                                     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:          November 26, 1 9 7 3

                                                         Decided       AN          197~
Filed:   :@H    1 5 1974
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 Associa-
t 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
                  II

                  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
                  within   ----
                              days of this date, the following described
                  wheat, subject to reasonable dockage, to-wit:
                       "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 de-
                  deducted 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
              In the presence of:    S/ Frank Billmayer
                                        First Party and Seller
                                     S/ Equity COO^ Assn.
                                        Second Party and Purchaser
                                     S/ By:      Gerald C McNutt             II



        The contract is for wheat     --   yet it is for barley.    The
delivery date blank is drawn through        --   yet it states 11immediate
delivery".       The price is $1.40 per lOOd on Farm---yet it provides
settlement of wheat on the basis of "market premiums or dis-
counts".        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.        It is this five cent commission that Equity is
suing for.       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.
