                                                                       No. 89-03
                                                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                          1989



IN RE THE MARRIAGE OF
CAROL C. DALLEY,
                                                  Petitioner and Appellant,
                         and
MARK F. DALLEY,

                                                  Respondent and Respondent.




APPEAL FROM:                                      District Court of the Thirteenth Judicial District,
                                                  In and for the County of Yellowstone,
                                                  The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
                        For Appellant:
                                                   avids son   &   Poppler; ori is M. Poppler, ~illings,Montana
                        For Respondent :
                                                  Cavan, Smith, Grubbs       &   Cavan; John J. Cavan, ~illings,
                                                  Montana



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                         i       ,.                                       Submitted on Briefs:   March 31, 1989
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                     .           I                                         Decided:     May 4, 1989
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                                                                          Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.


     Carol Dalley, petitioner, appeals from the denial of her
motion to compel satisfaction of judgment by the District
Court of the Thirteenth Judicial District, Yellowstone
County. We affirm in part and reverse and remand for further
proceedings.
     The following issues are raised on appeal:
     1. Whether the District Court erred in finding that
respondent did not accept appellant's offer to satisfy the
judgment by transferring stock instead of cash.
     2. Whether appellant's delivery of stock and cash to
respondent tolls the interest on the judgment pending appeal.
     Parties' marriage was dissolved in April of 1987.     On
November 10, 1987, the trial court apportioned the marital
estate between the parties and ordered appellant, Carol
Dalley (wife), to pay respondent, Mark Dalley (husband), a
sum of money necessary to pay husband 30% of certain assets
within 30 days of judgment. The total amount to be paid to
husband was $129,607.40.   Wife appealed to this Court and
husband cross-appealed under In Re Marriage of Dalley (Mont.
1988), 756 P.2d 1131, 45 St.Rep. 1017.       We affirmed the
District Court's judgment and denied husband's petition for a
rehearing on July 5, 1988.
     The following facts were derived from the record and the
various affidavits of the parties.
     On July 25, 1988, wife's attorney sent husband's
attorney a letter offering stock and a personal check to
husband in satisfaction of the judgment. Husband's attorney
was out of town when the letter was received by his firm. He
returned on August 2, 1988.      On that day, husband, with
permission of his attorney, spoke with wife's attorney by
telephone who asked him if he was aware of the July 25, 1988,
letter. He said that he was and that the proposal appeared
all right but that he wanted to consult his attorney before
agreeing to the proposal.   On August 3, 1988, the attorneys
discussed the conversation wife's attorney had with husband.
     On the morning of August 4, 1988, wife signed over 1,668
shares of Amoco stock, with a value of $124,266.00, and
executed a personal check for the excess due in the amount of
$5,341.40 to husband. Early that afternoon, wife's attorney
called husband to confirm the stock substitution. Husband
stated that he could not accept the stock offered in
satisfaction of the judgment because of the tax consequences
associated with it. wife's attorney then delivered the stock
to husband's attorney's office late that afternoon despite
her earlier conversation with husband.     Husband's attorney
was not present when delivery was made.
     After a discovery deposition was heid on August 10,
1988, parties' attorneys discussed the substitution of stock
in lieu of cash. Thereafter, husband's attorney consulted a
tax attorney on the matter.      On August 23, 1988, wife's
attorney called husband's attorney and inquired into the
status of the property settlement. Husband's attorney stated
once again that because of the tax burden accompanying the
stock, it would not be accepted in satisfaction of the
judgment.   Wife's attorney then filed a motion to compel
satisfaction of the judgment.     The motion was denied on
October 26, 1988.
     The first issue raised on appeal is whether the ~istrict
Court erred in finding that respondent did not accept
appellant's offer to satisfy the judgment by transferring
stock instead of cash.
     In the ~istrictCourt decree of November 10, 1987, it
ordered that wife pay:
     a - - money necessary to pay to husband 30% of
       sum of
     the value of [certain] assets     ... the sum of
     $129,607.40. Deeds, titles, checks and such other
     documents as may be necessary to accomplish this
     shall be executed and delivered within thirty days
     of this order. (Emphasis added.)
Wife wished to substitute stock for the money judgment. The
actual issue at bar is whether an oral contract existed
between husband and wife which authorized the substitution.
Under § 28-2-102, MCA, the essential elements of a contract
are :
     (1) identifiable parties capable of contracting;
     (2) their consent;
     (3)   a lawful objective;
     (4)   sufficient cause or consideration.
     Here, only element two, consent, is contested.  "There
can be no binding contract without mutual consent of the
parties. "   christenson v. ~illings Livestock Com'm Co.
(1982), 201 Mont. 207, 210, 653 P.2d 492, 494. Consent must
be free, mutual and communicated.       Interstate production
Credit Ass'n v. Abbott (Mont. 1986), 726 P.2d 824, 826, 43
St.Rep. 1829, 1832.     Further, consent is established when
there has been an offer and an acceptance of that offer.
Modern Machinery v. Flathead County (1982), 202 Mont. 140,
144, 656 P.2d 206, 209.
     In the instant case, the court ordered wife to pay the
sum due, $129,607.40, in money.     She offered, instead, to
transfer to husband 1,668 shares of Arnoco stock valued at
$74.5 per share, totaling $124,266.00, coupled with a
$5,341.40 personal check to make up the excess due. On July
25,   1988,   wife's   attorney   sent   husband's   attorney   the
following letter:
     On behalf of Carol Dalley, we will deliver to you
     on August 5, 1988, 1,668 Amoco shares valued at
     74.5 per the valuation fixed in the decree.      In
     addition we will submit a check for the difference
     in the amount of $5,341.40 payable to your firm and
     Mark Dalley.
     Wife argued that the letter effectuated a valid offer.
Husband disagreed contending that the letter was not an offer
but merely a notification of something wife intended to do in
the future. We disagree. An offer is:
     The manifestation of willingness to enter into a
     bargain, so made as to justify another person in
     understanding that his assent to that bargain is
     invited and will conclude it.
Restatement (Second) of Contracts, 5 24 (1979).
     wife's attorney's letter of July 25, 1988, clearly
constitutes an offer.    Wife communicated her proposal and
husband understood it as evidenced by his statement on August
2, 1988, that the offer appeared all right but that he needed
to consult his attorney first.
     However, the offer must be accepted before a contract is
formed. In ~uchinskiv. Security Gen. Ins. Co. (19631, 141
Mont. 515, 519, 380 P.2d 889, 891, we stated that in order to
effectuate a contract, there must not only be a valid offer
by one party but also an unconditional acceptance, according
to its terms, by the other.     - - Beale v. ~ingquist
                                See also,
(1932), 92 Mont. 480, 488, 15 P.2d 927, 930.
     Wife claims that husband telephoned wife's attorney on
August 2, 1988, and unequivocally accepted the offer on the
condition that the $5,341.40 check be paid to him alone and
not his attorney.       She states that this conditional
acceptance was confirmed the next day with husband's
attorney. Wife argues that she not only met the condition
but then relied on it as an acceptance and transferred the
stock certificates into husband's name the morning of August
4, 1988. She further claims that it was not until August 23,
1988, that husband rejected the stock and that the rejection
came too late since the oral contract was formed on August 2,
1988.
     Section 28-2-503(2), MCA, provides:
     A voluntary acceptance of the benefit of a
     transaction is equivalent to a consent to all the
     obligations arising from it, so far as the facts
     are known or ought to be known to the person
     accepting. (~mphasis  added.)
     Here, husband asserts that his August 2, 1988, telephone
conversation with wife's attorney was not an acceptance
because he clearly stated that although the offer appeared
all right, he would first have to consult with his attorney
on the matter. Husband did so consult his attorney. At that
point, it is clear that husband was merely considering the
offer and made no acceptance.
     In Chadwick v. ~iberson (1980), 190 Mont. 88, 92, 618
P.2d 1213, 1215, we held that, "It is a well-established rule
that there must be mutual assent or a meeting of the minds on
all essential elements or terms to form a binding contract."
Here, husband did not intend to accept the offer on August 2,
1988, because    he   conditioned   the acceptance pending
consultation with his attorney. Thus, the contract of August
2, 1988 lacked mutual assent.
     Prior to delivery of the stock, husband was informed
that although there would be no tax liability associated with
the transfer of stock from wife to husband, there would be a
serious tax liability should husband then sell the stock. The
tax burden made the purported value of the stock much lower
than he originally expected.    On the morning of August 4,
1988, wife's attorney telephoned husband and he told her that
he absolutely could not accept the stock that was offered in
satisfaction of the judgment because of the tax burden.
     Further, although wife's letter stated that the stock
would be delivered on August 5, 1988, she delivered it in the
late afternoon of August 4, 1988, despite her earlier
conversation with husband.    The stocks were received by a
partner of husband's attorney as he was not in the office at
that time.
     On August 10, 1988, husband's attorney participated in a
discovery deposition at which wife's attorney was a witness.
Afterwards, parties' attorneys once again discussed whether
stock would be sufficient to satisfy the judgment. Shortly
thereafter, husband's attorney consulted a tax attorney who
warned him of the liability problems upon transfer.
     On August 23, 1988, wife's attorney telephoned husband's
attorney regarding the status of the property distribution.
She was again told that the stocks would not be accepted to
satisfy the money judgment.
     There is substantial evidence to support the District
Court's finding that there was no meeting of the minds on
August 2, 1988, or any other date, and thus, no oral
agreement by husband to accept stocks in satisfaction of the
judgment.   See, Diede v. Davis (1983), 203 Mont. 205, 212,
661 P.2d 838, 841.
     Where the existence of an oral contract is
     contested and the evidence is conflicting, the
     existence of the contract is a question for the
     trier of fact.
Como v. Rhines   (1982), 198 Mont. 279, 284, 645 ~ . 2 d948,
950-51.  - - Keil v. lacier Park, Inc. (19801, 188
          See also,
Mont. 455, 460, 614 P.2d 502, 505.      The District Court
properly considered the evidence and found that no contract
existed.
     The second issue raised on appeal is whether wife's
delivery of stock and cash to respondent on August 4, 1988,
tolls the interest on the judgment pending appeal.
     The ~istrictCourt's order of October 26, 1988, reads:
     Since Mr. Dalley did have some culpability in the
     transaction, Mrs. Dalley might be entitled to a
     cancellation of interest on the judgment from the
     date the stock was tendered through the date of
     this order.
     Wife argues that since husband is still in possession of
the stock that he should not be able to collect any
post-judgment interest after August of 1988. However, wife
delivered the stock, never demanded it back, and never made
any attempt to recover it. Husband has received no dividends
or other benefits from holding the stock.    We find no merit
in this contention as husband was not culpable.
     The parties were granted a stay of execution of judgment
pending appeal. The stay does not affect interest due. In
Knudson v. Knudson (Mont. 1981), 622 P.2d 1025, 1026-27, 38
St.Rep. 154, 156-57, where the husband, in a dissolution
action, moved the court for a stay of execution, we held that
interest was to be awarded from the date of judgment in the
divorce action despite the existence of the stay of
execution.   Hence, the stay of execution has no effect on
interest due in the present case.
     Further, Rule 31, M.R.App.P., provides in part:
     If a judgment for money in a civil case is
     affirmed, whatever interest is allowed by law shall
     be payable from the date the judgment was rendered
     or made in the district court.
     In Re Marriage of ~ i b s o n(1983), 206 Mont. 460, 671 P.2d
629, states that interest accrues at the statutory rate from
the date on which payment is due--in the present case, the
date of judgment--until the date on which payment is made.
Under 5 25-9-205(1), MCA, the statutory interest rate is 10%
per annum payable on judgments recovered in Montana.     The
rate must not be compounded.
     Therefore, wife is to pay husband $124,266.00, the
amount due and owing, in money or a manner acceptable to
husband.   Interest on that amount is to be calculated from
November 10, 1987, the date of judgment, to the date wife
pays the sum owed. Interest is to be paid in accordance with
§ 25-9-205 ( I ) , MCA.

     Affirmed in part and reversed apd remanded for further
proceedings in accordance with thi


We Concur:
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             I N THE SUPREME COURT O F THE STATE O F MONTANA                                          c;rj
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                                         No.    89-003                                   AT;              32          *
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I N RE THE MARRIAGE O F                                                                      U -
CAROL C . DALLEY,                                                                                -P
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MARK F .     DALLEY,
               Respondent.



       The o p i n i o n i n t h i s c a u s e was f i l e d w i t h t h e C l e r k o f
t h i s C o u r t on May 4 ,      1989.        I t h a s come t o t h e C o u r t ' s a t t e n -
t i o n t h a t c e r t a i n e r r o r s appear i n t h e f i r s t f u l l paragraph
o n p a g e 9 , t h e l a s t page o f t h e s l i p o p i n i o n .
       I T I S ORDERED:
        1.   T h a t t h e f i r s t f u l l p a r a g r a p h on p a g e 9 o f t h e s l i p
o p i n i o n i s s u e d May 4 ,     1989, i s r e v i s e d t o r e a d a s follows:

                T h e r e f o r e , w i f e i s t o p a y husband $129,607.40,
       t h e amount d u e a n d owing.               I n t e r e s t on t h a t amount
       i s t o b e c a l c u l a t e d from November 1 0 , 1 9 8 7 , t h e
       d a t e o f judgment,                t o the date of t h i s order.
       I n t e r e s t i s t o be p a i d i n accordance w i t h 5
       25-9-205 ( I ) , MCA.

       2.    That t h e Clerk s h a l l provide copies of t h i s o r d e r t o
counsel f o r t h e p a r t i e s , t h e D i s t r i c t Court o f t h e T h i r t e e n t h
Judicial      District,        t h e S t a t e Reporter,          a n d West P u b l i s h i n g
Company.
       DATED t h i s      @/day
                               m        o f May, 1989.
