No. 13065
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1975
P l a i n t i f f and A p p e l l a n t ,
-vs -
B I G SKY OF MONTANA, I N C . ,
Defendant and Respondent,
Appeal from: D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , D i s t r i c t Judge p r e s i d i n g ,
Counsel of Record:
For Appellant:
Brown and G i l b e r t , Bozeman, Montana
Gene I. Brown a r g u e d , Bozeman, Montana
For Respondent:
W i l l i a m L. Pepper a r g u e d , Big Sky, Montana
Submitted: December 8, 1975
Decided : ~ 2 F i l ' i I-j 9;rJ
,
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal from a judgment of the district court,
Gallatin County, granting plaintiff damages and the return of
his truck. Plaintiff contends the damages are insufficient.
Defendant cross-appeals the denial of its motion to dismiss for
failure to state a claim upon which relief can be granted.
In November, 1972, plaintiff leased a 1952 three-quarter
ton Dodge Power Wagon to defendant for use in the construction
of ski lifts and downhill runs at its ski resort. The rental
for the leased truck was set at $150 per month. The lease was
in the form of a purchase order prepared by defendant, who was
in possession of the truck at the time of signing the lease/pur-
chase order.
In February, 1973, plaintiff was informed by an employee
of defendant that his truck was no longer needed by defendant,
but the truck needed some repair work. The truck was taken by
defendant's employee to a Bozeman garage for repairs, but was
removed to Big Sky when defendant felt the repairs could be done
at a lower price by its own mechanics.
In June, 1973, plaintiff received a call from defendant's
purchasing agent informing him the truck was repaired and he
could pick it up at Big Sky. Plaintiff went to Big Sky and
drove the truck from the upper village to the lower village, a
distance of nine miles down the mountain. At trial, plaintiff
testified:
"Well, the transmission was making a lot of noise
and it was rattling and missing. It would hardly
run. "
At the lower village, the purchasing agent took a ride in the
truck and agreed the transmission sounded noisy. Plaintiff re-
fused delivery of the truck and the purchasing agent agreed to
have one of defendant's mechanics look at it again. Plaintiff
was under t h e i m p r e s s i o n d e f e n d a n t would r e p a i r t h e t r u c k s o
t h a t it would be i n a s good c o n d i t i o n a s when r e c e i v e d , e x c e p t
f o r normal w e a r and t e a r .
From J u n e , 1973, t h r o u g h March, 1975, t h e t r u c k remained
a t Big Sky w i t h o u t r e p a i r s . During t h i s p e r i o d , p l a i n t i f f made
o n e o r more t r i p s t o Big Sky a t t e m p t i n g t o c o l l e c t r e n t a l on
t h e t r u c k f o r t h e t i m e it was b e i n g k e p t by d e f e n d a n t . Plaintiff
r e t a i n e d c o u n s e l who demanded t h e t r u c k be r e p a i r e d , r e t u r n e d
and r e n t p a i d up t o t h e d a t e o f r e t u r n . S u i t was f i l e d i n J u n e ,
1974, and t h e t r u c k w a s r e p a i r e d and t e n d e r e d one week b e f o r e
t r i a l , i n March,1975. An employee o f Big Sky a d m i t t e d t h e t r u c k
had n o t been r e p a i r e d e a r l i e r b e c a u s e it was e i t h e r f o r g o t t e n ,
i g n o r e d o r p u t on a low p r i o r i t y .
A t t r i a l , Big Sky moved f o r a d i s m i s s a l b e c a u s e t h e com-
p l a i n t f a i l e d t o s t a t e a c l a i m f o r r e l i e f based upon b r e a c h o f
c o n t r a c t s i n c e p l a i n t i f f d i d n o t a l l e g e performance of h i s o b l i -
g a t i o n s under t h e c o n t r a c t o r f a c t s which e x c u s e s u c h performance.
The motion t o d i s m i s s was d e n i e d by t h e d i s t r i c t c o u r t .
The d i s t r i c t c o u r t found a v a l i d and e n f o r c e a b l e c o n t r a c t
f o r t h e l e a s e of t h e t r u c k with defendant l e g a l l y o b l i g a t e d t o
r e t u r n t h e t r u c k i n t h e same c o n d i t i o n a s it w a s when d e f e n d a n t
a c c e p t e d p o s s e s s i o n , o r d i n a r y wear and t e a r e x c e p t e d . The c o u r t
t h e n h e l d t h e l e a s e w a s t e r m i n a t e d i n J u n e , 1973, a s p l a i n t i f f
had abandoned t h e t r u c k a t t h e lower v i l l a g e a t t h a t t i m e , p r e -
v e n t i n g r e t u r n of t h e t r u c k by d e f e n d a n t . The c o u r t a l s o h e l d
p l a i n t i f f f a i l e d t o m i t i g a t e damages s u b s e q u e n t t o J u n e , 1973.
The c o u r t f u r t h e r h e l d t h e r e w a s no agreement c o n c e r n i n g r e p a i r
o f t h e t r u c k a t t h e t i m e p l a i n t i f f l e f t it a t t h e lower v i l l a g e .
The d i s t r i c t c o u r t o r d e r e d t h e t r u c k r e t u r n e d t o p l a i n -
t i f f w i t h payment by Big Sky of $ 6 0 0 r e n t due. P l a i n t i f f appeals
t h i s o r d e r c o n t e n d i n g t h e f i n d i n g s and c o n c l u s i o n s o f t h e d i s t r i c t
court are contrary to the evidence presented at trial.
Defendant cross-appeals, contending error in the denial
of its motion to dismiss.
The issues presented for resolution by this Court are:
1. Whether or not in order to state a claim for relief
based on breach of contract, a complaint must contain an alle-
gation that the moving party performed his part of the contract
or allegations of facts excusing such performance.
2. Whether or not the findings and conclusions of the
district court are supported by the evidence.
Defendant contends an action for breach of contract must
contain allegations of performance by the moving party or alle-
gations of facts excusing such performance. Defendant cites a
number of decisions by this Court and statutory provisions to
support its position, none of which are on point.
Rule 8 (a), M. R. Civ.P. , provides :
"A pleading which sets forth a claim for
relief * * * shall contain (1) a short and
plain statement of the claim showing that the
pleader is entitled to relief, and (2) a demand
for judgment for the relief to which he deems
himself entitled. * * *"
Plaintiff's complaint contains the elements required by Rule 8(a).
Defendant cites Rule 9(c), M.R.Civ.P., to support its
contention that plaintiff must allege performance on his part
in his complaint. Rule 9(c) provides:
"Conditions Precedent. In pleading the perform-
ance or occurrence of conditions precedent, it
is sufficient to aver generally that all conditions
precedent have been performed or have occurred.
* *
Defendant also cites Harris v. Root, 28 Mont. 159, 72 P. 429;
First Nat. Bank v. Stoyanoff, 137 Mont. 20, 349 P.2d 1016, and
F i r s t Nat. Bank v . S t o y a n o f f , 143 Mont. 434, 390 P.2d 448, t o
s u p p o r t i t s c o n t e n t i o n t h a t performance must be a l l e g e d .
The H a r r i s c a s e and f i r s t S t o y a n o f f case w e r e d e c i d e d
p r i o r t o t h e a d o p t i o n o f t h e p r e s e n t Montana R u l e s o f C i v i l
Procedure. Rule 9 ( c ) and b o t h S t o y a n o f f cases d e a l w i t h c l e a r
conditions precedent; H a r r i s a l s o involved a condition precedent,
although not using t h a t t e r m .
This Court i n A t l a n t i c - P a c i f i c O i l Co. v. G a s Dev. Co.,
105 Mont. 1, 1 6 , 69 P.2d 750, h a s d e f i n e d a " c o n d i t i o n p r e c e d e n t "
as:
" ' * * * o n e t h a t i s t o be performed b e f o r e t h e
agreement becomes e f f e c t i v e , and which c a l l s f o r
t h e happening of some e v e n t o r t h e performance
of some a c t a f t e r t h e t e r m s o f t h e c o n t r a c t have
been a g r e e d o n , b e f o r e t h e c o n t r a c t s h a l l be b i n d -
i n g on t h e p a r t i e s . ' "
S e e , a l s o , s e c t i o n 58-206, R.C.M. 1947.
No c o n d i t i o n p r e c e d e n t i s i n c l u d e d i n t h e l e a s e i n ques-
tion i n t h i s action. The f u l l lease i s c o n t a i n e d o n t h e f a c e of
t h e p u r c h a s e o r d e r p r e p a r e d by d e f e n d a n t . The p u r c h a s e o r d e r
c a l l s f o r r e n t a l o f t h e t r u c k s t a r t i n g November 1 4 , 1972, w i t h
t h e lease t e r m i n a b l e by e i t h e r p a r t y upon t e n d a y s n o t i c e and
r e n t p a y a b l e monthly i n advance. N c o n d i t i o n s a r e imposed on
o
p l a i n t i f f ; e x c e p t t h e t e r m i n a t i o n c o n d i t i o n , which i s n o t a con-
d i t i o n precedent.
The d i s t r i c t c o u r t was c o r r e c t i n d e n y i n g d e f e n d a n t ' s
motion t o d i s m i s s a s t h e c o m p l a i n t complied w i t h t h e Montana Rules
o f C i v i l P r o c e d u r e and s t a t e d a c l a i m upon which r e l i e f c o u l d be
granted.
W e now t u r n t o t h e i s s u e o f whether t h e f i n d i n g s and
c o n c l u s i o n s o f t h e d i s t r i c t c o u r t a r e s u p p o r t e d by t h e e v i d e n c e .
An a p p e l l a t e c o u r t ' s f u n c t i o n i n a c a s e s u c h a s t h i s w a s
s e t f o r t h i n Hornung v . L a g e r q u i s t , 155 Mont. 412, 420, 4 7 3 P.2d
541, wherein this Court said:
" * * * Our duty in reviewing findings of fact in
a civil action tried by the district court with-
out a jury is confined to determining whether there
is substantial credible evidence to support them.
* * *I,
The meaning of "substantial credible evidence" was thoroughly
considered in Staggers v. U.S.F. & G. Co., 159 Mont. 254, 496
In Hellickson v. Barrett Mobile Home Transp., 161 Mont.
455, 459, 507 P.2d 523, this Court said:
" * * * In examining the evidence, we must view
the testimony in a light most favorable to the
prevailing party. [citations] However, while the
presumption is in plaintiff's favor, he is also
the appealing party and as such, the burden is
upon him to overcome the presumption of the correct-
ness of the trial court's findings of fact."
The district court found defendant tendered the truck to
plaintiff in June, 1973, with plaintiff abandoning the truck
without any agreement concerning its repair.
The leading case in Montana on abandonment is Conway v.
Fabian, 108 Mont. 287, 306, 89 P.2d 1022, where this Court stated:
"What constitutes abandonment of personal property?
To establish abandonment both intention to abandon
and actual relinquishment must be shown. * * *
'Abandonment' is a word which has acquired a tech-
nical meaning.* * * It is the relinquishment of a
right; the giving up of something to which one is
entitled. In determining whether one has abandoned
his property or rights the intention is the first
and paramount object of inquiry. This intention is
ascertained not only from the statements which may
have been made by the owner of the property, but
also from the acts of the owner. * * *"
The intention of plaintiff in leaving the truck at Big
Sky, and the understanding of defendant, as shown by its purchas-
ing agent, Norman Olsen, can be shown by the following testi-
mony at trial:
"MR. McEWEN:
"Q. What occurred then when you got back to
Meadow Village? A. Well, I got Mr. Olsen and
we took a drive in the truck around a circle
there. And he agreed it wasn't fixed properly.
And so we left the truck there. And he was
going to have them come down and get it and re-
pair it, and contact me at a later date."
Mr. Olsen testified:
"A. He [McEwen] was complaining with regards to
the transmission, and some other items. The con-
dition of the transmission. I got into the truck,
took a spin, and came back. The transmission did
sound noisy. And, therefore, I requested that he
refuse to accept the truck. And I said that I
would offer our mechanics to look at it again.
"Q. Did you understand from that that he was to
leave the truck and that Big Sky would then repair
it? A. I was to understand from that that I would
have our maintenance department look at the truck
to meet his objections to the condition of the truck.
"Q. Aren't you saying that you expected Big Sky to
repair it? A. Right."
There is no indication in the record that plaintiff in-
tended to abandon his truck at Big Sky. The substantial, uncon-
troverted testimony of plaintiff and defendant's agent indicates
an intent to have the truck repaired by Big Sky to plaintiff's
satisfaction. That is the reason the truck was left at Big Sky.
The district court found plaintiff failed to mitigate his
damages subsequent to June, 1973.
The district court found defendant had a legal duty to
return the truck in the same condition as when it took possession,
except for normal wear and tear. Defendant defaulted on this duty
by tendering the truck to plaintiff without completing the proper
repairs. his Court held recently in Business Finance Co. v.
The Red Barn, 163 Mont. 263, 267, 268, 517 P.2d 383:
" * * * the nondefaulting party, was only required
to act reasonably under the circumstances, so as
to not unnecessarily enlarge damages caused by
the default. "
Defendant contends plaintiff did not act reasonably to
mitigate his damages, since he would not accept the truck as
tendered in June, 1973, and perform the necessary repairs himself,
looking to defendant for reimbursement. It was the duty of defend-
ant to repair and return the truck with all due speed. The duty
of repair was not on plaintiff, especially when the extent of
the needed repairs could only be gauged by a mechanic, such as
those employed by defendant.
Defendant contends plaintiff should have hired a mechanic
to see what repairs were needed, thereby failing to mitigate
damages if such an examination would have revealed the repairs
to be minor. The record shows defendant had previously taken
the truck to a Bozeman garage, ran up a bill of $85 to $90 to
have the truck torn down, then hauled it to Big Sky telling plain-
tiff the truck could be repaired with less expense by defendant's
own mechanics. After this episode, defendant maintains it would
be reasonable for plaintiff to go through this whole procedure
again to possibly mitigate damages. We do not agree.
Defendant contends plaintiff did not make sufficient
efforts to hasten the repair of the truck and lessen the period
over which possible rental was due. Plaintiff contacted defend-
ant's agents on two or more occasions inquiring as to the status
of his truck and requesting rental payments on at least one
occasion. Plaintiff retained an attorney who on more than one
occasion contacted Big Sky demanding repair and return of the
truck. This lawsuit was instituted in June, 1974, and the truck
was not repaired until March, 1975. We believe plaintiff made
sufficient efforts to demand the repair and return of his truck.
Defendant's agent admitted at trial that the truck was either
forgotten, ignored or given a low priority, therefore any delay
was not the result of action or inaction on the part of plaintiff.
We do not find substantial credible evidence that plaintiff
abandoned his truck or failed to mitigate damages. Defendant
d i d n o t t e n d e r t h e t r u c k t o p l a i n t i f f i n J u n e , 1973, i n t h e
same c o n d i t i o n a s when p o s s e s s i o n was t a k e n , e x c e p t i n g normal
wear and t e a r . P r o p e r t e n d e r was n o t made u n t i l March, 1975.
P l a i n t i f f i s e n t i t l e d t o a l l a c c r u e d a n d u n p a i d r e n t from t h e
d a t e o f t h e l e a s e , November, 1972, u n t i l t e n d e r i n March, 1975.
The judgment o f March 31, 1 9 7 5 , i s h e r e b y r e v e r s e d w i t h
d i r e c t i o n s t o e n t e r a jud
W e concur: /
/' r Chief J u s t i c e
Justices
1