                                   No. 81-20
               IN THE SUPREME COURT OF THE STATE OF MOXTANA
                                       1981



GRACE BYRD,
                Plaintiff and Respondent,


GARRY V. BENNETT, ROBERT L. WHITE
and AMERICAN TITLE & ESCROW OF BILLINGS,
a Mont. corp. ,
                Defendants and




Appeal from:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone, The Honorable
                Charles Luedke, Judge presiding.

Counsel of Record:
     For Appellant:
                Stacey   &   Jarussi, Billings, llontana

     For Respondents:

                Allen Beck, Billings, FTontana




                                   Submitted on Briefs:    June 4, 1981
                                               Decided: July 9, 1981



Filed:   JUh 9 - 198$
Mr. Justice John C. Sheehy delivered the Opinion of
the Court.

     Defendants Garry V. Bennett, Robert L. White and
American Title     &   Escrow of Billings appeal from the
summary judgment granted to plaintiff Grace Byrd in
the Thirteenth Judicial District Court, Yellowstone County.
Defendants contend the court erred by granting summary
judgment, arguing the record fails to support plaintiff's
motion for summary judgment.        We affirm the judgment of
the District Court.
     In recent opinions, this Court explained the purpose
of summary judgment under Rule 56, M.R.Civ.P.,        and we outlined
the proper procedure for entry of summary judgment.           See,
Anaconda Co. v. General Acc. Fire       &   Life (1980),      Mont ,
    ,   616 P.2d 363, 37 St-Rep. 1589; Reaves v. Reinbold (1980),

- Mont.       -,   615 P.2d 896, 37 St.Rep. 1500.     Under Rule 56(c),
M.R.Civ.P.,    summary judgment shall be entered if        ". . . the
pleadings, depositions, answers to interrogatories, and
admissions on file       ...   show that there is no genuine issue
as to any material fact and that the moving party is entitled
tc a judgment as a matter of law."          The purpose of summary
judgment is to encourage economy through the elimination
of unnecessary trial, delay and expense, but the procedure
is never to be a substitute for a trial if a material factual
controversy exists.        Engebretson v. Putnam (1977), 174 Mont.
409, 571. P. 2d 360.      In a sumunary judgment proceeding, the
formal issues presented by the pleadings are not controlling.
The question to be decided in a motion for summary judgment
is whether there exists a genuine dispute over material facts.
The party moving for summary judgment has the burden of
showing the complete absence of material factual questions.
The proof proffered by the movant is closely scrutinized.
The party opposing the motion may block summary judgment
by offering proof that a dispute exists regarding facts
material to the claim for relief.
     In this case, the affidavits and copies of the parties'
agreement show no material questions of fact remaining to
be determined at trial.    The pleadings and other materials
in the record indicate that plaintiff Grace Byrd was entitled
to a judgment as a matter of law.
     The District Court record indicates that this dispute
springs from plaintiff's sale of her home and an adjacent
lot to defendant Garry Bennett and his partner Charles Robbins.
Bennett and Robbins formed a partnership for the purpose of
developing the Bunting Subdivision, including a 40-unit low
income housing project in Billings.    In order to complete the
housing project, the partners were required to purchase the
lot next to Byrd's home.   At first, Byrd was reluctant to
sell the lot because it acted as a buffer between her home
and the project.   Byrd agreed to sell, however, after the
partners offered to purchase her home as well as the lot.
Byrd was paid $1,000 as a downpayment and was promised the
balance of the $37,000 purchase price upon the completion
of the project and its final closing and transfer to the
Billings Housing Authority.    In addition to their buy-sell
agreement, Byrd agreed to subordinate her interest in the
lot transferred to the interest of the bank financing the
construction of the project.

     The project was completed, final closing occurred and
the deed transferring Byrd's interest in her home and the
lot was recorded by the title company.   Byrd, however, never
received the additional $36,000 due her under the agreement.
Byrd brought this lawsuit to compel defendants to honor
the agreement, or in the alternative, to rescind the
agreement.   She moved the ~istrictCourt to grant summary
judgment in her favor on the ground that defendants had
no legal defense to her claim.   She supported her motion with
copies of the parties' agreement, her own affidavit and an
affidavit of the partner, Robbins.     The affidavits indicate
that the project has been constructed and closed, that
Byrd has not received payment under the agreement and that
the proceeds received in the closing of the project are held
in escrow by the bank that financed the project, available
for release to construction creditors.
     Defendant Bennett attempted to block plaintiff's summary
judgment motion by alleging in an affidavit that, under the
terms of the subordination agreement, plaintiff had agreed
not to pursue her claim as long as Bennett was indebted to
the bank.    Defendant also contended that a fact question
remained unsettled regarding payment of advance construction
costs incurred to build the project.
     Notwithstanding defendants'allegation, the District
Court granted summary judgment for money damages to Byrd.
We find no error.   The defendants' proffered fact question

is not a material fact or issue between the parties.     The
subordination agreement here, by its terms, gives the bank

that financed the housing project, a first mortgage position
and subordinates Byrd's claim to the lot she sold to the
bank's claim in the project.   Further, the affidavit offered

by ~obbinsadvised the court that ample funds were available
to pay ~ y r dand other construction creditors.   Alleged partner-
ship losses from the construction of the housing project are
not a bar under the subordination agreement to a claim
by Byrd for payment when payment is due.   The buy-sell
agreement provided that Byrd was to be paid on the closing
date of the project.
     The court was correct in its grant of a money judgment
to Byrd in the amount owed under the parties' agreement,
plus costs and interest.   The judgment of the District
Court is affirmed.




                             1        Justice
We Concur:
                           c/



       Chief Justice
