Home/Montana Supreme Court/Hill v. Zuckerman

Hill v. Zuckerman

355 P.2d 521, 138 Mont. 230, 1960 Mont. LEXIS 74
CourtMontana Supreme Court
DecidedAugust 19, 1960
Docket10011
StatusPublished
Cited by4 cases

This text of 355 P.2d 521 (Hill v. Zuckerman) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Zuckerman, 355 P.2d 521, 138 Mont. 230, 1960 Mont. LEXIS 74 (Mo. 1960).

Opinion

MR. JUSTICE ANGSTMAN

delivered the Opinion of the Court.

This action is for a declaratory judgment. It seeks the construction of a written lease and declaration of the rights of plaintiffs thereunder.

The facts are these: On December 6, 1948, Zuckerman was the owner of the premises involved which are located at 222 Central Avenue, Great Falls, and on which is located what is called the Pension Bar. On that day he entered into a written *232 lease whereby he leased the premises to William H. Earl and James M. Carlisle for a term of five years with the privilege of renewal for an additional ten years on the same terms and conditions.

On Jnne 15, 1949, Carlisle quitclaimed and assigned all of his rights to William H. Earl with the approval of Zuckerman.

That as a result of judicial proceedings in the district court of Cascade County, a judgment was entered by which it was decreed that the lease made on December 6, 1948, had been renewed for an additional ten year period. In the meantime, Andrew A. Balko and George A. Bartnick had purchased the Pension Bar under a conditional sales contract and an assignment of the lease by William H. Earl, which was held in escrow until payment of the full purchase price. Balko and Bartnick were parties to the action resulting in the renewal of the lease for an additional ten years. On November 17, 1954, Balko and Bartnick paid the balance due on the purchase price and became the owners of the lease and the Pension Bar. On that day they sold and assigned all their interest in the lease and in the Pension Bar to the plaintiffs herein who entered into possession of the bar and the premises involved. The assignment was duly recorded with the County Clerk and Recorder of Cascade County.

The lease to Earl and Carlisle contained this clause:

‘1 In the event of a contemplated sale of said premises during the term of this lease, or extended term thereof, Lessor hereby agrees to give to Lessees a notice in writing, at least ten (10) days before the contemplated sale, of the substance of the terms on which said sale is proposed to be made, which notice shall be by registered mail, addressed to Lessees at the said premises; and thereupon, within ten (10) days from the date of mailing said notice, Lessees shall have the right to purchase said premises upon the terms and conditions expressed in such notice, and on the failure of Lessees *233 to exercise such option within the time aforesaid this option hereby granted to Lessees shall be and stand cancelled.”

The complaint, as finally amended, alleges that at no time did defendant Zuckerman or any agent or employee give to plaintiffs, or their predecessors in interest, written notice of intention to sell as required by the lease. It alleges that on November 29, 1954, in violation of the lease, defendant Zuckerman attempted to sell the property involved to defendant Obstarczyk by an instrument duly acknowledged and recorded. It alleges that the attempted sale was and is fraudulent and fictitious ; that neither plaintiff, nor their predecessors in interest, received notice by registered mail of their right to exercise the option to purchase; that they are’ ready, willing and able to purchase the premises on the terms on which the alleged sale was made to defendant Obstarczyk.

The court found that the attempted sale to Obstarczyk was and is null and void; that no notice was received by plaintiffs containing terms of the proposed sale to Obstarczyk as provided in the lease. It found that plaintiffs are entitled to purchase the premises on the same terms and conditions as set forth in the agreement between Zuckerman and Obstarczyk. It found specifically that the alleged sale to Obstarczyk was fraudulent and void.

Defendants have appealed from the judgment in favor of plaintiffs.

The determinative point in the case is whether notice was given plaintiffs or their predecessors in interest as provided in the contract so as to enable them to exercise the right and option to purchase. Or more specifically stated, did the trial court err in finding that no notice was given?

If there be in the record substantial evidence supporting that finding, we will not disturb the ruling even though the evidence be conflicting.

The evidence bearing on this point consisted of the following: Mr. Zuckerman was called by plaintiffs as an adverse witness. *234 A letter and envelope were then admitted in evidence. The envelope reads as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Terry L. Bell Generations Trust v. Flathead Bank
2013 MT 152 (Montana Supreme Court, 2013)
Grenfell v. Anderson
1999 MT 272 (Montana Supreme Court, 1999)
Atchison v. City of Englewood
568 P.2d 13 (Supreme Court of Colorado, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
355 P.2d 521, 138 Mont. 230, 1960 Mont. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-zuckerman-mont-1960.