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                                                                No. 98-600

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 239N




PATRICIA A. CUNNINGHAM,

Plaintiff and Respondent,

v.

NEV HARDING, d/b/a HARDING RANCH,

Defendant and Appellant.




                                                          APPEAL FROM: District Court of the Thirteenth Judicial
                                                          District,

In and for the County of Carbon,

The Honorable Diane G. Barz, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Ira Eakin, Attorney at Law; Billings, Montana

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For Respondent:

Brad Arndorfer, Arndorfer Law Firm; Billings, Montana




                                                                                                 Submitted on Briefs: May 27, 1998

                                                                                                              Decided: October 5, 1999

Filed:




__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶ The Plaintiff, Patricia Cunningham, filed this action in the District Court for the
Thirteenth Judicial District in Carbon County, for claim and delivery of four horses
in the possession of the Defendant, Nev Harding. Harding counterclaimed asserting
that he had repurchased the four horses or alternatively, was entitled to payment for
caring for the horses. The District Court granted the Plaintiff's motion for summary
judgment. The Defendant appeals from that judgment. We reverse the judgment of
the District Court.

¶ The issues on appeal are:

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¶ 1. Did the District Court err when it concluded there was no contract between the
Plaintiff and the Defendant for repurchase of the Plaintiff's horses?

¶ 2. Did the District Court err when it held as a matter of law, that the Defendant's
agister's lien was unenforceable because the amount claimed was unreasonable?

¶ In August 1997, Cunningham purchased four horses from Harding for $11,000,
and Harding issued Cunningham a bill of sale. After the sale, Cunningham
transported the horses from Harding's ranch in Edgar, Montana to her home in
Colorado. In November 1997, Harding was returning to Montana from Texas when
he stopped in Colorado to visit Cunningham, who was preparing to have surgery.
Harding offered to care for the horses in Montana until Cunningham recovered from
her surgery. In an affidavit filed by Harding in this proceeding, he stated that he and
Cunningham agreed that she would pay his usual fee of $10 per day per horse. In an
affidavit filed by Cunningham, she contends Harding offered to care for her horses
free of charge.

¶ Cunningham further alleges that in January of 1998, after she recovered from
surgery, she notified Harding that she was driving to Montana to retrieve her horses,
but that he refused to return them. Harding alleges he did not return the horses
because he had entered into an agreement with Cunningham to repurchase them
from her.

¶ Harding stated in his affidavit that he contracted with Cunningham to repurchase
the horse named Jax Roses in November 1997 for $4000; that he made an "earnest
money deposit" of $500; and that he made one payment of $500. He also stated that
he contracted with Cunningham to repurchase the horse named Zans Parr Jax in
January 1998 for the "original purchase price." According to Harding, he had no
money, but Cunningham agreed to accept payment later. Harding further stated in
his affidavit that through her agent, Pete Olsen, Cunningham offered to sell the
remaining two horses back to him; that he accepted the offer; and that he made an
"earnest money deposit" of $4000.

¶ In February 1998, Harding filed an agister's lien against all of the horses for the
amount of $11,773 plus $10 per day per horse for each day thereafter. Harding stated
in his affidavit that the agister's lien was for costs of care, transport, and state
inspection of Cunningham's horses.

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¶ Harding claims that he is entitled to ownership and possession of the horses or
alternately, that he is entitled to payment for caring for Cunningham's horses.
Harding's claim is also supported by the affidavit of June Shorten, who claims to
have overheard the parties agree to the repurchase of Jax Roses, Zans Parr Jax, and
the remaining two horses from Cunningham.

¶ Cunningham claims that she is entitled to ownership and possession of the horses.
The District Court granted summary judgment in favor of Cunningham.

                                                  STANDARD OF REVIEW

¶ We review appeals from summary judgment de novo. Motaire v. Northern Montana
Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.
B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district
court's order which grants summary judgment, we apply the same standards as the
district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272
Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issue of material fact exists. Once this has
been accomplished, the burden then shifts to the non-moving party to prove, by more than
mere denial and speculation, that a genuine issue of fact does exist. Having determined
that genuine issues of material fact do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law. We review the legal
determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

                                                                 ISSUE 1

¶ Did the District Court err when it concluded there was no contract between the
Plaintiff and the Defendant for repurchase of the Plaintiff's horses?

¶ A contract is an agreement to do or not to do a certain thing. § 28-2-101, MCA. The
essential elements of a contract are: (1) identifiable parties capable of contracting; (2)
their consent; (3) a lawful object; and (4) a sufficient cause or consideration. Section
28-2-102, MCA; Interstate Prod. Credit Ass'n v. Abbott (1986), 223 Mont. 405, 408, 726


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P.2d 824, 826. Harding does not dispute that in August 1997 he sold four horses to
Cunningham for $11,000, but he argues that he has established a "prima facie case
for the existence of a valid, enforceable, partly performed, oral agreement for the
purchase of the horses back from [Cunningham]." Harding alleges three different
agreements to repurchase the horses.

¶ Harding stated in his affidavit that he entered into a contract with Cunningham to
repurchase Jax Roses in November 1997 for $4000, and that he gave Cunningham
$500 as an "earnest money deposit" which Cunningham accepted. Harding further
stated that in January 1998 he sent Cunningham a check for $500 as payment for Jax
Roses. Harding's claims are supported by his affidavit and by the affidavit of
Shorten, who stated that both Harding and Cunningham told her that Harding was
buying back the mare named Rose.

¶ Harding stated in his affidavit that in January 1998 he entered into a contract with
Cunningham to repurchase Zans Parr Jax for "the original purchase price."
Harding stated that although he had no money at the time, Cunningham agreed to
accept payment later. Shorten stated that after Harding returned from Colorado
with the horses, he was going to buy back the colt Zans Parr Jax because the colt was
too much for Cunningham to handle.

¶ Harding stated in his affidavit that Cunningham offered to sell the remaining two
horses back to him; that he accepted the offer; and that he made an "earnest money
deposit" of $4000. Shorten states that she was present at the Harding Ranch when
Olson presented Harding with an offer from Cunningham to repurchase the horses.
Shorten said that Harding accepted the offer and that Harding instructed her to
deliver Harding's $4000 check to Cunningham via "UPS overnight."

¶ In its summary judgment order the District Court found that Harding's allegations
were too vague and that no contract existed between Harding and Cunningham. We
disagree and conclude that Harding presented sufficient evidence of the essential
elements of a contract to create a factual dispute which could not be resolved by
summary judgment. Therefore, we conclude that the District Court erred when it
concluded as a matter of law there was no contract between the parties for the
repurchase of the Plaintiff's horses.

                                                                 ISSUE 2


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¶ Did the District Court err when it held as a matter of law, that the Defendant's
agister's lien was unenforceable because the amount claimed was unreasonable?

¶ In February 1998, Harding filed an agister's lien against all of the horses for the
amount of $11,773 plus $10 per day per horse for each day thereafter. An agister is
"one who takes in horses or other animals to pasture at certain rates." Black's Law
Dictionary 88 (4th ed. 1968). An agister's lien arises from breach of an agistment
agreement. "The term agistment is characterized by an agreement in which one
person agrees to care for and feed animals of another for a consideration, either at a
named price or for the reasonable value of the services rendered." Heckman and
Shell v. Wilson (1971), 158 Mont. 47, 57, 487 P.2d 1141, 1146. An agister's lien is
based on a contract, either expressed or implied. In re Estate of Bolinger, 1998 MT
303, ¶ 46, 292 Mont. 97, ¶ 46, 971 P.2d 767, ¶ 46; § 71-3-1201, MCA.

¶ Harding stated in his affidavit that he and Cunningham agreed that while
Cunningham recovered from surgery, Harding would care for her horses and that
Cunningham would pay Harding's standard fee of $10 per day per horse. Shorten's
affidavit supports this allegation. Shorten stated that Harding agreed to transport
the horses from Colorado to Montana and take care of them while Cunningham
recovered from her surgery.

¶ Pete Olsen, from the Department of Livestock, states in his affidavit that a
reasonable cost for boarding horses is $25 to $30 per month. The District Court held
that because the amount claimed by Harding was not the going rate, Cunningham
was entitled to summary judgment dismissing Harding's lien claim.

¶ We conclude that the District Court could not determine as a matter of law what
was or was not a reasonable rate for boarding horses and that, the conflict created by
Harding's and Olsen's affidavits, simply created an issue of fact which cannot be
resolved by summary judgment

¶ Therefore, we conclude that the District Court erred when it held as a matter of
law that the Defendant's agister's lien was unenforceable.

¶ The judgment of the District Court is reversed. This case is remanded to the
District Court for trial of the factual issues raised by the parties' conflicting claims.


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/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY




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