No. 87-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

VERDA WYMAN 

Plaintiff, Respondent, 

Cross-Appellant, 

DuBRAY LAND REALTY, SHARON L. DuBRAY, 

JAMES G. DuBRAY, and ROGER REEH; FLOBERG 

REALTORS,a corporation; and WILLIAM R. 

BENNETT, 

Defendants, Appellants, 

Cross-Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants, Defendants 

Cross-Respondents: 

Mark S. Werner, McNamer and Thompson, P.C.,Billings, MT 

James P. Healow, Sweeney and Healow, Billings, MT 

For Respondent, Plaintiff, 

Cross-Appellant: 

Thomas D. Gai, Berger, Nelson and Gai, P.C., Billings, MT 

2$198& Filed: 

Submitted: February 3, 1988 

Decided: March 29, 1988 

Clerk 
Mr. Chief Justice J.A. Turnage delivered the Opinion of the 

Court. 

Mrs. Wyman brought this action in the Thirteenth Judicial District, Yellowstone County, after the DuBrays backed 

out of a buy-sell agreement to buy her real property. A jury 

found in favor of defendants. DuBrays appeal the denial of 

their attorney fees, and Mrs. Wyman appeals on two of the 

jury's findings. We affirm. 

The issues are presented as follows: 

1. Did the court err in denying DuBrays' attorney fees? 

2. Does substantial evidence exist to support the 

jury's finding that the DuBrays did not breach the contract 

with Mrs. Wyman? 

3. Does substantial evidence exist to support the 

jury's finding that the listing agent and Floberg Realtors 

were not negligent? 

In spring 1984, Mrs. Wyman listed her home for sale with 

Ben Vaughn, a real estate broker in Billings. Mr. Vaughn 

advertised the home in a booklet with the Multiple Listing 

Service (MLS). When that listing expired, Mrs. Wyman listed 

the home with Mr. Bennett, of Floberg Realtors. When she 

initiated this listing, Mrs. Wyman wanted Mr. Bennett to 

develop a sales brochure for her home. He testified that 

because he was "pre-occupied" with producing the brochure, he 

copied the lot size, legal description, and other pertinent 

information concerning the home from Mr. Vaughn's previous 

advertisement with MLS. He then gave this information to MLS 

for republication in its current booklet. He also testified 

that his standard procedure was to go to the courthouse to 

get this information, but that he never did this for the 

Wyman property. 
The DuBrays eventually became interested in the Wyman 

home and viewed the property a number of times. Mr. and Mrs. 

DuBray testified that they each checked the lot dimensions on 

a plat from the courthouse because they were interested 

specifically in what the dimensions were. Mrs. DuBray was a 

licensed real estate agent at the time, and this fact was 

disclosed to Mrs. Wyman. Finally, in June 1385 the DuBrays 

and Mrs. Wyman executed an "earnest money receipt and agreement to sell and purchase" (buy-sell agreement) with $5,000 

earnest money deposited. The agreement contained the legal 

description reflected in the MLS booklet. 

Sometime after this, Mr. Bennett learned from the title 

insurance company that the legal description in the buy-sell 

was different from the correct one contained on the last deed 

of record in the Clerk and Recorder's office. The incorrect 

description was Lot 11, Block 2, Poly Addition. The correct 

one was East 128.56 feet of Lot 11, Poly Addition, Second 

Filing. The difference was a seven foot strip along the west 

boundary. When this discrepancy came to Mr. Bennett's attention, the correct legal description was penned into the 

buy-sell, and Mrs. Wyman initialed the change. The DuBrays, 

however, would not initial the change. They consulted their 

attorney, who indicated that the change in legal description 

was material. The DuBrays therefore terminated the buy-sell 

and requested a return of their earnest money, although they 

testified that they still wanted to negotiate a purchase of 

Mrs. Wyman's home. Mrs. Wyman filed this action soon after 

the DuBrays terminated the contract. She alleges that she 

suffered approximately $70,700 in damages due to Mr. 

Bennett's negligence and the resultant contract breach by 

DuRrays. By special verdict, the jury found that DuRrays did 
not breach the contract, that DuBrays were not negligent, and 

that Mr. Bennett and Floberg were not negligent. 

After trial, the DuBrays filed a bill of costs and a 

claim for attorney fees. Mrs. Wyman filed a motion for 

judgment notwithstanding the verdict as against Bennett and 

Floberg . The court awarded costs to all defendants but 

denied DuBrays' claim for attorney fees. DuBrays appeal this 

decision. The court also denied Mrs. Wyman's motion for 

judgment notwithstanding the verdict, and entered judgment in 

accord with the special verdict. Mrs. Wyman appeals this 

judgment, by cross-appeal. 

I 

Did the court err in denying DuBrays' attorney fees? 

In Sliters v. Lee (1982), 197 Mont. 182, 184, 641 P.2d 

475, 476, we stated the general rule that in the absence of a 

statutory or contractual provision, attorney fees are not 

recoverable. The DuBrays argue that Mrs. Wyman would have 

been entitled to attorney fees under a specific clause in the 

contract had she proved at trial that DuBrays were in default. They argue, therefore, that the right to attorney 

fees is reciprocal pursuant to § 28-3-704, MCA, and that they 

should recover attorney fees after successfully defending the 

suit. Section 28-3-704, MCA, provides in pertinent part: 

Whenever, by virtue of the provisions of any contract . . . one party . . . has an express right to 

recover attorney fees from any other party to the 

contract . . . in the event the party having that 

right shall bring an action upon the contract . . . all parties to the contract . . . shall be deemed 

to have the same right to recover attorney fees and 

the prevailing party in any such action, whether by 

virtue of the express contractual right or by 

virtue of this section, shall be entitled to recover his reasonable attorney fees from the losing 

party. . . . 
In Town Pump, Inc. v. Diteman (Mont. 1981), 622 P.2d 212, 

216-17, 38 St.Rep. 54, 59, we held that this statute grants 

reciprocal rights to one party only when the other party has 

an express right to fees under the contract. It follows then 

that the clause in the contract which provides attorney fees 

must be read carefully to determine the respective rights of 

the parties. The clause relied upon by DuBrays reads as 

follows: 

Time is of the essence of this agreement and 

of this clause. If any payment to be made hereunder or any other condition -- of this agreement -- is not 

timely made, then this contract, -- -- at the option of 

the party who ---- is not in- default, may - be terminata 

and -- the non-defaulting partymayrecover damages 

and reasonable attorney's --- fees to be awarded -- by the 

court in any action for a specific performance or 

otherwise. (Emphasis added.) 

This clause appears in a form agreement shown as approved by 

the Montana Association of Realtors. The clause is confusing 

and poorly drafted. The beginning of the second sentence 

seems to be defining what constitutes default for purposes of 

the remainder of the sentence. Neither party has contended 

that the other has failed to timely make a payment. That 

leaves us with the question whether "any other condition of 

this agreement is not timely made. . . . " We cannot determine the meaning of this part of the sentence without inserting words and deleting others. While it is true we must 

construe the language of the contract in order to support the 

intent of the parties, it also is true that when uncertainty 

exists we will construe the language of a contract against 

the party who drafted the contract, as the one who caused the 

uncertainty. St. Paul Fire & Marine Ins. Co. v. Cumiskey 

(1983), 204 Mont. 350, 363, 665 P.2d 223, 229. Mrs. DuBray 

signed the buy-sell agreement, exhibit 11, as Sharon L. 
DuBray, sales representative for DuBray Land Realty, the 

selling real estate firm. Mrs. DuBray testified that she 

authored the buy-sell, exhibit 11, which Mrs. Wyman eventually signed. We observe the conflict of interest present here. 

Mrs. DuBray selected the form of the agreement, filled in the 

blank spaces, and presented the document as an offer, all the 

while acting in a dual capacity as selling agent and buyer. 

Shortly after the offer was accepted, Mrs. DuBray rescinded 

the contract, based upon an incorrect description which she 

had inserted in the agreement. Now, after successfully 

defending Mrs. Wyman's lawsuit, Mrs. DuBray would have this 

Court construe the language of the contract to Mrs. Wyman's 

detriment. We conclude that to do so under these facts would 

be inequitable. Given the facts of this case and the uncertain language of the contract, which we construe against the 

drafter, Mrs. DuBray, we affirm the holding of the District 

Court as to attorney fees. 

Does substantial evidence exist to support the jury's 

finding that the DuBrays did not breach the contract with 

Mrs. Wyman? 

Section 28-2-1711, MCA, allows rescission if consent was 

given by mistake. Mrs. Wyman concedes that the incorrect 

legal description constituted mutual mistake. In Woodahl v. 

Matthews (1982), 196 Mont. 445, 452, 639 P.2d 1165, 1169, 

this Court held, 

In order for a mutual mistake by the parties to a 

contract to warrant rescission of the contract, the 

mistake must be 'so substantial and fundamental as 

to defeat the object of the parties in making the 

contract.' Johnson v. Meiers (1946), 118 Mont. 

258, 164 P.2d 1012. 
Mrs. Wyman's argument is that the mistake in this case is 

"paper only" and not substantial and fundamental to the 

DuBrays' object of buying a home for personal use. She 

claims the DuBrays were buying what they saw when they viewed 

the physical property. DuBrays counter by saying they relied 

upon certain plat descriptions of the property, not only 

their physical inspection. Mrs. Wyman believes that due to 

financial concerns, the DuBrays were relieved to have an 

excuse to back out of the transaction. 

When, on appeal, a jury verdict is questioned we must 

determine whether substantial credible evidence exists to 

support that verdict. Clark v. Norris (Mont. 1987), 734 P.2d 

182, 184, 44 St.Rep. 444, 445. As stated in Kleinsasser v. 

Superior Derrick Service, Inc. (Mont. 1985), 708 P.2d 568, 

570, 42 St.Rep. 1662, 1664, "[ilt is not our function to 

agree or disagree with the jury verdict in reviewing, but 

rather to search for sufficient evidence on the record." We 

will view the evidence in the light most favorable to the 

party prevailing at trial and, "if the evidence conflicts, 

the credibility and weight given to the evidence is the 

province of the jury and not this Court." Clark, 734 P.2d at 

185 (quoting Mountain West Farm Bureau Mutual Ins. v. Girton 

(Mont. 1985), 697 P.2d 1362, 1363, 42 St.Rep. 500, 501). 

We will not retry the case simply because the jury 

believed the DuBrays' evidence over Mrs. Wyman's. We conclude that substantial credible evidence exists in the record 

to support the jury's determination. 

Mrs. Wyman next urges that S 28-2-1715, MCA, must be 

considered. That statute provides as follows: 

Rescission cannot be adjudged for mere mistake 

unless the party against whom it is adjudged can be 
restored to substantially the same position as if 

the contract had not been made. 

The jury was not instructed in terms of this statute and the 

issue was not presented to the District Court. Further, Mrs. 

Wyman does not contend that the jury was improperly instructed. We will not address on appeal an issue not presented to 

the district court. Carl Weissman & Sons, Inc. v. Paulson 

(Mont. 1987), 739 P.2d 494, 495, 44 St.Rep. 1232, 1234. 

I11 

Does substantial evidence exist to support the jury's 

finding that the listing agent and Floberg Realtors were not 

negligent? 

Mrs. Wyman questions the sufficiency of the evidence 

supporting the jury's finding that Mr. Bennett and Floberg 

were not negligent. She cites trial testimony to the effect 

that a reasonably prudent listing agent or broker would go to 

the courthouse and personally check the legal description of 

property to be listed with the MLS. The defendants cite 

substantial testimony that Mr. Bennett's actions were reasonable under the circumstances. The jury is free to accept 

testimony of one side to the exclusion of the other and may 

reject testimony, even that of experts. Kleinsasser, 708 

P.2d at 570. We hold that substantial credible evidence 

exists in the record to support the jury's finding that Mr. 

Bennett and Floberg were not negligent. 

Mrs. Wyman strenuously argues that the jury's finding 

that Mr. Bennett's conduct was not negligent directly contradicts the finding that the DuBrays were justified in rescinding the buy-sell due to mutual mistake. We hold that these 

findings are not mutually exclusive. The issues involved 

separate inquires into the conduct of each of the defendants. 
As a matter of law, mutual mistake does not have to be the 

result of the negligent act of a third person. 

Affirmed . 

/" - 

Chief Justice 

We Concur: 

/Cf& A 

District ~udqb/Bed Mizner 

sitting for l&tice L.C. 

Gulbrandson