DUNJO LAND CO v HESTED STORES

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No. 12532 I N THE SUPREME COURT OF THE STATE OF M N A A OTN 1973 DUNJO LAND COMPANY, a c o p a r t n e r s h i p , composed o f JOANNE K. HARGRAVES and DUNGAN H. McCAULEY, P l a i n t i f f and Respondent, HESTED STORES C M A Y OF WYOMING AND O PN J J NEWBERRY COMPANY, . . Defendants and A p p e l l a n t s . Appeal from: District Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C . B. Sande, Judge p r e s i d i n g . Counsel o f Record: For Appellants : J o n e s , O l s e n & C h r i s t i a n s e n , B i l l i n g s , Montana R o b e r t L. Zimmerman a r g u e d , B i l l i n g s , Montana F o r Respondent : Hibbs , Sweeney and Colberg , B i l l i n g s , Montana Hugh Sweeney a r g u e d , B i l l i n g s , Montana Submitted: Decided : Filed : acr 3 11973 September 1 4 , 1973 act 3 1 I973 Mr. J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e C o u r t . Defendants a p p e a l from t h e g r a n t i n g of summary judgment f o r p l a i n t i f f i n a n a c t i o n f o r damages founded on t h e p r o v i s i o n s of a l e a s e . From a d m i s s i o n s c o n t a i n e d i n t h e p l e a d i n g s and a n a g r e e d s t a t e m e n t of f a c t s , t h e d i s t r i c t c o u r t of t h e t h i r t e e n t h j u d i c i a l d i s t r i c t , Yellowstone County, found t h e s e f a c t s : T h a t on Sep- tember 11, 1959, d e f e n d a n t Hested S t o r e s Company, t h e p r e d e c e s s o r i n i n t e r e s t t o d e f e n d a n t J . J. Newberry Co., entered i n t o a l e a s e w i t h p l a i n t i f f Dunjo Land Company's p r e d e c e s s o r i n i n t e r e s t , L a u r e l S e c u r i t y Company. 1, 1959. The l e a s e t e r m commenced on October The lease p r o v i d e d i n p a r t : "The removal of t h e w a l l s between t h e Bateman L a u r e l S e c u r i t y Company b u i l d i n g s h a l l be a t t h e l e s s e e ' s expense. I n t h e e v e n t t h e l e s s o r h e r e i n r e q u i r e s t h e r e p l a c i n g of t h e w a l l a t t h e e x p i r a t i o n of t h e l e a s e o r any e x t e n s i o n thereof, the lessee agrees t o replace said w a l l a t l e s s e e ' s expense." By i t s t e r m s t h e l e a s e e x p i r e d on F e b r u a r y 28, 1969. O n October 28, 1969, p l a i n t i f f l e s s o r r e q u e s t e d t h a t d e f e n d a n t lessee replace t h e wall. Defendant r e f u s e d t o r e p l a c e t h e w a l l on t h e grounds t h e r e q u e s t f o r r e p l a c e m e n t was n o t t i m e l y made. The d i s t r i c t c o u r t concluded from t h e s e f a c t s t h a t t h e r e q u e s t was t i m e l y made and g r a n t e d summary judgment f o r p l a i n t i f f . The s o l e i s s u e on a p p e a l i s whether t h e d i s t r i c t c o u r t was c o r r e c t i n c o n c l u d i n g t h a t n o t i c e was t i m e l y g i v e n of t h e l e s s o r ' s r e q u e s t f o r replacement of t h e w a l l . Defendant l e s s e e ' s p o s i t i o n i s e s s e n t i a l l y t h a t t h e t e r m of t h e l e a s e which r e q u i r e d r e p l a c e m e n t of t h e w a l l " a t t h e e x p i r a t i o n of t h e l e a s e " r e q u i r e d p l a , i n t i f f l e s s o r t o make demand f o r r e p l a c e m e n t of t h e w a l l on t h e day t h e l e a s e e x p i r e d . P l a i n t i f f contends t h e r e i s nothing i n t h e l e a s e r e q u i r i n g t h e request be made on the day the lease expired and its request, made within a reasonable time after the expiration of the lease, was timely. Defendant's contention that the.lease term which required replacement of the wall on request at the expiration of the lease required delivery of the request on the day that lease expired is untenable. This Court cannot rewrite the contract entered into by the parties. In Guidici & Meine v. Minerals Eng. Co., 136 Mont. 389, 403, 348 P.2d 354, this Court said: " * * * a new contract may not be made for the parties, nor other language read into or eliminated from the lawful terms thereof * * *." To accept defendant's contention as to this point would require the addition of a term to the contract specifying the time for the delivery of the request to replace the wall. This we do not do. By statute, when no time is specified for the doing of an act, a rea.sonable time must be allowed. Section 13-723, R.C.M. provides in pertinent part: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed." Here, since the parties did not specify the time for delivery of the request to replace the wall, plaintiff is entitled to have its request for replacement honored if it was made within a reasonable time. Guidelines for the determination of what constitutes a reasonable time in any given situation have been long established. This Court in Henderson v. Daniels, 62 Mont. 363, 373, 374, 205 P. 964, said: "'Reasonable time' is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done * * *". See also State ex rel. Malott v. Board of Commissioners, 89 Mont. 37, 296 P. 1. The question of whether a given length of time is reasonable can be either a question of fact or a question of law. When the surrounding circumstances are clearly established or undisputed the question is solely one of law for resolution by the court. Henderson, supra. On the other hand, when the surround- ing circumstances are in dispute the question is at least partially one of fact and requires resolution by the trier of fact. In the instant case the district court by granting summary judgment treated the question of reasonable time as a question of law to be resolved solely on admissions contained in the pleadings and an agreed statement of facts. Such treatment would have been proper but for the fact that certAin of the surrounding circumstances were still in dispute. These were related to the lapse of time and as such, were material to a determination of whether or not the lapsed time was "necessary, under the circumstances, to do conveniently what the contract * * * requires should be done". Among the unresolved questions of fact in the surrounding circumstances are: defendant's conten- tion contained in the pretrial order that the building was vacant for one and a half years prior to the expiration of the lease; defendant's allegation of damage resulting from the delay in delivering notice; and, plaintiff's claim that the delay was occasioned by efforts to rerent the premises to a tenant who would not require replacement of the wall. Under the facts here, eight months, unexplained by surrounding circumstances, does not appear to be a reasonable time. Accordingly, since there was dispute with regard to the surrounding circumstances, the question of reasonable time was at least partially a question of fact which could only be resolved by resolution of disputed facts. Summary judgment is not a proper tool to resolve disputed questions of fact. This Court has indicated repeatedly and most recently in Mustang Beverage Co., Inc. v. Jos. Schlitz Brewing Co. Mont . , 511 P.2d 1, 30 St.Rep. 565, 567, summary judgment should be granted only when there is no genuine issue of material fact. Since there were genuine issues of material fact here, it follows that summary judgment was improper. We reverse the decision of the district court granting plaintiff's motion for summary judgment and remand the cause for further proceedings not inconsistent with this opinion.

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