No. 89-496 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ALMEDA MOORE, ADELINE BOHLMAN, 

DARLENE KILBY and DELORES ROSE, 

Plaintiffs and Respondents, -. 

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-A 7 

V. -rl 

' -... 

AUGUST WESLEY ADOLPH and .-.. 

MRS. AUGUST WESLEY ADOLPH, .'- iJ 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ralph L. Herriott, Billings, Montana 

For Respondent: 

John L. Pratt, Ask & Pratt, Roundup, Montana 

Filed: 

Submitted on Briefs: March 8, 1990 

Decided: April 9, 1990 * 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The defendants appeal from an action in the Fourteenth 

Judicial District Court, Musselshell County, partitioning the 

parties' undivided interests in 173 acres of real property and 150 

acre feet of irrigation water. We affirm. 

In 1953 August Adolph and Arnold Johnson purchased a 173-acre 

tract of land on the Musselshell River. To irrigate the land, they 

contracted with the Deadman's Basin Water User's Association to 

provide 150 acre feet of water annually. Arnold Johnson eventually 

sold his undivided one-half interest in the real property to 

August's son and daughter-in-law, the current appellants Wesley and 

Lois Adolph. In 1965, Arnold executed a Request for Release and 

Transfer of Water Purchase Contract No. 176 to assign the water 

contract to Wesley and Lois. 

August, however, never signed the water contract release. The 

record indicates that Ronald Belcher, secretary of the Water User's 

Association, prepared the Request for Release and Transfer at 

Arnold Johnson's request. After Johnson signed the request, 

Belcher took the document to the home of August and his son Wesley. 

August was absent so Wesley signed for his father as he often had 

on business checks--"August Adolph by Wesley Adolph.I1 Although 

August never saw the release, Belcher testified that during a 

discussion of the transfer, August gave his oral consent. Belcher 

believed that Wesley was authorized to sign the release because 
August and Wesley had an oral agreement that Wesley would receive 

the water. The Water User's Association subsequently approved the 

transfer and provided Wesley with the 150 acre feet under Contract 

No. 176A. Wesley thereafter used the water and made all payments 

to the Association. 

August Adolph died in 1983. Under his will's residuary 

clause, his interest in the 173-acre tract passed in equal portions 

to his surviving heirs. The respondents each took an undivided ten 

percent. Wesley took ten percent from his father's estate in 

addition to the fifty percent purchased from Arnold Johnson. 

The respondents petitioned the District Court to partition the 

property, to invalidate the water contract transfer from August to 

Wesley, and to distribute August's interest in the water contract 

under the residuary clause. After a hearing on the issue, the 

District Court found that the transfer violated the statute of 

frauds and was, therefore, void. The court distributed August's 

one-half interest in the 150 acre feet of irrigation water under 

the residuary clause. The respondents each took a right to fifteen 

acre feet of water. Wesley took fifteen acre feet under the 

residuary clause and seventy-five acre feet under Arnold Johnson's 

release. Because the real property could not be partitioned 

without prejudice to the parties, the District Court ordered it 

sold and the proceeds distributed according to ownership interests. 

The appellants raise the single issue of whether the District 
Court erred in concluding that the assignment of August Adolph's 

one-half interest in the water contract to Wesley Adolph was void. 

They argue that Wesley acted as August's agent in executing the 

transfer and that August ratified the transfer. 

Ratification exists upon the concurrence of 

three elements: 

(1) acceptance by the principal of the benefits of the agent's acts, 

(2) with full knowledge of the facts and, 

(3) circumstances or an affirmative election 

indicating an intention to adopt the unauthorized arrangement. 

Safeco Ins. Co. v. Lovely Agency (1982), 200 Mont. 447, 453, 652 

P.2d 1160, 1163 (quoting 2A C.J.S., Agency 5 71). The appellants 

point to the testimony of Ronald Belcher as undisputed evidence 

that August knew about and fully approved the transfer. 

Whether August approved is not relevant in the absence of a 

writing. See Palin v. Gebert Logging, Inc. (1986), 220 Mont. 405, 

407-08, 716 P.2d 200, 202. Under Montana law, "an agreement that 

by its terms is not to be performed within a year from the making 

thereof1' is invalid unless it is written. Section 28-2-903 (1) (a), 

MCA. The present contracts cannot be performed within one year; 

they require yearly payments for thirty-two years. I' [A]n authority 

to enter into a contract required by law to be in writing can only 

be given by an instrument in writing." Section 28-10-203, MCA. 

Any authority August gave Wesley assigning the water contract was 
invalid because August did not give it in writing. Finally, the 

alleged ratification was not effective because it too was not in 

writing. ItA ratification can be made only in the manner that would 

have been necessary to confer an original authority . . . .I' 

Section 28-10-211, MCA. 

The statute of frauds1 writing requirement for contracts which 

cannot be performed within one year is intended to avoid disputes, 

such as this one, when the passage of time has made evidence 

unreliable and witnesses unavailable. E. Farnsworth, Contracts, 

5 6.4 at 391 (1982). Its requirements are mandatory. 

Affirmed. 

We concur: 

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