No. 89-03 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

CAROL C. DALLEY, 

Petitioner and Appellant, 

and 

MARK F. DALLEY, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

 avids son & Poppler; ori is M. Poppler, ~illings, Montana 

For Respondent : 

Cavan, Smith, Grubbs & Cavan; John J. Cavan, ~illings, 

Montana 

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i ,. Submitted on Briefs: March 31, 1989 

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(. I Decided: May 4, 1989 fl c-. 

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Clerk 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

Carol Dalley, petitioner, appeals from the denial of her 

motion to compel satisfaction of judgment by the District 

Court of the Thirteenth Judicial District, Yellowstone 

County. We affirm in part and reverse and remand for further 

proceedings. 

The following issues are raised on appeal: 

1. Whether the District Court erred in finding that 

respondent did not accept appellant's offer to satisfy the 

judgment by transferring stock instead of cash. 

2. Whether appellant's delivery of stock and cash to 

respondent tolls the interest on the judgment pending appeal. 

Parties' marriage was dissolved in April of 1987. On 

November 10, 1987, the trial court apportioned the marital 

estate between the parties and ordered appellant, Carol 

Dalley (wife), to pay respondent, Mark Dalley (husband), a 

sum of money necessary to pay husband 30% of certain assets 

within 30 days of judgment. The total amount to be paid to 

husband was $129,607.40. Wife appealed to this Court and 

husband cross-appealed under In Re Marriage of Dalley (Mont. 

1988), 756 P.2d 1131, 45 St.Rep. 1017. We affirmed the 

District Court's judgment and denied husband's petition for a 

rehearing on July 5, 1988. 

The following facts were derived from the record and the 

various affidavits of the parties. 

On July 25, 1988, wife's attorney sent husband's 

attorney a letter offering stock and a personal check to 

husband in satisfaction of the judgment. Husband's attorney 

was out of town when the letter was received by his firm. He 

returned on August 2, 1988. On that day, husband, with 
permission of his attorney, spoke with wife's attorney by 

telephone who asked him if he was aware of the July 25, 1988, 

letter. He said that he was and that the proposal appeared 

all right but that he wanted to consult his attorney before 

agreeing to the proposal. On August 3, 1988, the attorneys 

discussed the conversation wife's attorney had with husband. 

On the morning of August 4, 1988, wife signed over 1,668 

shares of Amoco stock, with a value of $124,266.00, and 

executed a personal check for the excess due in the amount of 

$5,341.40 to husband. Early that afternoon, wife's attorney 

called husband to confirm the stock substitution. Husband 

stated that he could not accept the stock offered in 

satisfaction of the judgment because of the tax consequences 

associated with it. wife's attorney then delivered the stock 

to husband's attorney's office late that afternoon despite 

her earlier conversation with husband. Husband's attorney 

was not present when delivery was made. 

After a discovery deposition was heid on August 10, 

1988, parties' attorneys discussed the substitution of stock 

in lieu of cash. Thereafter, husband's attorney consulted a 

tax attorney on the matter. On August 23, 1988, wife's 

attorney called husband's attorney and inquired into the 

status of the property settlement. Husband's attorney stated 

once again that because of the tax burden accompanying the 

stock, it would not be accepted in satisfaction of the 

judgment. Wife's attorney then filed a motion to compel 

satisfaction of the judgment. The motion was denied on 

October 26, 1988. 

The first issue raised on appeal is whether the ~istrict 

Court erred in finding that respondent did not accept 

appellant's offer to satisfy the judgment by transferring 

stock instead of cash. 
In the ~istrict Court decree of November 10, 1987, it 

ordered that wife pay: 

a -- sum of money necessary to pay to husband 30% of 

the value of [certain] assets . . . the sum of 

$129,607.40. Deeds, titles, checks and such other 

documents as may be necessary to accomplish this 

shall be executed and delivered within thirty days 

of this order. (Emphasis added.) 

Wife wished to substitute stock for the money judgment. The 

actual issue at bar is whether an oral contract existed 

between husband and wife which authorized the substitution. 

Under § 28-2-102, MCA, the essential elements of a contract 

are : 

(1) identifiable parties capable of contracting; 

(2) their consent; 

(3) a lawful objective; 

(4) sufficient cause or consideration. 

Here, only element two, consent, is contested. "There 

can be no binding contract without mutual consent of the 

parties. " christenson v. ~illings Livestock Com'm Co. 

(1982), 201 Mont. 207, 210, 653 P.2d 492, 494. Consent must 

be free, mutual and communicated. Interstate production 

Credit Ass'n v. Abbott (Mont. 1986), 726 P.2d 824, 826, 43 

St.Rep. 1829, 1832. Further, consent is established when 

there has been an offer and an acceptance of that offer. 

Modern Machinery v. Flathead County (1982), 202 Mont. 140, 

144, 656 P.2d 206, 209. 

In the instant case, the court ordered wife to pay the 

sum due, $129,607.40, in money. She offered, instead, to 

transfer to husband 1,668 shares of Arnoco stock valued at 

$74.5 per share, totaling $124,266.00, coupled with a 

$5,341.40 personal check to make up the excess due. On July 
25, 1988, wife's attorney sent husband's attorney the 

following letter: 

On behalf of Carol Dalley, we will deliver to you 

on August 5, 1988, 1,668 Amoco shares valued at 

74.5 per the valuation fixed in the decree. In 

addition we will submit a check for the difference 

in the amount of $5,341.40 payable to your firm and 

Mark Dalley. 

Wife argued that the letter effectuated a valid offer. 

Husband disagreed contending that the letter was not an offer 

but merely a notification of something wife intended to do in 

the future. We disagree. An offer is: 

The manifestation of willingness to enter into a 

bargain, so made as to justify another person in 

understanding that his assent to that bargain is 

invited and will conclude it. 

Restatement (Second) of Contracts, 5 24 (1979). 

wife's attorney's letter of July 25, 1988, clearly 

constitutes an offer. Wife communicated her proposal and 

husband understood it as evidenced by his statement on August 

2, 1988, that the offer appeared all right but that he needed 

to consult his attorney first. 

However, the offer must be accepted before a contract is 

formed. In ~uchinski v. Security Gen. Ins. Co. (19631, 141 

Mont. 515, 519, 380 P.2d 889, 891, we stated that in order to 

effectuate a contract, there must not only be a valid offer 

by one party but also an unconditional acceptance, according 

to its terms, by the other. -- See also, Beale v. ~ingquist 

(1932), 92 Mont. 480, 488, 15 P.2d 927, 930. 

Wife claims that husband telephoned wife's attorney on 

August 2, 1988, and unequivocally accepted the offer on the 

condition that the $5,341.40 check be paid to him alone and 

not his attorney. She states that this conditional 

acceptance was confirmed the next day with husband's 

attorney. Wife argues that she not only met the condition 
but then relied on it as an acceptance and transferred the 

stock certificates into husband's name the morning of August 

4, 1988. She further claims that it was not until August 23, 

1988, that husband rejected the stock and that the rejection 

came too late since the oral contract was formed on August 2, 

1988. 

Section 28-2-503(2), MCA, provides: 

A voluntary acceptance of the benefit of a 

transaction is equivalent to a consent to all the 

obligations arising from it, so far as the facts 

are known or ought to be known to the person 

accepting. (~mphasis added.) 

Here, husband asserts that his August 2, 1988, telephone 

conversation with wife's attorney was not an acceptance 

because he clearly stated that although the offer appeared 

all right, he would first have to consult with his attorney 

on the matter. Husband did so consult his attorney. At that 

point, it is clear that husband was merely considering the 

offer and made no acceptance. 

In Chadwick v. ~iberson (1980), 190 Mont. 88, 92, 618 

P.2d 1213, 1215, we held that, "It is a well-established rule 

that there must be mutual assent or a meeting of the minds on 

all essential elements or terms to form a binding contract." 

Here, husband did not intend to accept the offer on August 2, 

1988, because he conditioned the acceptance pending 

consultation with his attorney. Thus, the contract of August 

2, 1988 lacked mutual assent. 

Prior to delivery of the stock, husband was informed 

that although there would be no tax liability associated with 

the transfer of stock from wife to husband, there would be a 

serious tax liability should husband then sell the stock. The 

tax burden made the purported value of the stock much lower 

than he originally expected. On the morning of August 4, 

1988, wife's attorney telephoned husband and he told her that 
he absolutely could not accept the stock that was offered in 

satisfaction of the judgment because of the tax burden. 

Further, although wife's letter stated that the stock 

would be delivered on August 5, 1988, she delivered it in the 

late afternoon of August 4, 1988, despite her earlier 

conversation with husband. The stocks were received by a 

partner of husband's attorney as he was not in the office at 

that time. 

On August 10, 1988, husband's attorney participated in a 

discovery deposition at which wife's attorney was a witness. 

Afterwards, parties' attorneys once again discussed whether 

stock would be sufficient to satisfy the judgment. Shortly 

thereafter, husband's attorney consulted a tax attorney who 

warned him of the liability problems upon transfer. 

On August 23, 1988, wife's attorney telephoned husband's 

attorney regarding the status of the property distribution. 

She was again told that the stocks would not be accepted to 

satisfy the money judgment. 

There is substantial evidence to support the District 

Court's finding that there was no meeting of the minds on 

August 2, 1988, or any other date, and thus, no oral 

agreement by husband to accept stocks in satisfaction of the 

judgment. See, Diede v. Davis (1983), 203 Mont. 205, 212, 

661 P.2d 838, 841. 

Where the existence of an oral contract is 

contested and the evidence is conflicting, the 

existence of the contract is a question for the 

trier of fact. 

Como v. Rhines (1982), 198 Mont. 279, 284, 645 ~.2d 948, 

950-51. -- See also, Keil v. lacier Park, Inc. (19801, 188 

Mont. 455, 460, 614 P.2d 502, 505. The District Court 

properly considered the evidence and found that no contract 

existed. 
The second issue raised on appeal is whether wife's 

delivery of stock and cash to respondent on August 4, 1988, 

tolls the interest on the judgment pending appeal. 

The ~istrict Court's order of October 26, 1988, reads: 

Since Mr. Dalley did have some culpability in the 

transaction, Mrs. Dalley might be entitled to a 

cancellation of interest on the judgment from the 

date the stock was tendered through the date of 

this order. 

Wife argues that since husband is still in possession of 

the stock that he should not be able to collect any 

post-judgment interest after August of 1988. However, wife 

delivered the stock, never demanded it back, and never made 

any attempt to recover it. Husband has received no dividends 

or other benefits from holding the stock. We find no merit 

in this contention as husband was not culpable. 

The parties were granted a stay of execution of judgment 

pending appeal. The stay does not affect interest due. In 

Knudson v. Knudson (Mont. 1981), 622 P.2d 1025, 1026-27, 38 

St.Rep. 154, 156-57, where the husband, in a dissolution 

action, moved the court for a stay of execution, we held that 

interest was to be awarded from the date of judgment in the 

divorce action despite the existence of the stay of 

execution. Hence, the stay of execution has no effect on 

interest due in the present case. 

Further, Rule 31, M.R.App.P., provides in part: 

If a judgment for money in a civil case is 

affirmed, whatever interest is allowed by law shall 

be payable from the date the judgment was rendered 

or made in the district court. 

In Re Marriage of ~ibson (1983), 206 Mont. 460, 671 P.2d 

629, states that interest accrues at the statutory rate from 

the date on which payment is due--in the present case, the 

date of judgment--until the date on which payment is made. 
Under 5 25-9-205(1), MCA, the statutory interest rate is 10% 

per annum payable on judgments recovered in Montana. The 

rate must not be compounded. 

Therefore, wife is to pay husband $124,266.00, the 

amount due and owing, in money or a manner acceptable to 

husband. Interest on that amount is to be calculated from 

November 10, 1987, the date of judgment, to the date wife 

pays the sum owed. Interest is to be paid in accordance with 

§ 25-9-205 (I), MCA. 

Affirmed in part and reversed apd remanded for further 

proceedings in accordance with thi 

We Concur: 
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IN THE SUPREME COURT OF THE STATE OF MONTANA c;rj ?% CNo. 89-003 0, 9 

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IN RE THE MARRIAGE OF U- - < J 

CAROL C. DALLEY, -P ~4 / 

Petitioner and Appellant, rr 

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and 1 ,, 3, ORDER c;_ 

MARK F. DALLEY, 

Respondent. 

The opinion in this cause was filed with the Clerk of 

this Court on May 4, 1989. It has come to the Court's attention that certain errors appear in the first full paragraph 

on page 9, the last page of the slip opinion. 

IT IS ORDERED: 

1. That the first full paragraph on page 9 of the slip 

opinion issued May 4, 1989, is revised to read as follows: 

Therefore, wife is to pay husband $129,607.40, 

the amount due and owing. Interest on that amount 

is to be calculated from November 10, 1987, the 

date of judgment, to the date of this order. 

Interest is to be paid in accordance with 5 

25-9-205 (I), MCA. 

2. That the Clerk shall provide copies of this order to 

counsel for the parties, the District Court of the Thirteenth 

Judicial District, the State Reporter, and West Publishing 

Company. m 

DATED this @/day of May, 1989.