No. 12532 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

DUNJO LAND COMPANY, a copartnership, composed of JOANNE K. HARGRAVES and DUNGAN H. McCAULEY,Plaintiff and Respondent,

HESTED STORES COMPANY OF WYOMING AND J

# .J

# .NEWBERRY COMPANY, Defendants and Appellants.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellants: Jones, Olsen & Christiansen, Billings, Montana Robert L. Zimmerman argued, Billings, Montana For Respondent: Hibbs

## , Sweeney and Colberg

## ,Billings, Montana Hugh Sweeney argued, Billings, Montana

Submitted: September 14, 1973 Decided:

## act3

## 1I973 Filed:

# acr3

## 11973Mr. JusticeWesley Castles delivered the Opinion of the Court.

Defendants appeal from the granting of summary judgment for plaintiff inan action fordamages founded on theprovisions of a lease. From admissions contained inthe pleadings and an agreed statement of facts, the districtcourt of the thirteenthjudicial district, Yellowstone County, found these facts: That on September 11, 1959, defendant Hested Stores Company, the predecessor ininterest todefendant J. J. Newberry Co., entered intoa lease with plaintiff Dunjo Land Company's predecessor ininterest, Laurel SecurityCompany. The lease termcommenced on October 1, 1959. The lease provided inpart: "The removal of thewalls between the Bateman Laurel SecurityCompany building shallbe at the lessee's expense. In the event the lessor hereinrequires thereplacing of thewallat the expiration of the lease or any extension thereof, the lessee agrees toreplace said wallatlessee's expense." By its terms the leaseexpired on February 28, 1969. On October 28, 1969, plaintiff lessor requested that defendant lessee replace thewall. Defendant refused toreplace thewall

on the grounds the request for replacement was not timely made. The districtcourt concluded from these facts that the request

was timely made and granted summary judgment forplaintiff. The sole issueon appeal iswhether thedistrictcourt

was correct inconcluding that notice was timely given of the lessor's request for replacement of thewall. Defendant lessee's position is essentially that the term of the leasewhich required replacement of thewall "atthe expirationof the lease" required pla,intiff lessor tomake demand for replacement of the wall on theday the lease expired. Plaintiff contends there is nothing inthe leaserequiring therequest be made on the day the lease expired and its request, made within a reasonable time after the expiration of the lease,

was timely. Defendant's contention that the.leaseterm which required replacement of the wall on request at the expiration of the lease required delivery of the request on the day that lease expired is untenable. This Court cannot rewrite the contract entered into by the parties. In Guidici & Meine v. Minerals Eng. Co., 136 Mont. 389, 403, 348 P.2d 354, this Court said:

" 

## * * * a new contractmay not be made for the parties, nor other language read into or eliminated from the lawful terms thereof 

## * * 

## *." To accept defendant's contention as to this point would require the addition of a term to the contract specifying the time for the delivery of the request to replace the wall. This we do not do. By statute,when no time is specified for the doing of an act, a rea.sonabletime must be allowed. Section 13-723,R.C.M. provides in pertinent part: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed." Here, since the parties did not specify the time for delivery of the request to replace the wall, plaintiff is entitled to have its request for replacement honored if itwas made within

a reasonable time. Guidelines for the determination of what constitutes a reasonable time in any given situation have been long established. This Court in Henderson v. Daniels, 62Mont. 363, 373, 374, 205 P. 964, said: "'Reasonable time' is defined to be somuch time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done

## * * *".See also State ex rel. Malott 

### v. Board of Commissioners, 89 Mont. 37, 296 

### P. 1. The question of whether a given length of time is reasonable can be either a question of fact or a question of law. When the surrounding circumstances are clearly established or undisputed the question is solely one of law for resolutionby the court. Henderson, supra. On the other hand, when the surrounding circumstances are in dispute the question is at least partially one of fact and requires resolutionby the trier of fact. In the instant case the district court 

### by granting summary judgment treated the question of reasonable time as a question of law to be resolved solely on admissions contained in the pleadings and an agreed statement of facts. Such treatment would have been proper but for the fact that certAin of the surrounding circumstances were still in dispute. These were related to the lapse of time and as such, were material to a determination of whether or not the lapsed time was "necessary, under the circumstances, to do conveniently what the contract

## * * * requires should be done". Among the unresolved questions of fact in the surrounding circumstances are: defendant's contention contained in the pretrial order that the building was vacant for one and a half years prior to the expiration of the lease; defendant's allegation of damage resulting from the delay in delivering notice; and,plaintiff's claim that the delay was occasioned by efforts to rerent the premises to a tenant who would not require replacement of the wall. Under the facts here, eight months, unexplained by surrounding circumstances,does not appear to be a reasonable time. Accordingly, since there was dispute with regard to the surrounding circumstances,the question of reasonable time was at least partially 

### a question of fact which could only be resolvedby resolution of disputed facts. Summary judgment is not a proper tool to resolve disputed questions of fact. This Court has indicated repeatedly and most recently inMustang Beverage Co., Inc. v. Jos. Schlitz Brewing Co. Mont

# . , 511 P.2d 1, 30 St.Rep. 565, 567, summary judgment should be granted only when there is no genuine issue of material fact. Since there were genuine issues of material fact here, it follows that summary judgmentwas improper. We reverse the decision of the district court granting plaintiff's motion for summary judgment and remand the cause for further proceedings not inconsistent with this opinion.