Association of Unit Owners of the Deer Lodge Condominium v. Big Sky of Montana, Inc., 798 P.2d 1018 (1990)

.    .
       . Certain alleged deficiencies in the construction
     of the Deer Lodge condominium units including
     discrepancies between improvements constructed and the
     original and amended construction plans, uncompleted
     punch list, defective materials and construction, and the
     like;
     .    ..
          Any claims they may have against BMSR [Realty], its
     employees, directors, shareholders, affiliates or
     subsidiaries, and against ~ i g
                                   Sky of Montana, Inc., its
     employees, shareholders, directors, affiliates or
     subsidiaries, arising out of the construction and sale
     of the condominium units known as the Deer Lodge
     Condominiums, such waiver and release to apply to all
     claims arising prior to and including the date of this
     Settlement Agreement.
     In addition to the unit owners having released and waived any
and all claims relating to the condominiums, Realty argues that
the consideration of $76,259.46 in total cannot be disregarded.
     The release in its terms is, of course, broad enough to
include all of the defects in the condominiums at the time the
release was signed.    The unit owners avoid the all-inclusive
language by contending that the release was obtained by fraud, in
that Big Sky and Realty failed to disclose to the unit owners the
defective nature of the buildings and the fireplaces, and further
that the release itself was unconscionable.
     If the release had been obtained by fraud, the release would
be unenforceable under 5 28-3-304, MCA.       As we have discussed
foregoing, however, any claim of fraud is unavailable to the unit
owners for two reasons:      there are no facts in the record
substantiating a claim of fraud, and in any event, the statute
limitations would apply.
     As for the argued unconscionability, the circumstances here
prevent us from considering that claim.   It would be the height of
judicial frivolity to state on the one hand that the claims of the
unit owners in the Fire case were collaterally estopped by the
settlement of the Structure case, and then     reopen the Fire case
on the basis that a release executed four years before the fires
was unconscionable.         The settlement of the unit owners claims in
the Structure case included the complete razing of the condominium
buildings.       Surely the Fire claim did not survive the razing,
release or no release.
6.     Indemnity
       In granting summary judgment for Realty, the District Court
concluded that the 1976 agreement to indemnify Boyne against
liability against claims arising out of Big Sky's business affairs
prior to the 1976 stock sale was not a contract for the benefit of
the unit owners, nor did it create any rights for the unit owners
justifying their claims against Realty.
       The unit owners contend in this case that they are entitled
to indemnity from Realty on three theories:                as third party
beneficiaries, on grounds of quasi-contract, and that privity of
contract is not necessary to establish indemnity.
       There are indications in the record that when Big Sky of
Montana was sold to Boyne and Realty was formed at the same time,
that Realty agreed that it would be responsible for and indemnify
both    Big    Sky    and   Boyne   with   respect   to   any   pre-existing
obligations.         The actual agreement of indemnity is not in the
record.
       The record does show that Boyne contributed $400,000 to the
settlement of the Structure case.          Based on that, the unit owners
make the following argument: