                             No.    95-315
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


MIKE THOMPSON,
          Plaintiff and Respondent,
     v.
JAMES PRICE,
          Defendant and Appellant.



APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable Katherine R. Curtis, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 James C. Bartlett; Hash, O'Brien & Bartlett,
                 Kalispell, Montana

          For Respondent:
                 Tia R. Robbin; Murray & Kaufman, Kalispell,
                 Montana



                            Submitted on Briefs:        November 21, 1995
                                             Decided:   December 21, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week,           State   Reporter    and   West   Publishing
Company.
      James    Price (Price) appeals from the Eleventh Judicial
District,     Flathead   County,   jury verdict awarding Mike Thompson
(Thompson) damages for breach of contract, and from the District
Court's order denying Price's Motion for a New Trial.                  We affirm.
      Price presents three issues on appeal:
1.  Did the District Court fail to properly instruct the jury on
Price's theory of the case, specifically, the implied covenant of
good faith and fair dealing?
2. Did the District Court properly exclude evidence of Thompson's
prior   experience  and knowledge of the limited       scope and
enforceability of covenants not to compete?
3.   Is the verdict contrary to the law or contrary to the evidence?
      In June of 1989, Thompson and Price formed a carpet cleaning
partnership    called    Thompson's   Thoro   Kleen.      The   carpet   cleaning
enterprise was initially owned by Thompson and was subject to a
pre-existing business debt of approximately $25,000. Thompson sold
one-half of the business to Price for approximately $13,000. In
early 1990, Price and Thompson dissolved their partnership.                  They
contracted that Price would pay Thompson approximately $25,000 in
consideration for purchasing the business.               The contract included
a covenant not to compete which limited Thompson's future carpet
                                        2
cleaning to his personal accounts from outside the partnership,
"personal friends, and people affiliated with his accounts."    Price
received     the business   name,   business phone number, a van,
equipment, and some customers. However, Price did not pay Thompson
the $25,000.
1 . Did the District Court fail to properly instruct the jury on
Price's theory of the case, specifically, the implied covenant of
good faith and fair dealing?
     Price argues that the District Court erred by not instructing
the jury regarding the implied covenant of good faith and fair
dealing.     Price asserts that because every contract contains an
implied covenant of good faith and fair dealing as a matter of law,
the court should have given the jury Price's proposed instruction,
MPI 13.17.      Price's proposed instruction correctly stated the
implied covenant of good faith and fair dealing based on both
statutory and case law.     Section 28-l-211, MCA; Talley v. Flathead
Valley Comm.   College (19931, 259 Mont. 479, 489, 857 P.2d 701, 707,
cert. denied, 114 S.Ct. 691 (1994). The proposed instruction read
as follows:
     There is an obligation of good faith in every contract.
     The obligation is breached if a party failed to exercise
     honesty in fact and observe reasonable        commercial
     standards of fair dealing in the trade.
The court refused to instruct on the implied covenant on the
grounds that Price did not plead breach of the covenant of good
faith and fair dealing as a cause of action or as an affirmative
defense.
     The District Court has discretion in deciding how to instruct
the jury,    taking into account the parties' theories of the case,
                                    3
and we     will not     overturn   that decision absent an       abuse of
discretion.     Foley v. Harrison Ave. Motor Co. (1994), 267 Mont.
200, 205,     883 P.2d 100,    102-03; Arnold v.    Boise   Cascade   Corp.
(1993), 259 Mont. 259, 267, 856 P.2d 217, 222. When reviewing jury
instructions,    we consider all the offered jury instructions as a
whole,    in light of the evidence presented at trial.        Nevrville v.
State Dep't of Family Servs. (1994), 267 Mont. 237, 261, 883 P.2d
793, 807; Folev,      883 P.2d at 103.
     The covenant of good faith and fair dealing is implied into
every contract.     Tallev, 857 P.2d at 707; Story v. City of Bozeman
(1990),    242 Mont. 436, 450,      791 P.2d 767,    775.    However,   the
standards for breach of the implied covenant are distinct and
different from breach of other contract provisions.            7
                                                               Story,
                                                                    9     1
P.2d at 775;     § 28-1-211, MCA.        In its Order and Rationale, the
District Court determined that although every contract may contain
an implied covenant of good faith and fair dealing, every contract
action does not automatically contain a claim for breach of the
implied covenant.      Price pled breach of contract. He did not plead
breach of the covenant, amend his pleadings to include breach of
the covenant, nor invoke breach of the covenant as an affirmative
defense.
     The court correctly determined that by not pleading breach of

the covenant, Price denied Thompson notice of this separate cause
of action.     McJunkin   v. Kaufman & Broad Home Systems, Inc. (1987),
229 Mont. 432, 437, 740 P.2d 910, 913.           As this Court has held:
"liberal construction and amendment of pleadings does not grant

                                     4
counsel carte blanche       to advance new theories on an unsuspecting
opponent."     McJunkin,    748 P.2d at 913.     In McJunkin, we held that
the district court correctly refused to give a breach of express
warranty instruction when that claim had not been pled.          McJunkin,
748 P.2d at 914.          We apply that reasoning here.      Price is not
entitled to a jury instruction on the implied covenant of good
faith and fair dealing without having pled the covenant as a cause
of action.        The District Court did not abuse its discretion in
refusing Price's offered jury instruction.
2 . Did the District Court properly exclude evidence of Thompson's
prior   experience  and knowledge of the limited        scope and
enforceability of covenants not to compete?
       At trial,     Price attempted to introduce testimony from Mike
Olsen (Olsen).        Olsen and Thompson had a previous contract that
included a covenant not to compete.        Price wanted to establish that
Thompson knew that the language of the covenant not to compete in
the Thompson/Price contract was unenforceable.           Price argued that
Olsen's testimony would show that Thompson knew the limits that
Montana law places on covenants not to compete.           See § 28-2-704,
MCA.     The testimony, asserts Price, would have revealed Thompson's
shrewd business tactics and dishonesty.
       However,     the District Court granted Thompson's Motion in
Limine    restricting     Olsen's   testimony.    The court excluded the
testimony on the grounds that the previous Olsen/Thompson covenant
not to compete used different language than the Price/Thompson
covenant.         Thus,   the court determined the testimony was not
probative of the issue whether Thompson knew the Price/Thompson

                                       5
covenant not to compete was unenforceable.                    The court determined
that the evidence would be                   inadmissible     character       evidence.
Notwithstanding the Motion in Limine, Olsen testified about his
previous business dealings with Thompson and offered his opinion
regarding Thompson's business practices.
       The determination of the admissibility of evidence is within
the broad discretion of the trial court, and we will not disturb
the court's ruling absent                a manifest   abuse of this discretion.
King v. Zimmerman (1994), 266 Mont. 54, 65, 878 P.2d 895, 902.
Outside of the narrow exceptions found in Rule 404, M.R.Evid.,
character    evidence        is     specifically      proscribed.     See Rule 404,
M.R.Evid.; Lindberg v. Leatham Bros., Inc. (19851,                    215 Mont. 11,

23,   693 P.2d 1234, 1242.               We agree with the District Court's
determination that because the language of the two covenants not to
compete was quite different,                the Olsen testimony was irrelevant.
We find no abuse of discretion in the District Court's exclusion of
testimony        regarding         the   covenant      not   to     compete    in   the
Olsen/Thompson       contract.
3.    Is the verdict contrary to the law or contrary to the evidence?
       It is not the function of this Court to agree or disagree with
the jury's verdict.               Arnold,    856   P.2d at 220.      Our role is to
determine whether there was substantial evidence to support the
verdict.         Arnold,     856    P.2d at 220.          Substantial evidence is
evidence which a reasonable mind might accept as adequate to
support a conclusion, even if the evidence is weak or conflicting.
Arnold,    856   P.2d at 220.

                                              6
        Price contends that the jury's verdict was contrary to the law
and contrary to the evidence.                 He asserts that he was excused from
performing the contract               because Thompson breached a previous
contract        with      Olsen.       Price     apparently     contends    that     the
Thompson/Price contract required him, in part, to satisfy certain
outstanding debts that Thompson's Thoro Kleen had with Olsen and
two other parties.           He argues that if Thompson had remained current
on     these    obligations,       the amount of the debts would have been
reduced        thereby    reducing    Price's     obligation    to   Thompson.      This
argument ignores the fact that the indebtedness was merely used to
arrive at a sum certain on the Thompson/Price contract; that Price
agreed to pay this sum, regardless of whether the obligees agreed
to an assignment of the obligations to Price.                           In fact,     the
obligees did not consent to an assignment of the debts.                            Thus,
Thompson        remained liable on the underlying debts.               In turn, Price
remained         liable to         Thompson     for   the     full   amount of       the
Thompson/Price           contract,    regardless of whether Thompson remained
current on his independent debt obligations.                    Payments, or lack of
payments,       by Thompson on the underlying debts had no effect upon
Price's        separate obligation to pay Thompson the agreed upon
consideration for the purchase of the business.
        Contrary to Price's contention,               the facts presented in this
case fail to trigger the rule of law that if a contracting party
materially breaches a contract,~                the injured party is entitled to
suspend his performance.               Liddle v. Petty (1991), 249 Mont. 442,
446,    816 P.2d 1066, 1068; Sjoberg v. Kravik (1988), 233 Mont. 33,
38,   759 P.2d 966, 969.   We will not extend this well-established
rule to cover the situation presented by this case,     i.e.,   that
Thompson's breach of a contract not at issue, entitles Price to
suspend performance on a separate and distinct contract.
      The District Court properly instructed the jury regarding the
law concerning a party's breach of contract. The parties presented
sufficient evidence for the jury to conclude that Thompson did not
materially breach the contract and thus, that Price was not excused
from performance. Therefore, based on our review of the record, we
conclude that there was substantial evidence to support the verdict
that Price was not excused from performing the Thompson/Price
contract.   We affirm the jury verdict.




            Justices
