MCEWEN v BIG SKY
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No. 13065 I N THE SUPREME COURT OF THE STATE OF M N A A OTN 1975 P l a i n t i f f and A p p e l l a n t , -vs B I G SKY OF MONTANA, I N C . , Defendant and Respondent, Appeal from: D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , Honorable W. W. L e s s l e y , D i s t r i c t Judge p r e s i d i n g , Counsel of Record: For Appellant: Brown and G i l b e r t , Bozeman, Montana Gene I. Brown a r g u e d , Bozeman, Montana For Respondent: W i l l i a m L. Pepper a r g u e d , Big Sky, Montana Submitted: December 8, 1975 , Decided : ~ 2 F i l ' i I-j 9;rJ Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from a judgment of the district court, Gallatin County, granting plaintiff damages and the return of his truck. Plaintiff contends the damages are insufficient. Defendant cross-appeals the denial of its motion to dismiss for failure to state a claim upon which relief can be granted. In November, 1972, plaintiff leased a 1952 three-quarter ton Dodge Power Wagon to defendant for use in the construction of ski lifts and downhill runs at its ski resort. for the leased truck was set at $150 per month. The rental The lease was in the form of a purchase order prepared by defendant, who was in possession of the truck at the time of signing the lease/purchase order. In February, 1973, plaintiff was informed by an employee of defendant that his truck was no longer needed by defendant, but the truck needed some repair work. The truck was taken by defendant's employee to a Bozeman garage for repairs, but was removed to Big Sky when defendant felt the repairs could be done at a lower price by its own mechanics. In June, 1973, plaintiff received a call from defendant's purchasing agent informing him the truck was repaired and he could pick it up at Big Sky. Plaintiff went to Big Sky and drove the truck from the upper village to the lower village, a distance of nine miles down the mountain. At trial, plaintiff testified: "Well, the transmission was making a lot of noise and it was rattling and missing. It would hardly run. " At the lower village, the purchasing agent took a ride in the truck and agreed the transmission sounded noisy. Plaintiff re- fused delivery of the truck and the purchasing agent agreed to have one of defendant's mechanics look at it again. Plaintiff was under t h e i m p r e s s i o n d e f e n d a n t would r e p a i r t h e t r u c k s o t h a t it would be i n a s good c o n d i t i o n a s when r e c e i v e d , e x c e p t f o r normal w e a r and t e a r . From J u n e , 1973, t h r o u g h March, 1975, t h e t r u c k remained a t Big Sky w i t h o u t r e p a i r s . During t h i s p e r i o d , p l a i n t i f f made o n e o r more t r i p s t o Big Sky a t t e m p t i n g t o c o l l e c t r e n t a l on t h e t r u c k f o r t h e t i m e it was b e i n g k e p t by d e f e n d a n t . Plaintiff r e t a i n e d c o u n s e l who demanded t h e t r u c k be r e p a i r e d , r e t u r n e d and r e n t p a i d up t o t h e d a t e o f r e t u r n . S u i t was f i l e d i n J u n e , 1974, and t h e t r u c k w a s r e p a i r e d and t e n d e r e d one week b e f o r e t r i a l , i n March,1975. An employee o f Big Sky a d m i t t e d t h e t r u c k had n o t been r e p a i r e d e a r l i e r b e c a u s e it was e i t h e r f o r g o t t e n , i g n o r e d o r p u t on a low p r i o r i t y . A t t r i a l , Big Sky moved f o r a d i s m i s s a l b e c a u s e t h e com- p l a i n t f a i l e d t o s t a t e a c l a i m f o r r e l i e f based upon b r e a c h o f c o n t r a c t s i n c e p l a i n t i f f d i d n o t a l l e g e performance of h i s o b l i g a t i o n s under t h e c o n t r a c t o r f a c t s which e x c u s e s u c h performance. The motion t o d i s m i s s was d e n i e d by t h e d i s t r i c t c o u r t . The d i s t r i c t c o u r t found a v a l i d and e n f o r c e a b l e c o n t r a c t f o r t h e l e a s e of t h e t r u c k with defendant l e g a l l y o b l i g a t e d t o r e t u r n t h e t r u c k i n t h e same c o n d i t i o n a s it w a s when d e f e n d a n t a c c e p t e d p o s s e s s i o n , o r d i n a r y wear and t e a r e x c e p t e d . The c o u r t t h e n h e l d t h e l e a s e w a s t e r m i n a t e d i n J u n e , 1973, a s p l a i n t i f f had abandoned t h e t r u c k a t t h e lower v i l l a g e a t t h a t t i m e , p r e v e n t i n g r e t u r n of t h e t r u c k by d e f e n d a n t . The c o u r t a l s o h e l d p l a i n t i f f f a i l e d t o m i t i g a t e damages s u b s e q u e n t t o J u n e , 1973. The c o u r t f u r t h e r h e l d t h e r e w a s no agreement c o n c e r n i n g r e p a i r o f t h e t r u c k a t t h e t i m e p l a i n t i f f l e f t it a t t h e lower v i l l a g e . The d i s t r i c t c o u r t o r d e r e d t h e t r u c k r e t u r n e d t o p l a i n t i f f w i t h payment by Big Sky of $ 6 0 0 r e n t due. P l a i n t i f f appeals t h i s o r d e r c o n t e n d i n g t h e f i n d i n g s and c o n c l u s i o n s o f t h e d i s t r i c t court are contrary to the evidence presented at trial. Defendant cross-appeals, contending error in the denial of its motion to dismiss. The issues presented for resolution by this Court are: 1. Whether or not in order to state a claim for relief based on breach of contract, a complaint must contain an allegation that the moving party performed his part of the contract or allegations of facts excusing such performance. 2. Whether or not the findings and conclusions of the district court are supported by the evidence. Defendant contends an action for breach of contract must contain allegations of performance by the moving party or allegations of facts excusing such performance. Defendant cites a number of decisions by this Court and statutory provisions to support its position, none of which are on point. Rule 8 (a), M. R. Civ.P. , provides : "A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. * * *" Plaintiff's complaint contains the elements required by Rule 8(a). Defendant cites Rule 9(c), M.R.Civ.P., to support its contention that plaintiff must allege performance on his part in his complaint. Rule 9(c) provides: "Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. * * Defendant also cites Harris v. Root, 28 Mont. 159, 72 P. 429; First Nat. Bank v. Stoyanoff, 137 Mont. 20, 349 P.2d 1016, and F i r s t Nat. Bank v . S t o y a n o f f , 143 Mont. 434, 390 P.2d 448, t o s u p p o r t i t s c o n t e n t i o n t h a t performance must be a l l e g e d . The H a r r i s c a s e and f i r s t S t o y a n o f f case w e r e d e c i d e d p r i o r t o t h e a d o p t i o n o f t h e p r e s e n t Montana R u l e s o f C i v i l Procedure. Rule 9 ( c ) and b o t h S t o y a n o f f cases d e a l w i t h c l e a r conditions precedent; H a r r i s a l s o involved a condition precedent, although not using t h a t t e r m . This Court i n A t l a n t i c - P a c i f i c O i l Co. v. G a s Dev. Co., 105 Mont. 1, 1 6 , 69 P.2d 750, h a s d e f i n e d a " c o n d i t i o n p r e c e d e n t " as: " ' * * * o n e t h a t i s t o be performed b e f o r e t h e agreement becomes e f f e c t i v e , and which c a l l s f o r t h e happening of some e v e n t o r t h e performance of some a c t a f t e r t h e t e r m s o f t h e c o n t r a c t have been a g r e e d o n , b e f o r e t h e c o n t r a c t s h a l l be b i n d i n g on t h e p a r t i e s . ' " S e e , a l s o , s e c t i o n 58-206, R.C.M. 1947. No c o n d i t i o n p r e c e d e n t i s i n c l u d e d i n t h e l e a s e i n question i n t h i s action. The f u l l lease i s c o n t a i n e d o n t h e f a c e of t h e p u r c h a s e o r d e r p r e p a r e d by d e f e n d a n t . The p u r c h a s e o r d e r c a l l s f o r r e n t a l o f t h e t r u c k s t a r t i n g November 1 4 , 1972, w i t h t h e lease t e r m i n a b l e by e i t h e r p a r t y upon t e n d a y s n o t i c e and r e n t p a y a b l e monthly i n advance. N c o n d i t i o n s a r e imposed on o p l a i n t i f f ; e x c e p t t h e t e r m i n a t i o n c o n d i t i o n , which i s n o t a cond i t i o n precedent. The d i s t r i c t c o u r t was c o r r e c t i n d e n y i n g d e f e n d a n t ' s motion t o d i s m i s s a s t h e c o m p l a i n t complied w i t h t h e Montana Rules o f C i v i l P r o c e d u r e and s t a t e d a c l a i m upon which r e l i e f c o u l d be granted. W e now t u r n t o t h e i s s u e o f whether t h e f i n d i n g s and c o n c l u s i o n s o f t h e d i s t r i c t c o u r t a r e s u p p o r t e d by t h e e v i d e n c e . An a p p e l l a t e c o u r t ' s f u n c t i o n i n a c a s e s u c h a s t h i s w a s s e t f o r t h i n Hornung v . L a g e r q u i s t , 155 Mont. 412, 420, 4 7 3 P.2d 541, wherein this Court said: " * * * Our duty in reviewing findings of fact in a civil action tried by the district court without a jury is confined to determining whether there is substantial credible evidence to support them. * * *I, The meaning of "substantial credible evidence" was thoroughly considered in Staggers v. U.S.F. & G. Co., 159 Mont. 254, 496 In Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 459, 507 P.2d 523, this Court said: " * * * In examining the evidence, we must view the testimony in a light most favorable to the prevailing party. [citations] However, while the presumption is in plaintiff's favor, he is also the appealing party and as such, the burden is upon him to overcome the presumption of the correctness of the trial court's findings of fact." The district court found defendant tendered the truck to plaintiff in June, 1973, with plaintiff abandoning the truck without any agreement concerning its repair. The leading case in Montana on abandonment is Conway v. Fabian, 108 Mont. 287, 306, 89 P.2d 1022, where this Court stated: "What constitutes abandonment of personal property? To establish abandonment both intention to abandon and actual relinquishment must be shown. * * * 'Abandonment' is a word which has acquired a technical meaning.* * * It is the relinquishment of a right; the giving up of something to which one is entitled. In determining whether one has abandoned his property or rights the intention is the first and paramount object of inquiry. This intention is ascertained not only from the statements which may have been made by the owner of the property, but also from the acts of the owner. * * *" The intention of plaintiff in leaving the truck at Big Sky, and the understanding of defendant, as shown by its purchas- ing agent, Norman Olsen, can be shown by the following testimony at trial: "MR. McEWEN: What occurred then when you got back to Meadow Village? A. Well, I got Mr. Olsen and "Q. we took a drive in the truck around a circle there. And he agreed it wasn't fixed properly. And so we left the truck there. And he was going to have them come down and get it and repair it, and contact me at a later date." Mr. Olsen testified: "A. He [McEwen] was complaining with regards to the transmission, and some other items. The condition of the transmission. I got into the truck, took a spin, and came back. The transmission did sound noisy. And, therefore, I requested that he refuse to accept the truck. And I said that I would offer our mechanics to look at it again. "Q. Did you understand from that that he was to leave the truck and that Big Sky would then repair it? A. I was to understand from that that I would have our maintenance department look at the truck to meet his objections to the condition of the truck. "Q. Aren't you saying that you expected Big Sky to repair it? A. Right." There is no indication in the record that plaintiff intended to abandon his truck at Big Sky. The substantial, uncon- troverted testimony of plaintiff and defendant's agent indicates an intent to have the truck repaired by Big Sky to plaintiff's satisfaction. That is the reason the truck was left at Big Sky. The district court found plaintiff failed to mitigate his damages subsequent to June, 1973. The district court found defendant had a legal duty to return the truck in the same condition as when it took possession, except for normal wear and tear. Defendant defaulted on this duty by tendering the truck to plaintiff without completing the proper repairs. his Court held recently in Business Finance Co. v. The Red Barn, 163 Mont. 263, 267, 268, 517 P.2d 383: " * * * the nondefaulting party, was only required to act reasonably under the circumstances, so as to not unnecessarily enlarge damages caused by the default. " Defendant contends plaintiff did not act reasonably to mitigate his damages, since he would not accept the truck as tendered in June, 1973, and perform the necessary repairs himself, looking to defendant for reimbursement. It was the duty of defend- ant to repair and return the truck with all due speed. The duty of repair was not on plaintiff, especially when the extent of the needed repairs could only be gauged by a mechanic, such as those employed by defendant. Defendant contends plaintiff should have hired a mechanic to see what repairs were needed, thereby failing to mitigate damages if such an examination would have revealed the repairs to be minor. The record shows defendant had previously taken the truck to a Bozeman garage, ran up a bill of $85 to $90 to have the truck torn down, then hauled it to Big Sky telling plaintiff the truck could be repaired with less expense by defendant's own mechanics. After this episode, defendant maintains it would be reasonable for plaintiff to go through this whole procedure again to possibly mitigate damages. We do not agree. Defendant contends plaintiff did not make sufficient efforts to hasten the repair of the truck and lessen the period over which possible rental was due. Plaintiff contacted defend- ant's agents on two or more occasions inquiring as to the status of his truck and requesting rental payments on at least one occasion. Plaintiff retained an attorney who on more than one occasion contacted Big Sky demanding repair and return of the truck. This lawsuit was instituted in June, 1974, and the truck was not repaired until March, 1975. We believe plaintiff made sufficient efforts to demand the repair and return of his truck. Defendant's agent admitted at trial that the truck was either forgotten, ignored or given a low priority, therefore any delay was not the result of action or inaction on the part of plaintiff. We do not find substantial credible evidence that plaintiff abandoned his truck or failed to mitigate damages. Defendant d i d n o t t e n d e r t h e t r u c k t o p l a i n t i f f i n J u n e , 1973, i n t h e same c o n d i t i o n a s when p o s s e s s i o n was t a k e n , e x c e p t i n g normal wear and t e a r . P r o p e r t e n d e r was n o t made u n t i l March, 1975. P l a i n t i f f i s e n t i t l e d t o a l l a c c r u e d a n d u n p a i d r e n t from t h e d a t e o f t h e l e a s e , November, 1972, u n t i l t e n d e r i n March, 1975. The judgment o f March 31, 1 9 7 5 , i s h e r e b y r e v e r s e d w i t h d i r e c t i o n s t o e n t e r a jud W e concur: Justices /' / 1 r Chief J u s t i c e
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