                                    No. 12492

       I N T E SUPREME C U T O T E STATE O M N A A
            H           OR    F H         F OTN

                                       1973



LEE V. WISEMAN and
SHIRLEY WISEMAN,

                             P l a i n t i f f s and Respondents,



ROBERT D. HOLT. and ELIZABETH D. HOLT,

                             Defendants and A p p e l l a n t s .



Appeal from:        D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
                    Honorable J a c k L. Green, Judge p r e s i d i n g .

Counsel o f Record :

    For A p p e l l a n t s :

            Koch and McKenna, Hamilton, Montana
                         .
            Robert B Brown argued, S t e v e n s v i l l e , Montana

    For Respondents:

            Garlington, Lohn and Robinson, Missoula , Montana
            Gary L, Graham argued, and Sherman V. Lohn appeared,
             Missoula , Montana



                                               Submitted : December 3, 1973

                                                Decided :     QEC 2 8 1973
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
        Plaintiffs, Lee and Shirley Wiseman, commenced this
suit against defendants, Robert and Elizabeth Holt, seeking
damages for breach of contract and tortious injury to personal
and real property.    Defendants filed a motion to dismiss for
failure of the complaint to state a claim upon which relief
could be granted.    The motion was denied.
        Defendants answered, denying damage and counterclaimed
for rescission of the agreement and restoration to status quo
on grounds of misrepresentation.    The case was tried on Dec-
ember 12, 1972, before Hon. Jack L. Green of the fourth judicial
district in and for the county of Ravalli, sitting with a jury.
       At the close of plaintiffs' case in chief, defendants
moved to dismiss plaintiffs' complaint for the reason that the
evidence presented by plaintiffs did not sustain the allegation
of damages.   The motion was denied.   The matter was submitted
to the jury which returned a verdict in favor of plaintiffs in
the sum of $8,000.   Defendants made a motion for a new trial
which was denied.    Judgment was entered for plaintiffs in the

sum of $8,000. Defendant appeals from the judgment.
        Briefly stated the facts are these:   On May 28, 1969,
plaintiffs entered into a contract to sell the real property,
equipment, good will and franchises of the    airy ~ u e e n "at
Hamilton, Montana to defendants.    The contract was escrowed at
the Farmers State Bank at Victor, Montana.    The contract pro-
vided that no waste was to be committed on the premises and
that the improvements on the premises would not be removed or
destroyed while defendants were in possession.    Defendants agreed

that the improvements would become the property of the sellers
upon default.
         In November 1971, defendants began demolishing the
"Dairy Queen" structure without first obtaining consent from
plaintiffs.     Defendants' financing for construction of a new
"Dairy Queen" fell through.    Defendants informed plaintiffs that
if they would reduce the remaining balance on the contract from
approximately $35,000 to $20,000 they could purchase the premises
and rebuild through bank financing, giving the bank a first
mortgage.   If this alternative was not acceptable to plaintiffs
defendants informed plaintiffs that they were in no position to
continue and offered the return of the premises to plaintiffs.
         Plaintiffs did not agree to defendants1 proposal and
retook possession of the premises in March, 1972.    Plaintiff,
Lee Wiseman, testified that when possession was transferred back
that several items of personal property which had been a part
of the sale were returned damaged or not returned at all.     He
further testified as to the cost of repair or replacement of the
items.
         Defendant on this appeal sets forth five issues:
         (1) The trial court erred in failing to dismiss plain-
tiffs' complaint on the defendants' motion to dismiss for the
reason that the complaint failed to state a claim upon which
relief can be granted.
         (2)   In denying defendants' motion to dismiss plaintiffs'
complaint at the close of the plaintiffs' case in chief for the
reason that plaintiffs failed to show damages were sustained.
         (3)   In denying defendants' proposed jury instruction
No. 5.
         (4) That the jury's verdict is not supported by the
evidence, and
         (5) That the trial court erred in denying defendants'
motion for new trial.
        Considering defendants' issue No. 1, we find no merit.
The record shows that defendants' motion to dismiss was filed
on July 28, 1972, and set for hearing on August 4, 1972.     No
brief was filed in support thereof.   The motion was denied in
accordance with Rule 4 of the Rules of Practice of the district
court of the fourth judicial district, which provides:
        "Upon serving and filing a motion permitted by
        Rule 12, M.R.Civ.P. or within five (5) days
        thereafter, the moving party shall serve and
        file a brief. * * *
        "Failure to file briefs within the prescribed
        time shall subject such motions to summary
        ruling, and the failure to file a brief by the
        moving party shall be deemed an admission that,
        in the opinion of counsel, the motion is without
        merit * * * . I 1 See also Rule No. 11, Uniform
        Rules for District Courts of Montana.
        Having failed to file a brief within the prescribed time
of the district court rules, defendants admitted that their motion
was without merit.
        Defendants' remaining issues involve the proper measure
and proof of damages.   Defendants contend that section 17-307,
R.C.M. 1947 is determinative of the extent of damages in the
instant case and that an instruction based upon the statute
should have been given.
        Section 17-307, R.C.M. states:
       "The detriment caused by the breach of an agree-
       ment to purchase an estate in real property is
       deemed to be the excess, if any, of the amount
       which would have been due to the seller, under
       the contract, over the value of the property to
       him. "
        Defendants' proposed instruction No. 5, which was refused
by the district court over objection, reads:
        "You are instructed that the maximum amount of
        damages that you may award by reason of the
        breach of the agreement to purchase an estate
        in real property is the excess, if any, of the
        amount which would have been due to the Sellers,
        under the contract, over the value of the property
        to him. I'
        In addition, defendants contend that plaintiffs did
not show damages based upon the formula provided in section
17-307, R.C.M. 1947, and that the verdict is not supported by
sufficient evidence for finding damages.
        The district court instructed the jury with regard to
damages using the language of section 17-301, R.C.M. 1947, which
provides :
        "For the breach of an obligation arising from
        contract, the measure of damages, except where
        otherwise expressly provided by this code, is
        the amount which will compensate the party
        aggrieved for all the detriment proximately
        caused thereby, or which, in the ordinary course
        of things, would be likely to result therefrom."
        While this Court has not had the occasion to consider
section 17-307, R.C.M. 1947, we have rendered decisions interpret-
ing other sections of Chapter 3, Title 17, R.C.M. 1947.
        In Orford v. Topp, 136 Mont. 227, 346 P.2d 566, this
Court interpreted section 17-306.   We held that the purpose
behind the enactment of section 17-306, R.C.M. 1947, is to com-
pensate an aggrieved party for the loss he sustains, and that sec-
tion 17-301, R.C.M. 1947, is a "clear expression of this purpose."
        In Wyatt v. School Dist. No. 104, 148 Mont. 83, 89, 417
P.2d 221, interpreting section 17-303, R.C.M. 1947, after citing
Orford we said:
        " * * * In effect, what the court has said is that
        the statutes are to be regarded as guides in the
        estimation of damages to be recovered, and that
        the respondent should receive a sum which, when
        added to the benefits already received under the
        contract, will give her an economic status
        identical to that which she would have enjoyed had
        the contract been performed." (Citing authority.)
        Our holdings illustrate that the statutes on the measure
of damages are not exclusive, and that damages in addition to
those provided in the statutes are recoverable under section
17-301, R.C.M. 1947.   See Royer v. Carter, 37 Cal.2d 544, 233
P.2d 539, 543, where the California court held that when additional
expenses are incurred by the vendor to realize the benefit of
his bargain, they may be recovered in addition to those pro-
vided for in their section 3307, Cal. Civil Code,    §    3307 is
identical to section 17-307, R.C.M. 1947.
         Defendants' argument and a reading of defendants' pro-
posed instruction No. 5 indicates that defendants interpret
section 17-307, R.C.M. 1947, to be mandatory and exclusive, and
that if damages are not sustained within the formula enunciated
therein, that there can be no recovery of damages.       This inter-
pretation simply ignores section 17-301, R.C.M. 1947.
         Defendants have made no mention in their argument of
the fact that the provision of the contract with which this suit
was involved was the waste provision.   It was within the contem-
plation of the parties that the property returned upon retaking
of possession would be in good condition and repair.       Damages
of the nature herein involved were within the reasonable contem-
plation of the parties at the time the contract was entered into.
An instruction based upon section 17-301, R.C.M. 1947 was adequate
with respect to these damages.   A trial court will not be held
in error when it refuses to give an instruction that has been
adequately covered in other instructions.   State Highway Comm'n
v. Manry, 143 Mont. 382, 390 P.2d 97.
        Plaintiffs proved their damages through their own testi-
mony.   The jury had the necessary evidence before it and in
accordance with the district court's proper instructions deter-
mined the damages resulting from the breach.   For the foregoing
reasons the district court committed no error and pro
                                                         F rly denied
defendants' motion fo
                                                    i
                                                     /'
        The judgment


                                 1
                                         Chief Justice
