No. 13180 

IN THE SUSREME COUKT OF THE STATE OF MONTANA 

1977 

ARTHUR H. SANT and EDNA SANT, 

Plaintiffs and Appellants, 

v. 

LAURA THELMA BARIL, As Administratrix 

of the Estate of A.R. SMITH, Deceased, 

Defendant and Respondent. 

And 

LAURA THELMA BARIL, As Administratrix 

of the Estate of A.R. Smith, Deceased, 

Plaintiff and Respondent, 

ROBERT SANT, 

Defendant and Appellant. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellants : 

Landoe, Gary and Planalp, Bozeman,Montana 

Robert Planalp argued, Bozeman, Montana 

For Respondent : 

Chester Lloyd Jones argued, Virginia City, Montana 

Douglas Smith argued, Sheridan, Montana. 

Filed: . I@ i gfi 

aamw 2 t"iGa".,L< -7" - 

Clerk. 

Submitted: March 9, 1977 

Decided : J -9 I977 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal arises out of two causes of action which were 

consolidated for trial by jury in the district court, Madison 

County. The first cause is a suit for damages under a land lease 

executed between lessors, A. R. Smith and Laura Smith, and lessee 

Arthur H. ' Sant. This suit was brought by Arthur H. Sant and 

Edna Sant (Sants), against the Administratrix of the Estate of 

A. R. Smith (Administratrix). Plaintiffs appeal from the district 

court granting defendant's motion to dismiss, after plaintiffs 

presented their case and rested. 

The second cause is a suit to recover on a promissory note 

held by the First National Bank of Twin Bridges, Twin Bridges, 

Montana, and executed by the Sants and their son, Robert Sant. 

The promissory note was assigned to the Administratrix and suit 

was brought by the Administratrix against Robert Sant. The district court treated this action as a counterclaim. Robert Sant 

appeals from the district court's order directing the jury to 

return a verdict for the Administratrix. 

In First National Bank v. Sant, 161 Mont. 376, 506 P.2d 835, 

this Court discussed some of the legal problems existing in the 

present action. As a means of introduction and clarification, we 

review our holding in that case. 

In First National Bank v. Sant, supra, the Sants appealed 

from a district court judgment granting foreclosure on their real 

and personal property. This judgment of foreclosure was rendered 

in favor of the First National Bank of Twin Bridges which sought 

to foreclose on a mortgage executed by Arthur H. Sant on July 9, 

1970, and held by the First National Bank of Twin Bridges. The 
mortgage instrument was entitled "(Plan of Paris Robert)". Paris 

Robert was the president of the First National Bank of Twin Bridges. 

The plan purported to relieve the Sants of ldAbility for certain 

creditor debts and balances due the bank on existing notes. This 

release was to be accomplished through the bank!s disbursement 

of funds made available to the Sants by virtue of their executing 

three promissory notes. The notes were in the amounts of $17,690.62; 

$2,788.05; and $12,968.74, and each bearing interest at the rate 

of ten percent per annum. Certain real and personal property of 

the Sants was listed as collateral for the mortgage and $50 was 

charged by the bank as an expense for organizing the credit plan 

and overseeing the payments. 

The plan was divisible into three parts with the promissory 

notes for $17,690.62 and $2,788.05 to mature February 5, 1971; 

while the note for $12,968.74 matured on April 1, 1971. At the 

time First National Bank v. Sant was heard none of the promissory 

had been paid by the obligors. The notes for $2,788.05 and $12,968.74 

were held by the bank and no actual disbursements were made to 

Continental Oil Co. via Russell Lepp, or to A. R. Smith, both 

listed as corresponding creditors to these notes. It is the 

$12,968.74 debt which confronts us in the instant case in the form 

of the July 9, 1970 promissory note and the assignment of that 

note. The plan indicates the $12,968.74 debt was a consolidation 

of debts owed by the Sants to A. R. Smith. Specifically, these 

debts are listed as an old promissory note of $8,240; $728.74 in 

interest on this old note; and $4,000 consideration for a 1970 

lease. These items are of importance later in this opinion. 
We held in First National Bank v. Sant that the bank was 

barred from foreclosing on the promissory notes in the amount 

of $2,788.05 and $12,968.74 and the Sants were entitled to a 

credit in the amount of $1,214.32 on the promissory note for 

$17,690.62. The basis for the $1,214.32 credit was the finding 

that while the bank had charged $50 as expense for setting up 

the plan and had charged ten percent interest on the promissory 

notes, Paris Robert, as agent for the bank, had secretly negotiated 

with the Sants' creditors for discounts or rebates as a collection 

fee. We found the bank's failure to disclose such negotiations 

a breach of a duty owed the principal by his agent and held the 

Sants entitled to the amount of the rebates, $1,214.32. 

The basis for denying the bank foreclosure on the $2,788.05 

and $12,968.74 promissory notes was the finding that the notes 

were not supported by legal consideration. For example, the 

$12,968.74 promissory note was purportedly executed to evidence 

debts owed by the Sants to A. R. Smith. However, the promissory 

note was drafted and held by the First National Bank of Twin 

Bridges and executed by the Sants and Robert Sant. Since there 

has never been a showing of any oral or express trust, partnership, 

agency, joint venture or other such relationship between A. R. 

Smith and the bank, the promissory note is void for the purpose of 

establishing the $12,968.74 debt between A. R. Smith and the Sants. 

The only evidence of any agency relationship is the penciled words 

"A.R.Smith Trust" which emboss the promissory note and were allegedly 

written by Paris Robert. In First National Bank v. Sant we set 

forth those policy reasons which directed why such evidence should 

not be equated with an express or oral agreement creating a partnership, agency, or trust relationship and, though we refrain from 

repeating those policy reasons here, we affirm thebask for that 

holding . 

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We note that First National Bank v. Sant never discussed 

the legal sufficiency of the debts embodied in the $12,968.74 

promissory note: 

"This holding does not affect any preexisting or 

present debt between Sant and Smith * * *." 

161 Mont. 387. 

That case held only that the $12,968.74 promissory note could 

not be sued upon because it was not supported by legal consideration. Such a holding is fatal to any attempt by the Administratrix 

here to collect on the same promissory note assigned by the bank, 

apparently without consideration. Any attempt by the Administratrix to recover a debt of $12,968.74 must be by an action independent of the promissory note and must be proven by evidence establishing anobligee/obligor relationship. A suit to recover on 

.the promissory note held by the bank and executed by the Sants 

and Robert Sant fails to establish such a debt. 

Therefore, we hold the district court erred when it directed 

the jury to return a verdict for the Administratrix on the 

counterlclaim to recover on the promissory note and that action 

is dismissed. 

The remaining issue is whether the district court erred 

when it granted the Administratrix' motion to dismiss after the 

Sants had presented their case and rested in the action for damages 

under the land lease. We initially recognize that counsel for 

the Administratrix incorrectly moved for dismissal in this jury 

trial and the district court inadvertently granted the motion. 

Rule 41(b), M.R.Civ.P., is controlling: 

"(b) INVOLUNTARY DISMISSAL--EFFECT THEREOF. For 

failure of the plaintiff to prosecute or to comply 

with these rules or, any order of court, a defendant 

may move for dismissal of an action or of any claim 

against him. After the plaintiff, in an action tried 

by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his 
right to offer evidence in the event the motion 

is not granted, may move for a dismissal on the 

ground that upon the facts and the law the 

plaintiff has shown no right to relief. The 

court as trier of the facts may then determine 

them and render judgment against the plaintiff 

or may decline to render any judgment until the 

close of all the evidence, If the court renders 

judgment on the merits against the plaintiff, the 

court shall make findings as provided in Rule 52(a). 

Unless the court in its order for dismissal otherwise 

specifies, a dismissal under this subdivision and any 

dismissal not provided for in this rule, other than 

a dismissal for lack of jurisdiction or failure to 

join a party under Rule 19, operates as an adjudication 

upon the merits." ' 

The Advisory Committee's note to the September 29, 1967 

Amendment to Rule 41(b), states: 

I I Source: F~~.R,,C~V.P. 41(b), as amended 1963 and 1966. 

"Explanation of change: Under the prior text of the 

second sentence of this subdivision [Rule 41(b) 1, 

the motion for dismissal at the close of the plaintiff's 

evidence may be made in a case tried to a jury as well 

as in a case tried without a jury. But when made in 

a jury-tried case, this motion overlaps the motion for 

a directed verdict under Rule 50(a), which is also 

available in the same situation, This overlap has caused 

confusion. Accordingly it is amended to provide that the 

motion for dismissal at the close of the plaintiff's evidence shall apply only to nonjury cases (including cases 

tried with an advisory jury). Hereafter the correct motion 

in jury-tried cases would be a motion for a directed verdict. 

This amendment .involves no change of substance. 

"The first sentence of Rule 41(b), providing for dismissal 

for failure to prosecute or to comply with the Rules or 

any order of court, and the general provisions of the last 

sentence remain applicable in jury as well as nonjury cases. 

"This amendment also changes the last sentence of this 

subdivision to accord with the amendment to Rule; 19,': . 

(Emphasis added.) 

A motion for directed verdict was not offered in the instant 

case. However, both parties recognize the error and counsel treat 

the motion for dismissal as a motion for directed verdict in their 

briefs. Thus, for purposes of this review we will likewise treat 

the motion for dismissal as a motion for directed verdict under 

Rule 50(a), M,R.Civ.P.; 9 Wright & Miller, Federal Practice and 
Procedure: Civil 5 2371; Warren v. Hudson Pulp & Paper Corp., 

477 F.2d 229,232; Haugen v. Minnesota Mining and Manufacturing 

Co., 15 Wash.App. 379, 550 P.2d 71. 

The basic rule governing our analysis of the granting of 

a motion for directed verdict is set out in section 93-5205, R.C.M. 

1947: 

"Where, upon the trial of an issue by a jury, the case 

presents only questions of law, the judge may direct 

the jury to render a verdict in favor of the party entitled thereto ." 

Case authority in Montana has established three basic rules which 

apply in interpreting section 93-5205. 

1. Upon a motion for directed verdict in favor of defendant, 

the evidence introduced by plaintiff will be considered in the 

light most favorable to plaintiff and as proving whatever it tends 

to prove. 

2. A cause should never be withdrawn from the jury unless 

the conclusion sought to be drawn from the facts must follow as 

a matter of law and recovery cannot be had upon any view which 

could be reasonably drawn from the facts which the evidence tends 

to prove, 

3, In reviewing an order directing a verdict for defendant, 

the reviewing court will only consider the evidence introduced 

by the plaintiff and if that evidence, viewed in the light most 

favorable to the plaintiff, tends to establish the case made by 

the plaintiff's pleadings the order will be reversed. 

See: Hannifin v. Retail Clerks, 162 Mont. 170, 511 P.2d 982; 

Mdler v.,Svejkovsky, 153 Mont. 416, 458 P.2d 265; Pickett v. 

Kyger, 151 Mont. 87, 439 P.2d 57; McIntosh v. Linder-Kind Lumber 

Co., 144 Mont, 1, 393 P,2d 782, 

The test commonly employed to determine if the evidence is 
legally sufficient to withdraw cases and issues from the jury 

is whether reasonable men could draw different conclusions from 

the evidence. Collins v. Itoh, 160 Mont. 461, 503 P.2d 36; 

Hoffman v. Herzog, 158 Mont. 296, 491 P.2d 713; Shields v. 

Murray, 156 Mont. 493, 481 P.2d 680; Bridges v. Moritz, 149 

Mont. 273, 425 P.2d 721. If only one conclusion is reasonably 

proper, then the directed verdict is proper. 

In the instant case the Sants presented evidence in the 

district court which tended to prove: (1) That a written lease 

for the years 1966 through 1968 was executed between the lessors, 

A. R. Smith and Laura Smith, and the lessee, Arthur H. Sant; 

(2) that the written lease was orally extended for a period of 

two years, through April 1971; (3) that the terms of the lease 

provided the lessee was entitled to the exclusive possession and 

control of the leased premises, including a house on the leased 

property; (4) that the Britton family was a tenant of the Sants, 

residing in the house on the leased property, and the Sants were 

legally within their rights in attempting to evict the Brittons; 

(5) that A. R. Smith and members of his family restrained the 

Sants from evicting the Brittons, and thus interfered with the 

 ants' exclusive possession of the premises; (6) that interference with the ants' exclusive possession of the premises was a 

violation of the lease provisions; (7) that as a result of the 

 ants' inability to evict the Brittons the Sants were unable to 

house employees who could work in the Sants' potato fields; (8) 

that as a result of the Sants' inability to house employees their 

unattended potato crop for the 1970 crop season was damaged by 

disease, substantially affecting the sale price of the crop; (9) 

that the Sants' incurred monetary damages resulting from the 
diseased c~~n~dition 3-f: Eheir potaco crop, the spread of the 

disease being proximately caused by A. R. Smith and members of 

his family by preventing the Sants from providing housing for 

2mployees. 

In establishing their case the Sants presented evidence 

in ihs 2orm of : (1) The written lease and option executed by 

che lessors and lessee; (2) the testimony of workers who testified they and their families were prepared to work for the Sants 

and aid in saving the Sants' diseased potato crop, but were compelled to find other employment when the Sants were unable to 

supply housing; (3) the testimony of horticulture experts who 

testified regarding the blackleg disease which infected the 

Sants' 1970 potato crop and the potential for recovering certification of the potato crop by manual roguing of the potato plants. 

The evidence, when viewed in the light most favorable to 

the Sants, could persuade reasonable men to conclude the damages 

incurred by the Sants was attributable to A. R. smith's alleged 

interference with the Sants' exclusive possession of the leased 

premises. The evidence clearly presents questions of fact as 

to the proximate cause of the damages incurred by the Sants in 

the 1970 crop season. In any event, the Administratrix was not 

entitled to judgment as a matter of law. 

Therefore, the district court ' s order and judgment granting 

the Administratrix' motion to dismiss is reversed and the cause 

is remanded for trial on the issues. We note the record fails 

to disclose any payment by the Sants on the purported oral lease 

for the 1970 crop season. Absent proof of payment, any potential 
recovery by the Sants for damages would be setoff agair~sc the 

lease consideration. 

The judgment of the district court is reversed and the cause 

is remanded, consistent with this opinion. 4 

4' 

Justice. 

We Concur: 

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