No. 80-415 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

LAURA MAY BRUNTON KARTES, 

Plaintiff and Respondent, 

VS . 

THEODORE C. KARTES, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin 

Honorable W. W. Lessley, Judge presiding 

Counsel of Record: 

For Appellant: 

Moses Law Firm, Billings, Montana 

Charles Moses argued, Billings, Montana 

For Respondent: 

Goetz and Madden, Bozeman, Montana 

James Goetz argued, Bozeman, Montana 

Submitted: September 22, 1981 

Decided : fiN 2 i 1981 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an action based on three alleged agreements, 

one written and two oral, between a husband and wife. The 

District Court found that the written agreement and a related oral agreement were enforceable against the husband by 

his wife; all claims relating to the third oral agreement 

were dismissed. Both parties appeal. 

Laura May Brunton married Theodore Kartes on January 

22, 1973. They entered into a prenuptial agreement which 

provided that the real and personal property of each would 

remain separate. 

In 1974 Theodore Kartes brought suit against his two 

sisters for title to 320 acres of land in Gallatin County, 

Montana. He had hired an attorney who estimated that his 

fees for the action would range from $5,000 to $7,500. 

Theodore and Laura Kartes discussed privately how 

they would finance the legal expenses. A handwr itten 

agreement was executed by them on September 18, 1974, in 

which Laura Kartes agreed to pay the legal fees of Theodore 

Kartes' quiet title action and in exchange Theodore Kartes 

would give to Laura Kartes 10% of his 320 acres or the value 

thereof. 

Theodore Kartes was successful in the quiet title 

action at the District Court level. Laura Kartes paid her 

husband's legal fees amounting to $8,627.86. 

Theodore Kartes' sisters appealed the decision. 

Laura Rartes claims that at this time, July 20, 1976, 

Theodore Kartes agreed to convey an additional 10% of the 

320 acres if she financed the appeal. Theodore Kar tes 

denies that he made this oral agreement. 
Theodore Kartes' quiet title action was successful on 

appeal and, again, Laura Kartes paid her husband's legal 

fees amounting to $7,049.79. 

Theodore Kartes has taken no action to convey to 

Laura Kartes any portion of the 320 acres or any value 

thereof. 

Laura Kartes claims that there was a third agreement 

between herself and her husband. She claims that in January 

1973, she agreed to advance funds to her husband for their 

living expenses and that he would repay her expenditures. 

She is claiming repayment of $143,457.53. Theodore Kartes 

denies making such an agreement to reimburse his wife for 

their joint living expenses. 

Theodore Kartes does admit that he entered into a 

limited agreement to repay his wife for money she advanced 

him for living and ranch expenses. He claims that the full 

amount of the money advanced by his wife is evidenced by 

three promissory notes amounting to approximately $4,800. 

Laura Kartes claims, however, that the chattel mortgage 

executed at the same time as the notes, indicates that her 

husband owed her a total of $20,123, and that the promissory 

notes were only a part of the obligation owed to her. 

At trial, Laura Kartes submitted voluminous 

accountings of her expenses since 1973, including all of her 

living expenses, some of her business expenses, and some 

expenses for the support of her son. She admitted at the 

trial that some of the calculations were in error and that 

some of the expenses should not have been included in the 

accountings. 

On April 10, 1980, a trial was held without a jury. 
The District Court held that the written agreement for 10% 

of Theodore Kartes' ranch and the oral agreement for an 

additional 10% were enforceable against Theodore Kartes. 

The District Court ordered that Theodore Kartes pay Laura 

Kartes 20% of the value of the ranch and that the value be 

determined at the time he elected to pay her and based upon 

20% of the value of the whole ranch. The District Court 

dismissed all of Laura Kartes' claims relating to the oral 

agreement for living expenses and found that the promissory 

notes from Theodore Kartes to Laura Kartes had been repaid 

in full. Both parties appeal. Under Rule 29(d), M.R.Civ.P., 

the parties agree that Laura Kartes is the appellant and 

Theodore Kartes is the respondent. 

We affirm the District Court's holding that Theodore 

Kartes owes Laura Kartes 20% of his land and affirm the 

dismissal of Laura Kartes' claim for living expenses. We 

reverse the District Court's interpretation of the 

enforceable contracts to the extent that Theodore Kartes 

must pay 20% of the value of his land as a whole. We 

recognize that Theordore Kartes has the option to transfer 

whichever acreage he chooses, or the value thereof 

determined at the time of transfer. 

Essentially three issues have been raised by the 

par ties: 

1. Whether the District Court erred in its 

interpretation of the written agreement? 

2. Whether there is substantial evidence to support 

the District Court's finding of an oral agreement for an 

additional 10% of Theodore Kartes' land; if so, is the 

agreement nevertheless barred by the statute of frauds? 
3. Whether the District Court erred by dismissing 

all of Laura Kartes' claims for living expenses? 

Respondent, Theodore Kartes, admits that under the 

written agreement he has an obligation to convey to 

appellant 10% of his ranch or the value thereof. He claims, 

however, that the District Court erred by ordering that he 

must convey 10% of the value of his land as a whole in an 

amount determined at the time he makes the transfer. 

Respondent contends that the second paragraph of the written 

agreement grants him the option to pay in money or land and 

grants him the sole discretion to choose which thirty-two 

acres to transfer. 

This contention of respondent is well-taken. The 

second paragraph of the written agreement provides: 

". . Description as to what metes and 

----- bounds to be established will be done by Ted 

- C. Kartes or money ------ to be Eaid -------------- in hand to 

Laura May Brunton by Mortgage to Federal Land 

Bank in the amount so stated above." (Emphasis supplied. ) 

The District Court itself observed at trial that 

respondent had the option to select thirty-two acres 

wherever he wanted. Appellant has admitted that there was 

no question about respondent's right to choose what land to 

convey. Nevertheless, the District Court awarded damages to 

appellant in an amount of 10% of the property taken as a 

whole. 

As this Court has held many times, where the language 

of a written contract is clear and unambiguous, there is 

nothing to construe; the duty of the court is simply to 

apply the language as written to the facts of the case. 

Danielson v. Danielson (1977), 172 Mont. 55, 560 P.2d 893, 

894, and cases cited therein. See section 1-4-101, MCA. 
Further, if an express contract has been entered lnto by the 

parties, the District Court cannot alter the terms of the 

express agreement. See McNulty v. Bewley Corporation 

(1979) - Mont . , 596 P.2d 474, 36 St.Rep. 1110, 

citing Keith v. Kottas (1946), 119 Mont. 98, 172 P.2d 306. 

Lastly, it is reversible error for the District Court to 

insert into a contract language not put there by the 

parties. Herrin v. Herrin (1979), Mont. , 595 P.2d 

1152, 36 St.Kep. 193. 

Here, the written agreement is clear that respondent 

has the option to choose which property to convey. The 

District Court may not disregard this explicit language of 

the contract by ordering respondent to convey 10% of the 

value of his land as a whole. 

Respondent also claims that the intention of the 

parties was that the land would be valued at the time of the 

execution of the agreement in 1974. Since no contract 

language addresses this question, it was the duty of the 

court to discern the intention of the parties from their 

testimony. The District Court chose to believe appellant 

that the parties intended to value the property at the time 

of respondent's performance. The credibility of the 

witnesses and the weight to be given their testimony are 

matters exclusively within the province of the District 

Court in a nonjury case. Harris v. Harris (1980), 

Mont . , 616 P.2d 1099, 1102, 37 St.Rep. 1696, 1699. 

We must therefore uphold the District Court's interpretation of the contract that the value of the land is to 

be determined at the time of respondent's performance. On 

tne grounds stated above, however, we must reverse the 
District Court's order to the extent it requires respondent 

to pay 10% of the value of the land taken as a whole, and we 

recognize respondent's right under the written agreement to 

transfer any thirty-two acres of his land or value thereof. 

In the second issue, respondent contends that there 

is not substantial evidence to support the District Court's 

finding of an oral agreement for an additional 10% of 

respondent's land. Even assuming that suck an agreement 

existed, respondent claims that it is barred by the statute 

of frauds and is against public policy. 

As mentioned earlier, the credibility of witnesses 

and weight of evidence are matters for determination by the 

District Court in a nonjury case. The rules governing 

claims of insufficient evidence are well-established. These 

rules were set down recently in Harris where we addressed a 

claim similar to that of respondent: 

"It is the petitioner's position that there 

is insufficient evidence to support a finding 

that an oral agreement existed between the 

parties. In the resolution of this issue, we 

are guided by a number of well-established 

principles adhered to by this Court. The 

credibility of witnesses and the weight to be 

given their testimony are matters which are 

exclusively the province of the District 

Court in a nonjury case. Corscadden v. 

Kenney (1977), 175 Mont. 98, 572 P.2d 1234. 

In examining the sufficiency of the evidence 

we review the same in a light most favorable 

to the prevailing party, and we further 

presume the findings of fact and conclusions 

of law of the District Court to be correct. 

Rock Springs Corp. v. Pierre (1980), - 

Mont . - , 615 P.2d 206, 37 St.Rep. 1378, 

1384. only if our review discloses a decided 

E- reEonderance - --- - --- of evidence contra9 --- to the 

findings and conclusions ..................... of the District 

Court, will --- we disturb the judgment of the 

District Court. Morqan and Oswood Const. Co. 

v. Big Sky of ~ontana (1976), 171 Mont. 268, 

275, 557 P.2d 1017, 1021." 616 P.2d at 1102. 

(Emphasis supplied.) 

'The record does not disclose a preponderance of the 
evidence contrary to the District Court's finding that the 

oral agreement for an additional 10% of respondent's land 

existed. The District Court's finding must therefore stand. 

Respondent contends also that even if one assumes 

that the parties made such an oral agreement, it is barred 

by the statute of frauds, as provided in section 28-2-903, 

MCA. He claims that it is an agreement which by its terms 

cannot be performed within one year (section 28-2-903(a), 

MCA), and is an agreement for the sale of real property 

(section 28-2-903(d), MCA). The District Court accepted 

appellant's position that the statute of frauds does not bar 

the oral agreement because appellant fully performed her 

part of the bargain. See section 30-11-111, MCA. 

Respondent testified that he believed the written 

agreement for 10% of his land was to cover the costs of 

appeal as well as costs at the District Court level. 

According to respondent, then, appellant's payment of the 

costs on appeal can be reasonably explained on these 

grounds as her performance of the written agreement. 

The District Court did not find that the written 

agreement covered legal costs for appeal. The record does 

not disclose any evidence other than respondent' s testimony 

to support his contention. Since the District Court is in 

the best position to view witness testimony and decide 

credibility, and since the record does not disclose a 

preponderance of the evidence contrary to its findings, 

respondent's contentions of error here lack merit. 

Since the District Court found that the oral 

agreement for an additional 10% of Theodore Kartes' land 

contained the same terms as the written agreement, and there 
is evidence to support this finding, Theodore Kartes must 

select another thirty-two acres to transfer to his wife or 

pay the equivalent value determined at the time of payment. 

In the last issue, appellant contends that the 

District Court erred by dismissing all of her claims for 

living expenses. 

The District Court found that the promissory notes 

given by respondent to appellant for his ranch and living 

expenses had been paid and that any expenses accruing prior 

to April 25, 1973, were barred by the five-year statute of 

limitations as provided in section 27-2-202(2), MCA. The 

District Court concluded as a matter of law that all of the 

evidence submitted by appellant under her claim for living 

expenses was "speculative, unclear, filled with errors in 

calculations [and] filled with many items admitted on 

cross-examination as being improperly included," and the 

evidence therefore should be disallowed in its entirety. 

Appellant cannot expect to, in essence, have all her 

accounts at the court and transfer the burden of proof to 

the respondent to prove what evidence is not entitled to be 

admitted. The general accepted procedure is for the moving 

party to lay a foundation for each acceptable account and 

then have the adverse party proceed with its challenge, if 

any. The District Court's disallowance of appellant's 

evidence for living expenses was proper. 

Appellant argues that because there was no 

substantial evidence challenging a majority of her living 

expenses, a simple challenge to some should not prevent 

recovery on the balance of proper evidence. Appellant has 

twisted the meaning of the substantial evidence rule. The 
rule means only that an appellate court will not disturb the 

trial court's conclusions if there is substantial evidence 

on the record to support its findings. See Barrett v. 

Ballard (1980), - Mont . , 622 P.2d 180, 185, 37 

St.Rep. 2038, 2042-2043. 

Therefore, tne judgment of the District Court is 

affirmed in the following matters: (I) respondent owes 

appellant 10% of his 320 acres under the written agreement 

between the parties; (2) respondent owes appellant an 

additional 10% of his 320 acres as provided in the oral 

agreement between them; and (3) appellant's claims for 

living expenses are dismissed. 

The judgment of the District Court is reversed 

wherein it requires respondent pay 20% of the value of his 

land as a whole. Respondent may choose which sixty-four 

acres to convey, or he may pay the value of those sixty-four 

acres as determined at the time of payment. 

- 

Justice 

We concur: 

, , 8' Ldl- ; Z-,&Idw 

i Justices