No. 85-232 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MEL PALIN d/b/a PALIN RANCH, 

Enterprises, 

PI-aintiff and Appellant, 

GERBERT LOGGING, INC., 

a Montana corporation, 

Defendamt and Respondent. 

FROM: District Court of the Fourth. Judicial District, 

In and. for the County of Missou.la, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Small, Hatch, Doubek & Pyfer; John C. Doubek, Helena, 

Montana 

For Respondent: 

T. K. Botsford, Missoula, Montana 

Submitted on Briefs: Oct. 25, 1985 

Decided: March 20, 1986 

Filed: MAR 2 0 '1386 
Mr. Justice John C. Sheehy delivered. the Opinion of the 

Court. 

Me1 Palin appeals from an order of the Fourth Jud-icial 

District Court, Missoula County, granting partial summary 

judgment in favor of Gebert Logging, Incorporated. We 

affirm. 

On January 11, 1984, Me1 Palin, d/b/a Palin Ranch 

Enterprises entered into a written agreement with Gebert 

Logging for the sale and removal of timber from certain lands 

located in Granite County. The agreement provided among 

other things that Gebert would fell, load and remove logs to 

the Champion International Corporation plant at Bonner 

Monta-na; and that Gebert would repair all fences, gates and 

cattle guards and blede all roads to a smooth surface after 

the logging operations were completed. Pursuant to the 

contract Gebert paid to Palin $20,000, of which $10,000 was a 

prepayment by Gebert for stumpage and the remaining $10,000 

was to be held as a hond by Palin until the expiration of the 

agreement. 

Pursuant to the agreement, Gebert went upon the 

described lands, felled trees, and removed and delivered the 

logs to Champion's plant at Bonner. After the first $10,000 

worth of logs had been delivered to Champion, Palin was paidby Champion for his seller's share of the proceeds of the 

logs. 

When the agreement expired, Gebert demanded the $10,000 

bond be returned to it. Palin refused, claiming that the 

land had been damaged, gates and roads also damaged and that 

Gebert had failed properly to perform the contract. Gebert 

commenced suit to recover its bond from Palin, and through 
discovery learned that Palin was not in fact the owner of the 

land described in the written contract, but that rather 

Palin's wife was the record owner of the land. 

Palin contended by affidavit after suit commenced that 

since 1972 he had managed the real property of the Pa.l.in 

family which included the real property under the timber 

sales agreement, and that he entered into the timber sales 

agreement as agent for his wife with her approval and 

knowledge. Palin's wife filed an affidavit to the effect 

that she was aware of and had approved the timber sales 

agreement and that Palin had full authority and approval to 

act as her agent in contracting for the sale of the timber 

located on the real property which she owned. 

The answers to interrogatories filed by Palin indicated 

that he neither owned the timber nor the real property 

covered by the contract nor had any written authority to 

execute the contract for the owner, his wife. 

The District Court granted partial summary judgment in 

favor of Gebert for the sun nf $10,000 and accrued interest 

and dismissed Palin's counterclaim against Gebert for the 

damages to the lands that Palin had claimed. The District 

Court further found that Palin's actions in the premises 

constituted a breach of his duty of good faith and fair 

dealing. The partial summary judgment reserved for further 

hearing the determination of the amount of exempla-ry damages 

to be awarded. The partial summary judgment was certified by 

the District Court for purposes of appeal under Rule 54(b), 

M.R..Civ.P. 

The issue hefore this Court is whether the grant of 

partial summary judgment in this case was proper. 
Summary judgment is proper if ~znder the record before 

the district court there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as 

a matter of law. Rule 56(c), M.R.Civ.P. Cereck v. 

Albertsons, Inc. (1981), 195 Mont. 409, 637 P.2d 509; 

Gilleard v. Draine (1972), 159 Mont. 167, 496 P.2d 83; Roope 

v. Anaconda Co. (1972), 159 Mont. 28, 494 P.2d 922. 

A summary judgment is proper when the party opposing the 

motion fails either to raise or to demonstrate the existence 

of the genuine issue of material fact, or to demonstrate that 

the legal issue should not be determined in favor of the 

movant. State ex rel. Rurlington Northern v. District Court 

(1972), 159 Nont. 295, 300, 496 P.2d 11.52, 1155. 

The District Court determined t-hat the contract between 

the plaintiff and the defendant was covered under the Uniform 

Commercial Code in § 30-2-107(2), MCA, and that it was for a 

sale of goods for a price of more than $500 which requires 

the contract to be in writing. Section 30-2-201(1), MCA. 

Palin did not have written authority to execute the written 

contract as the agent of his wife an6 he therefore acted 

without authority. Section 28-10-203, MCA; Schlenz v. John 

Deere Co. (U.S.D.C. Mont. 1981), 511 F.Supp. 224. The wife, 

Hilldegarde Palin, cou1.d not ratify the acts of her husband 

retroactively in this case without the consent of Gebert. 

Section 28-10-213, MCA. 

The District Court further determined that prior to 

Gebert's motion for summary judgment, Palin had held himself 

out to Gehert and to the District Court as the owner of the 

timber and the land as a seller to Gebert, and not as an 

agent acting for an undisclosed principal without written 

authority. 
In Larry C. Iverson, Inc. v. Rouma (1981), 195 Mont. 

351, 375, 639 P.2d 47, 60, we approved a holding from another 

jurisdiction that a contract entered into without the power 

to contract cannot be ratified or enforced, and that 

incapacity to contract cannot be removed by estoppel. In 

this case Palin had no written authority, as required by law, 

to enter into the timber sales agreement. The subsequent 

attempts at ratification by his wife give no life to his 

actions. The District Court acted properly therefore in 

entering judgment against Palin for the sum of $10,000, the 

amount of bond which he held, plus accrued interest thereon, 

and was further correct in dismissing Palin's cross claim for 

damages to the realty, since he was not the owner thereof. 

Palin contends that when the contract is partly 

performed by the parties sought to be charged, the statute of 

frauds in the Uniform Commercial Code, S 30-2-201, MCA, has 

no application under Northwest Potatoes Sales, Inc. v. Beck 

(Yont. 1984), 678 P.2d 1138, 41 St.Rep. 362; and that where 

both parties have performed and one party had significantly 

altered his position to his detriment, it is unconscionable 

to invalidate the contract by relying upon the statute of 

frauds, citing Bolz v. Myers (Mont. 1982), 651 P.2d 606, 39 

St.Rep. 1747. 

Pal-in contends that the statute of frauds under the UCC 

does not require that both parties sign the contract but that 

only the "party against whom enforcement is sought" must sign 

the agreement which in this case would be the respondent 

Gebert . 

Gebert responds that the cited cases are not applicable 

here because it was Gebert that altered its position based on 

Palin holding himself out as owner of the lands; that Gebert 
was at all times capable of performing the contract and did 

perform it; and that it was Palin who lacked the authority 

and capability to sign the contract. We agree with Gebert 

and determine that neither Northwest Potato Sales, supra, nor 

Bolz 5 Myers, supra, have any application to this case. 

The affirmative defense of estoppel cannot be raised by 

Palin for the first time on appeal. Montana Seeds, Inc. v. 

Hol-liday (1978), 178 Mont. 119, 582 P.2d 1223. 

Under the facts of this case, the contract was 

unenforceable because it was not signed by the owner of the 

lands, nor by a party having authority in writing to contract 

for the owners; and Palin, because he is not the owner of the 

lands, has no claim for damages, if any, that Gebert may have 

caused the lands. Thus there is no genuine issue of material. 

facts in this case and the District Court properly entered 

summary judgment. 

A 

Justice 

Q. 2- 

We Concur: 

r 

Chief Justice