                                       No. 12760

         I N THE SUPREME COURT O T E STATE O M N A A
                                F H         F OTN

                                         1975



PETER L. JOHNSON, et a1            t



                             P l a i n t i f f s and Respondent,

         -VS   -
LEONARD F   . DORAN,      e t a 1. ,

                             Defendants and A p p e l l a n t s .



Appeal from:        District Court of t h e Seventh J u d i c i a l D i s t r i c t ,
                    Honorable J a c k D. Shanstrom, Judge p r e s i d i n g .

Counsel of Record:

     For A p p e l l a n t s :

               Smith, Emmons and B a i l l i e , Great F a l l s , Montana
               Robert J. Emons argued, Great F a l l s , Montana
               Dola N. Wilson, Great F a l l s , Montana
               Paul Cresap, Sidney, Montana
               Leonard H. Langen, Glasgow, Montana
               Habedank, Cumming and Best, Sidney, Montana
               Anseth and Rustad, W i l l i s t o n , North Dakota

     For Respondent:

               Hoyt and Bottomly, Great F a l l s , Montana
               Richard V. Bottomly argued, Great F a l l s , Montana
               V i c t o r G. Koch appeared, Sidney, Montana



                                                Submitted:    January 14, 1975

                                                 Decided :
Filed:    mc 2       ----                                    AUGB o 19:;
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
           This is an appeal by defendant Leonard Doran from a
judgment entered in the district court, Richland County, follow-
ing a jury verdict for plaintiffs.
           Plaintiffs, three brothers and two sisters, brought this
action to quiet title to real property and asserted additional
counts for rescission of contracts relating to the real property,
slander of title, declaratory relief, and damages.    The jury re-
turned a verdict for plaintiffs awarding $16,772 general damages,
and $43,500 exemplary damages solely against defendant Leonard
Doran.     The district court's judgment awarded $12,500 attorney
fees to plaintiffs from defendant Leonard Doran.    The judgment
quieted title to the real property in plaintiffs against defend-
ants Leonard Doran and Elmer Foss.    The judgment rescinded the
contract between Louis Vournas and Leonard Doran and Audrey A.
Doran, his wife.    From this judgment defendant Leonard Doran
appeals.
         Plaintiff brothers and sisters were the owners in vary-
ing proportions of a ranch of approximately 3,335 acres.    Harlan
and Peter Johnson jointly owned approximately 2,080 acres; Harlan,
Peter and Wesley Johnson owned 360 acres, title to Wesley's share
being in the name of his sister, Marie Johnson.    Peter, Harlan
and Marie Johnson, and the other sister, Karine Lanning, jointly
owned approximately 895 acres.
           Peter and Harlan operated the ranch; Wesley lived in
Great Falls, and the two sisters lived in Camas, Washington.      From
the record it appears that both Peter and Harlan have an 8th grade
education and have been addicted to drink for many years.    This
has resulted in their being easily influenced and are often under
the influence.    Wesley, also with an 8th grade education, is like-
wise a drinker and perhaps somewhat slower in his mental faculties
than his brothers.
          The fact situation, as disclosed by the record, is
extremely voluminous and we will not attempt to do other than
give a brief resume.
          Robert Torgerson, a real estate agent, on November 16,
1971, obtained an exclusive listing from Peter and Harlan for
all the ranch property, subject to the approval and signatures
of the two sisters.    This approval was obtained on January 4,
1972.    This listing called for a purchase price of $285,000,
$29,000 down, a 20 year contract, 6% interest, reservation of
one-half of the minerals, and a real estate commission of 5%.
         On November 5, 1971, Andrew Thompson, a licensed real
estate salesman, secured an exclusive listing from Harlan and
Peter.   Thompson was working for R. H. Nutt, who held the broker-
age license.    These two had a falling out and Thompson was dis-
charged by Nutt, who sent Thompson's license in to the Real
Estate Board on November 17, 1971.
         Thompson then, on either November 18 or 19, 1971, called
Leonard Doran, a Great Falls real estate broker for whom Thompson
had previously worked.   Doran flew to Sidney on November 20 and
Thompson introduced Doran to Harlan and Peter stating that he,
Doran, could get them the most for the place.   Harlan and Peter
said they would like to have Doran work for them, because they
thought he could get them more money than they had signed for in
the Torgerson listing, about which they were concerned and so in-
formed Doran.   Doran told them not to worry, he would get rid of
it and would take the listing.   Doran signed the Thompson list-
ing, the date was changed by Thompson from November 5 to November
20.   It contained a description of all the property and was sub-
ject to the sisters' approval.   Doran, around December 13, called
the sisters in an attempt to get their signatures but they refused
to sign.   The listing had the same provisions as the Torgerson
listing except it called for a 10% commission and did not con-
tain a mineral reservation.
        There were two interested buyers known by the various
real estate agents; Foss and one Vournas who had made a deposit
on November 7 or 8, 1971, with Nutt with an offer to buy, which
offer when presented to the Johnsons by Nutt was rejected.
        Around the middle of December, Torgerson had Vournas
sign an offer to purchase and took it to Camas but the sisters
refused the offer.    They told Torgerson to return at a later date.
He did return on January 4, 1972, at which time the sisters signed
the listing agreement previously signed by the brothers.     On
December 12 Doran claims to have first learned that Torgerson
also had an exclusive listing from the Johnson brothers.     An
attorney for Doran, Dola Wilson, came from Great Falls; Torgerson
advised Doran he had the place sold to Vournas.   The attorney
and Doran then went to the Johnsons and advised them they had a
right to cancel the Torgerson listing because it was incomplete,
it did not have the sisters' signatures.   Doran personally wrote
a letter to Torgerson, signed by the Johnsons, which read:
                                      "Culbertson, Montana
                                       December 12, 1971
       "Torgerson and Torgerson
       Sidney, Montana
        "Gentlemen:
       "Our land has been exclusively listed with
       Intermountain Land Company of Great Falls,
       Montana, and this letter is to notify you
       that you are not authorized to sell or
       accept deposits for the sale of our ranch
       unless you wish to work through the Inter-
       mountain Land Company listing. This is
       notice to you to terminate all prior agree-
       ments we may have had either written or
       oral on our land in T. 27 N. R55E; Richland
       County, Montana.
                               "Peter L. Johnson, Jr.
                                Harlan Johnson"
The Intermountain Land Company is the name of Doran's business.
        On December 18, 1971, Doran sent Thompson to the ranch
to bring Harlan and Peter to Lewistown, Montana, and he did so,
and they met Doran and his attorney there.     This meeting re-
sulted in the execution by the Johnsons of an option to purchase
their interests to Doran for $225,000, 6% interest, 20 year con-
tract, $55,000 down; an election thereunder would constitute a
sale within the terms of the Thompson-Nutt-Doran listing and
would be subject to the real estate commission.     This option was
recorded on December 21, 1971.
        Then Doran contacted Wesley Johnson in Great Falls, and
on February 10, 1972, a listing agreement and option for Wesley's
interest was executed by Wesley Johnson and his wife.     On February
22, 1972, the first complaint was filed, service on Doran made
on March 1, 1972.    Counsel for plaintiffs in that action was Victor
G. Koch of Sidney.
        On February 22, 1972, a contract for deed was executed
by Wesley, his wife and Doran and a notice of sale based on such
contract was placed of record on February 24, 1972.
        On June 18, 1972, Doran requested Thompson to bring Peter
and Harlan to Glasgow and he then flew them to Great Falls.       There
they executed contracts for deed with Doran and then they went to
Wilson's office where the contracts were notarized.    Wilson pre-
pared a praecipe and stipulation to dismiss the lawsuit and Peter,
Harlan, Doran, and Wilson signed it.     Doran then took Peter and
Harlan to Sidney to attorney Koch's office.    Koch during the con-
versation there, told Doran that he thought his practice was un-
ethical and wholly improper by negotiating with his clients behind
his back.   Koch was shown the praecipe for dismissal but he refused
to sign it and prepared a withdrawal of counsel.    Koch then called
Marie and told her what was happening.    Doran, after leaving Koch's
office, later took Harlan and Peter to Camas, Washington.
        At Camas, after considerable discussion between members
of the family and with Doran the following instrument was pre-
pared and signed:
                                 "June 28, 1972
                                  Camas, Washington
        "We, the undersigned, have agreed to settle
        the lawsuit Peter and Harlan et a1 vs. Doran
        amongst ourselves and wish to have it dis-
        missed.
                                 Marie L. Johnson
                                 Karine Lanning
                                 Leonard F. Doran"
A letter was also sent to Koch explaining that they had settled
the matter.
        There is testimony that when Doran took Peter and Harlan
to Camas he, Doran, represented he had fired Koch and as far as
Torgerson was concerned, he was out; that Doran would take care
of him and that Torgerson had been dismissed or his listing had
been cancelled.   By reason of these representations the contracts
for deed were signed by the sisters.   Marie L. Johnson testified:
        "Q. Did you give some thought to Mr. Torgerson
        having sold the property to Mr. Vournas? A.
        Well, we mentioned the fact, and Mr. Doran said
        that he would take care of that or it had been
        taken care of and that Torgerson was out.
        "Q. Did you give some thought to the fact the
        brothers were without cows and without the crop?
        A. I knew that. I knew it had to be."
Thereafter present counsel were retained and the complaint in
the instant action was filed August 30, 1972.
        There were many conversations, phone calls, preparation
of contracts, listings, letters between the various persons,
requests to have this lawsuit dismissed, practically all of which
were initiated by Doran in his effort to influence the Johnsons
and their sisters to avoid the Torgerson listing and permit Doran
to profit from the Thompson listing.
        We further comment that the record indicates Doran
knew at the moment he entered into the option with Peter and
Harlan that plaintiffs were able to sell the property through
the Torgerson listing for $285,000, with only a 5% commis-
sion or $14,250.   But Doran incorporated into an option a 10%
commission, or $28,500.   Plaintiffs could have obtained a net
amount under the Torgerson listing of $270,750 but under Doran's
proposals they would have received $246,500, a difference of
$24,250, and in addition they would lose one-half the minerals.
        Doran contends that:   (1) the evidence was insufficient
to justify the verdict and the court erred in denying the motion
for new trial on that ground; (2) section 66-1940(c), R.C.M. 1947,
is unconstitutional and denies Doran his right to a trial by jury
on the issue of attorney fees, and the fee of $12,500 awarded by
the court was excessive; (3) the verdicts of $16,722 and $43,500
and award of attorney fees are excessive as to show the verdicts
and award of attorney fees were given under the influence of
passion or prejudice; (4) the court erred in dismissing the third
counterclaim of Doran and refusing to allow him to file an amended
third counterclaim; and, (5) the memorandum of costs and disburse-
ments by plaintiffs for deposition costs cannot be allowed as a
matter of law.
        This is a case involving fraud in that it was alleged that
Doran exercised undue influence and took unlawful advantage of the
Johnsons and his conduct was deceitful and fraudulent.
        Before we discuss the claimed errors alleged here by de-
fendant Doran, we quote from Merchant's National Bank v. Greenhood,
16 Mont. 395, 429, 430, 41 P. 250:
        " * * * Fraud cannot often be proven by direct
        evidence. Fraud conceals itself. It does not
        move upon the surface in straight lines. It
        goes in devious ways. We may with difficulty
        know 'whence it cometh and wither it goeth.'
        It 'loves darkness rather than light, be-
        cause its deeds are evil.' It is rarely that
        we can lay our hand upon it in its going. We
        are more likely to discover it at its desti-
        nation, before we know that it has started upon
        its sinuous course. When we so discover it, the
        search light of a judicial investigation goes back
        over its trail and lightens it from beginning to
        end. As the woodsman follows his game by slight
        indications, as a broken twig or a displaced
        pebble, so fraud may become apparent by innumerable
        circumstances, individually trivial, perhaps, but
        in their mass 'confirmation strong as proofs of
        holy writ.' The weight of isolated items tending
        to show fraud may be 'as light as the shadow of
        drifting snow,' but the drifting snow in time makes
        the drift, the avalanche, the glacier. Fraud may
        hang over the history of the acts of a man like the
        leaden-hued atmosphere upon the house of Usher,
        'faintly discernible but pestilent, an atmosphere
        which has no affinity with the air of Heaven.'


        " * * * 'In questions of fraud a wide range of
        evidence is allowed. Fraud assumes many shapes,
        disguises, and subterfuges, and is generally so
        secretly hatched that it can only be detected by
        a consideration of facts and circumstances which
        are not unfrequently trivial, remote and dis-
        connected. To interpret their meaning, or the
        full meaning of any one of them, it may be neces-
        sary to bring them together and contemplate them
        all in one view. In order to do this, it is nec-
        essary to pick up one here and another there until
        the collection is complete. A wide latitude of
        evidence is therefore allowed, in order that fraud
        may be detected and exposed.'"
This Court has approved these statements consistently.   See:
Roman v. Albert, 81 Mont. 393, 264 P. 115; Hart v. Honrud, 131
Mont. 284, 309 P.2d 329; City of Roundup v. Liebetrau, 134 Mont.


        Here, the jury, based upon instructions defining mistake,
fraud, and undue influence, answered specific interrogatories
promulgated by the court at the request of counsel for plaintiffs
and defendants.   These interrogatories and the jury answers were:
       "INTERROGATORY NO. 1: Do you find that the
       contract for deed executed by plaintiffs, Peter
       Johnson, and Harlan Johnson with the defendant,
       Leonard F. Doran, was executed under mistake of
        fact or law or undue influence or fraud express or
        implied?
        "ANSWER:   Yes.
        "INTERROGATORY NO. 2: Do you find that the contract
        for deed executed by plaintiff, Wesley Johnson,
        with the defendant, Leonard F. Doran, was executed
        under the mistake of fact or law or undue influence
        or fraud express or implied?
        "ANSWER:   Yes.
        "INTERROGATORY NO. 3: Do you find that the contract
        for deed executed by plaintiff, Marie Johnson,
        with the defendant, Leonard F. Doran, was executed
        under the mistake of fact or law or undue influence
        or fraud, express or implied?
        "ANSWER: Yes.
        "INTERROGATORY NO. 4: Do you find that the contract
        for deed executed by the plaintiff, Karine Lanning,
        with the defendant, Leonard F. Doran, was executed
        under the mistake of fact or law or undue influence
        or fraud, express or implied?
       '"ANSWER: Yes. "
        The court further instructed the jury to answer certain
interrogatories in reference to statutory violations of the Real
Estate License Act which we set out with the jury answers:
        "INTERROGATORY NO. 1: Do you find that the de-
        fendant, Leonard F. Doran, violated any of the
        provisions of Section 66-1935, 66-1936 and 66-1937,
        as defined to you in Court's Instruction No. 21 and
        23?
        "ANSWER: Yes.


        "INTERROGATORY NO. 1: Do you fihd that the de-
        fendant, Andrew Thompson, violated any of the
        provisions of Section 66-1935, 66-1936 and 66-
        1937, as defined for you in Court's Instruction
        No. 21 and 23?
        "ANSWER: Yes. "
       One other matter should be mentioned, Vournas has been
in possession of the ranch since signing the purchase and sale
agreement with the plaintiffs which had been prepared by Torgerson.
He filed a notice of interest in real property pursuant to the
Torgerson agreement.    It was filed on the 30th of June, 1972,
with the Clerk and Recorder of Richland County.       Vournas has
at all times held the property pursuant to the purchase and sale
agreement and his notice of interest through the contract with
Peter, Harlan, Marie and Karine.     On June 20, 1972, the date
that Doran entered into the contract for deed with Peter and
Harlan, Doran had his attorney prepare a notice to quit directed
to Vournas to remove himself from the premises.       The notice was
based upon the option and contract entered into by and between
Doran, Peter and Harlan.    Vournas refused to remove himself on
the basis that he was in possession pursuant to the purchase and
sale agreement.    After Doran returned from Camas, and after he
had secured contracts from Karine and Marie, Doran then went to
see Foss on July 5, 1972.    Foss signed a contract for deed, and
armed with this contract he then went to see the attorney for
Vournas.   This resulted in Vournas entering into a contract for
deed with Doran which was on the same terms and conditions as
that prepared by Torgerson and entered into between Vournas and
plaintiffs.     The contract was dated July 12, 1972.   Vournas said
the reason that he entered into the contract with Doran was on
advice of his counsel, and to play it safe more or less.      There-
after on April 5, 1973, Doran gave Vournas a notice to either pay
up under the contract and accept the premises by virtue of the
contract with whatever defects there might be to the title or re-
turn the premises and the contract would be rescinded.      He tendered
$10,000 with the notice.    His tender was refused.
        Since February 11, 1972, plaintiffs have been out of pos-
session of the property.    They have had no income nor profits from
the property.    The taxes have not been paid nor has any of the
balance of the principal or interest been paid on the note at the
Culbertson Bank; nor have plaintiffs received any interest or in-
come on their equity in the property.    Vournas has not agreed to
pay any interest during this period.
        As to Doran's contention the evidence was insufficient
to justify the verdict, from our review of the testimony and
examination of the documentary evidence the evidence was suf-
ficient and the court was correct in denying the motion for new
trial on that ground.
        As to Doran's contention that section 66-1940(c), R.C.M.
1947, is unconstitutional, this issue was raised for the first
time on appeal.   This Court has consistently ruled that a con-
stitutional issue is waived if not presented at the earliest op-
                     1   '
portunity.   State v. hverdure, 140 Mont. 236, 370 P.2d 489..     While
Doran argues the issue was raised on the motion for new trial, we
have examined the language of the motion and find it does not raise
the question of the constitutionality of this statute, and there-
fore decline to rule upon such contention.
        Turning now to the contention that the verdicts and award
of attorney fees are excessive and show that they were given under
the influence of passion and prejudice.   While Doran asserts the
jury "heaped" the punitive damages upon him and this evidences
its passion and prejudice, we do not concur.    Rather it would
appear the jury, after listening to this sordid tale of the efforts
of a real estate broker to "move in1' on another broker's clients
and his perfidy in doing so, and its examination of the documen-
tary evidence which so clearly discloses such perfidy, came to the
conclusion that such actions were reprehensible and the person
responsible should be punished by an award of exemplary damages.
        We fail to see in what particular the verdict of $16,722
is excessive.   There was an abundance of proof in the record to
justify the jury in returning such a verdict.   For one thing, the
loss of interest for a period of three years and the necessity of
paying interest on a loan against the property which, if the
property had been sold in due course and under good business
management, and without interference, the loan could have been
paid off without further interest charges.
          As to the dismissal of the third counterclaim and refusal
to permit the filing of an amended third counterclaim, it appears
that a few days before the trial of this action this third counter-
claim was filed alleging tortious conduct on the part of plain-
tiffs against Doran.    The depositions of all parties had been
taken and plaintiffs contended the pleading was without substance
in any particular.     It would appear the answer and the affirma-
tive defenses and first and second counterclaims alleged basically
all that was said in the third counterclaim.       We observe no abuse
of discretion in the ruling of the court.
          As to the memorandum of costs and disbursements, again,
we have a situation where no objection was made by defendant
Doran to the cost bill as required by section 93-8619, R.C.M. 1947.
In the absence of a proper motion to retax costs in the district
court, we will not rule when it is raised for the first time on
appeal.
          The judgment of the district court is affirmed.
                                             ,

                                    _ - - - -               - --
                               ...................................
                                *.

                                           Chief Justice
We concur:
         IN THE SUPREME COURT OF TEE STATE OF MONTANA


                                No.   12760


PETER L. JOHNSON et al.,
                        Plaintifzs and Respondent,

         VS   .
LEONARD ,F. DOa?I   et a1 . ,
                        Defendants and Appellants.
                                                         C
                                                               A   _

                                 O R D E R



         IT IS ORDERED that the following line he amended in

the above-captioned opinion.
         Line 11 from the top of page 11 reads:

         "portunity. State v. Laverdure, 140 :+-ant. 236, 370
         P.2d 498.'"

         Please amend it to read:
         "portunity. Union Interchange, Inc. v. Allen,
         140 14ont. 227, 370 P.2d 492."
         DATED this 26th day of September, 1975.




                                              hie£
                                / /                  Justice
