No. 12492 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

LEE V. WISEMAN and 

SHIRLEY WISEMAN, 

Plaintiffs and Respondents, 

ROBERT D. HOLT. and ELIZABETH D. HOLT, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record : 

For Appellants : 

Koch and McKenna, Hamilton, Montana 

Robert B . Brown argued, Stevensville, Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula , Montana 

Gary L, Graham argued, and Sherman V. Lohn appeared, 

Missoula , Montana 

Submitted : December 3, 1973 

Decided : QEC 2 8 1973 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

Plaintiffs, Lee and Shirley Wiseman, commenced this 

suit against defendants, Robert and Elizabeth Holt, seeking 

damages for breach of contract and tortious injury to personal 

and real property. Defendants filed a motion to dismiss for 

failure of the complaint to state a claim upon which relief 

could be granted. The motion was denied. 

Defendants answered, denying damage and counterclaimed 

for rescission of the agreement and restoration to status quo 

on grounds of misrepresentation. The case was tried on December 12, 1972, before Hon. Jack L. Green of the fourth judicial 

district in and for the county of Ravalli, sitting with a jury. 

At the close of plaintiffs' case in chief, defendants 

moved to dismiss plaintiffs' complaint for the reason that the 

evidence presented by plaintiffs did not sustain the allegation 

of damages. The motion was denied. The matter was submitted 

to the jury which returned a verdict in favor of plaintiffs in 

the sum of $8,000. Defendants made a motion for a new trial 

which was denied. Judgment was entered for plaintiffs in the 

sum of $8,000. Defendant appeals from the judgment. 

Briefly stated the facts are these: On May 28, 1969, 

plaintiffs entered into a contract to sell the real property, 

equipment, good will and franchises of the airy ~ueen" at 

Hamilton, Montana to defendants. The contract was escrowed at 

the Farmers State Bank at Victor, Montana. The contract provided that no waste was to be committed on the premises and 

that the improvements on the premises would not be removed or 

destroyed while defendants were in possession. Defendants agreed 

that the improvements would become the property of the sellers 

upon default. 
In November 1971, defendants began demolishing the 

"Dairy Queen" structure without first obtaining consent from 

plaintiffs. Defendants' financing for construction of a new 

"Dairy Queen" fell through. Defendants informed plaintiffs that 

if they would reduce the remaining balance on the contract from 

approximately $35,000 to $20,000 they could purchase the premises 

and rebuild through bank financing, giving the bank a first 

mortgage. If this alternative was not acceptable to plaintiffs 

defendants informed plaintiffs that they were in no position to 

continue and offered the return of the premises to plaintiffs. 

Plaintiffs did not agree to defendants1 proposal and 

retook possession of the premises in March, 1972. Plaintiff, 

Lee Wiseman, testified that when possession was transferred back 

that several items of personal property which had been a part 

of the sale were returned damaged or not returned at all. He 

further testified as to the cost of repair or replacement of the 

items. 

Defendant on this appeal sets forth five issues: 

(1) The trial court erred in failing to dismiss plaintiffs' complaint on the defendants' motion to dismiss for the 

reason that the complaint failed to state a claim upon which 

relief can be granted. 

(2) In denying defendants' motion to dismiss plaintiffs' 

complaint at the close of the plaintiffs' case in chief for the 

reason that plaintiffs failed to show damages were sustained. 

(3) In denying defendants' proposed jury instruction 

No. 5. 

(4) That the jury's verdict is not supported by the 

evidence, and 

(5) That the trial court erred in denying defendants' 

motion for new trial. 
Considering defendants' issue No. 1, we find no merit. 

The record shows that defendants' motion to dismiss was filed 

on July 28, 1972, and set for hearing on August 4, 1972. No 

brief was filed in support thereof. The motion was denied in 

accordance with Rule 4 of the Rules of Practice of the district 

court of the fourth judicial district, which provides: 

"Upon serving and filing a motion permitted by 

Rule 12, M.R.Civ.P. or within five (5) days 

thereafter, the moving party shall serve and 

file a brief. * * * 

"Failure to file briefs within the prescribed 

time shall subject such motions to summary 

ruling, and the failure to file a brief by the 

moving party shall be deemed an admission that, 

in the opinion of counsel, the motion is without 

merit * * *.I1 See also Rule No. 11, Uniform 

Rules for District Courts of Montana. 

Having failed to file a brief within the prescribed time 

of the district court rules, defendants admitted that their motion 

was without merit. 

Defendants' remaining issues involve the proper measure 

and proof of damages. Defendants contend that section 17-307, 

R.C.M. 1947 is determinative of the extent of damages in the 

instant case and that an instruction based upon the statute 

should have been given. 

Section 17-307, R.C.M. states: 

"The detriment caused by the breach of an agreement to purchase an estate in real property is 

deemed to be the excess, if any, of the amount 

which would have been due to the seller, under 

the contract, over the value of the property to 

him. " 

Defendants' proposed instruction No. 5, which was refused 

by the district court over objection, reads: 

"You are instructed that the maximum amount of 

damages that you may award by reason of the 

breach of the agreement to purchase an estate 

in real property is the excess, if any, of the 

amount which would have been due to the Sellers, 

under the contract, over the value of the property 

to him. I' 
In addition, defendants contend that plaintiffs did 

not show damages based upon the formula provided in section 

17-307, R.C.M. 1947, and that the verdict is not supported by 

sufficient evidence for finding damages. 

The district court instructed the jury with regard to 

damages using the language of section 17-301, R.C.M. 1947, which 

provides : 

"For the breach of an obligation arising from 

contract, the measure of damages, except where 

otherwise expressly provided by this code, is 

the amount which will compensate the party 

aggrieved for all the detriment proximately 

caused thereby, or which, in the ordinary course 

of things, would be likely to result therefrom." 

While this Court has not had the occasion to consider 

section 17-307, R.C.M. 1947, we have rendered decisions interpreting other sections of Chapter 3, Title 17, R.C.M. 1947. 

In Orford v. Topp, 136 Mont. 227, 346 P.2d 566, this 

Court interpreted section 17-306. We held that the purpose 

behind the enactment of section 17-306, R.C.M. 1947, is to compensate an aggrieved party for the loss he sustains, and that section 17-301, R.C.M. 1947, is a "clear expression of this purpose." 

In Wyatt v. School Dist. No. 104, 148 Mont. 83, 89, 417 

P.2d 221, interpreting section 17-303, R.C.M. 1947, after citing 

Orford we said: 

" * * * In effect, what the court has said is that 

the statutes are to be regarded as guides in the 

estimation of damages to be recovered, and that 

the respondent should receive a sum which, when 

added to the benefits already received under the 

contract, will give her an economic status 

identical to that which she would have enjoyed had 

the contract been performed." (Citing authority.) 

Our holdings illustrate that the statutes on the measure 

of damages are not exclusive, and that damages in addition to 

those provided in the statutes are recoverable under section 

17-301, R.C.M. 1947. See Royer v. Carter, 37 Cal.2d 544, 233 

P.2d 539, 543, where the California court held that when additional 
expenses are incurred by the vendor to realize the benefit of 

his bargain, they may be recovered in addition to those provided for in their section 3307, Cal. Civil Code, § 3307 is 

identical to section 17-307, R.C.M. 1947. 

Defendants' argument and a reading of defendants' proposed instruction No. 5 indicates that defendants interpret 

section 17-307, R.C.M. 1947, to be mandatory and exclusive, and 

that if damages are not sustained within the formula enunciated 

therein, that there can be no recovery of damages. This interpretation simply ignores section 17-301, R.C.M. 1947. 

Defendants have made no mention in their argument of 

the fact that the provision of the contract with which this suit 

was involved was the waste provision. It was within the contemplation of the parties that the property returned upon retaking 

of possession would be in good condition and repair. Damages 

of the nature herein involved were within the reasonable contemplation of the parties at the time the contract was entered into. 

An instruction based upon section 17-301, R.C.M. 1947 was adequate 

with respect to these damages. A trial court will not be held 

in error when it refuses to give an instruction that has been 

adequately covered in other instructions. State Highway Comm'n 

v. Manry, 143 Mont. 382, 390 P.2d 97. 

Plaintiffs proved their damages through their own testimony. The jury had the necessary evidence before it and in 

accordance with the district court's proper instructions determined the damages resulting from the breach. For the foregoing 

reasons the district court committed no error and pro rly denied 

defendants' motion fo /' F 

i 

The judgment 

1 Chief Justice