No. 81-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

FIRST BANK-SOUTHSIDE MISSOULA, 

Plaintiff and Respondent, 

JAMES H. SADLER, DARLA C. SADLER and 

BILLIE WILLIAMS, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellants: 

Milodragovich, Dale & Dye, Missoula, Montana 

James Sadler, Missoula, Montana 

For Respondent: 

Anthony F. Keast, Missoula, Montana 

Garlington, Lohn & Robinson, Missoula, Montana 

Submitted on Briefs: April 29, 1982 

Decided: August 11,1982 

Filed: AUG 11 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an action commenced by the plaintiff bank an 

interpleader, to compel the defendants to settle their respective 

right to certain real estate in which the appellant was a seller 

and the respondent was a buyer. The case was tried without a 

jury and judgment was entered in favor of the respondent buyer. 

From this j udgmen t the appellant sel ler appe a1 s . 

The sole issue presented is whether the trial judge abused 

his judicial discretion by denying the appellant, Billie 

Williams, any remedy in this cause of action. The contract here 

originated when the appellant, Billie Williams, and her former 

husband, Richard Williams, sold the property involved subject to 

a contract to a firm known as Northwest Limited. The purchaser's 

interest in Northwest Limited was transferred to James and Darla 

Sadler thereafter. The appellant alleges that af ter the transfer 

of the property to the Sadlers, payments were frequently late and 

at times the Sadlers had more than one payment delinquent. 

A notice of default was mailed to the Sadlers and received by 

them; and they in turn paid to the escrow agent the amount due on 

a Friday afternoon after three o'clock p.m. on the 30th day of 

the default. Thereafter on the 33rd day of default, a Monday, 

Billie Williams demanded that the escrow agent close the escrow, 

as payment had been made after 3:00 p.m. on the 30th day. As a 

result, the escrow agent filed this interpleader action. 

The appellant, Billie Williams, is a real estate loan officer 

with the First Bank-Western, Missoula, Montana, which is affiliated with the escrow agent, the First Bank-Southside at 

Missoula, Montana. 

Geraldine C. McLaughlin is the mother-in-law of 

James H. Sadler, and is the owner/operator of Montana Leasing, 

a commercial property management firm that manages the real 

estate subject to the Williams/Sadler contract. All payments on 

the contract were made by the leasing company from rents received 

from the property. At the time of the default, there was a nega- 
tive cash flow of $320 a month, partially caused by the increase 

in taxes from $1,200 to $3,200 a year on the property. 

The Sadler contract includes a mortgage at the Western 

Federal Savings and Loan and the appellant Williams receives an 

interest override due to the fact that the Sadler contract is at 

a greater interest rate than the Williams' Western Federal 

Savings and Loan mortgage. The payment in question amounts to 

$1,046.80 in principal and interest and $355.50 per month for a 

tax and insurance budget. After payment to the First 

Bank-Southside , the bank distributes the whole payment to 

Billie Williams as per her instructions. 

Mrs. Williams claims by not receiving payment on the first 

of every month, there is a burden placed on her as she is charged 

a $15 late penalty payment on the outstanding mortgage at the 

Western Federal Savings and Loan. In reply, the Sadlers 

complained that the tenants pay their rents late; thus causing 

them to make their payments late on occasion. There is testimony 

that the Sadlers had requested that they be allowed to divide the 

payment, to allow the Sadlers to pay the payment to Western 

Federal Savings and Loan directly, thus saving any late penalty 

payments to the appellant. The appellant refused to go along 

with this plan of making payment. 

Much is made in the briefing of the case and in the testimony 

at the time the cause was heard, of the fact that Mr. Sadler is 

an attorney. However, there is nothing in the record to substantiate any allegations that Mr. Sadler uses his position as an 

attorney to his own advantage. There was no client/attorney 

relationship existing between the parties and the record fails to 

reveal any impropriety on the part of Mr. Sadler in handling his 

debt obligations to Mrs. Williams. The testimony clearly shows 

that the economic factors of the rental property in the building 

involved is such that the Sadlers have to get the rents to pay 

off Mrs. Williams and, the economy being what it is, there are 

periods when it is not possible to pay the obligations on the 
schedule that the appellant Williams desires. 

The trial court found that since the payment was made on the 

30th day, there was no default. The position of the appellant 

is; because Sadler knows of the 3:00 p.m. cutoff time at the bank 

on Friday af ternoon and made payments af ter the 3:00 p.m. cutoff 

time; that she should have some relief from the court, either (1) 

the court should have declared the contract as clear, 

unambiguous, and that Sadlers forfeited their rights in the 

contract by failure to remedy the contract within the 30-days 

allowed therein; or (2) that the court should have reformed the 

contract to provide for a late-payment penalty to correct the 

deficiency of the contract and to enforce compliance by the 

defendant, Sadler; or (3) deny a recovery under either (1) or (2) 

above and invoke the court's inherent equitable power to order 

the officer of the court to perform legal and contractual duties 

in a matter consistent with the contract and the ethical requirements of the profession. 

This Court has stated on numerous occasions that it will not 

disturb the judgment of the District Court unless evidence preponderates against it. Our standard of review in non-jury cases 

is simply to determine whether there was substantial evidence to 

support the findings of the District Court, see Hayden v. 

Snowden (1978), 176 Mont. 169, 172, 576 P.2d 1115, 1117. Here 

the evidence was clear and uncontroverted. The payment required 

by the notice of default was paid on the 30th day of the default 

period and there was nothing in the contract concerning a payment 

after 3:00 p.m. as being late. At the time of the payment on 

the 30th day the breach of contract was cured and under the terms 

of the contract in the paragraph set out for default, it clearly 

states that if the default has been cured within thirty days: 

"No default, termination, cancellation, or 

acceleration shall be worked." 

The District Court was correct when it found no default and 

it was correct in rejecting the appellant's request for late 

penalty payments, for if such had been granted, the court would 
be rewriting a contract which it is not permitted to do. 

Judgment of the District Court is affirmed, and on this 

record each party shall pay their own attorney's fees. 

We concur: