                                No. 86-62

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986




PEARL F. WAGNER,
                Plaintiff and Appellant,


GLASGOW LIVESTOCK SALES CO.,
a Montana corporation, and
TREASURE STATE BANK, a Montana
corporation,
                Defendants and Respondents.




APPEAL FROM:     District Court of the Seventeenth Judicial District,
                 In and for the County of Valley,
                 The Honorable B. W. Thomas, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 David L. Nielsen, Glasgow, Montana

         For Respondent:
                 Matthew W. Knierim, Glasgow, Montana




                                   Submitted on Briefs: May 15, 1986
                                     Decided: July 30, 1986


Filed:




                                   Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     This     is   an   appeal   from   an    order     granting   summary
judgment.     Pearl Wagner brought an action against the
Glasgow Livestock Sales Company and Treasure State Bank to
decide:     (1) Whether the security agreement between Wagner
and the Treasure State Bank created a valid security interest
in the collateral described; (2) Whether an advance made on
November 3, 1980 to Wagner's husband and their ranch was
secured by the security agreement; and, (3) Whether Glasgow
Livestock Sales Company was liable to Wagner for proceeds of
the sale of her cattle which were paid directly to Treasure
State Bank rather than to Wagner herself.
     The    District    Court granted        summary    judgment to the
respondents, Treasure State Bank and Glasgow Livestock Sales,
Co. and we affirm.
     The issue before us is whether the summary judgment
should have been granted.
     Early in February of 1980, Pearl and Richard Wagner
entered into an agreement with Treasure State Bank in which
all their farm equipment, livestock, products and proceeds
thereof    were    listed   as   security      for     "the   payment   and
performance of each and every debt, liability and obligation
of every type and description" the Wagners owed or at any
time thereafter would        owe to Treasure State Bank.                The
provisions of this agreement will be cited as needed.              At the
time this agreement was entered the Wagners owed the bank
S86,OOO.OO.
     On March 24, 1980, the Wagners both signed a promissory
note in the amount of $120,000.00 which represented their
operating line of credit for that year.                  The language of this
note indicated it was secured by a security agreement dated
March 24, 1980.            During the following period the bank made
many     advances     on    this   line    of    credit     and   the    Wagners
deposited funds to be credited against this line of credit.
Richard Wagner, individually, and for the ranch, signed an
additional promissory note on November 3, 1980 in the amount
of $170,000.00.
        On January 12, 1981, Pearl Wagner wrote to the president
of the Treasure State Bank informing him that she and Richard
had     separated     in    December of      the   preceding year.           She
emphasized that as of the date of her letter she would no
longer be responsible for any debts Richard Wagner might
incur.     Pearl and Richard Wagner have since divorced.
        Thereafter    Pearl Wagner made            a number of          sales of
cattle.    The proceeds of three of these sales are the subject
of this suit.       In January of 1981 she sold cattle through the
Glasgow Livestock Sales Company for the sum of $3,244.07.                     In
March     of   1981    she     again      sold   cattle     through      Glasgow
Livestock, this time for $120,515.78.                   In both instances the
livestock company made the checks out to Pearl Wagner and
Treasure State Bank.           The second and larger check included
Richard Wagner as payee.               When she presented these checks
Pearl was told that payment on them had been stopped.                         In
each     instance     these     sums    were     then    directed     from   the
livestock company to the bank, where they were credited
against the balance of the March and December 1980 notes.
The final cattle sale concerned three bulls Pearl Wagner
bought from another rancher and consigned the same day to the
livestock company for sale.             After the bulls were sold, the
livestock company paid the proceeds directly to the Treasure
State Bank.        The bank     applied the proceeds against the
balance due on the two notes.       Pearl Wagner brought this suit
against    Treasure   State Bank     and   Glasgow Livestock        Sales
Company alleging that because she was not personally liable
on the November 1980 note, and because the security agreement
of February 24, 1980 did not cover the November note, the
bank and livestock company are liable to her for the proceeds
of those sales.
     We are first asked to determine whether, under the facts
of this case, summary judgment was proper. The law favors
full litigation of all issues brought before a court.                The
narrow exception of summary judgment exists for reasons of
judicial economy.     Hence summary judgment is proper only when
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.             Cereck v.
Albertson's, Inc.      (Mont. 1981), 637 P.2d        509, 38 St.Rep.
1986.     The burden of establishing the absence of any genuine
issue of material fact falls upon the moving party.                 Once
established in the record that no issue of fact exists, the
burden shifts to the party opposing the motion to demonstrate
such issues do exist.         Rumph v. Dale Edwards, Inc. (1979),
183 Mont. 359, 600      P.2d 163.    If the opposing party cannot
display material fact issues to the court or that the law
requires the issue to be determined against the moving party,
summary judgment must be granted. Larry C. Iverson, Inc. v.
Bouma (Mont. 1981), 639 P.2d 47, 38 St.Rep. 1911.
        In the case before us, Wagner has failed to establish
any differences concerning the material facts of the case.
While     the   circumstances    surrounding   the   making    of    the
security agreement and the promissory notes, the crediting
and debiting Wagner's line of credit, and the sales of cattle
and payment of proceeds from those sales may be factually
complicated, Wagner has not produced evidence of any material
issue   concerning     these    facts.        Merely     conclusory    or
speculative    statements asserting         issues of     fact are not
sufficient to resist the motion.            Kronen v. Richter (Mont.
1984), 683 P.2d 1315, 41 St.Rep. 1312.                The party opposing
the motion has an affirmative duty to respond by affidavits
or sworn testimony with specific facts to show there is a
genuine issue suitable for trial.          Martin v. State of Montana
(Mont. 1985), 698 P.2d 399, 42 St.Rep. 272.
     Close examination of the record, including the affidavit
of Pearl Wagner, convinces us that the trial court properly
found   that   no    issue of material        fact existed.         Wagner
contends that she didn't intend at the time of signing the
security agreement that it would cover any separate note
signed by her husband only.         It is true that summary judgment
is usually inappropriate where intent of the parties is an
important consideration.        Twite v. First Bank (Mont. 1984),
692 P.2d   421, 41 St.Rep.      2518.      However, in this case the
security   agreement     as    we   explain    below,     was   a   valid
agreement,     not   ambiguous,     and     clearly     covering    future
indebtedness, whether joint or several, and clearly pledging
Pearl Wagner's separate property (cattle with her brand) for
the whole indebtedness.       Therefore evidence of Pearl Wagner's
subjective intent is not a material issue.              The four corners
of the security agreement clearly show the obligations and
rights arising from the agreement.
     The   only other issue of            fact raised by     the record
concerns the problem that the March 24, 1980 promissory note
refers to a security agreement dated the same day.                   Pearl
Wagner has not alleged the existence of any agreement signed
that day and admits she signed the February agreement which
the bank contends secures that March note.                       The District
Court     found       that    the March    24   date     for the       referenced
security agreement was a typing error.                      This finding was
proper    considering Pearl Wagner has not raised any                        fact
tending to show the existence of any security agreement other
than the February agreement.
        Holding, as we do, that there is no material issue of
fact, we turn now to whether the respondents were entitled to
summary judgment as a matter of law.
        The    first     question     raised     by    Wagner   concerns       the
enforceability          of    the    security    agreement.        A     security
interest is enforceable if it is in writing and sets forth a
description of the collateral and the debtor rights in the
collateral. It must be signed, and consideration must be
given     by    the    secured party       for the       interest.       Section
30-9-203, MCA.          All these requirements have been met by the
security agreement concerned.               It is in writing, describes
the property as all equipment, cattle branded C7-R.H. C7-L.H.
and            R.H.     and    all   proceeds    thereof.       There     is   no
contention that Pearl Wagner was not the owner of these
properties.            The    agreement   is    signed    by    Pearl Wagner.
Finally, value given by the bank, is represented by the prior
$84,000 indebtedness and by the promissory notes issued in
March and December.            Once all these requirements are met, the
security agreement "attaches" and is enforceable against the
debtor.        Section 30-9-203, MCA.          Hence we hold the agreement
entered by        Pearl Wagner on February 6, 1980 created an
enforceable security interest held by the Treasure State
Bank.
        The terms of the security agreement clearly indicate the
collateral would secure joint and single liability of Pearl
and Richard Wagner.           The agreement states:          "To secure the
payment and performance of each and every debt                 . . . whether
it   is    or   may    be    ...   joint,     several,      [or]   joint    and
several    ...   .'I



        Pearl Wagner did not notify the bank until January 12,
1981, that she no longer considered herself or her property
liable for her husband's debts.               She has raised no issue of
fact or legal basis on which the District Court could deny
summary judgment on the issue of her cattle's                      status as
security for the note Richard signed November 2, 1980.                      She
may not be personally liable on the underlying debt.                 Section
40-2-301 and 302, MCA.             However, her property remains as
collateral for that debt under the security agreement which
she signed.
        Finally, appellant Wagner           contends that the Glasgow
Livestock Sales Company was legally obligated to pay the
proceeds of the sale of her cattle to her and the Treasure
State Bank rather than directly to the bank.                 Originally the
first two checks were made out jointly but payment on those
checks was stopped and the proceeds paid directly to the
bank.     Payment from the final sale was made directly to the
bank.
        The terms of the security agreement and the applicable
statutes     allow     the    livestock     company    to    pay   the     bank
directly.       First,       the   security    agreement     contains      this
provision:
        A Secured Party, may, at anytime (both before and
        after the occurrence of an Event of Default) notify
        any account debtor or any other person obligated to
        pay any amount due, that such                 ...
                                                  right to
        payment has been assigned or transferred to Secured
       Party for security and shall be paid to Secured
       Party.
The provision further provides that the debtor will notify
the obligor of the assignment and the secured party could
then demand payment.         This kind of provision is expressly
provided for in security agreements.            Section 39-9-502, MCA.
Furthermore the facts indicate Richard Wagner, himself, put
the stop payment on the second check and brought in the
payment to be applied directly on the outstanding debt.
       The bank did not perfect by filing a financing statement
concerning the security interest until March 2, 1981.              The
first sale where proceeds were sent directly to the bank
occurred prior to the perfection of that security interest.
Even that payment, however was proper.             Independent of the
terms of the agreement or the rules of Montana's commercial
code, some of the provisions of the Livestock code apply and
even    control      the   other   applicable     statutes.    -
                                                               See   5
30-9-203 ( 4 ) ,   MCA.    Section 81-8-301 ( I ) , MCA, one of the
controlling statutes, provides:
       A livestock market to which livestock is shipped
       may not be held liable to any secured party for the
       proceeds of livestock sold through the livestock
       market by the debtor unless notice of the security
       agreement is filed and a copy is transferred as
       hereinbefore provided.
       The inverse implication of this section is that the
livestock market would be liable if the notice had been filed
and the proceeds were paid to the debtor.             The proceeds of
the first sale were paid before the Treasure State Bank had
filed such a notice.        However, the District Court found from
the deposition of Robert Fjeldheim, President and General
Manager of Glasgow Livestock Sales, Co., that the Wagners
themselves informed the sales company that the bank had a
security interest in their cattle.        Prior to the second sale
the bank     filed a notice concerning the security interest
created in Wagner's cattle and the Glasgow Livestock Sales
Company had       received    a copy.       Therefore the market was
obligated to pay the bank for the second sale.
     The situation is complicated somewhat by the fact that
the security interest enforced in the last sale was one
created in cattle owned by another debtor of the Treasure
State Bank.       These cattle were bought by Pearl Wagner and
consigned to Glasgow Livestock Sales Company on the same day.
There   is   no   evidence     in   the    record that this    security
agreement did not contain the exact provision which allowed
the bank to demand payment.               Furthermore a notice of the
security interest in these cattle was also on file with the
livestock company.          Therefore S     81-8-301(1), MCA, required
the livestock company to pay the bank the proceeds.
     We conclude that there is no issue of material fact or
interpretation of law which precludes the summary judgment
granted by the District Court.            The judgment and order of the
District Court are affirmed.




We Concur:         *




  H. /*
     -
    Chief Justice
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