No. 13653
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
NELSON E. CORSCADDEN,
Plaintiff and Respondent,
-vs-
STEPHEN J. KENNEY,
Defendant and Appellant.
Appeal from: District Court of the Seventeenth Judicial
District,
Honorable Thomas Dignan, Judae presiding.
Counsel of Record:
For Appellant:
Douglas Y. Freeman argued, Hardin, Montana
For Respondent:
Robert Hurly argued, Glasgow, Montana
Submitted: December 2, 1977
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Nelson E. Corscadden, d/b/a Corscadden Steel Construction
Company, brought this action against Stephen J. Kenney, seeking
damages occasioned by an alleged breach of contract by Kenney.
Kenney answered and counterclaimed for alleged equipment rental due
and damages resulting from alleged defective workmanship and default
by Corscadden. A nonjury trial was commenced in the District Court,
Valley County, on December 2, 1976. By its findings of fact and
conclusions of law dated December 30, 1976, the District Court,
the Honorable Thomas Dignan presiding, rendered judgment for plain-
tiff Corscadden in the amount of $8,961.55 with interest at 6 percent
per annum, and denied Kenney's counterclaim. Kenney appeals the
judgment and the denial of his counterclaim.
Defendant Kenney, a contractor from Hardin, Montana, was
the successful bidder with the United States Corps of Engineers on
a contract to rehabilitate a barge at Fort Peck, Montana. A por-
tion of the rehabilitation consisted of welding on the barge.
Corscadden submitted a bid to Kenney, seeking to subcontract per-
formance of the welding services. The bid was rejected. However,
in May, 1975, a verbal agreement was entered into between Kenney,
by his superintendent Ralph Marcher, and Corscadden. Kenney hired
Corscadden and his employees on an hourly basis to furnish labor
by certified welders, welding material and two welding machines at
a rate of pay of $16 per man hour. Corscadden and his employees
were to begin performance in May, 1975. Although Corscadden and
his employees were based in Glasgow, Montana, a distance of 17 miles
from the job site, no agreement was reached at the time concerning
mileage charges.
Corscadden moved the welding equipment from Glasgow to Fort
Peck and began performance on May 12, 1975. On June 22, however,
a dispute arose between the parties concerning the rate at which the
work was progressing. Corscadden terminated the employment and
moved his men and equipment off the job.
On June 24, unable to locate replacement welders, Marcher
reached a verbal agreement with Corscadden for continued performance,
the terms of which, for the greater part, are in dispute. The
parties agree that Corscadden and his men were entitled to a new
rate of pay of $22 per hour. Corscadden contends, however, the par-
ties agreed the new rate of pay would operate retroactively to the
beginning of the job, covering some 145-1/2 man hours worked, and
mileage charges of $1 per actual mile traveled between Glasgow and
Fort Peck, also applicable retroactively. Such items were alleged
to have been payable upon completion of the work. Marcher disputes
the latter terms. In any event, Corscadden and his men did return
to work on June 24, 1975, and commenced performance under the terms
of the new agreement.
At trial, the parties disputed liability for rent on certain
items of Corscadden welding equipment. Kenney and Marcher admitted
liability for an exhaust fan, one grinding machine, oxygen and acet-
ylene bottles and gauges, and a cutting head. However, Corscadden
testified additional items of equipment, consisting of a second
grinding machine, a paint respirator, a "scarfing tip", and flood
lights were also rented. Marcher asserted the rental rates were
to have been those established by a local rental agency, Moen's
Equipment Rental of Glasgow. Corscadden testified there was no
agreement to so restrict the rental rates, but rather the rates
charged were those he typically charges for rental of such items;
a rate higher than that charged by Moen's. It should be noted, in
this regard, that certain of the items in dispute were not available
for rental at Moen's.
A further dispute concerns the cost of time and travel for
a three day testing and recertification of one of Corscadden's
employees, Zane Geer. Corscadden contends Kenney is liable for such
costs under the express terms of the prime contract between the
United States and Kenney. Kenney denies liability for such costs,
arguing Corscadden had agreed to provide certified welders.
In support of his counterclaim for damages due to delay and
defective workmanship, Marcher testified Corscadden failed to pro-
vide the two-man work force agreed upon during May and June, 1975.
Other welders were employed by Kenney to complete the job. Kenney
stated that, due to the delay, he was unable to bid on other potential
jobs. Other defense witnesses indicated, however, the delays were
due primarily to the failure of Kenney's crew to have welding steel
available and make the job site ready for work. It is undisputed
that Kenney was subjected to no fine or penalty due to the ultimate
delay in completing performance on the prime contract. Additionally,
proper
Marcher testified Corscadden's failure to provide the/one-fourth-inch
welds required by the terms of the prime contract resulted in approxi-
mately 200 hours of rewelding and, thus, additional delay and cost
to Kenney. Kenney stated he was damaged in an approximate amount
in excess of $10,000. Corscadden testified, however, he was not
made aware of the specifications regarding weld thickness and was
not informed of the insufficiency of the work at the time it was
being performed, although Marcher himself was in constant supervision
of the welding work.
Corscadden testified that due to Kenney's failure to make
scheduled payments on their agreement, he was forced to obtain high
cost bank loans to finance his employees' salaries and continued
operations. As a result, Corscadden allegedly suffered a loss of
credit and damages to his business reputation.
Corscadden and his men completed their work on August 20,
1975. Kenney contends his final payment of $6,541.44, by check dated
October 30, 1975, was accepted and cashed in full satisfaction of
the account. Corscadden denied such sums were accepted as final
payment.
-4-
The District Court gave judgment for Corscadden on all
items of damage, save those for loss of credit and business repu-
tation. Awarded to Corscadden were the following:
Total 824-1/2 hours labor at $22 per hour,
including 24 hours compensation for
recertification of Corscadden employee
Geer . . . . . . . . . . . . . . . . . .$18,139.00
Mileage charges, retroactive to May 12, 1975 . 3,706.00
Equipment rental and other charges . . . . . . 3,727.55
TOTAL DUE CORSCADDEN FROM KENNEY. .$25,572.55
Less payments made by Kenney. .(16,611.00)
BALANCE DUE AND OWING. . $ 8,961.55
The court computed 6 percent interest on the rental and
other charges from December 15, 1975, the date at which the last of
the equipment was returned, and 6 percent interest on the balance
owing on the labor and mileage accounts from October 30, 1975, the
date at which the last of the payments on such account was made.
The District Court denied Kenney's counterclaim on the
ground that the work was done under the direct supervision of Kenney's
foreman, Marcher, who failed to disclose the plans and specifications
to the welders. Thus, Corscadden could not be 5eld responsible for
the delays due to faulty welding. The court also denied Kenney's
counterclaim for rental due on a welding machine present at the
site of the work, finding that its presence was at all times for
the convenience of Kenney.
The sole determination to be made on this appeal concerns
the sufficiency of the evidence adduced at the trial, to sustain
the findings of fact and conclusions of law of the District Court,
and the judgment subsequently entered thereon.
The thrust of appellant's argument on appeal is that the
evidence is insufficient to support the judgment of the District
Court.
The proper standard for review of a lower court's findings
of fact and judgment based thereon was recently stated in the case
of Strong v. Williams, (1969) 154 Mont. 65, 68, 460 P.2d 90:
" * * * Where the evidence is conflicting, but
substantial evidence appears in the record to
support the judgment, the judgment will not be
disturbed on appeal, and this is especially
true when the district court, as here, has
passed upon the sufficiency of the evidence
* * **'I
See also: McGuire v. American Honda Co., (1977) - ,
Mont - 566 .
P.2d 1124, 34 St.Rep. 632; Rearns v. McIntyre Const. Co., (1977)
Mont . , 567 P.2d 433, 34 St-Rep. 703.
While the evidence offered below by the respective parties
is, in varying degrees, in direct conflict, we conclude the evidence
taken as a whole substantially supports the findings of the District
Court, with two minor exceptions.
Respondent Corscadden contends, and the record makes plain,
that appellant Kenney's offered evidence is often unclear and, in
certain respects, contradictory. Kenney's primary evidence, in the
form of the testimony of his supervisor, Marcher, is ambiguous
regarding numerous terms of both the original and renegotiated agree-
ments between the parties.
The credibility and weight accorded given witnesses is a
primary function of a trial judge sitting without a jury and is of
special consequence where the evidence is in conflict. This Court
will ordinarily sustain such a determination on appeal. Hellickson
v. Barrett Mobile Home Transport, Inc., (1973) 161 Mont. 455, 507
P.2d 523; Eliason v. Eliason, (1968) 151 Mont. 409, 443 P.2d 884.
We feel the judgment of the District Court, given the facts
as presented, is essentially correct. However, the dispute con-
cerning the retroactivity of the increased pay rate and mileage
charges necessitates a modification of judgment in this case. Cor-
scadden never d e m o n s t r a t e d t h a t w c h e r h a d agreed to such terms, as
the following direct testimony of Corscadden himself will disclose:
"Q. Did you reach any agreement on whether or
not this $22 per hour would go back to the start
of the contract? A. We had talked about that.
We hadn't even been paid for the 145 hours, I
don't think, at that-time, and I just assumed
that we did. You know, that it would start right
from the start.
"Q. Did you discuss that with Ralph [Marcher]?
A. Yes, we did, and he talked back and forth
about it, and I don't remember any decision made
whether, you know, that was the way it was going
to be or not.
"BY THE COURT: Did you ever make an agreement on
that? Or what was the situation? A. I don't
think there was ever an agreement made one way
or the other.
"BY THE COURT: On the -- A. I know he didn't
want to pay it, and I wanted it. We argued it
out, but I don't think there was ever any final
agreement made whether they were going to pay
it or not." (Emnhasis added.)
Further, a Corscadden invoice admittedly submitted subsequent to
renegotiation of the agreement on June 24, 1975, gave credit for
the additional rate of pay at 145-1/2 hours. This, we feel, con-
stitutes a clear admission of nonretroactivity.
Likewise, the following direct testimony of Corscadden con-
cerning mileage charges indicates no agreement was reached concerning
retroactivity of such charges:
"A. * * *
I told him [Marcher] I wanted a dollar
a mile, and he said, 'What? For three men that
would come to quite a bit.' I said, 'The men drive
their own outfits, but my truck runs over the road,
it would be 34 miles a day.'
"Q. Did you agree on that? A. Yes.
ee on -
- whether or not that would
- -
be retroactive or not? Whether or not that would
-
go back to the start of the contract or not?
.-
-
A. No. " (~rn~hasisadded. )
There being no evidence of record to justify a finding that
Corscadden was entitled to the above retroactive rates and, indeed,
the entire weight of evidence to the contrary, the judgment must
be reduced accordingly, under the previously noted "substantial
credible evidence" standard of review.
The judgment of the District Court is therefore affirmed,
as modified. The cause is hereby remanded to the District Court
for recomputation of the amount of judgment under the standards
outlined herein.
\
y h i e f Justice