                                            No.    85-035

                I N THE SUPREME COURT OF THE STATE OF M N A A
                                                       O T N

                                                   1985




PAT WILKERSON,

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



SCHOOL DISTRICT NO. 1 5 ,
GLACIER COUNTY, IIOIJTANA,

               Defendant and Respondent.




APPEAL FROM:      D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t ,
                  I n a d f o r t h e County o f Glacier,
                  The H o n o r a b l e R. D. M c P h i l l i p s , J u d g e p r e s i d i n g .




      For Appellant :

               H a r t e l i u s & Ferguson;         Cameron F e r g u s o n , G r e a t F a l l s ,
               Montana


      For Respondent :
                                      Werner, N e l s o n 6 E p s t e i n
               James C. N e l s o n , M c r G=ty          ? tu
                                                           &- t                            ~ank,
               Montana




                                            S u b m i t t e d on B r i e f s :   March 2 8 ,    1985

                                                                Decided:         May 2 3 , 1 9 8 5
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


      Pat Wilkerson appeals an order of the Glacier County
District Court which granted the School District's motion for
a judgment notwithstanding the verdict, after a jury had
returned its verdict in favor of Wilkerson.                Wilkerson sought
to enforce a contract of employment with the School District.
Three issues are presented for review:                first, whether the
oral conversation made prior to the parties' written contract
had any effect on the terms of that contract; second, whether
that oral conversation constituted a condition precedent; and
third, if so, whether Wilkerson's failure to satisfy that
condition precedent breached the contract.
      We reverse and remand for reinstatement of the jury
verdict.
      On   August   23,    1983, Pat          Wilkerson,    a   31-year-old
divorced mother of three children, applied to the Glacier
County School District 15, for a job as a full-time bus
driver.     On that date, she and members of the school board
signed a written document entitled "Cut Bank Public Schools
Bus Driver's Contract."          At the time she applied for the job,
she was working nights as a bartender in Cut Bank, Montana.
That was     a   fact    known    to    Ray    Milhoan,    the bus    driver
supervisor for the School District, and was a matter both he
and Wilkerson discussed prior to entering into the contract
of   employment.        Wilkerson      says Milhoan       agreed   she could
continue to tend bar until her first paycheck from the School
District arrived.        Rut Milhoan contends she agreed to quit
the bartending job prior to accepting the job with the School
District.    That dispute is at the heart of the controversy.
       Wilkerson testified without objection, that after she
had passed both the driving test and physical examination for
the position, Milhoan told her he was hiring her for the job
"because 7: feel that God is guiding me to give it to you
because I don't feel a Christian should be working in a bar."
       Her first day of driving the school bus was August 29,
1983.     On September 15, 1983, two conversations took place
between Wilkerson and Milhoan, discussing the fact that she
was still working as a bartender at night and driving the bus
during the da.ytime.
       When   questioned   by   her   own   counsel,   about   those
conversations, she stated:
       "A.    ..  . I was delivering the kids and was still
       on the outside of town and he called me on the
       radio and said, 'When you put the bus in the barn I
       want to see you in my office,' and I said, 'Yes,
       sir. '   So I parked my bus and went in to see him
       and he said to me, 'You're still working in the
       bar,' and I said, 'Well, yes, I am.'        He said,
       'You've got a choice to make. You either want to
       tend bar or drive bus, but you can't do both.' And
       I said, 'Ray, you know that you already discussed
       that and agreed that I could work until after the
       20th of September and until I had a bus check to
       live on. '   He said, 'You've got a choice to make,
       and you make it now.' He said, 'I want your answer
       today. '
       "Q. Then wha.t happened? A. I said, 'I was going
       to quit. ' He said, 'Do you mean you are not going
       to quit now?' and I said, 'No. ' I said, 'I would
       have quit on my own after L was financially able to
   ,   do so. '
       "Q.   Referring to the time when you would have
       received a bus check? A. Yes.
       "Q. What happened then? A. He said, 'You either
       quit the bar or I'm going to have to fire you.'  I
       said, 'On what grounds?' He said, 'Because you are
       a bartender.' I said, 'No, I won't make a decision
       on an ultimatum,' and he said, 'Well, I have no
       alternative but to fire you.'
        "Q. Then what happened? A. I went home and. then
        I came back in the afternoon and pulled my bus out
       of the barn at three o'clock in the afternoon, and
       he jumped on the bus and said, 'What's your
       answer?' I said, 'Ray, there's no answer.' Then
       he said, 'Then I have to fire you. '   I said, 'All
       right, what's your reason for firing me?' He said,
       'Because you're a bartender.'    I said, "Effective
       when?' He said., 'Effective immediately.'
       "Q. Why do you feel he fired you?                 A.     My own
       personal feeling?
       "Q. Yes, your own feeling. A. Because he is the
       minister of the church and the church takes a very
       strong stand against alcohol and tobacco and drugs,
       and the use and sale of them.
       "Q.   And you feel that was his reason because you
       were working as a bartender? A.. Yes."
Wilkerson testified she told Milhoan that she wanted to drive
a bus, that she did not want to work in a bar, and that as
soon    as     she was     financially able,      she    would    quit     the
bartending job.         She said there was no way she could afford
to quit before September 20, 1983, because that is the only
da.y during      the month when         the School District pays           its
employees.
       Our review of the record suggests that the particul-ar
language exchanged between Wilkerson and Milhoan gave rise to
this    controversy.           The    foregoing   discussion      does     not
establish as a matter of law that Wilkerson refused to quit
her    bartending       job.    It     is reasonable that the School
District took the position that:              "DO you mean you're not
going to quit now?," to which she answered "No," meant she
determined at that point that she was not going to quit -
                                                        at
any    time.      But    the   use    of   the word     "now"    is equally
susceptible of another interpretation.             Wilkerson could have
meant she was not going to quit now, right this minute; tha.t
she intended to keep both jobs for five more days, until
September 20, just as she and Milhoan had previously agreed.
       When    questioned      on    cross-examination, she was          asked
whether she recalled answering opposing counsel's questions,
put to her in a January 6 , 1984 deposition.          She indicated
she did recall that situation.        The exchange was as follows:
     "Q. Miss Wilkerson, when you gave your deposition
     did I ask you this question?"
     "'When you were terminated did you tell him that
     you only needed to work until after the first check
     and that then you would quit bartending?'
     "A. Yes.
     "Q. Did you give the following answer?:
     "'I told him, "Ray, you agreed with me when you
     hired me that I could continue work, and that there
     was no way I could quit until after the 20th.''
     That's when he made the ultimatum and said, "Well,
     Chris says you've got to answer now." ' A. Yes."
     CChris Mattocks was Superintendent of the School
     District. ]
     During the trial, Wilkersonls counsel moved to admit the
parties ' written contract into evidence.          Opposing counsel
did not object to its admission, but only on the condition
that the School District be allowed to preserve its position
that the document was not a legal contract.
     At the close of argument, the School District moved for
a directed verdict.     That motion was d.enied, and the matter
was submitted to the     jury.   The jury returned a verdict for
Wilkerson, awa-rding her monetary damages of $3,500.00 for the
amount due her on the remainder of the 1983-1984 school bus
driver contract, less amounts earned at other employments
during that period.     After hearing the verdict, the School
District moved for a judgment notwithstanding the verdict,
and the District Court granted it.
     The foregoing language between Wilkerson and Milhoan is
a   typical   example   of    potentially   conflicting   testimony
particularly appropriate for jury resolution.          If there is
conflicting evidence     in    the   record, the   credibility and
weight given to such conflicting evidence is the province of
the jury and not of this Court.      And if there is substantial
evidence     to   support the   finding of   the   jury, then   the
directed verdict should have been denied.          Lackey v. Wilson
(Mont. 1983), 668 P.2d       1.051, 1053, 40 St.Rep. 1439, 1441..
      The first issue presented      is whether the discussion
between Wilkerson and Milhoan, which took place before the
contract was entered into, should be seen to vary the terms
of   that contract.       As a general rule, S      28-2-904, MCA,
provides :
      "Effect of written contract on oral agreements.
      The execution of a contract in writing, whether the
      law requires it to be written or not, supersedes
      all   the   oral   negotiations   or   stipulations
      concerning its matter which preceded or accompanied
      the execution of the instrument."
Section 28-2-905(1) (b), MCA, allows for an exception, namely,
when the validity of the agreement is the fact i n dispute.
                                                .
The School District takes the position that the contract is
invalid because there was no meeting of the minds.              It
asserts the parties intended all along that Wilkerson would
have only one job--that of bus driver.         Wilkerson, on the
other hand, points out that she made it very clear to Milhoan
that while she intended to quit the bartending iob, she
informed him      that   she could not   afford to do     so until
September 20, 1983--the day on which the School District
would issue her first paycheck.       The School District cites
Smith v. Fergus County (1934), 98 Mont. 377, 39 P.2d 193,
wherein it was held that par01 evidence was admissible not to
vary the terms of the contract, hut rather to show that what
appears on its face as a valid, binding contract is, in fact,
no such thing.       However, Smith is distinguishable.     There,
the Court was of a mind that if the lease was executed and
delivered to be used merely as a lever to oust the tenant in
possession, and it was then and there distinctly understood
and agreed that it should serve no other purpose unless and
until the tenant relinquished possession, then parol evidence
would be admissible to show it was not a legally binding
contract, although apparently so on its face.                 But when
applied. to the present case, the analogy fails.         The School
District would have to show that if the contract was entered
into merely    as   a   lever   to   oust   Wilkerson   out    of   her
bartending job, and that it was then and there distinctly
understood and agreed. that it should serve no other purpose
unless and until she relinquished that prior job, then parol
evidence would be admissible to show it was not a legally
binding contract.   The object of this contract was employment
in exchange for wages.
       In Smith, the premises obviously could not be leased
until the holdover tenant left.       However, no such impediment
exists here; Wilkerson could perform both jobs because she
obviously did work them both.         Further, a contract is not
invalid simply because it does not contain all the provisions
or conditions the parties might have incorporated into it.
       Milhoan may have intended that while Wilkerson was an
employee of the School District she not simultaneously be a
baxtender, but the wa-y to deal with that concern is to
provide for it in the contract.        Our review of the contract
discloses that there      is no mention whatsoever        in it of
Wilkerson not holding a second job, or relinquishing one
already held at the time of signing before taking a second
iob.    There is nothing in the contract which suggests an
intent to incorporate the conversation.         Thus, the jury was
free to     conclude that that discussion did not vary              the
contract.
     The second issue is whether Wilkerson's duty to quit the
bartending job was a condition precedent to beginning the bus
driving job.    Certainly there was no such condition expressed
in the contract.      To determine whether it was an implied
condition precedent, we      look to the record to glean the
demeanor and conduct of the parties.          The School District
contends it never would have allowed Wilkerson to drive the
school bus and would not have executed. the written agreement
if   it had. known    she had   no    intention of quitting the
bartending job.
     In its order, the District Court stated that School
District 15 has a standing policy that anyone with a job at
night that requires keeping late hours will not be hired as a
bus driver.     But in a deposition taken on February 14, 1984,
Chris   Mattocks,    Superintendent   of    the   School   District,
testified that there was no such written policy--that the
difficulties encountered by holding two such jobs reflected
his own feeling.
     Wilkerson testified     that she fully intended        to quit
bartending as soon as her first paycheck arrived from the
School District, and that she could not afford to do so
before that time.     The School District concedes this was a
disputed point.     Such conflicts in the evidence were for the
trier of fact to resolve, and it did resolve them, in favor
of Wilkerson.
     Further, even when specific language is included. in a
contract, it will      not   always be     considered a    condition
precedent.     As we stated in Palmquist v. Allardyce Petroleum
Corp. (1974), 164 Mont. 178, 180, 520 P.2d 783, 784:
     "It is a principle of contract law that a mere
     stipulation or covenant in a contract will not be
     construed as a condition precedent, particularly
       where a forfeiture would result and where it
       appears a condition precedent, if desired, could
       have been provided for by express agreement."
Here, there was no mention at all in the contract of a
stipulation or covenant by Wilkerson not to work a second
job.     If    the   School    District had      intended   Wilkerson's
terminating her first emp1.oyment to be a prerequisite to
hiring her, it could have been provided for in the contract.
Whether the parties intended it to be so included was a
question of fact, as we have noted, and the jury resolved
that question in Wilkerson's favor.
       The   third   issue    is   whether    Wil-kerson breached   the
contract by     failing to satisfy a condition precedent by
resigning her bartending job before beginning work with the
School District as a bus driver.             Because we hold. that the
jury verdict must be reinstated, this issue does not present
to us a justiciable controversy.             The jury could have found
there was a condition precedent to quit her bartending job on
September 20, and Milhoan's firing her on the 15th precluded
Wilkerson from satisfying that condition.            Or it could have
found no condition precedent existed at all.             Either option
supports the jury verdict, and such verdict is entitled to
the treatment accorded by our holding in Lackey, supra.
       The   standard   of    review   in appeals    from a    judgment
notwithstanding the verdict made pursuant to Rule 50 (b),
M.R.Civ.P.    is the same as that for review of a motion for a
directed verdict, and a directed verdict may be granted only
where it appears as a matter of law that a plaintiff could
not recover upon any view of the evidence, including the
legitimate inferences to be drawn from it.                  Standish v.
Business Men's Assur. Co.          (1977), 172 Mont. 264, 265, 563
P.2d 552, 553.       Further, in Jacques v. Montana Nat. Guard
(Mont. 1982), 649 P.2d 1319, 1325, 39 St.Rep. 1565, 1573, we
noted:
      "Motions for directed verdict or for judgment
      N.O.V. are proper only when there is a complete
      absence of any evidence to warrant submission to a
      jury.
Here, there is evidence, proffered by Wilkerson, and conceded
and defined by the School District as a "dispute in the
evidence" whether Wil.kerson promised to quit her bartending
job immediately upon being hired as a bus driver, or whether
she   promised    to    quit     after    having      received   her   first.
paycheck.
      Because there was ample evidence upon which the jury
could render its verdict, the District Court should have
deferred to that verdict.         It should not have set aside that
verdict     solely     because    it     chose   to    believe    testimony
different from that believed by the jury.                  To do so would
create a bench supremacy and sap the vitality of the jury
verdict.       Nelson v. Hartman         (Font. 19821, 648 P.2d        1-176,
1178-1179, 39 St.Rep. 1409, 1412.
      The evidence in this case was susceptible of more than
one interpretation.       We are satisfied there was substantial
credible evidence in the record from which the jury could
have resolved any conflict in favor of Wilkerson.                Therefore,
the District Court erred in granting the School District's
motion for judgment notwithstanding the verdict.
      We reverse the order of the District Court and remand
for reinstatement of the jury verd




We Concur:
            7



Chief Justice
