### No. 81-276 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1982

FIRST BANK-SOUTHSIDEMISSOULA, Plaintiffand Respondent,

JAMES

### H. SADLER,DARLAC. 

### SADLER and BILLIEWILLIAMS, DefendantsandAppellants.
Appeal from: District Court of the FourthJudicialDistrict, In and for the County ofMissoula Honorable James

### B. Wheelis,Judgepresiding. CounselofRecord: ForAppellants: Milodragovich,Dale & 

### Dye,Missoula,Montana James Sadler,Missoula, Montana For Respondent: Anthony F. Keast, Missoula,Montana Garlington,Lohn & 

### Robinson, Missoula,Montana

Submitted onBriefs: April 29, 1982 Decided: August 11,1982 Filed:

## AUG

## 11

## 1982Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an action commenced by the plaintiff bank an interpleader, tocompel the defendantsto settletheirrespective right to certain 

### real estate inwhich 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 judgment the appellant 

### seller appea1 s

# . The 

### sole issue presented is whether the trial judge abused his judicial discretion by denying the appellant, Billie Williams, any remedy in thiscause 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 firmknown asNorthwest Limited. The purchaser's interest inNorthwest Limited was transferred to James and Darla Sadler thereafter. The appellant alleges thataf

### ter the transfer of theproperty to the Sadlers, payments 

### were frequently lateand at times the Sadlers had more than one payment delinquent. A notice of defaultwas mailed 

### to the Sadlers and received by them; and they inturn 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, BillieWilliams demanded that the 

### escrow agent 

### close the 

### escrow,
aspayment had been made after 3:00 p.m. on the 30th day. Asa result, the 

### escrow agent filed this interpleader action. The appellant, BillieWilliams, 

### is a real estateloanofficer 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 theWilliams/Sadler contract. Allpayments on the contract

### were made by the leasing company from rentsreceived from the property. Atthe 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 appellantWilliams 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 BillieWilliams asper her instructions. Mrs. Williams 

### claims by not receiving payment on the first of everymonth, 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 theirpayments 

### lateon occasion. There 

### is testimony thatthe Sadlershad requested thattheybe 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 thisplan of making payment. Much ismade in the briefing of the case and inthe testimony atthe 

### time the cause was heard, of the fact that Mr. Sadler is
an attorney. However, there isnothing 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 failsto 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 theschedule thatthe appellantWilliamsdesires. 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 Sadlerknows of the 3:00 p.m. cutoff 

### timeatthe bank
on Friday afternoon 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 ina 

### matter consistentwith the contract and the ethical requirements of the profession. This Court has stated on numerous occasions that it willnot disturb the judgment of the District Court unless evidence preponderates against it. Our standard of review innon-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. Atthe 

### 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 fordefault, it clearly states that if the default has been cured within thirty days: "No default, termination, cancellation, or acceleration shallbe 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 wouldbe rewriting a contractwhich it isnot permitted to do. Judgment of theDistrict Court is affirmed, and on this record each party shallpay their own attorney's fees.

We concur: