No* 12220 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

KENNETH A. GROPP and BETTY L. GROPP , husband and wife, 

Plaintiffs and Appellants, 

-vs - 

KENNETH R. LOTTON et al., 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable R. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants : 

Smith, Emmons and Baillie, Great Falls, Montana. 

Marvin J. Smith argued, Great Falls, Montana. 

For Respondents: 

Graybill, Graybill, Ostrem and Warner, Great Falls, 

Montana. 

Harrison, Loendorf and Poston, Helena, Montana. 

Jerome T. Loendorf argued, Helena, Montana. 

Submitted: September 25, 1972 

Decided : #OV~ ,- 

Filed: NQV 1 I:! i 
Mr, Justice John Gonway Harrison delivered the Opinion of the 

Court, 

Plaintiffs Kenneth A. Gropp and Betty L. Gropp, husband 

and wife, brought this action in the district court of the 

twelfth judicial district, county of Hill, to quiet title to 

certain ranch property leased with an option to buy to defendants, Kenneth R; Lotton and Mary K. Lotton, husband and wife. 

Defendants counterclaimed for specific performance or the repayment of money paid by them to plaintiffs. The cause was 

tried before Hon. B. W. Thomas, sitting without a jury, Findings 

of fact, conclusions of law and judgment were entered for defendants. Exceptions were filed by plaintiffs and denied by 

the trial court, Plaintiffs now appeal from the judgment. 

On September 25, 1965, plaintiffs, as vendors, agreed to 

sell and defendants, as vendees, agreed to purchase certain 

ranch properties located in Chouteau and Hill counties. The 

contract provided for an escrow of deed, merchantable title, 

a schedule of payments, default provisions and a provision 

to protect plaintiffs in the event of a crop failure. In 

addition, the contract provided that plaintiffs would lease to 

defendants for five years, under specified terms and conditions, 

certain acreage in Hill County with an optian to purchase some 

of the leased lands, 

On October 1, 1965, pursuant to the contract for deed, the 

parties entered into a farm lease which incorporated the terms 

of the contract, The lease ran from October 1, 1965 to October 

1, 1970. Tract I of the leased lands was made subject to the 

option to purchase, the terms of which were: 

"The right to purchase shall be at a price of 

Eighty Thousand Dollars ($80,000.00) with a required down payment of 29% and the balance, with 

interest at the rate of four percent (4%) per annum, 

to be amortized over a fifteen (15) year period. 

The Lessees shall be entitled to the credit of the 

excess of the rent payments made hereunder, including Federal Crop payments, over the real property 

taxes incurred on said Tract I during the term of 
this lease. This credit shall first be applied 

in payment for the existing summerfallow, hereby 

agreed to be 300 acres at a price of $10.00 per 

acre, and then the remaining credit shall be 

applied on the purchase price of $80,000.00 by 

reducing the necessary down payment such amount, 

"IT IS FURTHER AGREED AND UNDERSTOOD that the two 

steel graneries of 2250 bushel capacity and the 

wooden granery approximately 16' x 20' in size will 

be included with the real property in Tract I in 

the event of the exercise of the option by the Lessees. 

"IT IS FURTHER UNDERSTOOD AND AGREED that the Lessees 

may exercise the option to purchase Tract I by giving 

the Lessors notice of their intention to exercise the 

option in writing at least thirty (30) days prior to 

the expiration of the term of this lease. It is 

further agreed and understood that the aforesaid 

option does not apply to Tract I1 hereinbefore described. " 

At trial, defendants testified that without the land covered 

by the option, Tract I, the ranch unit of some 480 acres is an 

uneconomic unit and they would not have purchased the ranch unit 

without the option to purchase Tract I. 

After some two years of operation on the ranch, certain 

differences arose between the parties and legal counsel was 

obtained to iron out the difficulties. On March 29, 1969, an 

agreement was signed by the parties, settling their differences 

and reaffirming the original lease and option agreement. By 

this release agreement the parties agreed on the amount and 

value of the 1966 and 1967 crop shares received by plaintiffs 

and provided for the payment by defendants of $3,829 to plaintiffs. 

It further provided that this sum would be applied to the 29% 

down payment, in the event defendants exercised the option to 

purchase Tract I. 

In November 1969, defendants directed their counsel to 

prepare a written notice of their intention to exercise the 

option to purchase Tract I. Both defendants signed the notice, 

had it acknowledged, and returned it totheir counsel in Great 

Falls. We note here that one copy of the signed notice was 

recorded in Hill County with the farm lease on November 13, 1969, 

by defendant Kenneth Lotton. The other copy was forward to his 

attorney in Great Falls. 
. . . . -. 

Defendants' counsel testified he received the signed notice 

of intention to exercise the option to purchase from the defendants 

and that on November 19, 1969, he forwarded it, along with a 

cover letter, to the plaintiffs at their address in Lusk, Wyoming. 

Both he and his secretary testified that to the best of their 

knowledge the letter and notice were processed on that date and 

mailed, but neither recollected why it was sent by ordinary mail. 

Plaintiff, Kenneth Gropp, denied ever receiving the notice 

of intention to exercise the option and testified that the first 

time he knew of this notice was on October 5, 1970, when he 

went to the ranch to see what the defendants intended to do 

about Tract I. At that time, he was informed by defendant Kenneth 

Lotton that the option had been exercised nearly a year before 

and that a copy of the notice had been filed at the Hill County 

courthouse, 

We note here that although the parties involved had signed 

a release agreement in 1969, to settle their differences up to 

that point, bad feeling continued and although they had seen 

each other several times between 1969 and 1970, no communications, 

verbal or otherwise, took place directly between the parties. 

over a month after the expiration date of the option, 

It was on October 5, 1970, /that plaintiff Gropp went to the 

ranch to find out why defendant was not off of Tract I. There 

is a conflict in the evidence as to what happened on that date, 

October 5, 1970. Defendant Lotton testified he informed Gropp 

that he had exercised the option and had filed the notice at the 

Hill County courthouse, That plaintiff Gropp then left the 

ranch, saying that he would contact defendants' counsel and later 

be in touch with defendants. Plaintiff Gropp denied that this 

happened. He testified he went to the courthouse to verify that 

the notice had been filed; then sought counsel and filed a quiet 

title action on October 7, 1970. 

Following their settlement of differences in March 1969, 

defendants made no tender on the balance remaining on the down 

payment and pointed out that no determination of that balance 
-. 

could be made until the end of the 1970 harvest. Further, that 

in order to compute the remaining balance due on the down payment 

it was necessary for defendants to have the figures for the cash 

price received by the plaintiffs on their share of the 1969 and 

1970 crops. Figures for previous years had been furnished to them 

by plaintiffs, and although they had made an effort to get those 

figures from the elevators where the shares were stored, they 

had been unable to get such cash figures. Plaintiffs admitted 

they did not give this information to defendants for the 1969 and 

1970 crops, saying that the defendants did not ask for them. 

The trial court found defendants owed plaintiffs the sum 

of $7,023.15 on the down payment. It further found that at the 

time the contract and lease were entered into it was the intent 

of the parties, if the option was exercised, that a contract for 

deed would be negotiated and entered into by the parties incorporating the purchase terms set forth in the option and other 

terms similar to those included in the contract for deed dated 

September 25, 1965. 

While plaintiffs set forth some fifteen issues for review 

upon appeal, we find those issues can be combined into four 

controlling issues. 

1. Whether the contract resulting from acceptance of the 

option offer in question is sufficiently definite and certain 

as to be subject to specific performance. 

2. Whether the provision of the option offer with respect 

to notice of intent to exercise the option was sufficiently 

complied with. 

3. Whether delay in tender of the balance due on the down 

payment for the option was excused and waived by the impossibility 

of its computation and the conduct of plaintiffs. 

4. Whether the court erred in striking testimony relative 

to a polygraph examination of plaintiff Kenneth Gropp. 

Issue 1 questions whether the contract resulting from 

acceptance of the option offer in question is sufficientl-y definite and certain as to be subject to specific perfor;l+:~:s,c-e. 
-. -0 

- - 

As a preface to our discussion, we note some fundamental 

rules regarding contracts. If the language of the contract 

is such that the intent of the parties is clearly and unequivocally expressed, it must be applied according to the terms 

of the contract. Conversely, if there is a basis in its language 

upon which the parties reasonably could have had a misunderstanding with respect to its intent, then evidence can be received 

and considered to ascertain the meaning of the language used. 

Warner v. Johns, 122 Mont, 283, 201 P.2d 986. The court in 

making a determination of intent is not bound by any single 

provision or expression, but looks to the whole contract and 

its purpose. McNussen v. Graybeal, 146 Mont, 173, 405 P.2d 447; 

Dooling v. Bright-Holland Co., 152 Mont. 267, 448 P.2d 749; 

Williams v. Ins. Co. of North America, 150 Mont. 292, 434 P,2d 

395. 

Plaintiffs argue that the option contract is an agreement 

to agree and therefore void. With this contention we find no 

merit. The real question is whether or not the acceptance of the 

option offer by defendants resulted in an agreement sufficiently 

definite and certain to create a binding contract. 

Here, the parties negotiated a contract for deed for the 

purchase of certain ranch property setting forth therein the 

extension of a lease and option to purchase additional land and 

terms applicable, if the option was exercised. The lease, which 

was executed within a week of the date of the contract for deed, 

contained the option to purchase as set forth in the contract, 

therefore the two instruments should be construed together. / -- t- / 

Hodgkiss v. Northland Petroleum Consol., 104 Mont. 328, 349, 

P,2d 811; United States Nat. Bank of Red Lodge v. Chappell, 71 

Mont. 553, 230 P. 1084. 

Testimony indicated the parties at the time of the making 

of the option agreement contemplated a contract similar to "farm 

contracts" in use for the sale of farm land in the area and on 

like terms as the initial contract for deed. Here, the contract 
- L -. 

- - 

for deed sets forth the consideration upon which plaintiffs 

extended the lease-option. Defendants considered the base unit 

of 480 acres uneconomic and would not have purchased it without 

the option for Tract I. Terms of the option agreement provided 

for a fifteen year term following the five year lease term, 

which coincided with the contract for deed, with the same interest 

rate and the same final payment year. It can be fairly implied, 

as the trial court did, from the language of the two agreements, 

that the parties considered the properties to be purchased in 

one concurrent harmonious transaction, 

This Court in Steen v. Rustad, 132 Mont, 96, 106, 313 P.2d 

1014, held: 

"It is equally well-settled that absolute certainty 

and completeness in every detail is not a prerequisite 

of specific performance, only reasonable certainty and 

completeness being required. Those matters which are 

merely subsidiary, collateral, or which go to the 

performance of the contract are not essential, and 

therefore need not be expressed in the informal agreemen t . I I 

Issue No. 2 questions whether or not the provision of the 

option offer with respect to notice of intent to exercise the 

option was sufficiently complied with. Plaintiffs contend that 

since neither defendants' counsel nor his secretary could specificially remember mailing the letter and notice, and because 

it was not sent by either registered or certified mail, there 

was insufficient evidence before the court to sustain a finding 

that the letter and notice was mailed. We cannot agree with this 

contention. 

The question of what is a proper mailing has been before the 

Court on several occasions, the latest being Crissey v. State 

Highway Comrn'n, 147 Mont. 374, 413 P,2d 308. There, as here, 

testimony was introduced by the writer of the letter that he 

had signed the letter and placed it in the outgoing mail basket, 

Here, we have the additional testimony of the secretary, who 

typed and addressed the letter, and who testified that to the 

best of her knowledge the letter was mailed along with other 
-. 

office mail at the end of the business day. The trial court 

found the presumption of receipt was applicable, though plaintiffs 

denied receipt. The trial court either believed plaintiffs were 

mistaken; that they had forgotten, or they were not telling the 

truth; and relied upon the circumstantial evidence in making its 

decision. The trial court is the trier of the facts. 

Here, the trial court's conclusion that the option was 

exercised is supported not only by the finding that the notice 

was mailed to plaintiffs, but also by additional evidence that 

plaintiffs may have had actual notice of defendants' intent. 

Plaintiffsdid get actual notice when they visited defendants at 

the ranch, shortly following the termination date of September 

1, 1970. Here, no hardship resulted, such as the intervention 

of a third party; defendants stand willing and ready to perform; 

and the question of the receipt of the mailed letter should not 

cause a forfeiture of the option to purchase where no hardship 

resulted. 72 ALR2d 1122; Pomeroy's Specific Peformance of 

Contracts, 3rd Ed., 5 371, p. 793. 

Issue 3 questions whether the delay in tender of the balance 

due on the downpayment for the option was excused and waived 

by the impossibility of its computation by conduct of the plaintiffs. The trial court found so, and we agree. Plaintiffs argue 

that the tender of the balance due was of the essence to the 

contract, A careful study of the evidence reveals that prior 

to 1969, plaintiffs gave defendants the necessary figures to 

compile the amounts due yearly. Thereafter, due to a breakdown 

in communications between the parties, for which plaintiffs are 

at least equally responsible, these figures were not furnished. 

As to 1970, final computation could not be made until the 1970 

crop was sold, Plaintiffs requested the amount be figured on 

October 5, 1970, Considering the terms of the contract, plus 

plaintiffs' lack of diligence in giving the defendants the 

necessary figures, the month intervening between the date when 

defendants were either to have exercised the option or be off 
- ?. 

L. the property, and the date of October 5, 1970, we cannot find 

that an unreasonable time for tender had passed. 

Plaintiffs' fourth and final issue concerns whether or not 

the court erred in striking testimony relative to a polygraph 

examination of the plaintiff Kenneth Gropp. In a sense, this 

issue is connected to issue 2, whether or not there was a mailing 

to plaintiffs of the notice of intent to exercise the option. 

Plaintiff Kenneth Gropp, in order to prove he did not 

receive the letter containing the notice of intent to exercise 

the option to purchase, submitted himself to a polygraph test. 

The results of this test were submitted to the court to assist 

it in determining whether or not plaintiffs received the letter, 

but were excluded by the trial court. Plaintiffs assert that 

the test was given by a competent polygraph operator; that 

Kenneth Gropp was a fit person for the test; that the test is 

from 75% to 80% accurate on a nationwide basis; and, that electroencephalograms, electrocardiograms and other electrical recordings 

for medical diagnosis are admissible. Anno, 66 ALR2d 536, For 

these reasons, plaintiffs contend such offered evidence should 

have been received, 

We do not agree, Few jurisdictions allow the polygraph 

tests in criminal actions. State v, Hollywood, 138 Mont. 561, 

358 P.2d 437; State v. Cor, 144 Mont, 323, 396 P.2d 86; State 

v. Freeland, 255 Iowa 1334, 125 N.W.2d 825; State v. Trimble, 

68 N. Mex. 406, 362 P.2d 788; State v. LaForest, 106 N,Hamp. 

159, 207 A.2d 429. An extensive research reveals fewer jurisdictions have considered such evidence in civil actions. Stone 

v, Earp, 331 Mich, 606, 50 N,W.2d 172; Rotheimer v. Rotheimer, 

34 Ill.App.2d 1, 180 N.E.2d 356; People v. Schneemilch, 65 111. 

App.2d 337, 213 N,E.2d 50; California Ins. Co. v, Allen, 235 F.2d 

178; Herman v. Eagle Star Ins. Co,, 283 Fed. Supp, 33. Here, 
after hearing the evidence offered by the polygraph expert at 

the trial, the court properly excluded his testimony. 

The judgment of the district court- , is affirmed. 

7L?Lf,?-&9.h As ociate Justice 

We Concur: 

fl n 

Mr, Chief Justice James T. Harrison took no part in the 

foregoing opinion,