No* 12220 INTHE 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 etal., 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, Ostremand 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, 

### JusticeJohn Gonway Harrison delivered the Opinion of the Court,

Plaintiffs Kenneth A. 

### Gropp and Betty L. 

### Gropp, husband and wife, brought this action inthe district court of the twelfthjudicial district, county of Hill, 

### toquiet titleto certainranch property leased with an option tobuy to defendants, Kenneth 

### R; Lotton and Mary 

### K. Lotton, husband and wife. Defendants counterclaimed for specificperformance orthe repayment of money paid by them toplaintiffs. The cause was triedbefore Hon. B. W. 

### Thomas, sittingwithout a jury, Findings of fact, conclusions of law and judgment were entered for defendants. Exceptions were filedby plaintiffs and denied by the trialcourt, Plaintiffsnow appeal from thejudgment. On 

### September 25, 1965, plaintiffs,asvendors,agreed to sell 

### and defendants, asvendees, agreed topurchase certain ranch properties located inChouteau and Hill

### counties. The contract provided for an escrow of deed, merchantable title,

a schedule of payments, default provisions and a provision toprotect plaintiffs inthe event of 

### a crop failure. In addition, the contract provided that plaintiffs would lease to defendants for fiveyears, under specified terms and conditions, certain acreage inHill

### County with an optian topurchase some of the leased lands, On October 1, 1965, pursuant to the contract for deed, the parties entered intoa farm leasewhich incorporated the terms of the contract, The leaseran from October 

### 1, 1965 toOctober 1, 1970. Tract I 

### of the leased lands was made subject tothe option topurchase, the terms

### of which were: "The right topurchase shallbe ata price of Eighty Thousand Dollars ($80,000.00) with a re

### quired down payment of 29%and thebalance, with interest atthe rate of four percent 

### (4%)per annum, tobe amortized over a fifteen (15) year period. The Lessees shallbe entitled tothe credit of the excess of the rent payments made hereunder, including Federal Crop payments, over the realproperty taxes incurred on said Tract I 

### during the term ofthis lease. This credit shall firstbe applied inpayment for the existing summerfallow, hereby agreed tobe 300 acres at a price of $10.00 per acre, and then the remaining credit shallbe applied on the purchase price of $80,000.00 by reducing thenecessary down payment such amount, "IT IS FURTHER AGREED AND UNDERSTOOD that the two steelgraneries of 2250 bushel capacity and the wooden granery approximately 16' x 20' in size

### will be included with the realproperty inTract 

### 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 topurchase Tract I by giving the Lessors notice of their intention to exercise the option inwriting atleast 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 toTract 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 topurchase Tract 

### I. After some two years of operation on the ranch, certain differences arosebetween the parties and legal counsel was obtained toiron 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 thisrelease 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 toplaintiffs. 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. InNovember 1969, defendants directed their counsel to prepare a written notice of their intention toexercise the option topurchase Tract I. Both defendants signed the notice, had it acknowledged, and returned it totheir counsel inGreat Falls. We note here that one copy of the signed notice was recorded inHillCounty with the farm lease on November 13, 1969, by defendant Kenneth Lotton. The other copy was forward tohis attorney inGreat Falls.

# . . .. -. Defendants' counsel testified he received the signed notice

of intention to exercise the option topurchase from the defendants and that on November 19, 1969, he forwarded it, alongwith a

cover letter, tothe plaintiffs attheir address inLusk, 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 thisnotice was on October 

### 5, 1970, when he went to the ranch to seewhat the defendants intended todo about Tract I. At that time, he was informed by defendant Kenneth Lotton that the optionhad been exercised nearly a year before and that a copy of thenoticehad been filed atthe HillCounty 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 directlybetween the parties. over a month after the expiration date of the option, It was on October 

### 5, 1970,/that plaintiff Gropp went tothe ranch to find out why defendant was not off of Tract I. There 

### isa conflict inthe evidence as towhat happened on that date, October 

### 5, 1970. Defendant Lotton testified he informed Gropp thathe had exercised the option and had filed the notice atthe HillCounty 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 toverify that the notice had been filed; then sought counsel and fileda quiet titleaction on October 7, 1970. Following their settlement of differences inMarch 1969, defendants made no tender on thebalance remaining on the down payment and pointed out that no determination of thatbalance

## -.could be made until the end of the 1970 harvest. Further, that inorder to compute the remaining balance due on the down payment itwas necessary for defendants tohave 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 shareswere stored, they had been unable to get such cash figures. Plaintiffs admitted they didnot give this information todefendants for the 1969 and 1970 crops, saying that the defendants did not ask for them. The trialcourt found defendants owed plaintiffs the sum of $7,023.15 on the down payment. It further found that atthe time the contract and leasewere entered into itwas the intent of the parties, if the optionwas exercised, that a contract for deed would be negotiated and entered intoby the parties incorporating the purchase terms set forth inthe 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 inquestion 

### is sufficiently definite and certain

as tobe subject to specific performance. 2. Whether the provision of the option offer with respect tonotice of intent toexercise the option was sufficiently complied with. 3. Whether delay in tender of the balance due on the down payment for the optionwas excused and waived by the impossibility of its computation and the conduct of plaintiffs. 

### 4. Whether the court erred in strikingtestimony relative to a polygraph examination of plaintiff Kenneth Gropp. Issue 

### 1questionswhether the contract resulting from acceptance of the option offer inquestion 

### is sufficientl-ydefinite and certain as tobe subject to specificperfor;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 

### isclearly and unequivocally expressed, it must be applied according to the terms of the contract. Conversely, if there 

### isa 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 

### isnot bound by any single provision or expression, but looks to thewhole contract and 

### itspurpose. McNussen v. Graybeal, 146 Mont, 173, 405 P.2d 447; Dooling v. Bright-Holland Co., 152Mont. 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 thereforevoid. With this contentionwe find no merit. The real question 

### iswhether ornot the acceptance of the option offerby defendants resulted inan agreement sufficiently definite and certain tocreate 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 topurchase as set forth in the contract, therefore the two instruments should be construed together. / -- t- / Hodgkiss v. Northland Petroleum Consol., 104Mont. 328, 349, P,2d 811; United StatesNat. Bank of Red Lodge v. Chappell, 

### 71 Mont. 553, 230 P. 1084. Testimony indicated the parties atthe time of the making of the option agreement contemplated a contract similar to "farm contracts" inuse for the sale of farm land inthe area and on like terms as the initialcontract 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 480acresuneconomic and would not have purchased itwithout the option for Tract I. Terms of the option agreement provided for a fifteenyear term following the fiveyear lease term, which coincidedwith the contract for deed,with the same interest rate and the same finalpayment year. It canbe 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, 132Mont, 96, 106, 313 P.2d 1014,held: "It is equallywell-settled that absolute certainty and completeness in every detail is not a prerequisite of specific performance, only reasonablecertainty and completeness being required. Those matters which are merely subsidiary, collateral,or which go to the performance of the contract are not essential, and thereforeneed not be expressed in the informal agreement

# . I I 

### IssueNo. 2 questions whether or not the provision of the option offer with respect to notice of intent to exercise the optionwas sufficientlycompliedwith. Plaintiffs contend that sinceneither defendants' counsel norhis secretary could specificially remembermailing the letter and notice, and because itwas 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 Crisseyv. State Highway Comrn'n, 147 

### Mont. 374, 413 P,2d 

### 308. 

### There, as 

### here, testimonywas introduced by thewriter 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,andwho testified that to the best of her knowledge the letterwas mailed alongwith other

## -.officemail at the end of the business day. The trialcourt found the presumption of receipt was applicable, though plaintiffs denied receipt. The trialcourt eitherbelieved plaintiffs were mistaken; that they had forgotten, or they were not telling the truth; and relied upon the circumstantial evidence inmaking 

### its decision. The trialcourt 

### isthe 

### trier of the facts. Here, the trialcourt's conclusion that the optionwas exercised 

### is supported not only by the finding that the notice

was mailed toplaintiffs, but alsoby additional evidence that plaintiffs may have had actual notice of defendants' intent. Plaintiffsdid get actualnoticewhen they visited defendants at the ranch, shortly following the termination date of September 1, 1970. Here, no hardship resulted, such asthe intervention of a third party; defendants standwilling and ready toperform; 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 optionwas excused and waived by the impossibility of 

### its computation by conduct of the plaintiffs. The trialcourt 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 incommunications between the parties, for which plaintiffs are atleast equally responsible, these figureswere 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 ingiving the defendants the necessary figures, the month interveningbetween the date when defendants were either tohave exercised the option orbe 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 ornot the court erred in striking testimony relative to a polygraph examination of the plaintiff Kenneth Gropp. In a sense, this issue 

### isconnected to issue 

### 2, whether ornot therewas a mailing to plaintiffs of the notice of intent toexercise the option. Plaintiff Kenneth Gropp, in order toprove he did not receive the letter containing the notice of intent to exercise the option topurchase, submitted himself to a polygraph test. The results of this testwere submitted to the court to assist it indeterminingwhether ornot plaintiffs received the letter, but were excluded by the trialcourt. Plaintiffs assert that the testwas givenby a competent polygraph operator; that Kenneth Gropp was a fitperson for the test; 

### that the test 

### is from 75%to 80%accurate on a nationwide basis; and, that electroencephalograms, electrocardiograms and other electricalrecordings 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 incriminal actions. Statev, Hollywood, 138 Mont. 

### 561, 358 P.2d 437; Statev. Cor, 144 Mont, 323, 396 P.2d 86; State

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

### 68 

### N. Mex. 406, 362 P.2d 788; Statev. LaForest, 106 N,Hamp. 159, 207 A.2d 429. An extensive research reveals fewer jurisdictionshave considered such evidence incivilactions. Stone v, Earp, 331Mich, 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,afterhearing 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 ociateJustice

We Concur: 

# fl n

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