No. 13734
IN THE SUPREME COURT OF THE STATE OF MONTANA
MARTIN OLSON,
Plaintiff and Respondent,
-vs-
CLARK CARTER,
Defendant and Appellant.
Appeal from: District Court of the Tenth Judicial District,
Honorable LeRoy L. McKinnon, Judge presiding.
Counsel of Record:
For Appellant:
Bradley B. Parrish argued, Lewistown, Montana
For Respondent:
Rapkoch and Knopp, Lewistown, Montana
Peter L. Rapkoch argued, Lewistown, Montana
Submitted: September 30, 1977
. -.
.
-,
Filed: -
M r . Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
Defendant appeals from a judgment of the District Court,
Fergus County, awarding plaintiff the unpaid balance on a con-
tract for fattening cattle, plus attorney fees.
During September, 1974, the parties to this suit dis-
cussed the possibilities of plaintiff feeding and fattening de-
fendant's cattle. A written contract was signed in November, 1974,
setting forth the services and feed to be supplied by plaintiff,
the compensation to be paid by defendant, and the basis for com-
putation of the feeding charge. Pursuant to this contract, de-
fendant delivered to plaintiff 204 head of cattle to be fed and
fattened in plaintiff's feedlot. Defendant was thereafter billed
monthly for feeding costs. Accordingly, defendant paid $27,935.11
as payment for plaintiff's feeding of the cattle before refusing
to pay any additional sums.
Plaintiff sued defendant for the unpaid balance on the
contract for feeding and fattening the cattle. The complaint
alleged that defendant owed $20,037.41. Defendant refused to pay
this amount on the ground that the total billing placed the cost
per pound of gain at $.98 whereas the anticipated price for
fattening assured by plaintiff was to be around $.50 per pound
of gain. Defendant contends the difference between the antici-
pated and actual cost was due to plaintiff's breach of both the
written contract and an oral agreement apart from the written
contract.
Following a nonjury trial, the District Court found
plaintiff performed his part of the contract and was entitled
to a judgment as prayed for in plaintiff's complaint. In addition,
plaintiff was also entitled to recover attorney fees in the amount
of $6,679.14. From this judgment defendant appeals.
Defendant raises the following issues on appeal:
1. Did the District Court err in finding that plain-
tiff had fully performed his part of the Custom Cattle Feeding
contract?
2. Did the District Court err in awarding plaintiff
$20,037.41 plus interest as damages?
3. Did the District Court err in awarding attorney fees
in the amount of $6,679.14?
The parties to this appeal are not disagreeing as to
the law applied, but rather over the facts as found by the
District Court. Issues one and two are combined in reviewing
whether evidence exists to support the findings of the District
Court. In considering the totality of the facts before the
District Court, this Court notes two principles of appellate
review. First, where there is substantial evidence to support
the findings of the District Court, this Court will not review
such findings unless there is a clear preponderance of evidence
against such findings. Merritt v. Merritt, (1975) 165 Mont. 172,
177, 526 P.2d 1375. Second, the credibility and weight given to
the witness, especially where the evidence is conflicting, is a
matter for the District Court's determination in a nonjury case.
Miller v. Fox, (1977) Mont.
- f -P.2d , 34 St.Rep. 1367,
1370.
Defendant argues that plaintiff failed to perform his
part of the written contract and therefore was not entitled to
the damages awarded.
Included within this failure to perform was plaintiff's
breach of the collateral oral agreement apart from the written
agreement. Pursuant to this collateral oral agreement plaintiff
allegedly agreed to abort the heifers included in the cattle de-
livered for feeding. The heifers were not aborted thereby causing
a high death loss and poor fattening result. At trial, when
defendant offered testimony concerning this oral agreement,
plaintiff offered evidence to contradict the existence of such
agreement and maintained a continuing objection as to any
evidence not supported by the written contract being inadmissible
under the par01 evidence rule. Such objections were overruled.
From the conflicting versions presented by plaintiff and de-
fendant the District Court chose to rule that plaintiff had per-
formed his part of the written agreement. while no mention of
the oral agreement was made by the District Court, the findings
of fact are inconsistent with and contradictory to the existence
of such an oral contract. The inference of such a ruling is
that no collateral oral agreement existed, or, if there was,
then the plaintiff performed his part of that agreement. This
Court must sustain the District Court's ruling on this point:
"From these conflicting versions presented by
plaintiff and defendant as to the terms of their
contract, the trial judge chose to believe de-
fendant * * *. This Court must sustain the trial
judge's ruling on this point.
"' * * * The credibility and weight given to wit-
nesses, however, is not for this Court to deter-
mine. This is a primary function of a trial judge
sitting without a jury; it is of special consequence
where the evidence is conflicting.'" Miller,
supra at 1370.
Although this Court will not review the credibility and
weight given to witnesses by the District Court in establishing
performance of the cattle feeding contract, this Court will re-
view the sufficiency of the evidence to support the damages
awarded. From the record, a written contract was entered into by
the parties. Section 13-705, R.C.M. 1947, sets forth the rule of
interpretation of contracts:
"When a contract is reduced to writing, the in-
tention of the parties is to be ascertained from
the writing alone, if possible; subject, however,
to the other provisions of this chapter."
In Batey Land & Livestock Co. v. Nixon, (1977)
Mont. , 560 P.2d 1334, 34 St.Rep. 105, 110, this Court
cited Fulton v. Clark, 167 Mont. 399, 538 P.2d 1371 in stating:
" * * * The plain and clear meaning of the
instruments is to control and the intent of the
parties is to be ascertained from the instru-
ments. "
Pursuant to the contract, defendant was to pay for "Purchased
barley and hay at cost plus interest at 1% p/mon, "Raised
haylage at market value", "Minerals and vitamins--supplements
(hand mixed) at cost". Plaintiff testified that the average
cost of all the barley fed to defendant's cattle was $6.41 per
hundred weight. Plaintiff also testified that the charge to
defendant for the barley was $6.75 per hundred weight. Plain-
tiff included in the total charge for barley an additional
$0.13 per hundred weight for storage and $0.15 per hundred weight
to pay for the cost of a capital improvement. Defendant contends
that although the charge for storage may be correct, the $0.15
charged on the barley to construct capital items should not be
charged to him pursuant to the contract. We agree. The "plain
and clear meaning of the instrument" controls the intent of the
parties. Nowhere in the written agreement is there a provision
to charge defendant for capital items.
Additionally, paragraph I of the contract states the
following:
"Feeder hereby agrees to take delivery of said
cattle for the purpose above stated and to
handle and care for them in keeping with his
experience and knowledge of the cattle feeding
and artificial insemination businesses and acts,
upon which the Owner relies, and pursuant to
the standard of practice of said businesses in
the Central Montana area. "
The average cost of all the barley charged to defendant
was $6.41 per hundred weight. Plaintiff's testimony as to his
cost is as follows:
"A. No. We purchased this barley, some of
this barley arrived prior to December 30th,
December 2nd, 31st and 20th, and most of it in
January.
"Q. But it was all purchased at the same price?
A. No.
"Q. Did it follow the market price? A. Well,
I hope it did. We purchased some at $7.00,
some at $5.70, some at $6.08, some at $6.25,
some at $6.55 and 6.55, 6.50 and 6.35.
"Q. That's in a chronological order, 6.35 was
the last? A. $6.35 was the last - no. No. The
last bunch of barley I bought was $6.25.
"Q. Isn't it a fact that the price of barley
from November, '74 to March, '75, went down?
A. No, it was not.
"Q. It didn't go down? A. No. After January
lst, it went up. T-Bone paid $7.25 for barley,
if you please."
Contrary testimony as to the price of barley was given by the
manager of the Con-Agra grain elevator in Lewistown, Montana.
The manager stated that the highest cost for barley between
October, 1974, and March, 1975 was during November, 1974, when
Barley reached $6.50 per hundred weight. From that month for-
ward, the price went down reaching a low in March, 1975 of $5.20
per hundred weight. No evidence exists to explain the differ-
ence between the price paid by plaintiff and the price of barley
sold at the local grain elevator in Lewistown.
The third issue raised on appeal concerns the award of
attorney fees. Defendant contends the District Court abused its
discretion in awarding attorney fees in the amount of $6,679.14.
We agree.
The contract under which plaintiff sued provided for
recovery of reasonable attorney fees in the event the defendant
failed to make payments as provided by the contract. The only
evidence presented to establish reasonable attorney fees was
the testimony of plaintiff's attorney. That testimony revealed
15 hours had been spent working on the case. For this 15 hours over
$6,000 was charged based on a contingent fee arrangement be-
tween the plaintiff and his attorney. On the basis of this
evidence, the court awarded plaintiff $6,679.14 as reasonable
attorney fees.
In Engebretson v. Putnam, Mont .- - I P.2d I
1246.
34 St.Rep. 1241,/(#13679, filed 11/4/77) this Court faced the
same question under almost identical facts. This Court stated:
"We disapprove of an award of attorney fees
based on this type of documentation. We
have previously approved guidelines for such
an award. Crncevich v. Georgetown Recreation
Corp., 168 Mont. 113, 541 P.2d 56 (1975). * * *
"The retainer agreement between plaintiff and
her attorney does not conform to the above
requirements. The result of the negotiations
between an attorney and his client as to their
fee agreement is not controlling in fixing
a reasonable attorney fee to assess against the
opposing party. Such an award must be deter-
mined in accordance with the guidelines enumerated
in Crncevich."
This case warrants the same result. The award must be based
in accordance with the guidelines enumerated in Crncevich.
For the above reasons, this case is remanded for a re-
determination of the amount of
t
We concur: