

upon his guard. If after such notice he does 

not make payment within a reasonable time, 

the vendor may declare the contract at an 

end." 145 P. at 5. 

In this case appellant did not make payments on the 

contract for two months. Notice was sent by registered mail 

to his address as per the terms of the contract and to a Red 

Lodge, Montana, address. Respondents strictly complied with 

the default terms of the contract. The appellant did not. 

Appellant contends that the reason he did not pay any 

attention to the notices of default was because he thought 

an oral contract for an offset had been entered into between 

himself and respondents. The alleged oral contract was to 

modify the written contract by allowing the appellant to 

offset rent, owed to him by respondents, against the monthly 

payments that were due on the contract for deed. However, 

the trial court found that no such oral contract was entered 

into and that at best there was merely an agreement to discuss some form of offset. Further, under section 28-2-1602, 

MCA, which provides that "[a] contract in writing may be 

altered by a contract in writing or by an executed oral 

agreement, and not otherwise," there could not have been a 
proper modification of the written contract. Finally, the 

only recourse available to the appellant after he had failed 

to respond to the notices of default and forfeiture would 

have been to tender full compensation to respondents. Section 28-1-104, MCA. Appellant at no time offered to tender 

full compensation; the best he offered was to tender the 

payments owed. 

The appellant argues that he did not receive effective notice according to the terms of the contract. The 

contract states: 

"It is further mutually agreed between the 

parties hereto that any notice to be given 

hereunder shall be served upon the parties 

personally or by reqistered o; certified mail 

directed to the party or parties to be served 

at their respective addresses as set forth, 

to wit 

"Buyer -- Ronald W. Nelson 

P. 0. Box 255323 

Sacramento, California 98525" 

(Emphasis added. ) 

Not only did respondents send notice to appellant at 

the California address, but they also sent notice to his Red 

Lodge, Montana, address. Further, Eric Brabec informed the 

appellant that a notice of default was at the post office in 

Red Lodge. Under the circumstances, the notice was sufficient, and the fact that notice of an earlier default was 

personally delivered does not mean that the mailed notices 

were in any way defective under the terms of the contract. 

Appellant's final contention is that the trial court 

erred in awarding attorney fees to respondents. 

The contract states: 

"In the event of default of the Buyer, Buyer 

agrees to reimburse the Seller, on demand, 

for all costs and expenses of whatsoever 

nature incurred by the Seller in enforcing 

any of the provisions of this agreement, 

including but not limited to, a reasonable 

attorney's fee for attorneys employed by the 

Seller in connection with the said default." 
It is clear that the contract fairly provided for an 

award of attorney fees in the event of a default. The trial 

court justly awarded the fees in accordance with the terms 

of the contract. 

The judgment of the District Court is affirmed. 

/I 

Justice V 

We concur: