                                   NO. 84-63
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1984



THE GRAND COMPANY, a corporation,
                           Plaintiff and Respondent,


JIM SLACK & ASSOCIATES, INC.,
a corporation, WELLS FARGO
TRAVEL AGENCY, INC., d/b/a
WORLD CLASS TRAVEL, a corporation,
WESTERN AGENCY, a corporation,
                           Defendants and Appellants.




APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Yellowstone,
                  The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

         For Appellants:
                  Parker, Sweeney, Healow     &   Lee, Billings, Montana

         For Respondent:

                  Moulton, Bellingham, Longo       &     Mather; Ward Swanser,
                  Billings, Montana



                                   Submitted on Briefs:          April 19, 1984
                                                  Decided:       AuguS.k 28, 1984


Filed:
              !   984



                                                   -.   --- .-
                                  Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinicn of
the Court.
      This appeal is from a judgment of Yellowstone County
District Court awarding The Grand Company ("Grand" restitu-
                                                  )

tion of premises and damages pursuant to a commercial lease.
The District Court additionally held that appellant ("Slack")
was not entitled to relief from forfeiture and was not enti-
tled to tender into court the amount of damages in accordance
with section 70-27-205(3), MCA.    The District Court further
held that Slack was not entitled to relief from hardship
pursua-nt to section 70-27-210, MCA.
      On March 14, 1981, The Grand Company and Jim Slack     &

Associates entered into a five-year lease agreement which
provided for two additional five-year terms.     The lease was
for certain office space in downtown Billings, Montana.   Part
of the space rented was to be improved by the lessee, Slack,
and Slack did expend at least $70,000 on improvements.
      Slack failed to make the July 1, 1983, monthly rental
payment.   In accordance with the terms of the lease, a notice
of default was sent by Grand to Slack.   This was followed by
a three-day notice to quit.     After Slack tendered a check
that was returned for insufficient funds, Grand sent a notice
indicating it was terminating the lease agreement.        When
Slack refused to give up the premises, Grand filed an unlaw-
ful detainer complaint on August 25, 1983.   On September 14,
1983, Slack attempted to settle the action by offering to
remit all outstanding rent and costs to Grand.   Grand refused
the offer, trial was held and judgment entered in favor of
Grand on December 15, 1983.
      As part of its findings of fact and con.clusions of law,
the District Court found that the lease was terminated by the
notice of termination dated August 1.0, 1983.         Furthermore,
the court found that since the lease was terminated according
to its terms prior to initiation of the action, the lessee,
Slack, had no rights to relief from forfeiture under section
70-27-205 (3), MCA, or relief from hardship pursuant to sec-
tion 70-27-210, MCA.
      Slack raises the following appealable issues:
      1.   Did the District Court err in its finding that
since the lease was terminated prior to the time of bringing
this action, Slack ha.s no right to relief from forfeiture or
hardship under     sections 70-27-205(3)     and   70-27-210, MCA?
      2.   Did the District Court err in awarding attorney
fees to Grand?
      3.   Does Slack have an obligation to pay rent and other
charges during the pendency of this action?




     The first issue is whether the District Court erred in
its judgment for restitution of premises with              regard to
whether    Slack   was   entitled   to    relief   under    sections
70-27-205 (3) and 70-27-210, MCA.        The pertinent portions of
the judgment are as follows:
             "6. That Defendant is not entitled to
             relief from forfeiture and is not enti-
             tled to tender into Court the amount of
             damages   in    accordance with Section
             70-27-205 (3), MCA.
             "7. That since the lease was terminated
             prior to bringing the unlawful detainer
             action, Defendant is not entitled to
             reinstate the lease by payment of the
             amount due and owing as rental payments
             a.nd is not entitled to relief from hard-
             ship    in    accordance  with    Section
             70-27-210, MCA."
        Section 70-27-205(3), MCA, reads:
                   " (3) When the proceeding is for an unlaw-
                   ful detainer after default in the payment
                   of the rent and the lease or agreement
                   under which the rent is payable has not
                   by its terms expired, execution upon the
                   judgment shall not be issued until the
                   expiration of 5 days after the entry of
                   the judgment, within which time the
                   tenant or any subtenant or any mortgagee
                   of the term or other party interested in
                   its continuance may pay into court for
                   the landlord the amount found due as rent
                   with interest thereon and the amount of
                   damages found by the jury or the court
                   for the unlawful detainer and the costs
                   of the proceeding, and thereupon the
                   judgment shall be satisfied and the
                   tenant be restored to his estate; but if
                   payment, as here provided, be not made
                   within the 5 days, the judgment may be
                   enforced for its full amount and for the
                   possession of the premises. In all other
                   cases the judgment may be enforced
                   immediately."
        In order to bring a party under the protection of the
statute,         (a) the proceeding must have been          for unlawful
detainer after default in payment of rent; (b) the lease
under which the rent was payable must not have by its terms
expired; and ( c ) payment of rent, interest, damages and costs
must    be       paid   into   court within   five   days   of   entry   of
judgment     .
        Since this was an unlawful detainer action, part (a) is
satisfied.         An element at issue is whether part (b) is satis-
fied.    The District Court held that the lease had been termi-
nated pursuant to its terms before the unlawful detainer
action was brought and, therefore, Slack is not afforded the
benefit of the statute.            We do not agree and, accord.ingly,
reverse.
        Slack argues persuasively that the court should distin-
guish a lease which has expired under its terms from one
which has been terminated for default on rental payments.                We
agree.   The lease at issue does not "expire" under its terms
until five years from the date Grand and Slack entered into
the agreement.   That five-year period has not yet expired.
The lease, however, could be "terminated" according to its
terms for default in rental payments.   Termination of a lease
under these circumstances is an event which occurs at any
time prior - the natural. expiration of the lease under its
           to
terms.   In fact, the statute itself recognizes such a dis-
tinction.   It provides relief from judgment when the proceed-
ing is for unlawful detainer after default in rental payments

- when the lease has not by its terms expired.
and                                                  If it is
determined that a lease expires upon default in rental pay-
ments, virtually no lessee would be able to avail himse1.f of
the protective statutes.     It was clearly not the intent of
the legislature to enact protective legislation and yet set
such stringent requirements so as to preclude any party from
availing himself of its protection.   The legislature obvious-
ly offered a second chance to anyone in default in rent under
the terms of the lease during the natural life of the lease.
Accordingly, we hold that Slack qualifies under part (b) of
the elements required.
     The third requirement for coming under the protection
of the statute (part (c) above) is that Slack pay into court
within five days after entry of judgment the rental due with
interest thereon, damages for unlawful detainer and costs.
This Slack did not do.     However, in its conclusions of la.w,
the District Court stated:
            "That Defendant is not entitled to relief
            from forfeiture and is not entitled to
            tender into Court the amount of damages
            in accordance with Section 70-27-205 (3),
            MCA. I
                 '
      Under the circumstances, Slack cannot be penalized for
not paying the amount of the judgment into the court.    To do
so would have been in contempt of court.     Counsel for Slack
took the correct approach of appealing the matter to this
Court.   Since Slack has either met the requirements of the
statute or was prevented from doing so by the District Court,
we hold that it is entitled to the benefits of the statute.




      The District Court also held that Slack was not enti-
tled to relief from forfeiture due to hardship pursuant to
section 70-27-210, MCA.   This statute provides:
            "Relief against forfeiture of lease in
            case of hardship.
            - -                   (1) hec court may
            relieve a tenant against a forfeiture of
            a lease and restore him to his former
            estate in case of hardship where applica-
            tion for such relief is made within 30
            days after the forfeiture is declared by
            the judgment of the court, as provided in
            70-27-205. "
     The court held that relief was not available under this
statute for the same reason it was not available under sec-
tion 70-27-205(3): that the lease was terminated prior to the
time the unlawful detainer action was instituted.
     The District Court in its findings of fact found that
Slack made improvements to the leased premises in the amount
of "at least $70,000.00."   Under these circumstances, we can
find no reason why Slack was not permitted to file a petition
for relief under this statute.     Accordingly, we reverse the
District Court"   ruling regarding section 70-27-210, MCA.




     The second issue is whether the District Court erred in
awarding attorney fees to Grand.
      The clause in the lease which provides for attorney
fees is as follows:
            "Section 9.04:     Miscellaneous Default
            Clauses. In the event of breach of this
            lea.se, the party at fault shall and will
            pay to the other party all costs, reason-
            ably [sic] attorneys' fees and other
            expenses which may be incurred by the
            said other party in enforcing his or its
            rights hereunder."
Slack admitted fault and on September 14, 1983, offered to
pay all hack rent, interest, attorney fees and costs.     Grand
refused payment and elected to proceed to trial.        We note
that the clause states that the party "at fault" shall pay.
In this case, Slack was "at fault" until September 14, 1983,
when it offered to pay all amounts due plus fees and costs.
Since Grand rejected the offer, proceeded to trial and did
not prevail on appeal, we hold that Grand is only entitled to
attorney fees on this matter through September 14, 1983.     On
the other hand, Slack, though unsuccessful at the trial court
level, has prevailed on appeal to the extent that we hold it
is entitled to access to the protective statutes.   Slack must
now pay exactly what it offered to pay on September 14, 1983,
to wit:   Past due rent plus interest, fees and costs.    Under
these circumstances, Slack should not be charged with Grand's
fees and costs past September 14, 1983.
      In summary, we hold Slack to be financially responsible
for (1) all past due rent from date of default to date and
interest thereon according to the terms of the lease; and ( 2 )
attorney fees and costs of Grand with regard to this matter
through September 14, 1983.
                                 IV

      Slack also argues that there is no obligation to pay
the judgment due to "plaintiff 's persistent and unjustified
pursuit of remedies to which it was not entitled but which
would only unjustly enrich it.        . ."
      We     find   this   argument    to    be   without   merit   and
nonpersuasive.      We do not herein hold that Grand improperly
brought the unlawful detainer action.             We simply find that
Slack should have been permitted to avail himself of the
protection offered. by the statutes.
      We reverse and remand to the District Court for a
hearing to determine the amounts due The Grand Company in
accordance with this opinion.




We concur:
