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: MAY 2 5 1977 

Filed: KAY 2 5 ~gn 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Action by buyer against seller to enforce specific 

performance of a contract to sell a tract of land in Belgrade, 

Montana. The district court of Gallatin County, Hon. Frank E. 

Blair, district judge presiding without a jury, entered judgment 

for buyer. Seller appeals. 

The defendant-seller contends: (1) That no complete 

contract, oral or written, was ever entered into; (2) that the 

contract is unenforceable under the statute of frauds; (3) that 

the buyer did not install and pay for a sewer line across the 

property in reliance on the alleged contract and thus did not 

change his position to his prejudice. 

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 acre with 29% down with the balance at 6% 

interest payable in monthly installments over 10 years; (2) that 

four different writings together satisfy the statute of frauds; 

(3) that partial performance takes the contract out of the statute of frauds; and, (4) equitable estoppel bars the defense of 

the statute of frauds. 

The district court, Gallatin County, Honorable Frank E. 

Blair sitting without 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 to essentially two issues: (1) Whether the evidence supports a finding of 

a final agreement to buy and sell land, and (2) whether that agreement is unenforceable under the statute of frauds. 

The tract of land in question is located at Belgrade, 

Montana. Plaintiff desired the land so he could construct an 

outfall sewer across the tract from a small subdivision to the 
new city sewer system of Belgrade. Apparently the other alternatives of a more circuitous route 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 to plaintiff's residence and 

again offered to sell the tract of land. Later that day the 

parties together with plaintiff's son went to an attorney's 

office seeking his advice. The district court found that at the 

attorney's office the parties agreed to buy and sell the land on 

the following terms: the price would be $2,000 per acre; down 

payment of 29% was to be paid upon delivery of title insurance 

policy; the balance was to be payable over 10 years in equal 

monthly payments with interest at 6%, secured by real estate mortgages owned by plaintiff to be pledged in escrow with the Manhattan 

State Bank with instructions to pay the monthly payments out of 

the proceeds. The court found the parties intended to bind themselves to the agreement by executing and accepting a check for 

$5,000 earnest money. The acreage and total purchase price were 

to be determined by a survey of the tract to be done by James 

Cummings, land surveyor. The survey determined the acreage to be 

23.129 acres and therefore the total purchase price was $46,258. 

In addition, the buyer was to grant a right-of-way for a sewer 

across the tract for defendant's residence adjacent to the tract 

and to install a sewer hookup for the residence. 

The court's findings of an agreement to buy 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 in that he contends 

they agreed on a price but were unable to agree on the terms of 

payment as to interest, length of time to pay the balance, and 
security for the deferred payments. It could be argued his 

testimony is corroborated by the attorney because he was uncertain of the agreement on those terms. The attorney was not 

retained by either party to draft an agreement, and the terms 

were never reduced to a formal written contract signed by the 

parties. 

We find that although the evidence is conflicting there 

is substantial credible evidence in the record to support the 

court's findings of an agreement to buy and sell the land and 

the terms thereof. Therefore, they must be upheld on appeal" 

Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 462, 

507 P.2d 523, states that even if the testimony were directly 

conflicting: 

" * * * We cannot retry factual determinations 

made by the trial court." 

The next issue is whether the statute of frauds bars 

enforcement of the agreement. 

The statute of frauds provides that no agreement for the 

sale of real property is valid unless the same, or some note or 

memorandum thereof, be in writing 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 in Hogan v. Thrasher, 

72 Mont. 318, 328, 233 P. 607, quoting from 27 C.J. 343: 

"'Where one party to an oral contract has, in 

reliance thereon, so far performed his part of 

the agreement that it would be perpetrating a 

fraud upon him to allow the other party to repudiate the contract and to set up the statute 

of frauds in justification thereof, equity will 

regard the case as being removed from the operation of the statute and will enforce 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 just what acts will 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 on August 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. Cummings marked 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. It was 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 

- 5 - 
lived in the immediate vicinity and had actual knowledge thereof. 

At no time during the construction did he object or attempt to 

stop construction of the sewer line; nor did he ever inform plaintiff he was dissatisfied with its location. It was only after 

the sewer had been constructed that defendant repudiated his contract and refused to perform. 

These fact findings by the district court show sufficient 

part performance to remove the agreement from the bar of the 

statute.Hogan v. Thrasher, supra; McIntyre v. Dawes, 71 Mont. 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. Cummings was 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 earnest money check endorsed by defendant, 

the engineer's plat 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