No. 13910
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
CURTIS HAGFELDT,
Plaintiff and Respondent,
BOYD C. MAHAFFEY, a/k/a BOYD MAHAFFEY,
and NANCY MAHAFFEY, his wife, GILBERT D.
WELLS and HERBERT M. SHERBERNE,
Defendants and Appellants.
Appeal from: District Court of the Eighth Judicial District,
Honorable Paul G. Hatfield, Judge presiding.
Counsel of Record:
For Appellants:
Scott, Linnell, Neil1 & Newhall, Great Falls,
Montana
For Respondent:
Dola Wilson, Great Falls, Montana
Cause submitted on briefs.
Submitted: January 6, 1978
Decided: MAR - 1 1978
Honorable Bernard W. Thomas, District Judge, sitting in place
of Chief Justice Paul G. Hatfield, delivered the Opinion of the
Court.
Plaintiff obtained judgment in District Court, Cascade
County, for the recovery of money claimed to be due for the
delivery of gravel and certain machine work, and for the fore-
closure of a mechanic's and materialman's lien. Defendant
appeals.
In the District Court this action and a prior one filed
by Boyd C. Mahaffey and Nancy Mahaffey, defendants in this case
against Curtis Hagfeldt, plaintiff, for removal of the lien and
to recover damages for its filing, were consolidated for trial.
At the trial only Hagfeldt's claim was heard and the action
brought by Mahaffeys is not involved in this appeal.
Defendants Gilbert D. Wells and Herbert M. Sherberne were
joined as parties to this action because at the time of the
events in question they were vendors of the land here involved
under a contract for sale to Mahaffeys as purchasers. The con-
tract was paid off during the pendency of this action so Wells and
Sherberne are not affected by the judgment and should be dis-
missed as parties.
The District Court made general findings of fact that
commencing on May 30, 1974, and ending on June 14, 1974, plain-
tiff, at the special instance and request of Mahaffeys, delivered
certain labor and materials to them, as follows:
76 loads of gravel @ $30.00 per load, $2,280.00
7 hours of loader work @ $25.00 per hr., 175.00
Total due
That defendants paid the sum of
Leaving a balance due of
The District Court further found that the labor and ma-
terials were used on certain real property owned by defendants;
concluded the lien was valid and subject to foreclosure, and
entered judgment in accordance with its findings and conclusions.
The only issue presented on appeal is the sufficiency of
the evidence to support the findings, conclusions and judgment.
On the appeal of equity cases, this Court shall review all
questions of fact arising upon the evidence presented in the
record and determine the same. Section 93-216, R.C.M. 1947.
If the evidence is not conflicting or if it preponderates
decidedly against the findings of the trial court, this Court
may make its own conclusions, but where there is substantial
evidence to support the trial court, even though the evidence
is conflicting, this Court will not disturb the findings. The
credibility of witnesses and weight to be given their testi-
mony is a matter for the trial court's determination. The
evidence must be viewed in the light most favorable to the
prevailing party in the District Court. Johnson v. Johnson,
(19771, Mont. , 560 P.2d 1331, 34 St.Rep. 191; Keller
v. Martin, Jr., 153 140nt. 9, 452 P.2d 422; State ex rel. Nagle
v. Naughton, 103 Mont. 306, 63 P.2d 123.
The transactions between the parties were conducted orally
and occurred in the late spring and summer, 1974. The trial
took place on February 10, 1977. By then time had taken its
usual toll on the memory of the participants, resulting in
uncertainty and confusion as to dates and details, and leaving
the evidence unsatisfactory in some respects.
A review of the record shows that the parties are in sub-
stantial agreement on the following facts: Prior to May 30,
1974, plaintiff and Boyd C. Mahaffey held one or more discussions
relative to plaintiff supplying defendant with a quantity of
gravel to be delivered to a tract of land on which defendant
planned to erect a shop building. These discussions culminated
in an order by defendant for 10 loads of gravel at a price of
$30 a load. Plaintiff owned a truck and he enlisted the aid of
Gene Shumaker who also owned a truck and who had a lease on a
gravel pit. Ten loads of gravel were delivered by plaintiff
and Shumaker on May 30, and on that date defendant paid plain-
tiff for those 10 loads by a $300 check. Shortly thereafter,
defendant ordered a second 10 loads which were delivered by
plaintiff and paid for by defendant's check in the amount of
$300 dated June 7, 1974. At or about the time the second order
was delivered the parties had a discussion about delivery of
further gravel and use of a loader, following which plaintiff
did deliver more gravel to defendant's land and did some work
there with a loader. On July 7, 1974, plaintiff received a
payment of $200 by a check given to him by Nancy Mahaffey, and
at that time plaintiff gave Mrs. Mahaffey a statement showing
delivery of 72 loads of gravel at $30, for a total of $2,160;
3+ hours building an approach at $28, or $98; grand total of
$2,258, less credit for $800, balance due, $1,458. On August
16, 1974, defendant paid another $200 by check. Since then he
has refused to pay more.
Defendant in his brief argues that the dispute is not
about the amount of gravel delivered, but rather over how the
gravel was to be measured and what defendant agreed to pay;
that, while plaintiff maintains he delivered 76 ten-yard loads
or 760 yards of gravel at $3.00 per yard, defendant claims
that there were 26 to 30 loads at $30 per load. From this, it
appears that defendant concedes that around 760 yards of gravel
were delivered, but argues that delivery was made in 26 to 30
loads instead of the 76 loads as claimed by plaintiff. This
would mean that the loads would have to average 25 yards or
more each. There is substantial evidence against such a con-
tention. Plaintiff's evidence shows that the two trucks used
by him had capacities of 13.4 yards and 14 yards respectively;
that each load delivered contained a good 10 yards, which was
also the customary load size in the trade, ana that the price
was $3.00 per yard or $30 for a ten-yard load, which was the
way defendant was billed by plaintiff.
As stated above, there is no disagreement about the
first two orders which resulted in the delivery of the first
20 loads. Nor is it disputed that there was a third agreement
for the delivery of more gravel. The difficulty arises on
the terms of the third agreement. Defendant insists that he
ordered only another 10 loads of gravel, plus some work with
the loader. (No issue is urged relative to the loader work.)
Plaintiff maintains that he was authorized to deliver sufficient
gravel to finish the project defendant had in mind; that is,
enough gravel to complete the driveway and to provide a base
for the footings, foundation and slab floor of the shop build-
ing defendant planned to erect. Since the evidence on this
issue is conflicting, we must determine whether the record
contains substantial evidence to support the court's findings
for plaintiff on this point.
The testimony submitted in behalf of plaintiff shows the
following: At the first meeting of the parties defendant told
plaintiff that he wanted to build a shop and needed gravel
for a driveway. Defendant wanted to hold delivery of gravel
down to 10 loads or 100 yards a week because he could not afford
to pay more than $300 a week. Plaintiff had further conversa-
tions with defendant from time to time. Things were " * * *
kind of planned as they went along * * *." Defendant gave
plaintiff his ideas of what he wanted done; gave him the dimen-
sions for the shop and where he wanted it built, and plaintiff
went on from there. Defendant once changed the dimensions for
the shop and that change required more gravel. As they were
hauling defendant discussed with plaintiff what they were doing,
where he wanted the gravel, how much he wanted covered. Some-
time after the second 10 loads were hauled plaintiff talked
to defendant about finishing the job. He told defendant that
he and Shumaker had other work out of town, but that they would
haul in the balance of the gravel defendant needed before
they left town and defendant could continue to pay at the
rate of $300 per week. Defendant agreed. Plaintiff does not
remember when this conversation occurred but thinks it was
after either the second or third check was received from de-
fendant. Shumaker was present one time at a meeting with de-
fendant and plaintiff after the first 20 loads had been hauled.
At that meeting the parties discussed finishing the job, with
defendant to pay later, but he is not sure that defendant
decided at that time that they should finish the job. Defen-
dant was not advised each time plaintiff or Shumaker were going
to deliver. He was there once when they brought in the trucks.
Plaintiff met defendant at places other than the site, includ-
ing once at defendant's shop and once at his home. At those
meetings plaintiff asked whether defendant had been at the site
and defendant said he had been, that it looked good, and for them
to haul more. He apparently was satisfied and they went ahead
and finished the job.
Plaintiff thinks he gave defendants estimates for the
footings and slab, but because of the rough terrain it was
difficult to estimate yards. Plaintiff furnished defendant only
one statement, which was after 72 loads had been hauled. He
went to the property with defendant after they had hauled gravel
for the approach driveway and for the footings, foundation and
slab. After looking it over, defendant mentioned that he would
like a circular driveway, so plaintiff and Shumaker hauled
four more loads for that purpose.
Defendant testified without contradiction that he requested
plaintiff to do his hauling during working hours so that his
wife could check the loads, but that plaintiff never did inform
him when he was going to haul. Defendant further testified
that he did not know that 76 loads had been hauled. As above
stated, he admits that a large quantity of gravel was hauled,
but from markings on the ground he believed that no more
than 30 loads had been hauled and that each load was a huge
one. One reason he had plaintiff go ahead with the addi-
tional gravel was because he thought he was getting a good
deal, with loads of 25 yards or more at $30 per load, but he
insists that he ordered only 30 loads in all.
Without considering the documentary evidence, the oral
testimony summarized above, although unsatisfactory from the
standpoint of establishing definite times and terms, is suf-
ficient to provide the substantial evidence necessary to
sustain the court below. The documentary evidence consists
of the four cancelled checks representing payments by defen-
dant to plaintiff, a record of the loads hauled kept by Shurnaker,
and the statement which plaintiff delivered to defendant showing
72 loads delivered. When this documentary evidence is taken
into consideration, some inconsistencies and contradictions
appear.
Shumaker testified that his record was made each day
when gravel was hauled. Plaintiff accepted the record as true
and offered it in evidence. According to that record, the
first 10 loads were hauled and paid for on May 30, as both
parties agree. The record shows that the next gravel delivered
was on June 2, during which day 26 loads were hauled. This
appears contrary to the undisputed testimony that the second
order was for only 10 loads and that plaintiff was not author-
ized to haul more until after the second order had been filled.
An explanation of this apparent contradiction could be that
after 10 loads had been hauled on June 2 the parties then had
the discussion in which plaintiff claims defendant authorized
him to continue hauling until he finished the job, and follow-
ing the discussion, plaintiff and Shumaker hauled another 16
loads on June 2. There is no express evidence to this effect.
In fact, at the trial plaintiff could not explain why he
hauled 26 loads on June 2, except to say that no gravel was
hauled that was not authorized. Also, plaintiff testified
that after the second 10 loads had been hauled, he went to
defendant to collect; that he did not remember when defen-
dant authorized him to finish the job; that it was either
after the second or third check. The second check was dated
June 7, 1974, and if the order to finish the job was not
made until then, it would appear that no more than 20 loads
had been authorized before June 7, 1974, although 39 loads
had been delivered by that date according to Shumaker's
record. However, a subsequent order to finish the job would
cure this problem, since there is evidence to show that all
of these loads were necessary for that purpose.
Another contradiction appears when the statement made
out by plaintiff and delivered to Mrs. Mahaffey on July 7, 1974, is
examined. This statement is dated June 10, 1974, and shows
that 72 loads of gravel had been delivered as of that date,
although Shumakers record shows only 51 loads delivered through
June 10, with 13 loads delivered on June 11 and 8 loads on June
12. These circumstances were not brought out at the trial, so
plaintiff was not called upon to explain them, and defendant
has not raised this point in his argument.
Although the contradictions may raise doubts, we do not
consider them sufficient to destroy the overall effect of the
evidence which, when viewed in the light most favorable to
plaintiff, is adequate to sustain the judgment of the District
Court under the principles we have previously stated.
The judgment is affirned.
Hon. Bernard W. Thomas, District
Judge, sitting in place of Mr.
Chief Justice Paul G. Hatfield.
We concur:
.
.
f r
-,-,-,--,,C,,,,,,,,-----------
Justices