No. 12532 

IN THE 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 : act 3 1 I973 

Filed : acr 3 1 1973 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

Defendants appeal from the granting of summary judgment 

for plaintiff in an action for damages founded on the provisions 

of a lease. 

From admissions contained in the pleadings and an agreed 

statement of facts, the district court of the thirteenth judicial 

district, Yellowstone County, found these facts: That on September 11, 1959, defendant Hested Stores Company, the predecessor 

in interest to defendant J. J. Newberry Co., entered into a lease 

with plaintiff Dunjo Land Company's predecessor in interest, 

Laurel Security Company. The lease term commenced on October 

1, 1959. The lease provided in part: 

"The removal of the walls between the Bateman 

Laurel Security Company building shall be at 

the lessee's expense. In the event the lessor 

herein requires the replacing of the wall at 

the expiration of the lease or any extension 

thereof, the lessee agrees to replace said 

wall at lessee's expense." 

By its terms the lease expired on February 28, 1969. On 

October 28, 1969, plaintiff lessor requested that defendant 

lessee replace the wall. Defendant refused to replace the wall 

on the grounds the request for replacement was not timely made. 

The district court concluded from these facts that the request 

was timely made and granted summary judgment for plaintiff. 

The sole issue on appeal is whether the district court 

was correct in concluding that notice was timely given of the 

lessor's request for replacement of the wall. 

Defendant lessee's position is essentially that the term 

of the lease which required replacement of the wall "at the 

expiration of the lease" required pla,intiff lessor to make demand for replacement of the wall on the day the lease expired. 

Plaintiff contends there is nothing in the lease requiring the 
request 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.lease term 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 contract may 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.sonable time 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 it was 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, 62 Mont. 363, 373, 374, 205 

P. 964, said: 

"'Reasonable time' is defined to be so much 

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 resolution by 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 resolution by 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 resolved 
by 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 in Mustang 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 judgment was 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.