No. 13470 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STANDARD INSURANCE COMPANY, a corporation, Plaintiff and Respondent,

HAROLD L. STURDEVANT, Defendant and Appellant.

Appeal from: DistrictCourt of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Tipp and Hoven, Missoula, Montana Raymond Tipp argued, Missoula, Montana For Respondent: Raymond J. Fox argued, Missoula, Montana

Filed: Submitted: April 19, 1977 Decided: ju~ 

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## 19nXr. Zus'iice 3auiel 2. Shea delivered the dpinion of the Court.

This isan appeal from a nonjury judgment of the district court, Missoula County, in an action to recover on a promissory note.Harold L. Sturdevant, appellant, entered into an agencymanager employment contract with Standard Insurance Company, respondent, in 1962. Under the terms of the contract, Sturdevant wds appointed manager of Standard's agency inMissoula, Montana. 5e agreed to maintain the agency and recruit and train sub-agents,

AS well as personally procure insurance applications. The parties diltered into similar contracts in 1963 and 1968 as to new business dZter those dates. Sturdevant also executed a promissory note in 1968 to repay loans made tohim by Standard. Income derived from ~turdevant's contracts was tobe applied to the note. Standard sued to collect the balance due on the note and Sturdevant counterclaimed seeking vested renewals under the conEracts, which he alleged were stillineffect. In its reply
TV he counterclaim Standard alleged termination of the contracts. The parties agreed todetermine after trialthe amount due each ~ther based upon the termination date found by the district court. Judgment was entered in favor of Standard establishing 3eptember 15, 1969 as the termination date of the contracts and provided for further hearing, if the parties could not agree on the dinounts due. The only issue presented for review by Sturdevant iswhether the district court erred indetermining the agency-manager contracts were terminated on September 15, 1969. Sturdevant contends Lhe contracts extended through 1971.

### OnAugust 14, 1969, Frank Burger, Sturdevant

## 's supervisor with Standard,wrote this letter to Sturdevant: "Dear Harold: "This is to confirm our conversation of August 12,at which time you tendered verbal notice of intent to resign effective September 15. It is the purpose of this letter to acknowledgeyour intent. "Once we have determinedwho the replacementwill be, 

### Iwill advise. 

### Iwill appreciate very much your effort to make the transition a orderly and troublefree one from a service standpoint. "We

## '11be in touch.'

# ***" Burger testified that onAugust 12, 1969,Sturdevant told himhe to resign and was "throwing in the and Burger accepted the resignation. Sturdevant,on the other hand, testified Burger and he had disagreements during the conversation, but when Burger asked if he intended to resign, Sturdevantmerely replied it might come to that. Sturdevant testified he did not intend to resign and he did not thinkhis contracts and position as manager were terminated. Therefore,he ignored the letter. Sturdevant's testimonywas supported at trialby several agents in the Missoula office. Agent Swenson testified Sturdevant told him he would not resign;and agent Moffett testified Sturdevant showedhim Burger's letter and said he did not resign. Sturdevant, however, did leave the office in September 1969 and according to Moffett,he never againworked/asmanager. After Sturdevant left Standard's office,Burger testified he had no knowledge of any work performed by Sturdevant for Standard. Although Sturdevant took only personal familypictureswhen he left the office, Burger collected the rest of Sturdevant's property and later delivered it to him.

### After his departure from Standard,Sturdevant opened another insurance office,hired new agents and had contractswith and
was licensed to sell for other companies. He testified however, that he kept Standard's insurance in force and serviced Standard policies at his new office. There is no evidence he sold more insurance for Standard, after opening his new office. Inurging a different termination date than September 1969, Sturdevant makes three arguments: 

### (1) The letter from Burger to Sturdevant did not comply with contract provisions allowing termination upon thirty days written notice since it did not specifically mention termination of the contracts,but only referred to intent to resign. 

### (2) Since Standard obtained an agent's license for Sturdevant until 1971, the agency-manager contract could not have been terminated before 1971when the licensewas not renewed. (3) The evidence was not sufficient to show the contracts
were terminatedby mutual consent. Concerning the first argument it is true that Burger's letter does not explicitly refer to "termination of the contracts1',but its meaning is clear and unambiguous, and constitutes adequate notice under the contracts. Clearly, Sturdevantunderstood its meaning enough to removehimself from Standard's offices and to openup another insurancebusiness as an agent for other companies

# . Inhis second argument,Sturdevant misconstrues the application ofTitle 

### 40,Chapter 33,R.C.M. 1947,concerning the licensing of insurance agents. This chapter provides, for purposes here, that an insurance license cannot be issued unless the recipient is appointed an agent by an authorized insurer. Since Standard somehow licensed Sturdevantuntil 1971, Sturdevant3rgues his agency-managercontractswith Standard could not be ~erminated before 1971. But this licensing requirement is primarily for the protection of the public and is not meant to ereate private rights between the agent and insurance company

as contended in this case. 16AppLlemanInsuranceLaw and PracWhile innocent third parties would be protected against any attempt by Standard or Sturdevant to repudiate its agency relationshipbetween 1969 and 1971, this does not by itself entitle Sturdevant to assert a contractual right of agency-manager with Standard between the years 1969 and 1971. It is certainly a factor to be considered,but only in light of all the circumstances, and here therewas evidence that Standard renewed the license because of a clerical oversight. Sturdevant is clearly wrong inhis last argument that the evidencewas not sufficient to establish a mutual rescission. Termination of a contract by mutual consent is a question of fact for the district court. Cruse v. Clawson, 137Mont. 439, 35.2 P.2d 

### 989. InWest River Equipment Co. v. Holzworth, 134 Yont. 582, 587, 335 P.2d 298, we held that a written contract may be cancelled by mutual consent and the cancellationmay be oral. The Court stated:

ItHowever,mutual cancellation must be clearly expressed and shown, and acts and conduct of the parties to be sufficient must be clear, convincing and inconsistentwith the existence of the contract. [Citing cases]

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In support of his contention therewas no mutual agreement to terminate the contracts, Sturdevant relies on evidence that he did not submit a written resignation; his licensewas ,. renewed until 1971;he ignored Burger's letter;he took onlypictures from the office; he continued to keep the insurance in force and service policies; and, he told his agents he did not resign. While this evidence clearlyput the issue indispute, there was substantial evidence to the contrary sufficient to support the district court's determination the contracts terminated on September 15, 1969. The district court was justified in concluding that Sturdevant's departure from Standard's office also resulted inhis departure from the agency-manager contract he had with Standard. We note that determination of the amount of money due was deferred until after trialand appeal, apparently pursuant to Rule 42(b),M.R.Civ.P. Multiple trials and appeals arising from a single dispute may create a severe burden in terms of increased cost to the litigants, delay inresolution of the controversy, and court congestion. Where there isno danger of prejudice and the issues arenot complex the necessity of separate trials should be carefully weighed by the district court to ensure the rule isnot abused. We affirm thejudgment and remand this cause for further proceedings consistent with this opinion.

We Concur: