                             No.       90-599

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



ELIZABETH EISELEIN,
               Plaintiff and Appellant,
     v.
MONTANA BANK OF ROUNDUP,                               SF? S   -"   1ggj
MONTANA BANCSYSTEMS, 1NC.r
               Defendant and Respondent.               cF SUPREME C O ~ J R - ~
                                                    5 (AYE
                                                              ?ti)& rAivA




APPEAL FROM:     District Court of the Fourteenth Judicial District,
                 In and for the County of Musselshell,
                 The Honorable Roy C. Rodeghiero, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                Patrick F. Hooks; Hooks Law Firm, Townsend, Montana
                Thomas A. Budewitz, Attorney at Law, Helena, Montana
                Robert D. Moore; Moore, McDonough & Norton, Salt
                Lake City, Utah
          For Respondent:
                James A. Ragain and Kyle A. Gray; Holland                   &   Hart,
                Billings, Montana


                                       Submitted on briefs:         June 2 7 1 1 9 9 1
                                                   Decided:         September 9, 1 9 9 1
Filed:


                                   a   -
                                   Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Plaintiff Eiselein appeals from a summary judgment granted to
defendants by the Montana Fourteenth Judicial District Court,
Musselshell County.    We affirm.
     The issues are:
     1.   Did the District Court err in denying Eiselein's motion
for partial summary judgment?
     2. Was summary judgment for defendants improper because there
are genuine issues of material fact or the defendants are not
entitled to judgment as a matter of law?
     Plaintiff Eiselein is the assignee for several persons who
operated the Eiselein Ranch (Ranch) in Musselshell County, Montana.
The Ranch borrowed operating funds from defendant Montana Bank of
Roundup (Bank) for a number of years.   Defendant Montana Bancsys-
tem, Inc., is the Bank's holding company.
     Plaintiff contends that in January 1987, the Bank's president,
Richard Swanz, told the manager of the Ranch, Lou Grosskop, that
the Bank would lend $30,000 to the Ranch in 1987 for "anything we
wished to buy."   Plaintiff also contends that in April 1987, Swanz
made a verbal commitment to Grosskop to lend the Ranch approximate-
ly $150,000 to buy 200 to 250 head of cattle.
     In June of 1987, the Bank made a $35,000 loan to the Ranch.
That loan was memorialized in a promissory note. The Ranch bought
swine with the loan proceeds, granting the Bank a security interest
in sixty-four pigs.
     In September of 1988, following financial difficulties, plain-
tiff filed this lawsuit on behalf of the Ranch, claiming damages
for the Bank's failure to keep a commitment to loan the Ranch
$150,000.    Her complaint includes counts of breach of warranty,
fraud, negligent misrepresentation, promissory estoppel, breach of
the obligation of good faith imposed under the Uniform Commercial
Code, and breach of an implied covenant of good faith and fair
dealing.     The District Court dismissed the claim for breach of
warranty and Eiselein has conceded judgment on her claim for
tortious breach of the covenant of good faith and fair dealing.
     In the order from which this appeal is taken, the District
Court denied Eiseleinls motion for partial summary judgment that
the Bank committed to loan the Ranch $150,000. The court granted
defendants1 motion for summary judgment, ruling, inter alia, that
even if the alleged April 1987 commitment was made, it was
extinguished by the June promissory note pursuant to the doctrine
of merger.
                                 I
     Did the District Court err in denying Eiseleinls motion for
partial summary judgment?
     Summary judgment is proper only when the pleadings, deposi-
tions, answers to interrogatories, and admissions, together with
any affidavits filed, show that there are no genuine issues of
material fact and that the moving party is entitled to judgment as
a matter of law.     Rule 56(c), M.R.Civ.P.   In arguing for partial
summary judgment, ~iseleincites the testimony of Jon Eiselein and
Ranch manager Grosskop that, on or about April 6, Bank president
Swanz told Grosskop to go ahead and start buying cattle and told
Jon Eiselein that the loan would go through.         She also cites
Swanzls deposition testimony that he did not recall the conversa-
tions in question and that they could have occurred.
        Eiselein argues thatSwanzlsaffidavit submitted in connection
with the motions for summary judgment is too conclusory to serve
as a reason to deny her motion for summary judgment.         In his
affidavit, Swanz stated that
            Although Ms. Grosskop may conceivably have
            made such a request, I did not make a commit-
            ment to loan approximately $150,000.00 to the
            Eiselein Ranch in 1987.  ...  The only amount
            I committed to loan to the Eiselein Ranch in
            1987 was $35,000.00.
Attached to his affidavit was a copy of the $35,000 promissory
note.
     We conclude that Swanzls affidavit is sufficient to demon-
strate that there is a genuine dispute of fact as to whether an
oral commitment was made to make the $150,000 loan. This precludes
Eiseleinlsrequest for summary judgment on this issue. See Reaves
v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. We hold that the
District Court did not err in denying Eiselein8smotion for summary
judgment  .
                                  I1
       Was summary judgment for defendants improper because there are
genuine issues of material fact or the defendants are not entitled
to judgment as a matter of law?
       In granting defendants8 motion for summary judgment, the
District Court relied on the doctrine of merger: evidence of prior
oral agreements is inadmissible where there is a subsequent written
agreement as to the same subject, into which it is assumed all
prior oral agreements are merged.        First Nat. Mont. Bank of
Missoula v. McGuiness (1985), 217 Mont. 409, 417, 705 P.2d 579,
584.    The court ruled that any verbal obligation to loan $150,000
to the Ranch was merged into the subsequent written agreement to
loan the Ranch $35,000. Under the doctrine of merger, the factual
dispute about whether Swanz made a verbal commitment to loan
$150,000 is irrelevant, because any evidence as to such a verbal
commitment would be inadmissible in court.
       Eiselein argues that the doctrine of merger does not apply in
this case.    She cites this Court8s opinion in Blome v. First Nat.
Bank of Miles City (1989), 238 Mont. 181, 776 P.2d 525.       In one
part of that opinion, this Court stated that Itno oral represen-
tations by any bank officers may be found which would bind the Bank
to perform as the Blomes contend."     Blome, 776 P.2d at 528.   But,
as defendants point out, that statement did not appear within and
was not relevant to this Court's discussion of the doctrine of
merger.
     Eiselein also argues that the Bank's commitment to make a
$150,000 loan to the Ranch was for cattle and was completely
separate and distinct from its commitment to make the loan for hogs
consummated in the June promissory note.     She asserts that the
doctrine of merger does not, therefore, apply.
     We disagree.   In Blome, the Blomes brought suit against their
bank for failure to comply with an agreement to provide them with
financing for their farming operation as long as they needed it
with repayment to be made when they were able.    This Court ruled
that the doctrine of merger applied and that it barred the Blomesl
claims, even though the alleged oral promise was for the purchase
of feeder cattle and the later loans into which that promise was
merged were for such things as a grain hopper and a truck.   Blome,
776 P.2d at 527, 528.   In the present case, ranch manager Grosskop
characterized all funds sought from the Bank as for I1our yearls
operation.I1 She also admitted that she was aware at least by May
11, 1987, that the $150,000 loan would not be made.   She neverthe-
less accepted and signed the promissory note for $35,000.
     We agree with the District Court that the alleged $150,000
commitment and the $35,000 promissory note both dealt with financ-
ing for operation of the Eiselein Ranch.    We also agree with the
District Court's statement that Iv[t]o argue that the existence of
an oral representation can preclude merger is contradictory and
insupportable."    We hold that the District Court did not err in
granting summary judgment for defendants.
     Af f inned.




We concur:
Justice Terry N. Trieweiler specially concurring.
     I agree that the District Court was correct when it denied
plaintiff's motion for partial summary judgment.        I also concur
with the majority that the ~istrictCourt's order granting the
defendants    motion for summary judgment should be affirmed.
However, I disagree with the reasons set forth by the majority for
their decision.
     This is clearly not a case where the undisputed facts bar
plaintiff's claim pursuant to the doctrine        merger.
     It is correct that evidence of prior oral agreements is not
admissible to alter a subsequent written agreement so long as the
written agreement deals with the same subject matter.       However, a
written agreement will not preclude evidence of a prior oral
agreement that deals with a different subject matter and which was
not merged in the written agreement.     That rule is clear from the
concluding language in F r t N t o a Bank o M s o l v McGuiness (1985),
                        is a i n l        f isua .

217 Mont. 409, 705 P.2d 579, where we stated:
     Under case law in Montana, it is clear that evidence of
     prior oral agreements is not admissible for the purpose
     of altering subsequent written agreements dealina with
     the same subject, and that the prior oral agreements and
     the written agreement will merge into the subsequent
     written agreement unless they are distinct and can stand
     independentlv of one another. Reaves v. Ribld
                                              eno[]    (Mont    .
     1980), 615 P.2d 896, 899, 37 St.Rep. 1500, 1504.
McGuiness, 705 P.2d at 584 (emphasis added).

    In this case there was clear evidence from the testimony of the
plaintiff's ranch manager, Mrs. Lou Grosskop, that the promise that
plaintiff sought to enforce was different and independent from the
promise which became the subject of plaintiffls written loan
agreement with the defendant.        Plaintiff sought to enforce a
promise to loan her $150,000 for the purchase of cattle.          The
promise which became the subject of the written agreement relied
upon by the majority was to loan the plaintiff approximately
$30,000 for the purchase of pigs.
     The deposition testimony of Mrs. Grosskop which was offered
in opposition to the defendants1 motion for summary judgment is
replete with testimony describing the difference between the two
promises.     She gave the following answers to the following
questions regarding the loan for the hog operation:
     Q.     My first question I would like to ask is, in 1987,
            did the Montana Bank of Roundup ever make any
            unconditional promise or commitment that it would
            continue to provide money forthe operating expenses
            of the Eiselein Ranch?
    A.      Yes.
    Q.      Who made that promise?
    A.      Dick Swanz.
    Q.      And when did Mr. Swanz make that?
    A.      January.
    Q.      January of 1987?
    A.      Yes.


    Q.      Tell me what Mr. Swanz said.
     A.   We received a $30,000 line of loan at that time.
          I can't repeat the exact words.
     Q.   To the best of your recollection.
     A.   We received $30,000 to start an operation to do with
          some of the things weld talked about in the past.
          We had talked of putting in a hog operation, a sheep
          operation, and these were just talking about
          different types of projections we were going to work
          on. That's basically it.
     Mrs. Grosskop gave the following testimony regarding a second
promise to loan money for a cattle operation:
     Q.   At any other time in 1987 did anyone at the Montana
          Bank of Roundup make an unconditional promise or
          commitment to continue to provide money to the
          Ranch?
    A.    Yes.
     Q.   Okay.   Who was that?
    A.    Dick Swanz.
     Q.   And when?


    Q.    April 1987?
    A.    Yes.


    Q.    Tell me what Mr. Swanz said during this conversa-
          tion.
    A.    We had been working with a budget projection of
          buying cattle, and I had called and asked if he had
          reviewed it and we were going to go ahead with this,
          and he said yes, held okay it.
    Q.    How much was that budget for?
    A.    That particular budget, we was looking at buying
          about 200 to 250 head of cattle at that time.
     Q.   Okay. In terms of a dollar amount, what were you
          asking for?
     A.   Around the $150,000 mark. We hadn't set an exact
          figure, depending on the price of cattle.
(Emphasis added.)
     Mrs. Grosskop testified that in order to obtain the loan for
the pig operation, she submitted a budget proposal pertaining to
that operation.     However, when applying for the cattle operation,
she had to submit an entirely different budget proposal.          The
following testimony is illustrative of how independent the two loan
transactions were:
     Q.   Now in light of what you've told me, did the new
          budget that you prepared only relate to the cattle
          purchase, or did it also relate to these other
          aspects of your total program that you were talking
          about, the swine and the sheep, et cetera?
     A.   The swine budget he already had because we already
          had the money for that. This proposal would have
          pertained basically to the 150 head run at that
          time.
     The fact that the loan promised in January was intended solely
for the      operation       further evidenced from the fact that the
security agreement entered into as part of that loan secured "64
pigsw and made no mention of any other collateral.
     In Reaves v Reinbold
               .            (1980), 189 Mont. 284, 615 P.2d 896, we

reaffirmed that,
    This Court has consistently held that the party moving
    for summary judgment has the burden of showing the
    complete absence of any genuine issue as to all the facts
    which are deemed material in light of those substantive
     principles which entitle him to judgment as a matter of
     law.
Reaves, 615 p.2d at 898 (citations omitted).

     We further stated that:
     It is clear that the party opposing a motion for summary
     judgment will be afforded the benefit of all reasonable
     inferences which may be drawn from the offered proof.
     M l y v Asanovich (1967), 149 Mont. 99, 423 P.2d 294;
      al .
     Harland v Anderson, supra.
             .
Reaves, 615 P.2d at 898.

     Based upon these principles, we held that a plaintiff in that
case relying on a written agreement was not entitled to summary
judgment where the defendant asserted contrary rights based on an
alleged oral agreement. We stated:
     PlaintiffIs argument is based on the allegation that the
     written agreements entered into on November 21, 1975,
     which included the "Submitted Annualized Commission
     Agreement,I1 superseded any prior oral negotiations or
     agreement between the parties.       In support of this
     argument, plaintiff cites sections 28-2-904 and 28-3-203,
     MCA.
     As stated in plaintifffs brief, there is abundant case
     law in Montana which holds that prior oral agreements or
     conditions are not admissible to alter or vary the terms
     of a later written contract. Davihon v C s b l (1969), 154
                                             . aeot
     Mont. 125, 461 P.2d 2; Heckman andShellv. W l o (1971), 158
                                                isn
     Mont. 47, 487 P.2d 1141; K n e s i .Lame-(1979), [I85 Mont.
                               igrkv
     1111 , 604 P.2d 782. It should be noted, however, that
     such case law has only dealt with an application of the
     rule as to prior oral agreements and subsequent contracts
     between the same parties in regard to the same matter.
     It should also be noted that distinct collateral agree-
     ments even as between the same parties, will not merge
     so as to preclude a prior oral agreement. See S o y v tr .
     Monforton (1941), 112 Mont. 24, 113 P.2d 507; 17 C.J.S.
     Cnrcs
      otat      381 at 451.
       In reviewing the relationship of the two agreements in
       a light most favorable to defendant we note that the
       alleged oral agreement is collateral as opposed to
       ancillary. Both agreements were entered into at ap-
       proximately the same time and deal with an arrangement
       whereby defendant is to receive monies for selling
       insurance.   One agreement, however, is with Lincoln
       Benefit Life Company and provides for a repayment of
       advances made.   The other separate agreement is with
       plaintiff and allegedly provides that he personally will
       guarantee a set salary no matter how much defendant is
       required to repay the insurance company. Each agreement
       is distinct, separate, involves a different party and is
       able to stand independent of the other. With this being
       the case, we cannot find as a matter of law that the
       written agreement would supersede the alleged oral
       agreement.
Reaves, 615 P.2d at 899.

       The testimony of one witness which is disputed by another is
sufficient to raise an issue of fact which precludes summary
judgment on that issue.      In this case, the testimony of Mrs.
Grosskop was sufficient, if believed, to establish that defendants'
January promise to loan money for pigs was separate and indepen-
dent    from its April promise to loan money for cattle.    If that
fact was established, then the written agreement which resulted
from the January promise did not merge with the April promise and
did not preclude the evidence which plaintiff sought to offer.
       I believe, however, that defendants were entitled to summary
judgment for different reasons.     Assuming that the testimony of
Mrs. Grosskop is true and that the defendant did promise to loan
her $150,000 to finance the purchase of cattle, that promise alone
is not sufficient to form the basis for plaintiffls cause of
action.    We have previously stated that "there is no legal duty
requiring a bank to loan money to a customer absent a clear
                        Mann Farms, Inc. v. Traders State Bank of Poplar
contractual ~ommitment.~~

(Mont. 1990), 801 P.2d 73, 77, 47 St.Rep. 2094, 2099.
       Under 5 28-2-102, MCA, the essential elements of a contract
are:
       (1) identifiable parties capable of contracting;
       (2) their consent;
       (3) a lawful object; and
       (4) sufficient cause or consideration.
       In this case, the specific elements of a contract were neither
alleged nor proven by the plaintiff.        Specifically, there was no
consideration extended from the plaintiff to the defendant which
would establish a binding contract.
       Plaintiff in her complaint sought to enforce the defendants1
oral promise based on the principle of promissory estoppel.
However, in Keil v. GlacierPark, Inc. (1980), 188 Mont. 455, 462, 614 P.2d

502, 506, we defined the elements of promissory estoppel as:

       (1) a promise clear and unambiguous in its terms; (2)
       reliance on the promise by the party to whom the promise
       is made; (3) reasonableness and foreseeability of the
       reliance; (4) the party asserting the reliance must be
       injured by the reliance.
(Citations omitted.)
       In this case, there was no evidence that subsequent to April
1987 the plaintiff suffered detriment by the reliance on the Bank's

promise to loan her money.     Plaintiff located no cattle, purchased
no cattle, and incurred no expense which could be attributed to the
defendants1 promise to loan her money for a cattle operation.     In
fact, within two weeks from the time that the Bank promised to loan
her money, plaintiff was notified through Mrs. Grosskop that the
promise   was   being   reconsidered and   that   further   financial
information was necessary.    At that point, all further plans to
proceed with expansion of the cattle operation were put on hold.
     For these reasons, plaintiff suffered no detriment due to a
justifiable reliance on defendants' promise and has not satisfied
the elements of promissory estoppel.
     Because there was neither a binding contract nor sufficient
detrimental reliance to establish promissory estoppel, I would
affirm the District Court's order granting summary judgment to the
defendants.
