                                  No. 14671
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1979


KNIGHT AND COMPANY, a partnership,
                    Plaintiff and Respondent,


THOMAS MANARAS and KAY MANARAS,
                    Defendants and Appellants.


Appeal from:     District Court of the Twelfth Judicial District,
                 Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
    For Appellants:
           Marra, Wenz, Iwen and Johnson, Great Falls, Montana
           Joseph Marra argued, Great Falls, Montana
    For Respondent :
           Morrison, Ettien and Barron, Havre, Montana
           Robert D. Morrison argued, Havre, Montana


                                    Submitted: September 17, 1979
                                     Decided :   0    1:
                                                       9"
          & -<   z-trlj
Filed :
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Thomas and Kay Manaras, husband and wife appeal from a
judgment of the Hill County District Court entered on behalf
of Knight and Company (hereafter referred to as Knight), in
the amount of $75,000, as the reasonable value of architectural
services rendered to the Manarases.
     The Manarases own an interest in the Fair Hotel and
some adjacent property in Havre, Montana.   They consulted
Knight, an architectural firm, in 1969 concerning plans for
remodeling or replacing the hotel.    In 1970, Knight and the
Manarases orally agreed to the preparation of drawings to
accompany a feasibility study for a new hotel.   Knight prepared
schematic sketches which were shown as exhibits in the feasibility
study put together by Brelsford, McKee and Associates.
    After a two year hiatus during which the project remained
dormant, the project was revived in the spring of 1973, and
a second, updated feasibility study was prepared complete
with sketches drawn by Knight.   Several meetings ensued.
Manaras received an itemized, preliminary cost estimate for
the proposed construction by a letter from Knight dated
October 18, 1973.    Included in this itemized figure was an
architectural fee of $123,259.
     Knight proceeded with drafting the plans for the proposed
hotel to the extent that contract bids were obtainable.
Thomas and Kay Manaras notified Knight by letter dated August
2, 1974 to discontinue work on the project.    Knight responded
by a letter dated August 21, 1974 and advised Manaras that
". . .   we have proceeded on your behalf in this matter and
even if you should wish to abandon your efforts, we are
entitled to be paid for our services."
                           -2-
     There exists a conflict in the evidence as to the
understandings of the parties.   Kenneth Knight, a partner
in Knight, and Robert Taylor, also a partner and branch manager
of the Knight office in Havre, contend there existed an
express oral agreement entered into around November 1970,
in which Knight was to prepare the feasibility sketches for
the first feasibility study and for which Knight would be
paid $1,000 if the project did not go forward.   If the
project did go forward, Knight was to be engaged as the
architect for the project at a normal fee with the $1,000
indebtedness becoming merged into the architectural fee.
Knight and Taylor contend that the same agreement was made
concerning the sketches for the second feasibility study.
     The Manarases deny any such verbal agreement and contend
that they were told by Knight and Taylor several times that
Knight was an expert at obtaining financing and would find
financing for the project and that the payment of the
architectural fees was contingent upon Knight finding financing
for the project .
     The trial court concluded that an oral agreement was
entered into between the parties by which Knight was to
furnish architectural services to the ~anarasesbut no express
agreement was reached as to the amount of compensation for
the services.   The trial court found an implied agreement at
law to pay the reasonable value of the services performed in
the amount of $75,000 and entered judgment accordingly.
     The sole issue presented on this appeal is whether there
exists substantial evidence on the record to support the finding
of the trial court that there was an implied agreement at law
between the parties whereby the appellants were to pay $75,000
as the reasonable value of the services rendered by the
                          - 3-
respondent to the appellants.    We find that the record
does sustain such a finding and affirm.
       The standard of review in a nonjury civil case is
simply to determine if there is substantial evidence on the
record to support the findings and conclusions of the trial
court.    Hornung v. Estate of Lagerquist (1970), 155 Mont. 412,
420, 473 P.2d 541, 546; Cameron v. Cameron (1978),                   Mont .


       When reviewing evidence, this Court must do so in the
light most favorable to the party which prevailed in the
District Court.    Cameron, 587 P.2d 945; Arrowhead, Inc. v.
Safeway Stores, Inc. (1978),       Mont   .           , 587 P.2d
411, 413, 35 St-Rep. 1830, 1832.
       ". . .'Substantial evidence' is evidence such
       'as will convince reasonable men and on which
       such men may not reasonably differ as to whether
       it establishes the [prevailing party's] case, and,
       if all reasonable men must conclude that the
       evidence does not establish such case, then it
       is not substantial evidence.' (Citing cases.)
       The evidence may be inherently weak and still
       be deemed 'substantial' and substantial evidence
       may conflict with other evidence presented..   .'
                                                       I   .
       Cameron, 587 P.2d 944.
       As in Cameron, most of the evidence presented at trial
consisted of the testimony of witnesses and as a result, the
credibility of such witnesses is important on appeal.              In
the present case there was a conflict in testimony between the
Knight partners and the Manarases as to the terms of compensation
for the sketches drafted for the feasibility studies.              IIowever,
as we stated in Cameron, and we reaffirm here:           "'The
credibility and weight given the witnesses, however, is not
for this Court to determine.    This is a primary function of
a trial judge sitting without a jury;.        . .'"   Cameron, 587 P.2d
945.
     In the same manner the understandings of the parties
as to the manner of financing the hotel project is in
conflict.    Here the District Court decided that the evidence
was insufficient to establish that respondent had any
"responsibility" to obtain financing for the project.    We
will not interfere with this factual determination.
     ". . . We will not substitute our judgment for
     that of the trier of the fact, but rather will
     only consider whether substantial credible evidence
     supports the findings and conclusions. Those
     findings will not be overturned by this Court unless
     there is a clear preponderance of evidence against
     them. We will view the evidence in a light most
     favorable to the prevailing party, recognizing that
     substantial evidence may be weak or conflicting
     with other evidence, yet still support the findings.
     Finally, where the credibility of witnesses is of
     prime importance, as it is here, the determination
     of the weight given to the testimony is the primary
     function of the trial judge sitting without a jury
     and not that of this Court." Cameron, 587 P.2d 945.
     Applying the foregoing standard of review, we hold that
the findings and conclusions of the District Court are
sufficiently supported by the evidence.
     The judgment of the District Court is affirmed.



                                           Justice       J
We Concur:



          Chief Justice




.................................
              Justices
Mr.    J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :

         I must r e s p e c t f u l l y d i s s e n t t o t h e m a j o r i t y o p i n i o n .

Here,     f o r t h e t r i a l c o u r t t o f i n d a n agreement was a c h i e v e d

between t h e p a r t i e s , i t w a s r e q u i r e d t o f i n d t h a t t h e r e w a s

a meeting of t h e minds o f t h e p a r t i e s w i t h r e g a r d t o e v e r y
t e r m necessary t o accept a v a l i d enforceable contract.                               The

e v i d e n c e shows, and t h e c o u r t ' s own f i n d i n g s o f f a c t and

conclusions           of l a w show, t h a t t h e t r i a l c o u r t s p e c i f i c a l l y

found t o t h e c o n t r a r y .

        I n F i n d i n g o f F a c t No. 5 t h e c o u r t found i n p a r t :

". . . There         was no meeting o f t h e minds r e l a t i v e t o t h e

compensation t o p l a i n t i f f f o r t h i s s e r v i c e . "

        I n F i n d i n g o f F a c t No. 1 0 t h e c o u r t found i n p a r t :
". . .     There w a s n e v e r any meeting of t h e minds of t h e

p a r t i e s a s t o a d e f i n i t e c o m p l e t i o n d a t e , o r as t o t h e
amount o f p l a i n t i f f ' s compensation o r how o r when t h e com-

p e n s a t i o n would b e p a i d . "

        F i n d i n g of F a c t No. 1 s t a t e s i n p a r t :
                                      1                                  ". . .      plaintiff

n e v e r d i d send d e f e n d a n t a s t a t e m e n t o f s e r v i c e s r e n d e r e d o r

demand payment u n t i l a f t e r d e f e n d a n t s n o t i f i e d p l a i n t i f f t o
c e a s e work o n t h e p r o j e c t . "

        The c o u r t t h e n concluded i n i t s C o n c l u s i o n o f Law No.
2:    "An o r a l agreement w a s e n t e r e d i n t o between t h e p a r t i e s                .
. . but      no e x p r e s s agreement o r c o n t r a c t was r e a c h e d i n s o f a r

a s p l a i n t i f f ' s compensation was c o n c e r n e d . "

        I t t h e n concluded i n i t s Conclusion o f L a w No.                      3 : "The

l a w w i l l imply a n agreement t o pay t h e r e a s o n a b l e worth o f

services . . . where               t h e r e i s no agreement w i t h r e f e r e n c e t o
compensation . . ."

        Under t h e f a c t s p r e s e n t e d t o t h e c o u r t and i t s f i n d i n g s
o f f a c t and c o n c l u s i o n s o f l a w , i t i s i n c r e d i b l e t o m e t h a t ,
four years a f t e r p l a i n t i f f entered i n t o t h i s so-called o r a l

a g r e e m e n t , i t would t h e n s e n d t o d e f e n d a n t s a b i l l f o r t h e

sum o f $75,000.

        Accepting t h a t t h e standard of review of a nonjury

c i v i l c a s e i s t o d e t e r m i n e whether t h e r e was s u b s t a n t i a l

e v i d e n c e i n t h e r e c o r d t o s u p p o r t t h e f i n d i n g s and c o n c l u -

s i o n s a s s e t f o r t h by t h e m a j o r i t y i n t h i s c a s e , t h e excep-

t i o n t o t h i s r u l e is t h a t we w i l l not reverse unless there

i s a c l e a r p r e p o n d e r a n c e a g a i n s t t h e f i n d i n g s of f a c t and

c o n c l u s i o n s o f law.     See Hayden v. Snowden ( 1 9 7 8 ) ,

Mont.            ,   576 P.2d 1115, 35 St.Rep.                   367.      Viewing t h e

e n t i r e record, I f i n d t h a t t h e evidence c l e a r l y preponderates

a g a i n s t t h e f i n d i n g s and c o n c l u s i o n s made by t h e D i s t r i c t

Court.        The c o u r t , by i t s v e r y own f i n d i n g s p r e v i o u s l y

r e f e r r e d t o , found t h a t t h e r e had been no meeting o f t h e

minds r e l a t i v e t o t h e compensation (see F i n d i n g o f F a c t No.

5 ) , t h a t t h e r e had been no meeting of t h e minds c o n c e r n i n g a

c o m p l e t i o n d a t e o r a n amount of compensation (see F i n d i n g o f

F a c t No.    lo),    and t h a t t h e r e had been no s t a t e m e n t e v e r s e n t

t o d e f e n d a n t s f o r s e r v i c e s ( s e e F i n d i n g of F a c t No. 11).

        I n a d d i t i o n , I f i n d t h a t t h e e v i d e n c e i s s o overwhelming

t h a t i f p l a i n t i f f Knight and Company                 had any c o n t r a c t a t

a l l , i t w a s a c o n t i n g e n t f e e a r r a n g e m e n t and K n i g h t ' s t e s t i -

mony t o t h e c o n t r a r y , i . e . ,      t h a t t h e company n e v e r e n t e r e d

i n t o c o n t i n g e n t a g r e e m e n t s w a s overwhelmingly impeached by

d i s i n t e r e s t e d p a r t i e s and h i s own employees.

        F i n d i n g no " s u b s t a n t i a l c r e d i b l e e v i d e n c e " t o s u p p o r t

t h e c o n c l u s i o n of t h e t r i a l c o u r t t h a t t h e r e was a n i m p l i e d
agreement t o pay " a r e a s o n a b l e w o r t h o f s e r v i c e s , " I would
r e v e r s e t h e judgment and r e t u r n t h e m a t t e r f o r r e c o n s i d e r a -

t i o n by t h e t r i a l c o u r t .




Mr.   J u s t i c e Gene B. Daly d i s s e n t i n g :

        I concur w i t h J u s t i c e H a r r i s o n and would add t h a t t h e

o n l y t e s t i m o n y o f f e r e d i n f a v o r of t h e m a j o r i t y p o s i t i o n

was i n c r e d i b l e and n o t worthy of b e l i e f and t h e r e f o r e s h o u l d

n o t have been a c c e p t e d .
                                                                                    !-
Mr. Justice Daniel J. Shea concurring:

     I would affirm the judgment, simply because I do not
believe that this Court can say as a matter of law that the
testimony of the architect seeking to recover his fee, was so
inherently improbable it should have been rejected by the trial
court.    The evidence was for him to judge, and apparently, he
did so.   This is not to say however, that I do not have some
real problems with this case and the law which apparently permits
a trial judge to avoid the crucial issue such as appeared in
this case--namely, whether the architect was worthy of belief.
If nothing else, this case is a prime example of the tremendous
power of a trial judge.
     As I view the record, and had I been the trial judge, I
do not believe I would have given much weight to the testimony
of the architect.   Perhaps I would have even concluded that he
was totally unworthy of belief.      But, at least by the implications
of its decision, the trial court has concluded that he was
worthy of belief.   Unfortunately, the trial court did not address
in its findings or in an opinion, its assessment of the architect's
testimony.   This case perhaps illustrates the inherent weakness
of findings of fact as a vehicle of decision, insofar as they
shed any light on how or why the trial court reached its decision.
Normally, the findings reflect the thinking of counsel for the
prevailing party, rather than the thinking of the trial judge.
     The findings are too often a method of evading what I believe
to be a fundamental function of a trial judge when conducting
bench trials--that of assessing and weighing testimony and evidence,
and then setting forth for the record what that assessment is.
Here, the crucial issue of just how the trial court considered,
or even whether it considered the obvious conflicting and impeached
                               -9-
testimony of the architect, is not made known to the parties
or to this Court.     Thus, as a reviewing court, we must remain
c o m t with the general findings and conclusions which never
went to the heart of the issue as to whether the architect was
a credible witness.
     The entry of porous and vacuous findings of fact, does
not, furthermore, provide any solace to a nonvictorious litigant
who must undertake    an appeal never knowing just how the trial
court regarded the testimony of a crucial witness, such as the
architect in this case.
     Therein lies much of the fault of the almost exclusive
reliance by the trial courts on the entry of findings and con-
clusions as permitted by Rule 52(a), M0nt.R.Civ.P.    The trial
courts should be reminded that Rule 52(a) also permits findings
and conclusions to be set forth in the form of a memorandum
opinion, something which undoubtedly would, in the long run, be
much more satisfactory to the litigants and to a reviewing court.
I would venture to say that the public would also be much more
satisfied with the judgments of the trial courts if they explained
the reasons for their decisions.
