                         NO. 82-41
        IN THE SUPREME COURT OF THE STATE OF MONTANA
                            1982


AG SALES, a Montana Corporation,
                         Plaintiff and Appellant,
         vs.
WALLY KLOSE,
                         Defendant and Respondent.


Appeal from:   District Court of the Fifth Judicial District,
               In and for the County of Madison
               Honorable Frank Blair, Judge presiding.
Counsel of Record:
    For Appellant:
        Michael J. Lilly, Bozeman, Montana
    For Respondent:
        Burgess, Joyce and Whelan, Butte, Montana


                          Submitted on briefs:   May 20, 1982
                                      Decided:   August 11, 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

     Plaintiff-appellant Ag Sales filed a complaint against
defendant-respondent Wally Klose for an amount due from the
sale of an irrigation sprinkler system to Klose.    Klose
counterclaimed for crop losses because of Ag Sales' failure
to install the irrigation equipment within a reasonable
time.    The District Court, Fifth Judicial District, Madison
County, awarded Klose $11,070.97 computed on Klose's actual
damages of $14,154.00 less $3,083.03 due Ag Sales on the
contract balance.     Ag Sales appeals.
    We affirm.
    Ag Sales presents the following issues for review:
        (-1) Did the District Court err in admitting evidence

in contradiction of the written agreement.
        (2) Did the District Court err in granting Klose's
motion to amend admission .of facts.
     During the spring of 1977, Klose began negotiating with
Ag Sales for the purchase of irrigation equipment.    Klose
signed a contract which he testified at that time had not
been dated.    The contract never was signed by a representative
of Ag Sales.
        Klose removed his old irrigation system during late
April and early May 1977.    Witnesses for Klose testified
that pipe for the system arrived in the early part of May
1977.    Ag Sales began work on the new irrigation system in
late June 1977 and completed it about July 7, 1977.
        Ag Sales filed this action to obtain $3,053.06 still
due on the account.     The total purchase price was $32,941.00.
Klose counterclaimed for crop losses because of Ag Sales'
failure to install the irrigation equipment within a reasonable
time.   Witnesses testified that a grain crop in that area
should be seeded on or before the first day of June and must
be irrigated for the subsequent two weeks.
     Ag Sales presented the contract which has the date May
27, 1976, written in.     Both parties agree that that date is
incorrect.     Ag Sales maintains that only the year is wrong
and that May 27, 1977, is the correct date.    Klose counters

that he signed the contract on or about April 20, 1977.
Klose also argues that there was an oral agreement that the
irrigation system would be installed by May 20, 1977.
     Did the District Court err in admitting evidence in
contradiction of the written agreement?
     The contract signed by Klose provides that "this contract
constitutes the entire agreement and no modification thereof
shall be valid unless in writing."     Section 30-2-202, MCA,
provides :
             "Final written expression -- parol or extrinsic
             evidence. Terms with respect to which the con-
             firmatory memoranda of the parties agree or which
             are otherwise set forth in a writing intended
             by the parties as a final expression of their
             agreement with respect to such terms as are in-
             cluded therein may not be contradicted by evi-
             dence of any prior agreement or of a contempor-
             aneous oral agreement but may be explained or
             supplemented:

             "(a) by course of dealing or usage of trade
             (30-1-205) or by course of performance (30-
             2-208); and
             " (b) by evidence of consistent additional
             terms unless the court finds the writing to
             have been intended also as a complete and ex-
             clusive statement of the terms of the agree-
             ment. "
     Both parties agree that the date written on the contract
is incorrect.    Ag Sales contends that parol evidence should
be admitted to show that the date was incorrect, but only
inasmuch as the year was incorrect and that any further parol
evidence would violate the contract and section 30-2-202,
MCA.    Klose, while agreeing that the date is incorrect,
maintains that the month and day, as well as the year, are
incorrect.
       We find that since both parties agree that the date is
incorrect and that parol evidence was allowed to prove that
fact, parol evidence as to the correct date is allowable for
not only the year but also for the month and day.    It is
unreasonable to conclude that admission of parol evidence of
the month and day would be in violation of the contract and
section 30-2-202, MCA, while admission of parol evidence of
the correct year would not be in violation of either.
       Ag Sales also argues that evidence that there was an
oral agreement that the irrigation system would be installed
by May 20, 1977, was in violation of the contract and section
30-2-202, MCA.
       The District Court held in conclusion of law I that:
            "The Plaintiff breached the Contract of the
            parties in that it did not complete the in-
            stallation of the irrigation system on the
            orally agreed date of May 20, 1977 and in any
            event, did not complete the installation with-
            in a reasonable time after April 20, 1977 and
            as a result, the Defendant and Cross-Claimant
            suffered damages in the sum of FOURTEEN THOU-
            SAND ONE HUNDRED FIFTY-FOUR and N0/100 DOLLARS
            ($14,154.00)."
       The District Court found that the contract was signed
by Klose on April 20, 1977, and that the undisputed completion
date of July 7, 1977, was not within a reasonable time after
the signing of the contract.    Since the irrigation system
was not installed within a reasonable time, it is not necessary
to determine if evidence of an oral agreement of a May 20,
1977, installation deadline is admissable.
       Did the District Court err in granting Klose's motion
to amend admission of facts?
        In its complaint, Ag Sales alleged that "on or about
May 27, 1976, the Plaintiff entered into a contract for sale
with the Defendant for various irrigation equipment       . . ."
Klose denied the statement in his answer which was filed
             ,q7f
January 19, hT?, and in a counterclaim alleged "that sometime
during the month of March or April, 1977, Plaintiff contracted
with the Defendant to furnish and install       ...   [a] irrigation
system    ..   ."
     On March 22, 1979, Ag Sales filed "Plaintiff's Request
for Admission."     Request for admission no. 3 stated:    "That
the document attached as Exhibit '1' [the contract] was
executed by the Defendant on May 27, 1977."       Rule 36(a),
M.R.Civ.P. provides:
            "The matter [of which an admission is requested]
            is admitted unless, within 30 days after service
            of the request, or within such shorter or longer
            time as the court may allow, the party to whom
            the request is directed serves upon the party
            requesting the admission a written answer or
            objection addressed to the matter     .
                                                . ."
Klose did not answer the request for admission within 30
days.     Rule 36(b), M.R.Civ.P.,   provides:   "Any matter admitted
under this rule is conclusively established unless the court
on motion permits withdrawal or amendment of the admission."
        On August 6, 1979, Ag Sales filed a notice of admission
of facts where Ag Sales deemed Klose to have admitted all
the facts because of his failure to answer the request.
Klose filed an answer to plaintiff's request for admission
on August 24, 1979, 154 days after the request was made.
The answer denied the May 27, 1977, date and stated that it
should have been April 1977.
        On September 11, 1981, five days before trial, a deposition
was taken of Klose where he maintained that he signed the
contract on April 20, 1977.     At the trial, Ag Sales requested
the court mark its request for admission as plaintiff's
exhibit 1 and moved for its admission into evidence.        Klose
objected.    The court took the matter under advisement.      Sub-
sequent to the trial, Klose made a motion to amend the
admission to the responses of August 24, 1979, which was
granted by the trial court.       In granting the motion, the
court said:
            "To do otherwise would deprive the Defendant
            of his counter-claimed damages. Defendants
            responses were filed August 23, 1979, so it
            cannot be said that the Plaintiff has in any way
            been prejudiced by this action of the trial
            court. This is such a matter that the equity
            side of this Court intervenes to he sure that
            Justice is done."
     Rule 36 (b), M.R.Civ.P.,     provides:
            "Any matter admitted under this rule is con-
            clusively established unless the court on
            motion permits withdrawal or amendment of the
            admission.. .   .
                            [tlhe court may permit withdrawal
            or amendment when the presentation of the merits
            of the action will be subserved thereby and
            the party who obtained the admission fails to
            satisfy the court that withdrawal or amendment
            will prejudice him in maintaining his action or
            defense on the merits."
     Allowing the amendment of an admission is within the
discretion of the trial court unless there is a showing of
prejudice.    Rule 36 (b), M. R. Civ. P.   "The power to allow the
amendments at any stage of the trial is within the discretion
of the trial court, and its action in this behalf is not
subject to review by this court, unless it is affirmatively
shown that it abused its discretion to the prejudice of the
adverse party."    Nesbitt v. City of Butte (1945), 118 Mont.
84, 89, 163 P.2d 251, 254.        Klose used March or April 1977
in his counterclaim, April 1977 in his answer to the request
for admission, and April 20, 1977, in his deposition taken
before the trial.
     There is sufficient evidence to support that Ag Sales
was fully aware of position maintained by Klose that he did
not sign the contract on May 27.   We hold that Ag Sales was
not prejudiced by the allowing of the amendment and that,
therefore, the District Court did not abuse its discretion.
    We a£firm.




We Concur:



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