EQUITY COOP ASSO v BILLMAYER
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No. 12518 I N THE SUPREME COURT O THE STATE O MONTANA F F 1973 EQUITY COOPERATIVE ASSOCIATION, P l a i n t i f f and Respondent, FRANK J . BILLMA.YER, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t , Honorable Thomas Dignan, Judge p r e s i d i n g . Counsel o f Record: For Appellant : Si-as and Hendrickson, Chinook, Montana Oscar Hendrickson a r g u e d , Chinook, Montana F o r Respondent : M o r r i s o n , E t t i e n and R a r r o n , Havre, Montana R o b e r t M o r r i s o n a r g u e d , Havre, Montana Submitted: Decided Filed: :@H 1 5 1974 November 26, 1 9 7 3 AN 197~ M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. Defendant Frank J. Billmayer b r i n g s t h i s a p p e a l from a judgment of t h e d i s t r i c t c o u r t of B l a i n e County, e n t e r e d on a j u r y v e r d i c t i n t h e amount of $1,440 i n f a v o r of p l a i n t i f f , Equity Cooperative A s s o c i a t i o n . The l i t i g a n t s e n t e r e d i n t o a w r i t t e n c o n t r a c t on September 25, 1970, which provided f o r t h e s a l e of 20,000 b u s h e l s of b a r l e y a t t h e p r i c e of $1.40 per 100 pounds f o r 48 pound barley or better. The c o n t r a c t signed by Frank J. Billmayer a s s e l l e r , and by Gerald McNutt a s g e n e r a l manager and agent of Equity Cooperative Associat i o n a s b u y e r , was on a p r i n t e d form e n t i t l e d "Contract of Sale". The d e l i v e r y d a t e and t o t a l d o l l a r amount blanks of t h e c o n t r a c t were c r o s s e d o u t and n o t completed. Testimony of l i t i g a n t s i n d i - c a t e d t h e y understood t h e g r a i n would b e picked up by t h e buyer a t t h e s e l l e r ' s ranch a t such time and a s soon a s t r u c k s became a v a i l a b l e t o h a u l i t , and payment would be made a f t e r p h y s i c a l t r a n s f e r was completed and t h e g r a i n weighed. Gerald McNutt s t a t e d t h i s was t h e u s u a l b u s i n e s s p r a c t i c e o f Equity Cooperative A s s o c i a t i o n , b u t t h a t payment could be made t o t h e s e l l e r upon h i s r e q u e s t p r i o r t o p i c k up of t h e g r a i n . Defendant Billmayer t e s t i f i e d t h a t he had made no demand f o r payment on t h e c o n t r a c t , nor had p r o v i s i o n been made t o have t h e g r a i n picked up on o r by any c e r t a i n d a t e . I n e a r l y November defendant s o l d t h e b a r l e y t o a n o t h e r e l e v a t o r company a t a p r i c e more f a v o r a b l e t o him than t h e p r i c e he had accepted from Equity Cooperative A s s o c i a t i o n . P l a i n t i f f brought a c t i o n f o r damages based on l o s s of commission p r o f i t s from t h e g r a i n purchase. ~ e f e n d a n t ' sc r o s s - c l a i m f o r damages f o r t h e expense o f h a u l i n g t h e g r a i n t o market was dismissed on p l a i n t i f f ' s motion. The i s s u e p r e s e n t e d t o t h i s Court on appeal i s whether t h e t r i a l c o u r t e r r e d i n denying d e f e n d a n t ' s motions f o r a judgment n o t w i t h s t a n d i n g t h e v e r d i c t and f o r a new t r i a l . The c o n t r o l l i n g i s s u e i s t h e p r e c i s e time t h a t t i t l e t o t h e g r a i n passed, i . e . a t t h e time of t h e e x e c u t i o n o f t h e c o n t r a c t o r a t t h e time of delivery t o the elevator. The c o n t r a c t executed by t h e p a r t i e s and r e c e i v e d i n evidence i s c l e a r and unambiguous on i t s f a c e a s a "Contract of Sale" and n o t a "Contract f o r Sale". Delivery was t o be made by defendant and accepted by p l a i n t i f f a t d e f e n d a n t ' s farm a t a p r i c e c e r t a i n f o r 100 pounds. F u l l s e t t l e m e n t f o r t o t a l p r i c e contem- p l a t e d market premiums o r d i s c o u n t s and any advance payment. A d d i t i o n a l l y , t h e testimony o f defendant Billmayer e s t a b l i s h e d t h a t he considered t h e g r a i n s o l d upon h i s s i g n i n g t h e c o n t r a c t of s a l e , and no f u r t h e r performance was r e q u i r e d on h i s part. He s t a t e d he understood t h e problem o f a r r a n g i n g f o r t r u c k s t o p i c k up t h e g r a i n and agreed t o t h e i n d e f i n i t e pick-up d a t e . He s t a t e d he p e r s o n a l l y had r e q u e s t e d two d e l a y s i n t h e pick-up d a t e of t h e g r a i n d u r i n g p e r i o d s he was away from h i s ranch. F u r t h e r , he never made any demand f o r payment o r f o r pick-up o f t h e g r a i n , although he had c o n t a c t e d Gerald McNutt on d i f f e r e n t o c c a s i o n s concerning t h e pick-up. Nor had he o t h e r w i s e n o t i f i e d Equity Cooperative A s s o c i a t i o n p r i o r t o h i s s a l e of t h e g r a i n e a r l y i n November. By reason of t h e foregoing we f i n d s u b s t a n t i a l c r e d i b l e evidence t o support t h e j u r y f i n d i n g t h a t t i t l e t o t h e g r a i n passed upon t h e e x e c u t i o n of t h e c o n t r a c t of s a l e . The j udgment of t h e d i s t r i , / Chief Justice Mr. Justice Wesley Castles dissenting: I dissent. The majority opinion is strange. The contract involved reads : "CONTRACT OF SALE 1 1 ~ ~ ~ ~ ~ ~ ~ ~ ~ - "Harlem File Copy "THIS A.GREEMENT, entered into this 9-25,1970 between Frank Billmayer of Hogeland, Montana first party, and Equity Coop Assn of Harlem, Montana second party, WITNESSETH: That in consideration of the sum of $------ , in hand paid by second party to first party, the receipt of which is hereby acknowledged, first party hereby sells and agrees to deliver to said second party at its elevator at Farm days of this date, the following described within wheat, subject to reasonable dockage, to-wit: II ---- "20,000 Bu. Bly a. 1.40 per lOO# on Farm. (48# Bly or Better) "1t is agreed settlement for wheat shall be made by second party on the basis market preiums or discounts and the above amount of advance payment shall be dededucted as a part of such full settlement. "1f first party has not made full delivery of said grain to second party, as above specified, said second party may at its option provide facilities for securing said delivery, and first party agrees to peaceably permit such delivery. (This grain is being sold to arrive--therefore the necessity of immediate delivery.) It First party warrants full title of said grain and that same is free and clear of all liens and encumbrances. "1t is understood and Agreed that this is a Contract of Sale, and not a Contract for Sale. 11 S/ Frank Billmayer First Party and Seller S/ Equity COO^ Assn. Second Party and Purchaser In the presence of: S/ By: The contract is for wheat -- yet it is for barley. delivery date blank is drawn through delivery". Gerald C McNutt -- II The yet it states 11immediate The price is $1.40 per lOOd on Farm---yet it provides settlement of wheat on the basis of "market premiums or discounts". It provides 488 barley or better, The contract on its face is totally ambiguous, but the majority opinion states that h he controlling issue is the precise time that title to the grain passed * * *." Interestingly the majority opinion says that "the contract *** is clear and unambiguous * * *." From the contract itself, there are clearly uncertainties. Unless the contract called for immediate delivery and payment, it is certainly uncertain as to the delivery date and date of payment. Either the contract is for barley (or wheat), for immediate delivery or an indefinite time; for immediate payment or settlement on the basis of market premiums or discounts; or, we leave these matters to the testimony of the parties. The manager of plaintiff Equity Cooperative testified that the parties who were to pick up the barley were informed to do so as soon as possible, and they were to do it at the time the barley was sold. One Stewart, a trucker, was to pick it up. Stewart was to pay Rlu.ity $1.45 and Equity was to deduct five cents per hundred as its commission. suing for. It is this five cent commission that Equity is The resale of the barley to the trucker responsible for picking the barley up was testified to by the manager of Equity Cooperative Association. The written agreement referred to the necessity of immediate delivery. There were no trucks operating in October. Defendant expected the grain, particularly that laying on the ground exposed to grazing cattle to be picked up and paid for in two weeks. Stewart, who was to pick it up, never did and there is no testimony that he ever picked up replacement grain or that Equity Cooperative ever lost a nickel because of it. The verdict is simply not justified by the evidence. There is no substantial evidence to uphold it, and I would reverse. - c"" 1 J-I,wO~W-&I-----Y-r------ Justice. Mr. Justice John Conway Harrison: I concur in the foregoing dissent of Justice Wesley Castles. -------
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