                            No.   90-293

          IN THE SUPREME COURT OF THE STATE OF MONTANA




SPORTCO, INC., d/b/a
PETERSON MOTORS,
     Plaintiff and Respondent,
          v.
DONALD THOMPSON,
     Defendant and Appellant.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Jack L. Green, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Thomas W. Frizzell,         Tipp,       Frizzell    &     Buley,
               Missoula, Montana

          For Respondent:
               Paul Neal    Cooley, Skelton        &    Cooley, Missoula,
               Montana


                                    Submitted on briefs:               01/24/91
                                                        Decided:       03/06/91
Filed:
Justice Terry N. Trieweiler delivered the Opinion of the Court.


     Donald Thompson appeals from a judgment entered in the
District Court, Fourth Judicial District, Missoula County, awarding
contract damages, costs and attorney fees. We affirm the District
Court.
     The sole issue presented on appeal is whether the District
Court erred when it, and not the jury, made a determination of the
balance due on the contract.
     Donald Thompson and Sportco, Inc., d/b/a        Peterson Motors,
entered into a contract in June, 1984, for the sale and purchase
of a 1984 Cadillac El Dorado convertible for the sum of $34,923,
to be paid in installments.     Thompson subsequently failed to make
payments and the car was repossessed in August, 1985.           After
renegotiation of the agreement for payment, Thompson again took
possession.   The car was again repossessed in November, 1985, for
non-payment, and further negotiation occurred.          As a result,
Thompson   reacquired   the   car.     A   similar   repossession   and
renegotiation occurred on September 12, 1986.            The car was
repossessed for the final time in July, 1987, and Thompson was
notified that the car was to be advertised for sale pursuant to law
and sold to the highest bidder.      Thompson was further informed of
his responsibility for any deficiency.
     Sale of the car was conducted by sealed bids, resulting in its
purchase by Sportco for $9,300.      Although informed of his right,
Thompson did not offer a bid.
       Sportco filed its complaint on January 29, 1988, alleging
Thompson    owed    $5,891.19   on    the   original   contract,    $26   in
publication expenses, reasonable attorney fees and costs of suit.
In his answer, Thompson did not deny the amount remaining on the
contract obligation after sale of the vehicle.               However, he
asserted as an affirmative defense that the sale had not been
conducted in a commercially reasonable manner, and that, therefore
the amount of the deficiency could not be recovered.
       Jury trial commenced on January 16, 1990.         In the pretrial
order, it was agreed that the only issues of fact to be litigated
at trial were:
       1. Did the Plaintiff repossess and resell the vehicle
       in a commercially reasonable manner?
       2. Is the [Defendant] estopped to deny the commercial
       reasonableness of the sale because of his failure to
       complain or participate in the process in 1987?
          January               the         returned    special verdict,
finding that Thompson had breached the contract, and that Sportco
had acted in a commercially reasonable manner in the repossession
and resale of the vehicle. The special verdict awarded Sportco $22
associated with the notice of sale publication costs.          Notice of
Entry of Judgment was entered on January 23, the following day, by
counsel for Thompson.     It provided for judgment in the amount of
$22.    Sportco then filed a motion on January 24 to amend the
judgment proferred by Thompson due to failure to account for
Sportco's costs and attorney fees. Amended judgment was thereafter
entered by the court, awarding Sportco court costs, attorney fees,
and $5,891.19 as the balance due under the contract.               Thompson
                                      3
subsequently filed a motion to strike the amended judgment.
Hearing was held, and the court ultimately ruled that (1) Thompson
was estopped from disputing the amount of deficiency; (2) the
judgment entered by Thompson erroneously omitted costs, deficiency
and attorney fees; and (3) that the court was within the bounds of
its authority to amend the judgment to grant the proper relief,
thereby denying Thompson's motion.   This appeal ensued.
     Thompson asserts that any determination of a deficiency was
within the sole province of the jury. Thompson states that Sportco
failed to include within its proposed special verdict form any
question as to the amount of the deficiency.      Since that form was
approved by the court, and presented to the jury, Thompson
maintains that the court cannot usurp the jury's role and make
further determinations as to a question of fact.
     The general rule is that when trial is by jury, all questions
of fact are to be decided by the jury and all evidence thereon is
to be addressed to it.   Section 25-7-103, MCA.
     In this case, it was agreed that only two issues of fact were
to be decided by the jury:        whether Sportco conducted the
repossession sale in a commercially reasonable manner, and whether
Thompsonls lack of participation in the process estopped his
assertion of commercial unreasonableness. The trial court, in its
discretion, decided upon the use of a special verdict form pursuant
to Rule 49 (a), M.R.Civ.P.   The well-established rule is that the
court must structure the form and frame the interrogatories in a
manner which enables the jury to determine those factual issues
essential to judgment.   Glick v. Knoll (1959), 136 Mont. 176, 346
P.2d 987; Kinjerski v. Lamey (Mont. 1981), 635 P.2d 566.   This is
what the District Court did.    The special verdict presented the
contested issues clearly and fairly.      It allowed the jury to
determine whether the repossession sale was       conducted   in a
commercially reasonable manner, and the jury decided that question
in the affirmative. The deficiency itself was not an issue of fact
at trial. Once the determination of commercial reasonableness was
made, the debtor's liability for any deficiency followed as a
matter of law under 1 30-9-504, MCA, and was properly reserved for
determination by the court.     The court had earlier held that
Thompson was estopped to deny the accuracy of sums paid and owing.
The evidence was clear and uncontradicted that a deficiency of
$5,891.19 was owed Sportco, and the court correctly amended its
earlier judgment to include the deficiency as well as costs and
attorney fees.
     In sum, the court properly directed the jury to find a special
verdict upon all factual issues necessary for a fair determination,
and thereafter properly predicated its judgment upon the verdict.
Coburn Cattle Co. v. Small (1907), 35 Mont. 288, 88 P. 953;
Tannhauser v. Shea (1930), 88 Mont. 562, 295 P. 268; Kinjerski v.
Lamey (Mont. 1981), 635 P.2d 566.
     Af finned.
We Concur:
