                                      No. 12676

          I N THE SUPREME COURT O THE STATE O M N A A
                                 F           F OTN

                                          1974



HOLLAND CONSTRUCTION COMPANY,

                              P l a i n t i f f and A p p e l l a n t ,

          -vs   -
NEIL F. LAMPSON,

                              Defendant and Respondent.



Appeal from:        D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                    Honorable A. B. Martin, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

                Evalyn B. Carson argued, B i l l i n g s , Montana

     For Respondent :

            Moulton, Bellingham, Longo and Mather, B i l l i n g s ,
             Montana
            Ward Swanser argued, B i l l i n g s , Montana

                                                          - -   -



                                                  Submitted:              November 14, 1974

                                                     Decided:         DEC 1 0 1974
Filed :
M r . J u s t i c e John C. Harrison d e l i v e r e d t h e Opinion of t h e Court.

        This i s an appeal from a judgment adverse t o p l a i n t i f f entered
i n t h e d i s t r i c t c o u r t , Yellowstone County.           The matter was t r i e d by
t h e c o u r t s i t t i n g without a jury.          P l a i n t i f f Holland Construction
Company, Inc. a l l e g e d an indebtedness t o i t by defendant N e i l F.
Lampson, Inc. f o r l a b o r , p a r t s and m a t e r i a l s furnished on t h e r e p a i r
of equipment owned by Lampson.
        On appeal, p l a i n t i f f Holland b r i n g s t h r e e i s s u e s :

         1.   I s t h e r e s u b s t a n t i a l evidence t o support t h e f i n d i n g s of
f a c t and conclusions of law of t h e t r i a l judge who found t h a t t h e
reasonable value of t h e s e r v i c e s of Holland Construction Co. was
$18,292.45?
         2.   Did t h e t r i a l c o u r t err i n r e f u s i n g t o allow any testimony
o f f e r e d by p l a i n t i f f ?
         3.   Was t h e c o u r t c o r r e c t i n applying t h e r u l e t h a t p l a i n t i f f
was e n t i t l e d t o recover only t h e reasonable value of t h e s e r v i c e s
performed?
        Holland a l l e g e d t h a t Lampson was indebted t o Holland f o r
$33,557.82.           Lampson i n i t s answer admitted c e r t a i n work was per-
formed on i t s equipment; t h a t t h e r e was no c o n t r a c t between t h e
p a r t i e s f o r t h e work performed; and t h e r e f o r e Holland was e n t i t l e d
t o recover only f o r reasonable s e r v i c e s rendered.                    The t r i a l
c o u r t found t h e amount owed Holland t o be $18,292.45.
         P r i o r t o submission of i t s statement f o r t h e t o t a l c o s t of
t h e r e p a i r work t o t h e Lampson crane t h e r e was no d i s c u s s i o n of t h e
t o t a l c o s t , o r hourly c o s t f o r t h e work done between t h e p a r t i e s ,
u n l e s s i t could be s a i d t h a t ~ o l l a n d ' sstatement t h a t t h e shop was
It
     competitive i n t h e area", was a d i s c u s s i o n of c o s t .           The work
took approximately 30 days of shop work.                         When t h e statement was
submitted t o Lampson, it was considered                        e x o r b i t a n t and Lampson
refused t o pay.            Holland a l l e g e s i t i s e n t i t l e d t o recover f o r a l l
time spent by i t s s t a f f of t h i r t e e n employees, plus o f f i c e s t a f f ,
spent on t h e job.             Lampson a l l e g e s t h e work could have been performed
i n f a r l e s s t i m e and t h a t Holland i s only e n t i t l e d t o recover f o r
t h e reasonable number of hours it would t a k e t o perform t h e job.
     A t t r i a l Holland introduced time c a r d s t o show t h e number of
hours worked by i t s personnel t o e s t a b l i s h what was a reasonable
hourly f i g u r e .   N o t h e r testimony was introduced t o support t h e
                        o
reasonableness of t h e statement submitted.                  A problem a r o s e as t o t h e
t i m e c a r d s i n t h a t they w e r e d i s c r e d i t e d because of t h e manner i n
which they were kept and t h e obvious e r r o r s which appeared on t h e
f a c e of t h e cards.     One d i f f i c u l t y was t h a t due t o t h e inclement
weather t h e time clock f r o z e and had t o be r e p a i r e d .         Another
was t h a t t h e workers were supposed t o keep t h e i r job time a l l o c a t e d
t o t h e various jobs they worked on during t h e day, b u t when t h e
c a r d s were checked t h e t i m e s w r i t t e n i n on t h e various c a r d s ap-
peared t o be i n only one person's handwriting.                   A s a r e s u l t , the
t r i a l c o u r t r e j e c t e d t h e time card evidence a s proof of reason-
ableness of t h e t o t a l job c o s t inasmuch a s Holland o f f e r e d no
o t h e r explanation f o r t h e time required t o perform t h e work on t h e
crane.
     I n an e f f o r t t o a s c e r t a i n a proper f i g u r e f o r t h e amount owed
Holland, t h e c o u r t viewed ~ o l l a n d ' smachine shop o p e r a t i o n ; checked
t h e crane i t s e l f t o determine t h e work performed; and, a f t e r s o
doing concluded t h e time charged was excessive, although i t
accepted ~ o l l a n d ' sf i g u r e s on t h e proper hourly charge.
     Lampson introduced a s a witness one Draper, i t s foreman, who
was present when most of t h e work was done.                  Draper t e s t i f i e d t h a t
80% of t h e work was done on t h e crane within t e n days, a f t e r about
313 man hours.         The b i l l submitted showed 1300 man hours.                 Lampson
a l s o introduced t h e testimony of an e x p e r t , one Peterson from an
independent machine shop i n Portland, Oregon, who t e s t i f i e d a s t o ,
i n h i s opinion,the number of hours reasonable t o do t h e worksre-
quired.      Lampson introduced o t h e r testimony t o support P e t e r s o n ' s
testimony and compared t h e number of hours charged by Holland with
hours charged by o t h e r machine shops f o r s i m i l a r work.
Appellant ~olland's first issue questions the sufficiency of the
evidence to support the trial court's findings of fact and con-
clusions of law.      This Court has long held that it will uphold a
trial court's findings unless the evidence decidedly and with
decisive clarity predominates against them, Christensen v Hunt,
                                                         .
147 Mont. 484, 414 P.2d 648. Further, we have held that in
reviewing the record in the trial court it is not within our
province to determine whether we agree with the conclusions
reached if they are supported by the evidence.     Stromberg &
Brown v Seaton Ranch Co., 160 Mont. 293, 502 P.2d 41; Hellickson
       .
v Barrett Mobile Home Transport, Inc., 161 Mont. 455, 507 P.2d
 .
523; Nissen v. Western Const. Equip. Co., 133 Mont, 143, 320 P.
2d 997,
    The question here is whether Holland has shown there was an
insufficiency of evidence to support the judgment. We find
appellant failed to overcome the presumption of the correctness
of the trial court's findings (1) by failing to introduce evidence
to support the reasonableness of the hours charged to the Lampson
job, and (2) that Lampson's witnessesf testimony supports the
court ' s findings.
    As noted heretofore, the validity of the time cards was
questioned and at best they only show the number of hours charged
to the job and not the hours necessary to accomplish it, Holland
totally failed to show by the time cards the number of hours
necessary or reasonable to perform the work.
    The only real evidence before the trial court to assist in
determining the reasonable number of hours to do the necessary
work was introduced by amps son's witness Peterson, who testified
without objection.      Peterson was qualified,through years of
experience in bidding on similar jobs, to testify on the reason-
able number of hours necessary to accomplish the work performed
by Holland. His testimony took into consideration the type of
work, Holland's equipment, and the new parts used. He inspected
the work done on the crane and testified he could have done the
same work, using new parts, for $12,750. However, he testified that
in ~olland'sshop, without using new parts used by Holland, and
doing the same work that Holland did, that the reasonable number
of hours, using ~olland's charges per hour, would bring the amount
due to $16,172.66.    peterson's testimony was substantiated by
Lampson by introducing bills for similar work done in other areas
and by foreman Draper's testimony. We find no merit in issue one.
    Issue two concerns appellant's allegation that the trial
court erred in not allowing certain testimony offered by appellant.
This refused testimony was evidence attempted to be introduced
through two witnesses, Clarence Merry and John Bus tell, concerning
the reasonableness of the charge per hour. Merry was the owner
of the Yellowstone Hydraulics & Elevator Co., and had been a
working machinist for 24 years.   Bustell was one of the owners of
Billings Machine & Welding Co., and had been a working machinist
for over 30 years. When Merry was asked if he had an opinion with
regard to the number of hours charged, the testimony was objected
to on the grounds a proper foundation was not laid, and none was
laid after the objection. However, ~olland'sattorney later clarified
what she was trying to get from the witness by these questions:
    "Q. Your Honor, I believe that Igave the wrong
    impression. I was only asking him for the hourly
    rate for that type of work, if you will recall.''
    And later:
    "Q. I realize that you would not know the number of
    hours and therefore the total bill. I only ask you
    to testify as to the reasonableness of the charge per
    hour for the particular operation on the particular
    piece of equipment.I t
    The testimony was to go to the hourly rate which was not dis-
puted, but could not, as Holland desired, be considered when applied
to the hours of the total job.
    The second witness Bustell was merely asked if he concurred with
the testimony given by Merry as to the reasonableness of the hourly
rate, and was never asked to comment upon the number of hours it
took to do the job.
      The t r i a l court had a l r e a d y admitted a l l of ~ o l l a n d ' se x h i b i t s
t o support t h e hourly charge and used them i n i t s f i n d i n g s , con-
c l u s i o n s and judgment.          W f i n d no merit i n a p p e l l a n t ' s i s s u e two.
                                        e
      I s s u e t h r e e considers whether t h e c o u r t was c o r r e c t i n applying
t h e r u l e Holland was e n t i t l e d t o recover only the reasonable value
of s e r v i c e s performed.           Considering t h e f a c t s t h e c o r r e c t and
c o n t r o l l i n g law a p p l i c a b l e i s s e c t i o n 13-507, R.C.M.         1947, which
provides :
      "When a c o n t r a c t does n o t determine t h e amount of t h e
      c o n s i d e r a t i o n , nor t h e method by which i t i s t o be
      a s c e r t a i n e d , o r when i t leaves t h e amount thereof t o t h e
      d i s c r e t i o n of an i n t e r e s t e d p a r t y , t h e c o n s i d e r a t i o n must
      be s o much money a s t h e o b ' e c t of t h e c o n t r a c t i s
      reasonably worth.                 (Emp&added).
      While a case applying t h e above quoted s t a t u t o r y provisions
has n o t been previously considered i n t h i s j u r i s d i c t i o n , o t h e r
j u r i s d i c t i o n s have a p p l i e d i t .   Braden Winch Company v. Surface
Equipment Company, 196 Okla. 444, 165 P.2d 640; Hawkins v. Delta
Spindle of B l y t h e v i l l e , I n c . , 245 Ark. 830, 434 S.W.2d 825, 827.
I n Hawkins, t h e c o u r t noted:
      ''Where l a b o r o r m a t e r i a l i s furnished by a p a r t y and
      no p r i c e i s agreed upon, t h e law w i l l imply an agree-
      ment t o pay what i t i s worth. [Citing c a s e . ] I f a
      c o n t r a c t makes no statement a s t o t h e p r i c e t o be paid
      f o r s e r v i c e s , t h e l a w invokes t h e standard of reason-
      ableness and t h e f a i r value of t h e s e r v i c e s i s recoverable.
       [ C i t i n g c a s e s and a u t h o r i t y . ] This p r i n c i p l e has been
      a p p l i e d by t h i s c o u r t i n c a s e s involving p r o f e s s i o n a l
      s e r v i c e s . [Citing c a s e s . ] There i s no reason why i t should
      n o t be applied i n t h e circumstances e x i s t i n g here. The
      burden was upon a p p e l l e e t o show t h a t t h e amount f o r
      which it sought recovery was t h e f a i r and reasonable value
      of t h e p a r t s , m a t e r i a l s and l a b o r furnished. It f a i l e d
      t o do so. I 1
      I n Hawkins t h e c o u r t considered t h e f a c t t h a t t h e work was
s t r e t c h e d over a t h r e e day period of t i m e when i t could have been
done i n one day.             The same p r i n c i p l e of law has been covered by
                         11
contract cases            quantum m e r i t " i n a s e r i e s of cases b e f o r e t h i s
Court.       Higby v. Hooper, 124 Mont. 331, 221 P.2d 1043; Smith v.
Gunniss, 115 Mont. 362, 144 P.2d 186.
      The burden i s upon p l a i n t i f f t o show what i s t h e reasonable
value of t h e p a r t s , m a t e r i a l s and l a b o r furnished.                Here, Holland
r e l i e d s o l e l y on t h e t i m e cards t o e s t a b l i s h t h e reasonableness of
the services.          However, t h e r e was s u f f i c i e n t evidence t o r e f u t e
t h e i r accuracy, and Holland o f f e r e d no evidence t o j u s t i f y t h e
t o t a l hours o r t o show t h a t they were r e q u i r e d t o accomplish t h e
work.     I n Delaware Engineering Co. v. Pusey & Jones Co., 31 Del.
163, 112 A. 371, t h e c o u r t noted t h a t where one person engages
another t o make an a r t i c l e f o r him, and t h e person employed i s
t o be paid by t h e hour f o r t h e work, i t i s t h e duty of t h a t person
t o f u r n i s h t h e work on t h e a r t i c l e i n a reasonable number of hours,
and i f t h e person engaged takes unreasonable time t o complete t h e
work, he i s e n t i t l e d t o be compensated f o r only such t i m e a s would
reasonably have been r e q u i r e d t o do t h e work.
      W f i n d no m e r i t i n a p p e l l a n t ' s i s s u e t h r e e .
       e
      The judgment of t h e t r i a l c o u r t i s affirmed.




W e Concur:




Mr.   J u s t i c e Frank I. Haswell took no p a r t i n t h e above Opinion.
