                                               No. 89-070
                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                  1989


RANDOLPH V. PETERSON, INC.,
                                Plaintiff and Appellant,
             -vs-
J.R. SIMPLOT CO., a Nevada corporation;
HARNISCHFEGER CORPORATION, a Delaware
corporation; and GOLDEN SUNLIGHT MINES,
INC., a California corporation,
                                Defendants and Respondents.


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:
                                Philip D. Tawney; Mullendore & Tawney, Missoula,
                                Montana
                                Peter Michael Meloy, Helena, Montana
             For Respondent:

                                Lawrence F. Daly ; Garlington, Lohn & Robinson,
                                Missoula, Montana
                                Robert J. Sullivan; Boone, Karlberg, & Haddon,
                                Missoula, Montana
                                Alan L. Joscelyn; Gough, Shanahan, Johnson & Waterman,
                          '-1   Helena, Montana
           r:
           ci     ~   .
           .- i
                                                  Submitted on Briefs:   June 16,
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              2
Justice Fred J. Weber delivered the Opinion of the Court.

     This appeal arises from an order by the District Court,
Fourth Judicial District, Missoula County, granting summary
judgment in favor of defendants.      Plaintiff appeals.   We
affirm.
     We restate the issues as follows:
     1. Did the District Court err in granting summary
judgment in favor of defendant J.R. Simplot Co.?
     2. Did the District Court err in granting summary
judgment in favor of defendant Harnischfeger Corporation?
     3. Did the District Court err in granting summary
judgment in favor of defendant Golden Sunlight Mines, Inc.?
     Randolph V. Peterson, Inc. (RVP) brought suit against J.
R. Simplot Co. (Simplot), alleging breach of contract, breach
of the covenant of good faith and fair dealing, and unjust
enrichment. RVP brought suit against Harnischfeger Corpora-
tion (Harnischfeger) and Golden Sunlight Mines, Inc., (Golden
Sunlight) alleging, as to each defendant, tortious interfer-
ence with contract and unjust enrichment.
     The facts giving rise to these suits began in January
1987, when Simplot, a mining corporation operating a mine in
Afton, Wyoming, began inquiries with various companies re-
garding the purchase of a new mining shovel. In 1979 Simplot
had   purchased   a   new   electric   mining    shovel  from
Harnischfeger, a manufacturer and dealer in heavy equipment.
Thus Simplot began discussions with Harnischfeger regarding
the purchase of a new hydraulic shovel in January 1987.
These discussions included the possibility of trading in the
old shovel for credit on a new one.
     Golden Sunlight is a mining company operating near
Whitehall, Montana.      It also began negotiations with
Harnischfeger in January 1987 regarding the purchase of a new
mining shovel. Golden Sunlight requested a quote on a new
mining shovel and this information was sent to Golden Sun-
light on February 2, 1987. In early April 1987 Golden Sun-
light indicated to Harnischfeger that the company might be
interested in a used shovel, so on April 8 Harnischfeger sent
Golden Sunlight information about three used shovels, includ-
ing the one owned by Simplot.
     RVP is a heavy equipment broker, based in Missoula,
Montana.   In March of 1987, RVP contacted Simplot with an
offer to market Simplot's used mining shovel. The original
offer by RVP requested an exclusive marketing contract,
whereby only RVP could market the shovel. Simplot, however,
rejected the exclusive marketing arrangement. Instead,
Simplot sent RVP a letter dated March 16, 1987, outlining the
bases upon which RVP could market the shovel. The contract
stated, inter alia, that RVP agrees to represent Simplot on a
non-exclusive basis, that the sale of the shovel shall be a
price of $725,000 cash to Simplot, that RVP would receive a
10% commission if sold for this amount, and that the sale
would be subject to final approval by Simplot.        Simplot
reserved the right to refuse to sell to any party, and the
right to withdraw the shovel at any time.
     RVP signed the contract, returning it with a letter from
RVP which stated:

    As mentioned above, we normally only take machinery
    listings on an exclusive basis.    However, we are
    prepared to market your shovel on a non-exclusive
    basis as outlined in your letter of March 16th so
    long as we are in agreement that RVP will be the
    single marketing representative for you until such
    time as one of the following occurs:
          1.   Simplot elects to withdraw the shovel for
               sale.
          2.   Simplot trades the shovel in to the
               factory.
          3.   Simplot no longer wishes RVP to sell the
               shovel. RVP would be paid its commission
               on any sale later consummated if RVP had
               solicited the Buyer.
      The parties agree that these two letters together formed
the marketing agreement.     Mr. Peterson, the owner of RVP
testified by deposition that when he signed the contract he
was aware that Simplot was negotiating with Harnischfeger
regarding a possible trade-in of the shovel.
      Based upon the marketing agreement, RVP prepared bro-
chures advertising the shovel and mailed them to possible
purchasers. Golden Sunlight received a brochure on April 3,
1987, and on April 30, 1987 it contacted RVP.      On May 14,
1987, an agent of RVP took two representatives of Golden
Sunlight to Afton, Wyoming to inspect the shovel.
      On March 10, 1987 Harnischfeger inspected Simplot's used
shovel, and discussed with Simplot its trade-in value and the
purchase of a new shovel. In late April 1987 Harnischfeger
learned through discussions with Golden Sunlight that a
broker, RVP,       was attempting to market the shovel.
Harnischfeger inquired of Simplot whether it could still take
the shovel on trade.     Simplot assured the company that it
could. Golden Sunlight also made inquires of Harnischfeger
as to its ability to sell the shovel, since Golden Sunlight
knew that RVP was also marketing it.      Golden Sunlight re-
ceived assurances from Harnischfeger that it would be able to
resell the shovel should the trade-in occur.
     Harnischfeger continued its negotiations with Simplot
for the purchase of the new mining shovel. On May 19, 1987,
Simplot received Harnischfeger's written proposal for that
sale.    On May 27, Harnischfeger sent a proposal to Simplot
offering a $650,000 credit on the new shovel, in exchange for
a trade-in of the used shovel.
     By letter dated May 27, 1987, Harnischfeger confirmed to
Golden Sunlight its right to sell the used shovel, and quoted
a price of $675,000. Earlier, on April 30, RVP had offered
to sell the shovel to Golden Sunlight for a price of
$725,000. On May 29, Golden Sunlight expressed an interest
in purchasing the shovel from Harnischfeger, but Golden
Sunlight requested that an additional $50,000 worth of spare
parts for the shovel be included in the deal. Harnischfeger
then negotiated with Simplot regarding the spare parts, and
Simplot agreed to include $50,000 worth of spare parts in the
trade-in of the shovel to Harnischfeger.
     At some point between May 27 and June 2, Simplot made a
verbal agreement with Harnischfeger to trade in the shovel,
and purchase the new one, and on June 5, 1987, Simplot gave
Harnischfeger a purchase order number.     According to this
agreement, Simplot would trade in the used shovel for a
credit of $650,000 against the purchase price of a new shov-
el.   Additionally, Simplot agreed to trade in $50,000 of
spare parts to Harnischfeger.
     On June 1, 1987, Golden Sunlight verbally agreed to
purchase the used shovel from Harnischfeger .   June 8, 1987,
Golden Sunlight issued a written purchase order for the
shovel.
     Also on June 8th, RVP telephoned Golden Sunlight and
learned that it had decided to purchase the shovel from
Harnischfeger. RVP then sent a letter to Simplot that same
day by Federal Express, stating that he had found a purchaser
for the shovel. Enclosed with the letter was a check for a
down payment of $72,500. Mr. Peterson later testified that
the purchaser was himself. On June 11, Simplot returned the
check to RVP, stating that the shovel had been taken in on
trade by Harnischfeger on a new shovel. On July 10, 1987,
RVP filed suit against Simplot, Harnischfeger, and Golden
Sunlight. Following discovery, which included deposing all
parties, the defendants moved for summary judgment.   Oral
argument was held on this motion on December 8, 1988. The
court granted summary judgment in favor of all three
defendants.

     Did   the District Court err in granting summary judgment
in favor   of J.R. Simplot Co.?
     The   standard of review, in determining whether summary
judgment   should have been granted has been stated as follows:
                   The standard by which this Court
             reviews an appeal from a motion granting
             summary judgment is whether the record,
             when taken as a whole, shows no genuine
             issue of material fact. Kronen - -   v. Rich-
             -
             ter (Mont. 1984), 683 P.2d 1315, 1317, 41
             St.Rep. 1312.     Where critical testimony
             is taken by deposition, this Court will
             closely examine the District Court's
             findings.     When reviewing deposition
             testimony the reviewing court is in a
             like position to the District Court and
             is freely able to review such evidence.
             Kaiser v. Town of Whitehall (Mont. 1986),
             718 ~ . 2 d3 4 1 7 1 3 4 2 , 43 St.Rep. 176.
                       1
                  A party opposing a motion for
            summary judgment may not rest upon the
            allegations or denials of his pleadings.
            The party's response must set forth
            specific facts showing there is a genuine
            issue for trial. National Gypsum Co. v.
            Johnson (1979), 182 Mont. 209, 595 P.2d
            1188, 1189.    Conclusory or speculative
            statements are insufficient to raise a
            genuine issue of material fact. Kronen,
            683 P.2d at 1318.
Spadaro v. Midland Claims Service, Inc.      (Mont. 19871, 740
~ . 2 d1105, 1108, 44 st.~ep. 1221, 1224.    Regarding summary
judgment, this Court has also stated:
    It is true that the party moving for summary judg-
    ment has the burden of establishing the absence of
    any genuine issue of material fact, and the party
    opposing the motion must supply evidence supporting
    the existence of a genuine issue of material fact.
    Pretty on Top v. City of Hardin (1979), 182 Mont.
    311, 315, 597 P.2d 58, 60. The general purpose of
    Rule 56, M.R.Civ.P., is to eliminate unnecessary
    trial, delay and expense.      The purpose of the
    hearing on the motion is not to resolve factual
    issues, but to determine whether there is any
    genuine issue of material fact in dispute.      The
    opposing party's facts must be material and of a
    substantial nature, not fanciful, frivolous, gauzy
    nor merely suspicions.      Silloway v. Jorgenson
    (1965), 146 Mont. 307, 310, 406 P.2d 167, 169.
Westlake v. Osborne (1986), 713 P.2d 548, 550, 43 St-Rep.

     RVP contends that Simplot breached its contract by
authorizing Harnischfeger to sell the shovel to Golden Sun-
light before the trade-in occurred.     RVP alleges that the
sale to Golden Sunlight was consummated before the trade-in
and was really a direct sale from Simplot to Golden Sunlight.
RVP contends that at a minimum these are genuine issues of
material fact which are proper for jury determination, not
summary judgment.
     The contract between RVP and Simplot specifically al-
lowed a trade-in to the factory, and RVP knew when it signed
the contract that Simplot was negotiating with Harnischfeger
regarding a possible trade-in of the used shovel. According
to the express terms of the contract, the trade-in to
Harnischfeger was allowed.     RVP failed to present facts
showing a contract breach as a result of the trade-in.
     RVP urges that a letter, dated May 27, 1987, from
Harnischfeger to Simplot, demonstrates that Simplot author-
ized a sale by Harnischfeger to Golden Sunlight of the used
shovel prior to the trade-in. In regard to the used shovel,
the letter stated, "If we are able to sell the [used shovel]
it will be traded in on a P & H Model 1200     ...   " This
letter, written by Harnischfeger to Simplot, demonstrates
nothing in regard to Simplot's actions. Deposition testimony
by Simplot representatives demonstrates that Simplot was
concerned only with the trade-in of the shovel and had no
interest in or knowledge of Harnischfeger's sale negotiations
with Golden Sunlight. While there was testimony by Simplot
that in late May it became aware that Harnischfeger was
negotiating a sale of the used shovel with a third party,
there are simply no facts suggesting that Simplot was in-
volved in any sale of the shovel.
     The District Court concluded that the trade-in and sale
to Golden Sunlight were contemporaneous and RVP has demon-
strated no material facts to refute this.      At some point
between May 27 and June 2, Simplot and Harnischfeger orally
agreed to the purchase of a new shovel and the trade-in of
the used shovel.     Also on June 1, Golden Sunlight gave
Harnischfeger a verbal order to purchase the used shovel. On
June 5, Simplot gave Harnischfeger a purchase order number
for the transaction, and on June 8, Golden Sunlight gave
Harnischfeger a written purchase order. We conclude that RVP
has failed to show any genuine issues of material fact re-
garding an alleged breach of contract by Simplot. RVP does
not support his allegations with anything more than specula-
tion and suspicion. This does not defeat a summary judgment
motion.
     RVP contends that Simplot breached an implied covenant
of good faith and fair dealing in its contractual relation-
ship with RVP. The covenant of good faith and fair dealing
is measured by the justifiable expectations of the parties.
As we stated in Nicholson v. United Pacific Ins. Co. (1985),
219 Mont. 32, 710 P.2d 1342:
           The nature and extent of an implied
           covenant of good faith and fair dealing
           is measured in a particular contract by
           the justifiable expectations of the
           parties. Where one party acts arbitrar-
           ily, capriciously or unreasonably, that
           conduct exceeds the justifiable expecta-
           tions of the second party.
Nicholson, 710 P.2d at 1348.
     In the present case RVP failed to present facts showing
that Simplot's conduct violated RVP1s justifiable expecta-
tions, or that it was arbitrary, capricious or unreasonable.
The trade-in was allowed by the contract, and RVP was aware
of the negotiations between Simplot and Harnischfeger prior
to the trade-in. Also, RVP cannot reasonably contend that it
did not expect Harnischfeger to resell the shovel.
Harnischfeger is a dealer in heavy machinery which engages in
the sale of used equipment. No material facts support RVP1s
contention that his expectations were violated.     We affirm
the District Court in its holding that no genuine issue of
material fact existed regarding an alleged breach of this
covenant.
     RVP contends that Simplot was unjustly enriched because
Simplot did not have to pay the 10% brokerage commission. It
contends that RVP solicited the buyer, Golden Sunlight, and
was therefore due a commission.     Unjust enrichment is an
equitable doctrine wherein the plaintiff must show some
element of misconduct or fault on the part of defendant, or
that the defendant somehow took advantage of the plaintiff.
Brown v. Thornton (1967), 150 Mont. 150, 156, 432 P.2d 386,
390.
     In the present case, RVP1s contention that it was due a
commission and that Simplot was unjustly enriched is without
merit. No commission was due RVP since it did not consummate
a sale to Golden Sunlight. Neither did RVP "solicit" Golden
Sunlight as a buyer, thereby earning a commission. The facts
reveal that Harnischfeger had begun discussions with Golden
Sunlight fully three months before Golden Sunlight was con-
tacted by RVP.     Additionally, no evidence suggests that
Simplot obtained any advantage by trading the shovel in to
Harnischfeger. In fact, RVP admitted that Simplot probably
would have been better off financially to have sold the
shovel through RVP.   We conclude that RVP failed to demon-
strate facts showing that Simplot was unjustly enriched.
     We affirm the District Court in its grant of summary
judgment in favor of defendant Simplot.
                             I1
     Did the District Court err in granting summary judgment
in favor of defendant Harnischfeger?
     RVP contends that Harnischfeger tortiously interfered
with RVP's contract with Simplot and that Harnischfeger was
unjustly enriched.    The elements of tortious interference
with contract were stated in Bolz v. Myers (1982), 200 Mont.
286, 295, 651 P.2d 606, 611, as follows:
                 In order to establish a prima facie
           case of interference with contractual or
           business relations, it must be shown that
           the acts (1) were intentional and will-
           ful, (2) were calculated to cause damage
           to the plaintiff in his or her business,
           (3) were done with the unlawful purpose
           of causing damage or loss, without right
           or justifiable cause on the part of the
           actor, and (4) that actual damages and
           loss resulted.   Bermil Corp. v. Sawyer
           (Fla.App. 3rd Cir. 1977), 353 ~ r 2 d579.


     Additionally, other authorities have noted that the tort
of tortious interference with contract requires that defen-
dant   act   for   an   improper   purpose.      W.   Keeton,
The Law of Torts,                (5th Ed.
     RVP contends that Harnischfeger tortiously interfered
with its contract with Simplot in that it intentionally and
willfully acted to sell the shovel, knowing this would de-
prive RVP of its contractual rights, and with a purpose to
provide unjustifiable gain to itself.     The District Court
found no genuine issues of material fact to support this
allegation, and we agree.
     When Harnischfeger learned of RVP's efforts to market
the shovel, it immediately inquired of Simplot whether the
shovel could still be taken on trade. Receiving assurances
from Simplot that the brokerage agreement with RVP allowed
the trade-in, Harnischfeger then continued to negotiate with
Golden Sunlight. The subsequent sale of the shovel was no
more than a reasonable and legitimate business transaction.
We conclude that RVP has failed to raise any genuine issues
of fact which would suggest that Harnischfeger acted improp-
erly, or that its acts were intentionally calculated to cause
damage to RVP. We conclude that no genuine issues of materi-
al fact exist as to whether Harnischfeger tortiously inter-
fered with the contract. RVP's contention that Harnischfeger
was unjustly enriched similarly fails, in that RVP points to
no facts indicating misconduct by Harnischfeger. We affirm
the District Court in its grant of summary judgment in favor
of defendant Harnischfeger.
                             I11
     Did the District Court err in granting summary judgment
in favor of defendant Golden Sunlight?
     RVP also alleges tortious interference with contract and
unjust enrichment as to the third defendant, Golden Sunlight.
However, we conclude that no genuine issues of material fact
support these allegations.
     Golden Sunlight knew that both Harnischfeger and RVP
were marketing the shovel.      Golden Sunlight inquired of
Harnischfeger whether it could rightfully sell the shovel.
After Harnischfeger received assurance from Simplot that the
marketing agreement with RVP allowed the trade-in to
Harnischfeger, Harnischfeger responded to Golden Sunlight
that it could sell the shovel in the event of a trade-in.
     RVP contends that Golden Sunlight "had an affirmative
obligation to investigate that this was the case."        RVP
further argues that since Golden Sunlight did not do so, its
actions amounted to tortious interference with contract. As
noted previously, this tort requires an intentional act for
an improper purpose. Bolz, 651 P.2d at 611; Keeton, 5 129 at
982.   RVP1s contention thus fails, as it merely alleges
negligence on the part of Golden Sunlight.       Finally, we
conclude that RVP has failed to demonstrate any misconduct on
the part of Golden Sunlight; thus the allegation of unjust
enrichment must similarly fail. Brown, 432 P.2d at 390.
     We conclude that there are no genuine issues of material
fact regarding whether Golden Sunlight tortiously interfered
with the contract in the present case, or whether Golden
Sunlight was unjustly enriched.     We therefore affirm the
District Court's grant of summary judgment in favor of Golden
Sunlight.
     Affirmed.
