### No. 13454 IN 

### THE SUPREME COURT OF THE STATE OF MONTANA 1977

Plaintiff and Respondent,

Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, Honorable Frank E. 

### Blair, Judge presiding. Counsel of Record: For Appellant: Bolinger and Wellcome, Bozeman, Montana Harry A. Bolinger argued, Bozeman,Montana For Respondent: Holter, Heath and Kirwan, Bozeman,Montana Peter M. Kirwan argued, Bozeman, Montana

Submitted: April 19, 1977 Decided: 

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## 51977 Filed: 

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# ~gnMr. JusticeFrank I. Haswell delivered the Opinion of the Court.

Action by buyer against seller toenforce specific performance of a contract to 

### sell a tractof land inBelgrade, Montana. The districtcourt of Gallatin County, Hon. Frank E. Blair, districtjudge presiding without a jury, entered judgment for buyer. Seller appeals. The defendant-seller contends: (1)That no complete contract, oral orwritten, was ever entered into; (2) that the contract is unenforceable under the statuteof frauds; (3) that the buyer did not install and pay for a 

### sewer lineacross the property inreliance on the alleged contract and thus did not change hisposition tohisprejudice. The plaintiff-buyer contends: 

### (1)That the parties entered into a contract to sell and buy approximately 25 acres of land at$2,000 per acrewith 29%down with the balance at6% interest payable inmonthly installments over 10 years; (2) that four differentwritings together satisfythe statuteof frauds; (3) that partial performance takes the contract out of the statute of frauds; and, (4) equitable estoppel bars the defense of the statuteof frauds. The district court, Gallatin County, Honorable Frank E. Blair sittingwithout a jury, entered findings of fact, conclusions of law, and judgment for the plaintiff-buyer decreeing specific performance. Defendant-seller appeals. The contentions of the parties can be reduced toessentiallytwo issues: (1)Whether the evidence supports a finding of

a final agreement tobuy and 

### sell land, and (2) whether that agreement isunenforceable under the statuteof frauds. The tract of land inquestion is located atBelgrade, Montana. Plaintiff desired the land so he could construct an outfall 

### sewer across the tract from a small subdivision tothenew city 

### sewer system of Belgrade. Apparently the other alternatives of a more circuitousroute and a pump station

### were less workable for engineering reasons. In July, 1974, defendant had offered to 

### sell the land to plaintiff and on August 29 he went toplaintiff's residence and again offered to sellthe tractof land. Later that day the parties together with plaintiff's son went toan attorney's office seeking his advice. The districtcourt found that 

### atthe attorney's office the parties agreed tobuy and 

### sell the land on the following 

### terms: the price would be $2,000 per acre; down payment of 29%

### was tobe paid upon deliveryof title insurance policy; the balance 

### was tobe payable over 10years in equal monthly payments with interest at6%, secured by 

### real estatemortgages owned by plaintiff tobe pledged inescrowwith the Manhattan StateBank with instructionstopay themonthly payments out of the proceeds. The court found the parties intended tobind themselves tothe agreement by executing and accepting a check for $5,000 earnestmoney. The acreage and total purchase price 

### were tobe determined by 

### a survey of the tract tobe done by James Cummings, land surveyor. The survey determined the acreage tobe 23.129 acres and therefore the totalpurchase price was $46,258. In addition, the buyer was togrant 

### a right-of-way for a 

### sewer

across the tract for defendant's residence adjacent tothe tract and to install a sewer hookup for the residence. The court's findings of an agreement tobuy and 

### sell and its specific 

### terms are supported by the testimony of 

### James Cummings, the surveyor; the attorney who had been called on for advice and witnessed some of the negotiations; and Hank Dyksterhouse, plaintiff's son. Defendant Doornbos' testimony differs inthat he contends they agreed on a pricebut were unable toagree on the 

### termsof payment astointerest, length of 

### timetopay the balance, andsecurity for the deferred payments. It could be argued his testimony 

### iscorroborated by the attorney because he 

### wasuncertain of the agreement on those terms. The attorney was not retained by eitherparty todraft an agreement, and the 

### terms

werenever reduced toa formal written contract signed by the parties. We find that although the evidence 

### isconflicting there 

### is substantial credible evidence inthe record to support the court's findings of an agreement tobuy and 

### sell the land and the 

### termsthereof. Therefore, they must be upheld on appeal" Hellickson v. BarrettMobile Home Transp., 161Mont. 455, 462, 507 P.2d 523, 

### states that even if the testimony were directly conflicting: 

### " 

## * 

## * * We cannot retry factual determinations made by the trialcourt." The next issue iswhether the statuteof frauds bars enforcement of the agreement. The statuteof frauds provides thatno agreement for the 

### sale of real property 

### is valid unless the same, or some note or memorandum thereof, be inwriting and subscribed by the party to be charqed; but this does not abridge the power of any court to compel the specific performance of any agreement for the 

### sale of 

### real property in case of part performance thereof. Sections 74- 203, 13-606

### (4)

## , and 93-1401-7 

### (4)

## , R.C.M. 1947. The rule of part performance applicable under the statute

now codified 

### as section 74-203, 

### is stated inHogan v. Thrasher, 72 Mont. 318, 328, 233 P. 607, quoting from 27 C.J. 343: "'Where one party toan oral contract has, in reliance thereon, so farperformed his part of the agreement that it would be perpetrating a fraud upon him toallow the other party to

### repudiate the contract and to

### set up the statute of frauds injustification thereof, equity 

### will regard the case asbeing removed from the operationof the statuteand 

### willenforce the contract

### by decreeing specific performance of it, or by granting other appropriate relief.' 

## * * *

(Citing cases.) 

### "While there is not any hard-and-fast rule for determining justwhat actswill constitute part performance sufficient to take a case out of the operation of the statute, the authorities are practically all agreed that 'if possession taken in pursuance of the contract is followed by the making of valuable improvements on the land by the vendee, there is a sufficient part performance.'" Also see Kettlekamp v. Watkins, 70 Mont. 391, 399, 225 

### P. 1003,where taking possession and making alterations of the property and paying the rent agreed upon for a considerable period, under the overwhelming weight of authority, took an oral lease out of the statute of frauds. In this case onAugust 29, the parties together with Hank Dyksterhouse went to the offices of Mr. Cummings, the surveyor. On a plat showing the land, defendant indicated the boundaries of the tract as Mr. Cummingsmarked them on the plat. Defendant told Mr. Cummings he had sold the tract to plaintiff and directed him to make a survey of it and prepare a certificate of survey. Mr. Cummings and the parties then discussed the location of the sewer line plaintiff intended to build and the location of the sewer right-of-way to be granted back to defendant. At this time defendant knew the location of the proposed sewer line and made no objection. Shortly thereafter Mr. Cummings' employees made the survey,prepared the certificate of survey, and laid out the sewer location on the ground. Early in September plaintiff entered into possession and began construction of the sewer line. Itwas completed October 5. 

### The line lying across the tract cost over $6,000 and the cost of the whole line was over $7,000. As constructed it contained hookups for future homes and a hookup installed for defendant's

use. While the sewer line was being constructed defendant



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### lived in the immediate vicinity and had actual knowledge thereof. At no time during the constructiondid he object or attempt to stop construction of the sewer line;nor did he ever inform plaintiff he was dissatisfied with its location. Itwas only after the sewer had been constructed that defendant repudiated his contract and refused to perform. These fact findingsby the district court show sufficient part performance to remove the agreement from the bar of the statute.Hogan 

### v. Thrasher, supra; McIntyre v. Dawes, 71Mont. 367, 376, 229 P. 846;Cobban v. Hecklen, 27 Mont. 245, 70 P. 805. Each of the findings of fact heretofore stated is supported by substantial credible evidence and testimony in the record and must be upheld on appeal. Hellickson, supra. On 

### this basis the judgment must be affirmed. Defendant's testimony reveals dissatisfaction concerning the location of the sewer line. He claims its location prevents him from utilizing the sewer line for homesite development on his remaining property along the boundary of the tract sold. Whatever his hopes may have been, there is nothing other than his testimony to indicate the bargain was otherwise. It appears Mr. Cummings had done other work for both men, that they both trusted him, and that they left it to him to locate the sewer in the best place. Cummingswas also the engineer for the City of Belgrade which was concerned with getting the subdivision connected to the city sewer system. There is no complaint as to Mr. Cumrnings' work. Under the circumstances defendant's argument concerning who paid for the sewer construction and what plaintiff's financial arrangements were with his son for its payment is irrelevant. The fact remains that it was built and the land improved by the plaintiff in reliance upon the oral agreement to buy and sell the land.

### Having determined that part performance takes the contract out of the statute of frauds, it is unnecessary to determine whether or not the earnestmoney check endorsed by defendant, the engineer'splat on which defendant indicated the tract sold, the certificate of survey,and the attorney's notes, together, satisfy the statute of frauds under our decision in Anderson v. KFBB Broadcasting Corp., 143 Mont. 423, 391 P.2d 2. Plaintiff's argument on estoppel is essentially covered by our discussion of the part performance exception to the statute of frauds. Judgment affirmed.

Justice We, 

### concur) 1