Yellowstone County v. Wight , 115 Mont. 411 ( 1943 )

I dissent. Historically this court has adhered to the rule that it will presume that the rulings and judgment of the trial court are correct unless the record shows affirmative error, and that is particularly true in a case such as we have here, where the record is not before us. In Ringling v. Smith RiverDevelopment Co., 48 Mont. 467, 138 P. 1098, after stating the general rule, we said: "In the absence of any evidence disclosing the circumstances under which the securities were given, * * * and, indeed, in the absence of the writing assigning either the contract or the option, appellant must assume the burden ofshowing that the trial court's conclusion is erroneous under anypossible state of facts consistent with the declaration of therecord that by an instrument in writing, duly executed by it, the defendant assigned, transferred, and delivered the contract in the one instance, and the option in the other, as collateral security for the payment of a debt."

A few of the more than fifty cases stating the duty of this court to approach consideration of a case with this presumption in mind are: Toole v. Weirick, 39 Mont. 359, 102 P. 590, 133 Am. St. Rep. 576; Smith v. Collis, 42 Mont. 350,112 P. 1070, Ann. Cas. 1912A, 1158; Gilna v. Barker, 78 Mont. 357,254 P. 174; Mulholland v. Butte Superior Mining Co.,87 Mont. 561, 289 P. 574; State ex rel. Wentworth v. Baker,101 Mont. 226, 53 P.2d 440.

Over and over again we have said, as we did in Ringling v.Smith River Development Co., supra, that when the record on appeal does not present the evidence taken below the presumption is that there was evidence sustaining the findings. In McBride v. School Dist. No. 2, 88 Mont. 110, 290 P. 252, 254, we said, "a transcript of the evidence not being before us, we must assume that the proof was ample to support it, and that, if it is not supported by the pleadings, they were deemed amended to conform to the proof." A few of the many cases in which we have affirmed what was said in McBride v. School Dist. No. 2, supra, are In re Baxter's Estate, 98 Mont. 291,39 P.2d 186; Smith v. Rodriguez, 69 Mont. 319, 221 P. 530. This long standing rule is completely ignored by the majority here and it proceeds contrary to that rule.

We have here a simple action seeking to quiet title to real estate. To reach the result it has, the court indulged in two violent assumptions. First, the majority opinion says: "Defendant's prayer in effect asks for relief against forfeiture." Second, it makes the following assumption which is directly contrary to the specific finding of the trial judge: "It must be that the trial court took the view the contract had not been cancelled and was still in existence on the day of the trial." This assumption the majority bases upon the finding of the trial court that tender was made in court by the defendant. Without the specific finding of the court to the contrary on this matter of cancellation one might stretch this finding sufficiently so as to allow the assumption to be made, but in face of the fact of the conclusion of the trial court that "* * * defendant, John Wight breached said contract and thereby terminated the same," the assumption of the majority cannot be justified.

First let us see whether the pleadings on the part of the defendant were in effect a prayer for relief from forfeiture. In the absence of any pleadings which have for the purpose excusing non-compliance with the terms of the contract, defendant may not take advantage of the provisions of section 8658, Revised Codes. In Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 P. 700,703, this court said: "Whatever may be the correct interpretation of the language of that section [8658], this much is apparent: the very minimum requirement is that the party invoking the protection afforded by that section must set forth facts [in his pleadings] which will appeal to the conscience of a court of equity." We have said over and over again that the one seeking relief from a forfeiture under section 8658, Revised Codes, must set out in his pleadings specific allegations of ultimate fact to show that he has not been guilty of a grossly negligent, wilful or fraudulent breach of his duty under the contract.

In Suburban Homes Co. v. North, 50 Mont. 108, 145 P. 2,4, Ann. Cas. 1917C, 81, we held that one seeking relief under section 8658, Revised Codes, cannot do so unless "he can allege and prove that the default was not the result of his ``grossly negligent, willful or fraudulent breach of duty.'" (See, also,Ellinghouse v. Hansen Packing Co., 66 Mont. 444,213 P. 1087; Huffine v. Lincoln, 87 Mont. 267, 287 P. 629;Donlan v. Arnold, 48 Mont. 416, 138 P. 775; Clifton v.Willson, 47 Mont. 305, 132 P. 424; Estabrook v.Sonstelie, 86 Mont. 435, 284 P. 147; Huston v.Vollenweider, 101 Mont. 156, 53 P.2d 112.)

Let us see whether defendant's answer contains in it anywhere and by any stretch of the imagination any pleading which excuses in any way his failure to perform as he had agreed to do in his contract with the county. After denying the title of the plaintiff, the defendants allege "that they are the owners" and are in possession of the property under "a contract of sale and purchase * * * and that said contract is now in full force and effect." The defendants then pray that "their rights of title * * * be adjudged and decreed by the court to be in full force and effect, and that through it defendants have the equitable title * * *. That the court ascertain what sum, if any, may be due plaintiff under said contract and if it be found there be due to plaintiff any amount under said contract defendants be given a reasonable time * * * within which to make payment thereof and to secure to themselves, or their assigns, deed thereto from plaintiff." What I have quoted sets out the entire material allegations of the answer. No argument is necessary to show that it fails utterly to excuse non-performance of their contract obligation by the defendants, and how the majority can assume that this constitutes a prayer for relief under section 8658, Revised Codes, or that it is sufficient to warrant any discussion of that section by the court, I cannot comprehend.

But even if we do make such an assumption, how can we be justified in the absence of the record in assuming that any showing was made as required that the defendant was not guilty of a grossly negligent, wilful or fraudulent breach of his duty under the contract? The majority discourse at some length on general economic conditions throughout the country from 1935 to 1940. On the basis of that they indulge the presumption that the defendant was ready, willing and anxious to perform his obligations under the contract but that he was unable to do so. To put the trial court in error on such a presumption to me cannot be justified. If we do grant that the trial court had the right to consider giving this defendant any relief under section 8658, certainly under the cases cited we ought to presume that from the facts shown the trial court was forced to the conclusion that the defendants had not excused non-performance.

Upon the basis of its second assumption, the majority works out a theory that the county had waived its right to cancel the contract because of the defendant's failure to make the payments called for therein, even though the contract provided that time was to be of the essence. To a certain extent the majority proceeds correctly in its discussion of this matter. There can be no doubt but that the failure of the county to enforce the contract provision requiring payment on certain dates waived for the time being the provision making time of the essence, but the granting of indulgence to this defendant did not operate to destroy entirely this provision and it could be reinstated upon notice to the defendant.

In discussing this matter we said in Suburban Homes Co. v.North, supra, "Where the indulgence has been extended until long after all the installments are due, nonpayment alone will not justify a forfeiture. * * * But, though the vendor has extended indulgence to the vendee, he is not required to wait indefinitely for the vendee to perform his obligation. If the latter continues in default, the vendor, by demand for payment of the balance of the purchase money and notice of his purpose to terminate the contract in case of further default, may put the vendee upon his guard. If after such notice he does not make payment within a reasonable time, the vendor may declare the contract at an end." Here within a year after the final payment became due, the county served a notice after an appropriate resolution to the defendant requiring him to pay up under the contract within thirty days and that if he did not do so the contract would be cancelled. Several days elapsed after the end of that thirty-day period before any action was taken by the county by resolution, cancelling the contract. This brings the case squarely within what is said in Suburban Homes Co. v.North, supra. The notice was given demanding payment and declaring intention, in the event payment was not made, to cancel the contract. Whether or not the time given, thirty days, as stated in the notice, and some eighteen days before cancellation was had, was a reasonable time was a matter peculiarly within the discretion of the trial judge. Whether that time was reasonable would depend upon all of the circumstances, and particularly whether or not defendant was in a condition to make the payments. None of these things is before us, and certainly we should adhere to the rule as stated in Ringling v. Smith River DevelopmentCo., supra, and the cases cited at the beginning of this dissenting opinion, and presume that the defendant failed to show to the trial judge that the time granted was not reasonable.

Finally the majority discusses at some length the proposition that no matter what were the reasons for the defendant's default and no matter how wilful, grossly negligent or fraudulent his conduct might have been in breaching his duty under the contract, still we must reverse the trial judge and hold for the defendant for the reason that now, some seven years after the defendant was first in default, he comes in and tenders the full amount of what he agreed to pay together with interest and the taxes, and that therefore the county has suffered no loss. On the basis of this reasoning and without so much as mentioning the maxim that he who seeks the aid of equity must do equity, and that he who seeks the aid of equity must come into court with clean hands, the majority orders specific performance of a contract which has been cancelled more than two years. On the question of when specific performance may be decreed, see generally: Sec. 8722, Rev. Codes;In re Grogan's Estate, 38 Mont. 540, 100 P. 1044; MontanaWater Co. v. City of Billings, D.C., 214 Fed. 121; Wenham v.Switzer, C.C., 51 Fed. 351; Pomeroy, Equity Jur. (1941) Sec. 1407, page 1050, and cases cited thereunder. I doubt very much that the majority would apply this reasoning to a case in which the seller was an individual rather than a county. I cannot understand the creation of one rule to be applied to public bodies and another to private individuals. This reasoning might be invoked where the record showed affirmatively that the defendant's failure to perform was through no fault of his own, but in the absence of anything to show any equities in favor of this defendant, who for all we may know may have been a speculator who purchased this land originally for the purpose of speculating and who could have performed his obligation under the contract, I cannot see any justification for affording him relief on this basis and this basis alone.

I want to repeat in conclusion that the majority in order to reach the result it has, has made the assumptions above pointed out that are contrary to the facts appearing in the judgment roll. Further, even though these assumptions were justified, which is not the case, they would not warrant a reversal of the trial court.

In order to reach the conclusion it has, the majority has had to go further and ignore completely, and in effect overrule, the many, many cases requiring this court particularly in an equity action, and more particularly in the absence of the record, to presume that the findings of the trial court are supported by the evidence where the evidence is not before us, and to presume that its judgment is correct.

I think the judgment should be affirmed.