No. 86-557 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DOROTHY M. HALCRO and ROBERT M. 

HALCRO, husband and wife, 

Plaintiffs and Respondents, 

DONALD C. MOON aka DON C. MOON, JR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hartelius & Ferguson; Cameron Ferguson, Great Falls, 

Montana 

For Respondent: 

Sandra K. Watts, Great Falls, Montana 

Submitted on Briefs: Jan. 29, 1987 

Decided: March 12, 1987 

~iled: MAR 12 j387 

7% %fl4 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant Donald Moon appeals the summary judgment 

awarded in favor of plaintiffs by the Eighth Judicial 

District Court, County of Cascade. We affirm. 

This case involves breach of a buy-sell contract. 

Robert and Dorothy Halcro were the sellers and Donald Moon 

the buyer. In August of 1985, Halcros listed their home for 

sale. The house is located at 2312 Sixth Avenue South in 

Great Falls, Montana. On August 8, 1985, Halcros entered 

into a written agreement with Moon to sell their home for 

$57,000. The terms were $13,800 in cash as a down payment 

plus assumption of a $34,100 first mortgage and a $9,100 

second mortgage. The only condition precedent contained in 

the agreement was that Moon sell his home in Colorado. The 

closing date was listed as November 1, 1985. 

Moon sold his Colorado home for less than anticipated so 

he requested that Mr. Halcro reduce the purchase price on the 

2312 Sixth Avenue property by $1000. The parties 

compromised, and a new buy-sell agreement was signed October 

18, 1985, lowering the purchase price by $500. All other 

terms remained the same. The premises were vacant prior to 

the closing date as Halcros had purchased and moved into 

another home. 

On October 24, 1985, Mr. Halcro inspected the vacant 

premises and discovered water on the floor of the laundry 

room and the adjacent bathroom floor was raised. Halcro 

informed his real estate agent, Ginger Wheeler, of the 

problem. Ms. Wheeler informed Moon repairs would be 

conducted within a week. 

Mr. Halcro determined the problem to be leaky faucets in 

the utility room, so he replaced the washers and hired a 
contractor to repair the bathroom floor. The Moons arrived 

in Great Falls approximately November 7, 1985. Upon entering 

the home a musty smell was present. A large puddle was 

discovered in the utility room and the repair work on the 

bathroom floor was inadequate. Water was also discovered in 

the crawl space beneath the house. 

Mr. Halcro and Ms. Wheeler met with the Moons the 

following day. Mr. Halcro promised to warrant in writing 

that he would undertake further repair and cover all costs. 

The following day Mr. Moon informed Ms. Wheeler he and his 

wife had decided not to buy the house. Mr. Halcro rented 

the house to Steve Kroger the following week. 

Contract Flooring repaired the bathroom floor and 

discovered a pinhole leak in the waterline beneath the 

bathroom floor. Palagi Plumbing repaired the water line. 

The repairs took one week and Mr. Kroger stated in his 

affidavit that the repair work did not inconvenience his 

family. There have been no water problems in the house since 

that time. 

Halcros filed an action against Moon for specific 

performance of the buy-sell agreement. Moon's answer raised 

the defense of breach of contract by Halcros. The answer was 

amended to include mistake of fact and failure of 

consideration. Halcros filed a motion for summary judgment 

based upon the pleadings, admissions, and affidavits in the 

record. Following hearing, the District Court granted 

summary judgment in favor of Halcros and ordered Moon to 

perform the terms of the contract. Moon appeals and raises 

the following issues: 

1) Whether summary judgment was proper? 

2) Whether Moon was entitled to rescind the contract 

upon the grounds of mistake of fact and failure of 

consideration? 
3) Whether Moon was entitled to rescind the contract 

upon the ground that Halcros breached the contract? 

4) Whether the relief granted to Halcros was proper? 

Summary judgment is proper pursuant to Rule 56(c) 

Mont. R.Civ. P. where the record discloses no genuine issue of 

material fact and the moving party is entitled to judgment as 

a matter of law. All reasonable inferences that may be drawn 

from the offered proof are to be drawn in favor of the party 

opposing summary judgment. Abell v. Travelers Insurance Co. 

(Mont. 1983), 663 P.2d 335, 40 St.Rep. 738. A review of the 

record in this case shows no genuine issue of material fact 

and supports the summary judgment in favor of Halcros. 

Each of the defenses raised by Moon are dependent upon a 

showing that the water problems in the house were so 

substantial as to defeat the object of the contract. In 

Woodahl v. Matthews (1981), 196 Mont. 445, 639 P.2d 1165, the 

buyer sought to rescind a contract to buy the seller's home 

on grounds of breach of express warranty, mistake of fact, 

and failure of consideration. After signing an agreement to 

purchase the home, the buyer discovered the floors sloped at 

a rate of 5% inches every thirty feet. Testimony from the 

sellers and several workmen who worked on the house revealed 

that the sloped floors had gone unnoticed for 10 years. This 

Court held the buyers were not entitled to rescind the 

contract due to mistake of fact because the mistake was not 

"so substantial and fundamental as to defeat the object of 

the contract." 196 Mont. 452, 639 P.2d 1169. Additionally, 

we found no failure of consideration because the buyers 

received that for which they bargained. 

Compton v. Alcorn (1976), 171 Mont. 230, 557 P.2d 292, 

is a case in which this Court held rescission of a contract 

to buy a mobile home was proper due to a substantial failure 

of consideration. The mobile home's defects were numerous, 
most notably a furnace which was unusable and dangerous. We 

found that substantial and fundamental defects defeated the 

object of the contract which was to provide the buyers a new 

mobile home with readily available housing. 

In the present case, Moon has offered no evidence that 

the water problems were so substantial as to defeat the 

object of the contract. Moon claims he was entitled to 

rescission because he believed the house had substantial 

plumbing problems. However, the evidence reflects that this 

was not the case. A pinhole leak was repaired, no structural 

damage was found, and there have not been any water problems 

in the house since that time. 

Moon moved his family from Colorado with the expectation 

of moving into the house upon arrival. Unlike the situation 

in Compton, supra, there is no evidence that the house was 

not habitable. In fact, the house was rented the following 

week to Mr. Kroger. The house has two bathrooms and Kroger's 

family was not inconvenienced by the repair work which lasted 

one week. We find no evidence in the record that the water 

leak was so substantial as to defeat the object of the 

contract. 

Moon contends Halcros breached the contract by failing 

to have the water leak repaired by the time Moon's family 

arrived at the house. There is no dispute that Mr. Halcro 

promised to have the water leak fixed prior to the Moons 

arrival but Halcro's repair work was inadequate. Still, Moon 

has presented no evidence that the breach was material. In 

Johnson v. Meiers (1946) , 118 Mont. 258, 164 P. 2d 1012, this 

Court stated: 

A breach which goes to only part of the 

consideration, is incidental and subordinate to the 

main purpose of the contract, and may be 

compensated in damages does not warrant a 

rescission of the contract; the iniured party is 
still hound to perform his part of the agreement, 

and his only remedy for the breach consists of the 

damages he has suffered therefrom. 

118 Mont. 263, 164 P.2d 1014. 

This reasoning is applicable here. We find no material 

breach by Halcros entitling Moon to rescission. 

The final issue on appeal is whether the District Court 

properly granted specific performance in favor of Halcros. 

Section 27-1-411 (4), MCA, provides that specific performance 

may be compelled when the parties to a contract have 

expressly agreed in writing that specific performance shall 

be an available remedy. The buy-sell agreement signed by the 

parties expressly provided for a remedy of specific 

performance. Halcros had a right to pursue this remedy and 

were not required to re-list the house for sale. 

The District Court is affirmed. 

We concur: .4 

Justic P.k