No. 13445
I N THE SUPREME COURT OF THE STATE OF IIONTANA
1977
ROBERT W. MILLER,
P l a i n t i f f and A p p e l l a n t ,
-vs-
FLOYD FOX,
Defendant and Respondent.
A p p e a l from: D i s t r i c t Court of t h e Eleventh J u d i c i a l
District,
H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
R o b e r t H u r l y a r g u e d , Glasgow, Montana
For Respondent :
W i l l i a m J . McCarvel a r g u e d , S p o k a n e , W a s h i n g t o n
Submitted: O c t o b e r 7 , 1977
Decided: MQV 2 1 1n
9
F i l e d : $\J?l 9 (7
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
Plaintiff Robert Miller sued defendant Floyd Fox in
District Court, Valley County, for the unpaid balance on a con-
tract for the sale of horses. Plaintiff obtained a writ of
attachment against defendant's property. Defendant posted a
cash bond for release of the attachment and counterclaimed on
various grounds including wrongful attachment. After a nonjury
trial, District Judge M. James Sorte found that there had been
no breach of contract by defendant and that plaintiff had wrong-
fully attached defendanfs property. Judge Sorte awarded defendant
$400 in exemplary damages for plaintiff's wrongful attachment.
In the spring, 1966, defendant, a resident of Cardston,
Alberta, made an oral agreement with plaintiff at plaintiff's
ranch near Jordan, Montana, for plaintiff to sell five horses to
defendant. In April, 1966, plaintiff delivered the five horses
to defendant at his farm in Cardston. Defendant accepted all
five horses as satisfactory and made part-payment, with a balance
on the contract remaining unpaid.
Three of the horses were geldings, valued at $500 each,
to be used for general purposes. A fourth gelding, later used
as a race horse, was sold for $600. The fifth horse was a stud
horse, sold for $1,500 (plaintiff's version) or for $1,200 (de-
fendant's version). The remaining unpaid balance for the horses
was approximately $1,700. Plaintiff did not deliver the registra-
tion certificate for the stud horse, and both plaintiff and de-
fendant testified that without the certificate the stud horse
was valueless to defendant for either breeding or racing.
In the fall, 1966, plaintiff sent defendant a letter ask-
ing for the balance of his money. Defendant, in the fall, 1966,
wrote plaintiff a letter and, on more than one occasion tried to
telephone him, all without success. ~uring1966,and until 1968,
plaintiff resided at Jordan, had a telephone there, and received
mail there. Defendant did not contact plaintiff nor offer him
any payment during that time.
In late June (defendant's version) or early July (plain-
tiff's version) 1968, plaintiff found defendant at a horse race
in Fort Benton, racing the gelding race horse plaintiff had sold
him. Defendant voluntarily returned the gelding to plaintiff
whereupon plaintiff credited $600 to defendant's account. De-
fendant, at the time of the original horse delivery in Cardston,
had paid plaintiff an amount equal to the price of three general
purpose geldings; when defendant returned the gelding race horse,
the only amount due under the contract was the price of the stud
horse. Defendant testified that when he saw plaintiff at Fort
Benton he asked plaintiff to travel to defendant's farm in Cardston
to choose cattle to take in satisfaction of the contract balance.
Defendant further testified that he had the cows on hand for
plaintiff to select; or, if plaintiff preferred, defendant could
have sold the cows and paid plaintiff in cash. Defendant alleges
plaintiff never traveled to Cardston to pick out his cows or re-
ceive his cash.
After their Fort Benton meeting in 1968, defendant did not
again contact plaintiff and offer to pay the balance of the con-
tract price. Defendant, however, testified that he tried to con-
tact plaintiff in both Jordan and Roundup, Montana, but nobody
there knew plaintiff's whereabouts. Defendant's testimony on
this point was consistent with plaintiff's statements at trial
that, starting in 1968, plaintiff lived in California for about
1-1/2 years. During that time, plaintiff never tried to contact
defendant to inform him of his new address.
In 1971, plaintiff learned that defendant was in Glasgow,
Montana, for a horse race. Plaintiff filed suit against defen-
dant in District Court, Valley County, obtained a writ of attachment,
and attached defendant's pickup truck, camper, four-horse
trailer, and horses. Defendant, who was accompanied by his
wife and daughter, was served with the attachment papers in
front of the grandstand at Glasgow, in view of the race crowd.
Defendant had to stay in Glasgow for about four days to make
travel arrangements and to wait for money to be sent from his
bank in Cardston.
The district judge found that presentation of a certifi-
cate of registration by plaintiff to defendant was a condition
precedent to defendant's obligation to ?ay the remainder due
under the contract. The judge held that defendant did not breach
his contract with plaintiff since plaintiff never produced the
registration papers, and frustrated defendant's performance by
not apprising defendant of his whereabouts during his protracted
absences from his ranch near Jordan. Defendant thus never had
a duty to tender payment. The judge noted that the "Plaintiff's
Affidavit in support of his Writ of Attachment stated that the
contract between the parties called for a direct payment of money
* * *." Because the judge concluded that plaintiff, when he sub-
mitted his affidavit, knew that the contract did not call for
"direct payment of money", but rather, required further perform-
ance (presentation of registration papers) as a condition of pay-
ment, he awarded defendant exemplary damages for plaintiff's
wrongful attachment.
Plaintiff raises the following issues on appeal:
1. Was tendering stud registration papers a condition
precedent, failure of which would bar plaintiff from recovering
under the contract?
2. Did plaintiff wrongfully attach defendant's property?
3. Did the district court err in awarding defendant
exemplary damages?
The s p e c i f i c terms o f an o r a l c o n t r a c t must h e d e t e r -
mined by t h e t r i e r o f f a c t where t h e p a r t i e s t o t h e c o n t r a c t
p r e s e n t c o n f l i c t i n g s t a t e m e n t s and o p i n i o n s . S e e , Waite v.
C.E. Shoemaker & Co., 50 Mont. 264, 285, 146 P . 736 ( 1 9 1 5 ) .
I n t h i s c a s e , p l a i n t i f f t e s t i f i e d t h a t h e and d e f e n d a n t a g r e e d
t h a t p l a i n t i f f would r e t a i n t h e s t u d r e g i s t r a t i o n p a p e r s u n t i l
defendant f u l l y paid t h e c o n t r a c t purchase p r i c e . Defendant,
however, t e s t i f i e d t h a t t h e agreement was t h a t p l a i n t i f f would
keep t h e s t u d r e g i s t r a t i o n p a p e r s u n t i l f i n a l payment o n l y i f
p l a i n t i f f f i r s t showed t h e p a p e r s t o d e f e n d a n t . Defendant s t a t e d
t h a t p l a i n t i f f a g r e e d t o send t h e s t u d r e g i s t r a t i o n p a p e r s
d e f e n d a n t , b u t r e f r a i n from t r a n s f e r r i n g ownership u n t i l d e f e n -
d a n t t e n d e r e d f i n a l payment. Both p l a i n t i f f and d e f e n d a n t a g r e e d
t h a t p l a i n t i f f n e v e r d i d produce t h e s t u d r e g i s t r a t i o n p a p e r s
b e f o r e t r i a l , and d e f e n d a n t t e s t i f i e d t h a t " * * * I would have
been g l a d t o pay him b u t I g o t k i n d o f l e a r y b e c a u s e t h e p a p e r s
were n o t t h e r e , h e w o u l d n ' t show them t o m e . I j u s t wanted t o
see them."
From t h e s e con£ l i c t i n g v e r s i o n s p r e s e n t e d by p l a i n t i f f
and d e f e n d a n t a s t o t h e t e r m s of t h e i r c o n t r a c t , t h e t r i a l judge
c h o s e t o b e l i e v e d e f e n d a n t and r u l e d "That t h e p a r t i e s a g r e e d
a t t h a t t i m e t h a t t h e Defendant would pay t h e r e m a i n i n g b a l a n c e
due i n t h e f a l l upQn p r e s e n t a t i o n o f a c e r t i f i c a t e o f r e g i s -
tration. " T h i s C o u r t must s u s t a i n t h e t r i a l j u d g e ' s r u l i n g on
t h i s point.
" * * * The c r e d i b i l i t y and w e i g h t g i v e n t h e
w i t n e s s e s , however, i s n o t f o r t h i s C o u r t t o
determine. T h i s i s a primary f u n c t i o n o f a
t r i a l judge s i t t i n g w i t h o u t a j u r y ; i t i s of
s p e c i a l consequence where t h e e v i d e n c e i s con-
flicting. ( C i t a t i o n s o m i t t e d ) . " Hellickson v.
B a r r e t t Mobile Home T r a n s p o r t , I n c . , 1 6 1 Mont.
455, 459, 507 P.2d 523 ( 1 9 7 3 ) .
Because t h e t r i a l judge found t h a t p l a i n t i f f ' s p r e s e n t a -
t i o n of a s t u d horse c e r t i f i c a t e of r e g i s t r a t i o n w a s a condition
precedent to defendant's duty to pay the balance, the failure
of plaintiff to present the certificate at any time before trial
meant that defendant never before trial had the duty to tender
payment. See, White v. Hulls, 59 Mont. 98, 104, 195 P. 850
(1921). Defendant, therefore, did not breach his contract for
failure to tender payment for the stud horse.
Plaintiff did satisfy the condition precedent, however,
when he presented the stud registration paper in District Court
on the date of the trial, November 6, 1975. Defendant still has
possession of the stud horse and must make just compensation to
plaintiff. The amount which defendant owes plaintiff for the stud
horse, more than nine years after the contract date, is a factual
question properly determinable by the trial judge.
Plaintiff also claims that the district judge erred in
finding that plaintiff had wrongfully attached defendant's property.
Section 93-4301, R.C.M. 1947, allows prejudgment attachments only
in actions upon contracts for the "direct payment of money". In
this case, the trial judge found the contract did not call for
direct payment of money, but required further performance (presen-
tation of stud horse registration paper) as a condition to payment.
Plaintiff's attachment therefore did not meet the statutory require-
ments and was wrong,
Plaintiff's final assertion of error is that the district
judge improperly awarded exemplary damages of $400 for the wrongful
attachment. It is true, as plaintiff claims, that under section
17-208, R.C.M. 1947, " * * * there can be no recovery of exemplary
or punitive damages unless the plaintiff is entitled to actual
damages." Smith v. Krutar, 153 Mont. 325, 335, 457 P.2d 459 (1969).
Although the trier of fact, as a prerequisite for awarding exem-
plary damages, must find the claimant suffered actual damages,
it is unnecessary that the trier of fact place a monetary value
on the actual damages or make any award of actual damages. Fauver
v. Wilkoske, 123 Mont. 228, 239, 211 P.2d 420 (1949).
The trial judge, without putting a money value on the
damages, found "that the Defendant incurred expenses and inter-
ruption of his business affairs caused by his having to stay in
Montana to initiate legal proceedings to release the Attachment
* * *" and that defendant suffered much embarrassment when he
was served with the writ of attachment at the Glasgow fairground
grandstand in the presence of his friends, wife and child. Be-
cause the judge found actual damages, he could legally award
exemplary damages.
The other requirements of section 17-208 were also met,
notwithstanding, plaintiff's assertions to the contrary. Plain-
tiff states that section 17-208 precludes recovery of exemplary
damages in actions "arising from contract". The trial judge in
this case, however, awarded exemplary damages not for breach of
contract, but for wrongful attachment, a tort independent of the
sales contract. See, Paulson v. Kustom Enterprises, Inc., 157
Mont. 188, 202, 483 P.2d 708 (1971). A plaintiff may recover
exemplary damages in an action for wrongful attachment. See
Larson v. Daily, 158 Mont. 231, 236, 490 P.2d 355 (1971).
Plaintiff maintains that even if the attachment was
wrongful it was not done with the malice necessary under section
17-208 to sustain an award of exemplary damages. Malice neces-
sary for an award of exemplary damages need not consist of spite
or hatred; it is sufficient proof of malice in a wrongful attach-
ment action that the defendant knew when the attachment was made
that it was wrongful. See, Galindo v. Western States Collection
Company, 82 N.M. 149, 477 P.2d 325, 330 (1970). In this case,
plaintiff stated in his affidavit for attachment that the action
was on a "contract for the direct payment of money now due", and
that the payment of the contract obligation "has not been secured
by any mortgage or lien upon real or personal property". Plain-
tiff, however, knew when he filed the affidavit that the money
was not "now due" until he showed defendant the stud registration
paper and that defendant's contract debt was "secured" by plain-
tiff's retention of that registration paper.
For the reasons stated, the judgment of the district
court as to plaintiff's liability for wrongful attachment is
affirmed. The district court's judgment that defendant was not
in breach of contract until the time of trial is affirmed, and
the case is remanded to determine the amount on the contract price
defendant owes plaintiff for a stud horse whose registration
papers were not presented until the time of trial, nine years
after the contract was made.
The trial judge is also instructed to place a dollar
amount (if any or if merely nominal) on the actual damages which
he has found that defendant sustained, and order that plaintiff
pay that amount to defendant as actual damages for the wrongful
attachment. -)
We concur:
aa.4J-J'
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