                                    NO. 80-414
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1981


ROBERT V. WHITE and KAREN WHITE,

                             Plaintiffs and Respondents,


FRANK LOBDELL and KATHRYN LOBDELL and
PONDEROSA REAL ESTATE,

                             Defendants and Respondents,
                 and
FIDELITY REAL ESTATE,

                             Defendant and Appellant.


Appeal from:            District Court of the Fourth Judicial District,
                        In and for the County of Missoula
                        Honorable Jack L. Green, Judge presiding
Counsel of Record:
    For Appellant:
           Milodragovich, Dale and Dye, Missoula, Montana
           Michael J. Milodragovich argued, Missoula, Montana
    For Respondents:

          William R. Baldassin argued, (Lobdell), Missoula, Montana
          Datsopoulos, MacDonald & Lind, Missoula, Montana
          Christopher Swartley argued (White) Missoula, Montana


                                     Submitted:   September 23, 1981

                                      Decided:    ;i!f{   5-   Iq'gZ
Filed:
         !I.   rv 5 I 9
                  [ .
                   -
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Fidelity Real Estate appeals from a judgment against it
in the District Court, Fourth Judicial District, Missoula
County, in favor of Roger V. White and Karen White, in the
sum of $10,255.00 and costs.
    We affirm the judgment in favor of Frank and Kathryn
Lobdell and reverse the remainder of the judgment and remand
the case for a new trial.
     On December 19, 1978, Frank G. Lobdell entered into an
exclusive listing agreement with Ponderosa Realty, a Missoula
realtor, to sell his residence located on Lot 13A, Block 3,
Hillside Homes Addition No. 1, Missoula County, Montana.     In
the listing agreement, the irregular four-sided lot was
shown as having dimensions of 214.5 feet, 190.2 feet, 92.4
feet and 130 feet.
    At the time, Ponderosa Realty was a participant in the
Missoula Multiple Listing Service.    That service sent out to
the participating Missoula realtor offices a multiple listing
document which showed Ponderosa Realty as the listing office,
and repeated in a diagram the above dimensions for the

Lobdell lot shown on the original Ponderosa listing. Fidelity
Real Estate, also a Missoula realtor, received a copy of the
multiple listing as a participant in the Missoula Multiple
Listing Service.
     Robert White, a civil engineer with the United States
Forest Service, came to Missoula on January 26, 1979, to
look for a home.     He and his wife Karen White were shown the
Lobdell residence by Valerie Ann Demos of Fidelity Real
Estate.   The Whites personally examined the real property
involved, and on January 29, entered into a buy-sell agreement
through Fidelity Real Estate.    They subsequently obtained a
warranty deed from the Lobdells on March 13, 1979, conveying
the property described as Lot 13A, Block 3, Hillside Homes
No. 1, Missoula County, Montana.
    After the transaction was completed, the Whites learned
through a Veterans Administration survey encroachment document
that the actual dimensions of the lot which they had purchased
were 170.52 feet by 122.73 feet by 84.95 feet by 80 feet.
The latter dimensions contained 11,349 square feet whereas
the dimensions shown in the listing agreement diagram
contained 19,107 square feet.
     The Whites filed suit in Missoula County District Court
against Frank Lobdell and Kathryn Lobdell as sellers of the
real property, Robert Payne and James Payne, d/b/a Ponderosa
Realty, and Fidelity Real Estate.    The complaint charges the
defendants with negligence, actual fraud and constructive
fraud in connection with the sale of the house.
     The Lobdells, Robert and James Payne, and Ponderosa
Realty filed an answer and cross-complaint, denying any
liability to the Whites and cross-claiming against Fidelity Real
Estate on the ground that Fidelity Real Estate was acting as
agent of the Whites and failed in its duties as their agent
in closing the real estate transaction.
     Fidelity Real Estate answered the Whites' complaint by
general denial, answered the cross-claim by general denial
and alleged that the damages of the Whites were the direct
and proximate result of the errors and omissions of the
Lobdells and Ponderosa Realty.
     A pretrial order was entered by the District Court on
June 25, 1980.   It lists the contentions of the Whites
against the various defendants.     The only defendants' contentions
listed are those of Fidelity Real Estate to the effect that
the Whites may not recover because of comparative negligence
and that any damages that the Whites may have suffered are
the result of the acts of the other defendants.
     On the morning that the case came on for jury trial, it
was disclosed to the District Court that although defendants
Robert Payne and James Payne had been sued "d/b/a Ponderosa
Realty," it was nevertheless true that Ponderosa Realty
was a corporate entity.   No issue had been raised by any
party prior thereto, by pleading or otherwise, that Robert
Payne and James Payne were not proper parties doing business
as Ponderosa Realty.    The colloquy between Court and counsel
   connection with that development follows:
     "THE COURT: Do the Defendants Lobdells and Payne
     have any objection?
    "MR. MILODRAGOVICH: None, Your Honor. One question
    I have for purposes of clarity of the record, when
    the caption was originally established on this the
    Defendants were Robert and Jim Payne; I think since
    then it's been stipulated that Ponderosa Real
    Estate, which was the organization that they were
    working for, was the actual party in interest and
    that Paynes were taken out of it. I don't know
    what the status of that is as far as at the present
    time. I know we show it as Ponderosa Realty in the
    pretrial order.
     "MR. SWARTLEY: For the record, Your Honor, the
     complaint was originally drawn reflecting Ponderosa
     Realty as a partnership or sole proprietorship; we
     later learned it was a corporation, and I believe
     still has corporate existence.
     "MR. BALDASSIN:    That is correct.
     "MR. SWARTLEY: And if that is the case, then the
     individual Defendants Robert and James Payne were
     -- as I am sure that the evidence will develop,
     were acting merely as either officers, agents, or
     employees of the corporation, and we would be
     willing to stipulate to that fact.
     "THE COURT: Robert Payne and James Payne will be
     stricken as parties Defendant. It will be Frank
     Lobdell and Kathryn Lobdell, Ponderosa Realty
     Company and Fidelity Real Estate?
     "MR. SWARTLEY:    Correct.
        Based on t h e s p e c i a l v e r d i c t , t h e D i s t r i c t C o u r t e n t e r e d

judgment a g a i n s t F i d e l i t y Real E s t a t e .         T h i s d e f e n d a n t moved
f o r a new t r i a l and f o r r e m i t t i t u r o f t h e damage award on

t h e ground t h a t it was n o t s u p p o r t e d on t h e e v i d e n c e .           The
c o u r t d e n i e d t h e motion f o r a new t r i a l o r r e m i t t i t u r and

t h e a p p e a l h e r e ensued.

        F i d e l i t y R e a l E s t a t e raises t h e s e i s s u e s :

        1.     The D i s t r i c t C o u r t e r r e d i n d i s m i s s i n g Ponderosa

R e a l t y on t h e b a s i s of S t a t e e x r e l . C i t y of Havre v. D i s t r i c t

C o u r t , which e i t h e r d o e s n o t a p p l y t o t h i s c a s e o r s h o u l d be

o v e r r u l e d by t h i s C o u r t .

        2.     I t w a s e r r o r t o f i n d t h a t F i d e l i t y was an a g e n t of

t h e Whites.
        3.     F i d e l i t y a c t e d a s a s u b a g e n t of Ponderosa R e a l t y

and t h e r e f o r e Ponderosa R e a l t y i s l i a b l e f o r t h e c o n d u c t of

Fidelity.

        4.     Liability f o r a defective legal description i n

m u l t i p l e l i s t i n g s h o u l d b e p l a c e d on t h e l i s t i n g r e a l t o r and
n o t upon t h e s u b a g e n t , t h e s e l l i n g r e a l t o r .

        5.     The damage award i s u n s u p p o r t e d by t h e e v i d e n c e .

        The most i m p o r t a n t i s s u e on a p p e a l i s t h e p r o p r i e t y of

t h e d i s m i s s a l o f Ponderosa R e a l t y a s a p a r t y d e f e n d a n t .

        A s w e have n o t e d ,       t h e Whites named i n t h e i r c o m p l a i n t

t h e d e f e n d a n t s , "Robert Payne and James Payne d/b/a                      Ponderosa
Realty."         There i s n o t h i n g a l l e g e d i n t h e c o m p l a i n t o t h e r
t h a n i n t h e c a p t i o n of t h e c a u s e t o show t h e t y p e of l e g a l
e n t i t y t h a t Ponderosa R e a l t y i s o r was.             From t h e c a p t i o n ,
however, i t might be assumed t h a t Ponderosa R e a l t y w a s
a partnership o r j o i n t venture.
        When t h e r e m a i n i n g p a r t i e s f i l e d answers, t h e y a d o p t e d

t h e c a p t i o n o f t h e c o m p l a i n t naming t h e Paynes under t h e

s t y l e of "d/b/a        Ponderosa R e a l t y . "       A s such, t h e y ,     including
     "THE COURT:   Very well. "
     Following the noon recess, when counsel were in the
District Court's chambers, the attorney for Ponderosa Realty
brought the subject up again:
    "MR. BALDASSIN: I have two requests. First one
    is, at an earlier conference in chambers the
    Defendants, Robert Payne and James Payne, were
    dismissed as parties Defendant; in discussing the
    matter with them, they were a little unsure as to
    the legal implications of that, so I have asked
    counsel whether we could go on the record and
    formally stipulate that the Defendants, Robert
    Payne and James Payne, are hereafter dismissed or
    hereby dismissed with prejudice.
     "MR. MILODRAGOVICH:    We have no objection.
     "MR. SWARTLEY:   I will stipulate to that.
     "THE COURT: Very well, the names of Robert and
     James Payne will be dismissed with prejudice."
    At the close of the plaintiffs' case in the jury trial,
counsel for Ponderosa Realty moved, and the District Court
ordered, that Ponderosa Realty be dismissed as a party
defendant on the basis of this Court's ruling in State ex
rel. City of Havre v. ~istrictCourt (1980), - Mont      .-     I




     The cause was thereafter submitted to the jury as
between Roger and Karen White, as plaintiffs, and Frank
Lobdell, Kathryn Lobdell and Fidelity Real Estate as defendants.
     The jury returned a special verdict in which it was
determined that the Lobdells were not guilty of any fraud or
negligence in connection with the sale to the Whites.    The
jury found that Fidelity Real Estate was guilty of fraud and
negligence, and found Robert and Karen white's damages in
the sum of $10,255.00.     In attributing negligence, they
found Fidelity Real Estate 40 percent negligent, and "other
parties" 60 percent negligent.    They also found that Fidelity
Real Estate was the agent of the Whites.
action might be subject to a motion for misjoinder, but
Rule 21, M.R.Civ.P.    provides that a misjoinder of the parties
is not a ground for dismissal and that parties may be dropped
or added by order of the court on motion of any party or of
its own initiative at any stage of the action and on such
terms as are just.     The court in this case simply added a
party, the corporation, and dropped a party, the alleged
copartnership.    In addition, under the state of the record
here, at the time of the purported dismissal with prejudice
by the District Court, the Paynes had earlier been eliminated
from the cause as party defendants by an order of the court.
Therefore, those parties were not before the court for a
dismissal with prejudice.
     In view of the state of the record, and the circumstances
under which Ponderosa Realty was substituted as a defendant
corporate entity in this cause, it is not necessary for
to review our decision in - -of Havre, supra.
                          City                     The case is
not applicable here.
     The order of the District Court dismissing Ponderosa
Realty as a corporate entity must therefore be vacated, and
the cause sent back for retrial between the Whites as plaintiffs
and Fidelity Real Estate and Ponderosa Realty as defendants.
As to the Lobdell defendants, a jury has already determined
that they were not negligent or fraudulent in connection
with the sale of the property to the Whites.    Moreover, neither
by appeal nor by cross-appeal does any party raise any issue
as to the propriety of the judgment in favor of the Lobdell
defendants.
     Since this cause must be retried, we discuss the remaining
issues raised by the appellant only for the guidance of the
District Court.
Ponderosa Realty, cross-claimed against Fidelity Real Estate
for any liability that might be found against them in the
suit.     In none of the responsive pleadings did the other
defendants, including Ponderosa Realty, raise the status of
Ponderosa Realty as a legal entity, either through answer or
by special defense.    The pretrial order of the District
Court continued the caption adopted from the original complaint,
showing Ponderosa Realty as the "d/b/aw defendant.    In the
            4
defendants. contentions in the pretrial order, there is nothing
as to the status of Ponderosa Realty.
        In State ex rel. City of Havre v. District Court (1980),

- Mont     . -, 609 P.2d   275, 37 St-Rep. 552, this Court
sustained an order of the District Court granting summary
judgment in favor of the City of Havre and Hill County upon
the ground that since the plaintiff had earlier dismissed
with prejudice his claim against an agent or employee of the
city and county, the summary judgment was proper because the
liability of the city and county could only be vicarious or
derivative.     It was on the authority of that holding that
the District Court in the case at bar decided that the
dismissal with prejudice of James Payne and Robert Payne,
in effect, was a dismissal of Ponderosa Realty, since the
corporation could only be liable through the actions of its
employees or agents.
        We determine, however, that the - -of Havre rationale
                                        City
was improperly applied in this case.    What occurred here was
not a substantive dismissal with prejudice of an agent or
employee, but rather the substitution of a proper party
before the court.     The District Court simply struck the
entity of a copartnership and inserted the entity of a
corporation.     If the corporation had not been added, the
service.     Under the instruments that are in evidence in this
case, each of the realtor agencies were acting as agents for
the sellers, independent of one another, except for the duty
of dividing the commission if the property was sold by a
realtor other than the original listing agency.
     Since the cause will be retried, there is no necessity
to discuss the other issues raised by the appellant.
    Accordingly this cause is affirmed as to the judgment
in favor of Frank Lobdell and Kathryn Lobdell; it is reversed
and remanded for a new trial as to the defendants Fidelity
Real Estate and Ponderosa Realty; and the order of the
District Court dismissing Ponderosa Realty with prejudice is
vacated.     Costs of appeal shall be borne by Ponderosa Realty.




We Concur:



     p i e £ Justice
       We have no issue before us as to Fidelity's right of
indemnity against Ponderosa Realty since such issue was not
raised in the case below, but only upon appeal.     Chadwick v.
                          ,
Giberson (1980), - Mont. - 618 P.2d 1213, 1215, 37
St.Rep. 1723, 1726.    After remittitur, Fidelity may move to
amend its pleadings with respect to indemnity against Ponderosa
Realty, but that is a motion which will be addressed to the
sound discretion of the District Court.    Rule 15(b), M.R.Civ.P.;
Reilly v. Maw (1965), 146 Mont. 145, 156, 405 P.2d 440,
447.
       There should be no issue submitted to the jury as to
whether one of the realtor agencies is an agent or subagent
of the other.    Under the listing agreement signed by Frank
G. Lobdell, Ponderosa Realty was given an exclusive listing
to sell the property, and in it Lobdell agreed that in the
event that "[Ponderosa Realty] or any broker cooperating
with [Ponderosa Realty] shall find a buyer    ...    I hereby
agree to pay you in cash for your services and commission
equal in amount to 6% of said selling price."     The listing

agreement further authorized Ponderosa Realty to list the
property with any multiple listing service at Ponderosa's
expense and to accept the assistance and cooperation of
other brokers.
       When the Whites signed the earnest money receipt and
agreement to purchase, on January 29, 1979, they agreed in
writing to purchase the property at the price stated and
gave Fidelity Real Estate one day to secure the sellers'
acceptance.     The sellers accepted, and agreed to pay a
commission to Fidelity of $4,085.00 for services rendered.
The division of the realtor's fee was simply a matter of
agreement between realtors utilizing the multiple listing
Mr.    J u s t i c e Frank B. Morrison, J r . , d i s s e n t i n g :

        I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n .

        P l a i n t i f f s went t o t r i a l a g a i n s t Frank L o b d e l l , Kathryn

L o b d e l l , R o b e r t Payne, James Payne, Ponderosa R e a l t y and

F i d e l i t y Real E s t a t e .    Ponderosa R e a l t y was o r i g i n a l l y sued

a s a p a r t n e r s h i p a s i n d i c a t e d by t h e c o l l o q u y s e t f o r t h i n

t h e majority opinion.               That business w a s subsequently discovered

t o be a c o r p o r a t e e n t i t y .     During t r i a l , R o b e r t Payne and

James Payne w e r e d i s m i s s e d w i t h p r e j u d i c e .         The t r i a l c o u r t

t h e r e a f t e r d i s m i s s e d t h e i r employer, Ponderosa R e a l t y , on

t h e b a s i s t h a t t h e l i a b i l i t y of Ponderosa R e a l t y was d e r i v a t i v e ;

t h a t a d i s m i s s a l w i t h p r e j u d i c e i n f a v o r of R o b e r t Payne and

James Payne a d j u d i c a t e d l i a b i l i t y i n t h e i r f a v o r and t h e r e b y

a d j u d i c a t e d t h e l i a b i l i t y of t h e i r employer, Ponderosa

Realty.       The t r i a l c o u r t ' s d e c i s i o n w a s b a s e d upon S t a t e e x

r e l . C i t y of Havre v. D i s t r i c t C o u r t ( 1 9 8 0 ) ,                Mont      .         I



609 P.2d 275, 3 7 St.Rep.                  552.

        The m a j o r i t y o p i n i o n a t t e m p t s t o d i s t i n g u i s h t h i s c a s e

from S t a t e - -l . C i t y - Havre on t h e b a s i s t h a t i n t h e
               ex r e         of

c a s e a t b a r , t h e r e a c t u a l l y was a s u b s t i t u t i o n of p a r t i e s

r a t h e r t h a n t h e d i s m i s s a l of one d e f e n d a n t .     The d i s t i n c t i o n

i s without a difference.                   T h i s c a s e i s c o n t r o l l e d by S t a t e

- -l . -t-o f Havre w h e r e i n t h i s C o u r t s a i d :
ex r e Ci y

                "Therefore, a s t i p u l a t i o n of dismissal with
                p r e j u d i c e of a d e f e n d a n t i s tantamount t o a
                judgment on t h e m e r i t s ; and a c c o r d i n g l y ,
                such a d i s m i s s a l w i t h p r e j u d i c e i s -      res
                judicata a s t o every i s s u e reasonably r a i s e d
                by t h e p l e a d i n g s .       Under t h e d o c t r i n e of
                r e s p o n d e a t s u p e r i o r , a n employer d e f e n d a n t ' s
                l i a b i l i t y i s v i c a r i o u s o r d e r i v a t i v e and does
                n o t a r i s e u n t i l a n employee a c t s n e g l i g e n t l y
                w i t h i n t h e s c o p e o f h i s employment. A d i s m i s -
                s a l of a c l a i m w i t h p r e j u d i c e of a n employee
                i s e q u i v a l e n t t o a f i n d i n g t h a t t h e employee
                was n o t n e g l i g e n t . Under t h e d o c t r i n e of
                r e s p o n d e a t s u p e r i o r , such a d i s m i s s a l of a n
                employee o p e r a t e s t o e x o n e r a t e t h e employer.
                                    ----
                p r e j u d i c e - - - and w i l l n o t look behind
                                   on i t s f a c e ,
                                                                                -
                T h i s C o u r t w i l l look a t t h e d i s m i s s a l w i t h
                                                                     1 --
                -
                t h e words ' w i t h p r e j u d i c e .
                                                            1   1
                                                                     (Emphasis a d d e d . )
        T h i s c a s e c a n n o t be r e c o n c i l e d w i t h t h e h o l d i n g s e t

f o r t h above.       The t r i a l b a r i s , a s t h e r e s u l t o f t h i s d e c i s i o n ,

b e i n g l e f t w i t h no g u i d e l i n e s f o r f u t u r e a c t i o n .     In State

- -l .
ex r e       City    of     Havre, where t h e d i s m i s s e d p a r t y was a

government employee and t h e r e b y immune from e x e c u t i o n under

t h e t o r t c l a i m s law, t h e c o u r t f a s h i o n e d a i n f l e x i b l e r u l e

t o d e f e a t t h e p l a i n t i f f ' s claim.       The c o u r t emphasized i t

would n o t look behind t h e words " w i t h p r e j u d i c e " t o d e t e r m i n e

what f a c t s gave r i s e t o t h e d i s m i s s a l .          Had t h e c o u r t looked

t o t h o s e f a c t s , i t would have found:               (1) t h e employee who

was d i s m i s s e d s h o u l d n o t have been j o i n e d i n t h e f i r s t p l a c e

b e c a u s e he was immune from e x e c u t i o n under t h e t o r t c l a i m s

law,     ( 2 ) no money was p a i d f o r t h e d i s m i s s a l of t h e employee,

and ( 3 ) i t was t h e i n t e n t of a l l p a r t i e s t o t h e s t i p u l a t i o n

of d i s m i s s a l w i t h p r e j u d i c e t h a t t h e employee n o t be p u t

t h r o u g h t h e expense and trauma of a t r i a l when no r e c o v e r y

c o u l d be had a g a i n s t t h e employee.

        S t a t e e x g&.      City f
                                    o        Havre, s u p r a , h a s n o t been o v e r r u l e d

and c o n t r o l s t h e outcome h e r e .          The D i s t r i c t C o u r t had no

a l t e r n a t i v e b u t t o d i s m i s s Ponderosa R e a l t y a s a p a r t y

defendant.

                                                              --
        I f t h i s C o u r t had o v e r r u l e d S t a t e e x r e l . C i t y of
                                                                                  -
Havre, s u p r a , t h e r e b y a u t h o r i z i n g t h e c o n t i n u a t i o n of a

c l a i m a g a i n s t Ponderosa R e a l t y , t h e v e r d i c t i n f a v o r of t h i s

p l a i n t i f f c o u l d n o t b e d i s t u r b e d under t h e law.           Only t h e

p l a i n t i f f h a s any s t a n d i n g t o c l a i m p r e j u d i c e from t h e

d i s m i s s a l of Ponderosa R e a l t y .         The t h e o r y by which F i d e l i t y

c l a i m s p r e j u d i c e from s u c h d i s m i s s a l i s t h a t F i d e l i t y t h e r e b y

becomes r e s p o n s i b l e t o pay t h e e n t i r e judgment.                  Of c o u r s e ,

under w e l l e s t a b l i s h e d l e g a l p r i n c i p l e s , t h i s d o e s n o t

provide a b a s i s f o r F i d e l i t y t o r a i s e t h e dismissal a s
error.

         P l a i n t i f f s b r o u g h t t h i s a c t i o n a g a i n s t t h e s e two r e a l

e s t a t e f i r m s a l l e g i n g them t o be j o i n t t o r t f e a s o r s .          The

pre-trial        o r d e r s t a t e s t h a t t h e l i s t i n g a g e n t , Ponderosa

R e a l t y , was g u i l t y of n e g l i g e n c e i n f a i l i n g t o i n v e s t i g a t e

and d e t e r m i n e t h a t t h e l o t s i z e was n o t a s r e p r e s e n t e d .

L i k e w i s e , p l a i n t i f f s contended t h a t d e f e n d a n t F i d e l i t y Real

E s t a t e was n e g l i g e n t i n f a i l i n g t o make s u c h an i n v e s t i g a t i o n

p r i o r t o t h e time i t s o l d t h e property.                  The l i a b i l i t y of

Ponderosa R e a l t y d o e s n o t depend upon t h e l i a b i l i t y of

F i d e l i t y Real E s t a t e , nor i s t h e o p p o s i t e t r u e .          The two

d e f e n d a n t s were b e i n g pursued a s j o i n t t o r t f e a s o r s .             Their

l i a b i l i t y i s j o i n t and s e v e r a l .     The p l a i n t i f f s c o u l d r e c o v e r

a g a i n s t e i t h e r o r both.        Once t h e p l a i n t i f f s c o l l e c t e d t h e

judgment t h e y would be a b l e t o s a t i s f y t h a t judgment a g a i n s t

one o r a l l of t h e d e f e n d a n t s .

        I n t h i s c a s e , p l a i n t i f f s were f r e e t o s u e e i t h e r F i d e l i t y

Real E s t a t e o r Ponderosa R e a l t y o r b o t h .                P l a i n t i f f s were

f r e e t o c o l l e c t t h e judgment a g a i n s t e i t h e r o r b o t h and

s a t i s f y t h a t judgment a g a i n s t e i t h e r o r b o t h .             his i s t h e

v e r y e s s e n c e of j o i n t and s e v e r a l l i a b i l i t y .

        I n returning t h e v e r d i c t i n t h i s case, the jury,                        in

special interrogatories,                   found t h a t F i d e l i t y Real E s t a t e was

g u i l t y of b o t h n e g l i g e n c e and f r a u d .       The j u r y e x o n e r a t e d

t h e owners of t h e l o t , Frank and Kathryn ~ o b d e l l .

        The e f f e c t of t h i s C o u r t ' s d e c i s i o n i s t o s a y t h a t

F i d e l i t y R e a l E s t a t e , found by t h e j u r y t o be g u i l t y of

n e g l i g e n c e and c o n s t r u c t i v e f r a u d i s e n t i t l e d t o c o n t r i b u t i o n

from Ponderosa R e a l t y , t h e a b s e n t d e f e n d a n t .             The e s s e n c e of

t h e C o u r t ' s h o l d i n g i s t h a t F i d e l i t y Real E s t a t e s h o u l d n o t

have t o b e a r t h e e n t i r e burden of t h i s judgment, b u t s h o u l d
h a v e t h e o p p o r t u n i t y t o have a n o t h e r d e f e n d a n t s h a r e i n t h e

load.

        The h o l d i n g of t h i s C o u r t v i o l a t e s i t s p r e v i o u s d e c i s i o n

i n C o n s o l i d a t e d F r e i g h t w a y s v . O s i e r (1979) ,             Mont.

-I        - P.        2d          ,   36 St.Rep.        1810.       I n a case c e r t i f i e d

from F e d e r a l D i s t r i c t C o u r t , t h i s C o u r t h e l d t h a t , where t h e

p l a i n t i f f e l e c t e d t o sue b u t one defendant, t h a t defendant

c o u l d n o t implead a n o t h e r p o t e n t i a l l y n e g l i g e n t d e f e n d a n t

f o r purpose of seeking c o n t r i b u t i o n i n t h e p l a i n t i f f ' s c a s e .

Now t h i s C o u r t sees f i t t o v a c a t e p l a i n t i f f s ' judgment

a g a i n s t o n e d e f e n d a n t on t h e b a s i s t h a t t h e d e f e n d a n t a g a i n s t

whom judgment w a s r e n d e r e d , i s e n t i t l e d t o have a n o t h e r

p o t e n t i a l l y l i a b l e d e f e n d a n t made a p a r t y t o t h e a c t i o n .

        The r e s u l t i s t o f o r c e t h e p l a i n t i f f s t o t r y t h e i r c a s e

a g a i n a l t h o u g h no t r i a l e r r o r i n u r e d t o p l a i n t i f f s ' b e n e f i t .

S u r e l y t h i s must b e a f i r s t i n t h e a n n a l s o f American J u r i s p r u d e n c e .

        I would a f f i r m .
