No. 86-557 INTHE SUPREME COURT OF THE STATE OFMONTANA 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: DistrictCourtof theEighthJudicialDistrict, Inand for the Countyof Cascade, The HonorableJohn McCarvel, Judge presiding. COUNSEL OF RECORD: For Appellant: Hartelius & Ferguson; CameronFerguson, GreatFalls, Montana For Respondent: Sandra K. Watts, GreatFalls, Montana

Submittedon Briefs: Jan. 29, 1987 Decided: March 12, 1987 ~iled: 

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# %fl4 ClerkMr. 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. InAugust 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 closingdatewas listed as November 1,1985. Moon sold his Coloradohome for less than anticipated so he requested thatMr. Halcro reduce the purchase price on the 2312 Sixth Avenue property by $1000. The parties compromised, and a new buy-sell agreementwas 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 anotherhome. 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 aweek. Mr. Halcro determined the problem tobe 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 approximatelyNovember 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 floorwas inadequate. Water was also discovered in the crawl spacebeneath thehouse. 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 followingweek. 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 nowaterproblems in thehouse since that time. Halcros filed an action against Moon for specific performance of the buy-sell agreement. Moon's answer raised the defenseofbreach of contractby Halcros. The answerwas 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 judgmentwasproper? 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 thatHalcros 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 isentitled to judgmentas amatter 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 InsuranceCo.

(Mont. 1983), 663 P.2d 335, 40 St.Rep. 738. A review of the record in this case shows no genuine issue ofmaterial fact and supports the summary judgment in favor of Halcros. Each of the defenses raisedby 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),196Mont. 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 workmenwho worked on the house revealed that the sloped floorshad gone unnoticed for 10years. 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." 196Mont. 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 amobile home was proper due to a substantial failure of consideration. The mobile home's defects were numerous,

### most notably a furnace whichwas unusable and dangerous. We found that substantial and fundamental defects defeated the object of the contract whichwas toprovide the buyers a new mobile homewith 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 leakwas repaired,no structural damage was found,and there have not been anywater problems in thehouse since that time. Moonmoved his family fromColorado with the expectation ofmoving 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 toMr. Kroger. Thehousehas twobathroomsand Kroger's familywas not inconveniencedby the repairwork 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 arrivalbut Halcro's repair workwas inadequate. Still,Moon has presented no evidence that the breach was material. In Johnsonv. Meiers (1946)

## , 118 Mont. 258, 164 P.

### 2d 1012,this Court stated: A 

### breach which goes to only part of the consideration,is incidentaland subordinateto the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract; the iniured party isstill hound to perform his part of the agreement, and his only remedy for the breach consists of the damageshe has suffered therefrom. 118Mont. 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 iswhether the DistrictCourt 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 availableremedy. The buy-sell agreement signedby 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 

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