MOLERWAY FREIGHT LINES INC v RI
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NO. 95-114 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 MOLERWAY FREIGHT LINES, Plaintiff INC., and Appellant, v. RITE-LINE SERVICES, TRANSPORTATION INC., Defendant APPEAL and Respondent. District Court of the In and for the County The Honorable Douglas FROM: Fourth Judicial District, of Missoula, G. Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: W. Anderson and Mather, For Forsythe, Moulton, Bellingham, P.C., Billings, Montana Respondent: James C. Bartlett, Kalispell, Montana Hash, Submitted O'Brien and Bartlett, on Briefs: Decided: Filed: STATE Longo OF MONTANA July August 6, 1995 24, 1,995 Chief Justice J. of the Turnage Freight Molerway A. Lines, Fourth a contract Judicial in (Rite-Line). delivered Inc. District favor of the dispositive following Court, of the the appeals Missoula court. decision County, Transportation enforcing Services, Inc. issues, as rephrased by this Court, on appeal: Did the determine the intent of 2. Did the District Montana Public Montana District Intrastate 1136 Service Court the err in admitting parties to the Court err in Commission Certificate (Certificate No. (PSC) of 1136) parol Buy-Sell determining to the that the transfer the Convenience pursuant to Agreement? "approved" Public evidence of and Necessity terms of the Buy- Agreement? 3. Did had waived trucking the the the Molerway by (Molerway), Rite-Line 1. Sell Opinion We affirm. We find No. the District Court condition of and Rite-Line businesses in The PSC. are motor Convenience and allowed to establish routes be sold or operate certain direct competitor 1136. Following routes Necessity of negotiations, Molerway Certificate No. operating trucking which 1136? intrastate is regulated Certificates of carriers are motor Certificates Montana. can only PSC approval. Certificate Rite-Line, that Intrastate by within within of carriers Montana with owned determining Intrastate Montana. Public Rite-Line in PSC approval PSC issues transferred err No. the 1136 State sought Molerway 2 of to which authorized Molerway, Montana. obtain it Certificate and Rite-Line agreed to a No. upon a purchase Sell price of Agreement. officials the the transaction. Under off. certificate drafted Molerway and 1991, Agreement the also Molerway setting agreement, payments The parties allowing 1136, attorney 13, Buy-Sell down and monthly was paid Molerway's On February signed $30,000 $150,000. forth Molerway of until the terms a lease of to pay the $150,00o of Certificate to take immediate that and ensuring Rite-Line was required $5,427.27 executed a Buy- there was no interruption No. possession of in the carrier service. The Buy-Sell approval of Agreement the was expressly transfer. The conditioned on the PSC's Agreement provided, in Buy-Sell part: In the event the transfer is not approved and approval cannot be obtained within a reasonable length of time after hearing on the application, then this Agreement shall be considered null and void, and any funds received by Seller for payment of the purchase price shall be refunded to the Buyer. Following to the execution On March At cate. portions routes the approval PSC for of of the the PSC approved 15, that of 1991, time, Agreement, transfer of No. covered in 1136 of which Molerway's the the the representatives Certificate already Buy-Sell were other applied certificate. lease the parties of the certifi- PSC indicated duplicative that of certificates other would be cancelled. Both parties authorities would a security interest if the duplicate feared jeopardize that the PSC's the Buy-Sell in Certificate authorities No. were 3 cancellation of Agreement. 1136. cancelled Rite-Line Rite-Line upon duplicate had feared approval that by the PSC, the it would Buy-Sell its security for the remaining payments due on Agreement. On June the lose 4, 1991, cancellation of Molerway's attorney duplicate wrote authorities. the The PSC concerning letter stated, in part: The payoff on this Agreement is date the Commission approves of would postpone the Commission duplicate authorities until the That way, Rite-Line been paid off. Commission would be relieved contract. only two years from the the transfer. Perhaps the deletion of the outstanding balance has is protected and the of interfering with a Molerway does not want to delay the transfer of this nor does it expect to default on the Agreeauthority, Perhaps we could have a meeting with Rite-Line, ment. Molerway and the Commission to weigh the alternatives. Rite-Line made a similar authorities request be delayed On July 22, approved the requests of until 1991, transfer Molerway the the of that the authorities paid As of time it considered Rite-Line the is unclear No. of trial, evidence consider what 6051. routes, to be a "duplicate if PSC Order any, No. would 6051 in which Pursuant to the any action on No. 1136 was PSC had not ruled to Neither establish authority." be cancelled on what Molerway precisely Therefore pursuant nor what to states: It is the Commission's policy to cancel duplicating motor carrier authority upon a sale or transfer. . . . the Commission has determined that the unique However, circumstances of this case justify the recognition of an exception. Specifically, the "Buy-Sell Agreement" 4 it Certificate the trial 6051 1136. authority." at No. was fulfilled. PSC delayed until to be a "duplicate PSC would Order the presented No. and Rite-Line, of duplicate Agreement Order Certificate duplicate cancellation Buy-Sell PSC issued cancelling off. the it PSC between Rite-Line and Molerway establishes a security interest in PSC Certificate No. 1136 and its subparts during the payment period of two (2) years. If Certificate No. 1136 were to be cancelled, the collateral identified in the Agreement would cease to exist. Therefore, the Commission will defer cancelling the duplicating authority for two (2) years solely for these reasons, approve the transfer with the conditions described below. Although in the its June Molerway PSC had done what 4, 1991 stopped letter, payment Molerway had specifically Molerway on its Agreement, and on September rescission of contract. objected August Molerway sent $30,000 down payment and first returning Certificate No. Rite-Line rescind the 29, Judicial District Buy-Sell Agreement 1992, favor of constituted Molerway's return in of of the exchange Rite-Line for refused course appeals to a complaint returned answered the Buy-Sell June 7-8, The of the from it to money rescind paid the District of the Certificate conduct, it waived cancellation that the pursuant seeking of Court the transfer its right of 5 Fourth Agreement. determined decision to the and counter-claimed, court the in seeking to 1994 trial, an "approval" Molerway have of Rite-Line. due County, Rite-Line the contract filed Missoula and to performance Following Molerway Court, agreement. specific Buy-Sell contract. On January to that installments 6051. a notice the 1136 to Rite-Line. No. on the requested two Order installment 1991, 4, to requested duplicate the District held PSC's order and that to rescind authorities. Court. in by the Issue Did the determine District the contract parol of the was clear should parol parties that of Agreement the of argues introduction intent err intent Molerway the Court the in admitting to erred trial in Molerway and unambiguous been concerning the Agreement? by allowing the to determine that the Buy-Sell insists face. strictly by parties' to order on its construed evidence Buy-Sell Court during parties. parol the District evidence have evidence 1 intent Therefore, its terms should the and no have been allowed. We review the court Mont. ous . 09, Bank abused 338, controls 863 its Hennen 872 P.2d of district court its P.2d discretion. 378. if Circle v. 799; the Inc. and Son to is if (1993), 261 in clear (1994), a contract and unambigu- 264 Mont. and 28-Z-905, (1989), determine Passama contained contract ยงยง 28-3-401 Meyers v. language Omega Enterprises, 797, rulings State The interpretation v. evidentiary MCA. 236 Mont. 505, 508- In Montana 236, 769 P.2d we stated: 1208, The rule has long been that where no ambiguity exists in the written documents, no parol evidence may be taken, (citation omitted) and the duty of the court is simply to apply the language as written. Montana 769 P.2d Bank, at 1212. However, look when ambiguities to evidence parol Monte Vista Co. 1358, we stated: to exist ascertain v Anaconda Co. in a contract, the intent (19881, 231 of Mont. the the court parties. 522, 755 may In P.2d An ambiguity exists when a contract interpretations and parol testimony determine what the parties intended. ted.) However, intent of the parties when the agreement in issue is not (Citation omitted). Monte Vista, 755 P.2d A review not clear of the and specifically constitutes an the the purpose the this clear with service it of the contract on does not define the it is was agreement the PSC's what unclear constitute will whether "approval" that Agreement hold the language the Buyer's served not reads, recital, to serve the This is the This be affected purpose is not by the However, PSC's elsewhere contemplate than the Seller." intent. rather in intention by the to concerning the merely in transfer cancellathe of agreeCertifi- as a means by which to customers. We conclude in is Molerway's appears Rite-Line's admissible contradictory authorities. 1136 as an asset that Agreement While The agreement and would contract Buy-Sell of contains previously duplicate No. face. No. 6051would transfer. expression inconsistent cate Buy-Sell Specifically, permit, only the the agreement by Order and customers ment, the agreement of buying of its validity "approval." area tion on that contract. Also, "[iIn reveals transfer, as limited "approval" the record conditioned of the subject to two can be used to (Citations omitis only looked to clear on its face. 1362. unambiguous "approval" under at is these ambiguous. order District to contradictory As such, determine Court the did 7 provisions parol evidence intent not abuse of the its render the was properly parties. We discretion in admitting par01 evidence in order to determine the intent of the parties. Issue Did the "approved" terms of District the the transfer argues that by that not in and to 1136 the occur, Molerway that pursuant PSC to a the condition Agreement. which Molerway stated duplicate two years, the PSC did all its subparts as Because insists PSC Order it to cancel duplicate does render agreed, and acquiescence following is the not not was a condition bound by the of the Rite-Line bargained No. PSC's for: 1136, of the of also authority elimination contends the PSC's that contract that following decision Molerway's cancellation duplicate transfer 6051 was an "approval" authorities concluding fulfillment cancellation "denial" not to the No. Rite-Line transfer. Court that 6051 contract. contract the PSC was Buy-Sell No. right District cate be argues certificate asserted of the the Agreement. Rite-Line the the cancelled precedent Buy-Sell in Order Certificate condition that 1136 by No. 11 approve" concluding No. approval issuing would did in Certificate stated authorities precedent err Agreement? expressly claims of Buy-Sell Molerway precedent Court 2 the a denial. of duplicate would not The to object authorities Molerway's authorities PSC's completion failure illustrated of intent result in a application. that insists to use the of Rite-Line 8 Molerway routes received designated as a competitor what in it Certifi- along those routes, and sold to the assurance another motor We will unless they Assoc. v. not are (1990), on its 320, of to the intent of case, the the cancellation transfer lease was Mont. 470, 474, the court Monte application. it made two installment look Molerway payments on the Molerway also encouraged, or at decision to cancel duplicate By its its would actions the PSC's not render the decision cancellation of that of the the transfer to the to act, District duplicate after in of of the authorities was not 9 to the the the PSC's Molerway it had actual authorities. its Molerway Court's application of acquiesced authorities the to discuss object least this consider "denial" duplicate very a denial not the In authorities. contract cancellation discern 1362. a not cancel the and failure that We conclude denial intention intent did duplicate of letter. be of and unambigu- 1991 meeting Molerway cancel at did to v Dep't to P.2d court's 603. elsewhere the March 1136, would PSC's clear 755 knowledge PST's the is not authorities No. that 601, fact Credit the Inc. 803 P.2d that During of Certificate be We review if Steer, Vista, establishes duplicate suggestion must of 1285. determine when a contract parties. of not Production 820 P.2d correct. above, evidence law law 245 face, would findings Interstate 250 Mont. As discussed ous erroneous. (1991), of 1136 court's conclusions interpretation No. a district clearly court Revenue Certificate carrier. overturn DeSaye district that to, the 4, 1991 June has manifested duplicate authorities transfer application. finding did clearly that not the amount erroneous. PSC's to a Issue Did the the District condition of Court and the cancellation Molerway precedent of parties with the Molerway's Certificate No. 1136 is McGregor v. 536. In McGreqor, that even the issuance not its rely March to the Rite-Line if the PSC's a denial on Court of meeting PSC's Order PSC the condition concluded 1991 require the of that of the No. 6051 approval of entirety. and intentional Cushman/Mommer this to District intent in constituted from a voluntary right. contract, The PSC until manifested Waiver the right waived transfer? enforcing its conduct Molerway concluded, PSC approval. of that certificate authorities waived course the for Court duplicate transfer, of reason District of Molerway's in determining PSC approval As an alternative argued, err 3 Court (19861, relinquishment 220 Mont. of 98, a 714 P.2d stated: Waiver is the voluntary, intentional relinquishment of a right. (Citation omitted.) A waiver of a right of action will be declared only when the party clearly manifests such an intention. (Citations omitted.) McGresor, 714 P.2d The record relinquished when it duplicate the contract considering that right transfer first 543. reveals its certificate at in learned cancelling rely it on its entirety. that the Molerway authorities. while to Molerwayvoluntarily knew or the the and intentionally PSC's Molerway PSC was made two should duplicate 10 have approval of made no objections considering cancelling installment payments known the authorities. the that on PSC was Most persuasive the PSC. In this cancellation letter, of cancellation. was the tune 4, 1991 letter Molerway not only duplicate acquiesced authorities, In the letter, from Molerway but Molerway's to the PSc's encouraged attorney to such a stated: Perhaps the Commission would postpone the deletion of the duplicate authorities until the outstanding balance has been paid off. That way, Rite-Line is protected and the Commission would be relieved of interfering with a contract. Molerwav authoritv, e. Despite Molerway's by sending to only the this letter, the that that relinquishment of its the PSC's approval law was correct. some time" is susceptible it wanted to postpone authorities until Molerway further after stated Agreement that despite the authorities. course to rely of Certificate the contract. stated on the Buy-Sell Molerway's right to "buy the letter duplicate Agreement. to default intended merely of June 4, 1991, manifested letter to void of of the duplicate We conclude its it the transfer of this default on the Aqree- to Molerway of the Buy-Sell cancellation delay we conclude PSC's cancellation did not intend to expect that claim one interpretation. expiration it does not want nor does it [Emphasis added.] We hold of conduct, a voluntary particularly and intentional on the condition No. 1136 in its the District entirety Court's Affirmed. Chief precedent Justice of in order conclusion of we concur:
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