                                             No.    90-079

                         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                   1990



       STEVE KOONTZ,
            Plaintiff and Respondent,
       -vs-
       SKY COUNTRY, INC. ,
            Defendant and Appellant.



      APPEAL FROM:               District Court of the Eighteenth Judicial District,
                                 In and for the County of Gallatin,
                                 The Honorable Thomas A. Olson, Judge presiding.


       COUNSEL OF RECORD:
                        For Appellant:
                                 John P. Atkins, Bryan    &   Atkins, Bozeman, Montana
                        For Respondent:
                                 Karl Knuchel, Livingston, Montana


                                                               Submitted:   July 15, 1990
                                                                 Decided:   ~ u g u s t17, 1990




CLERK OF S U P R T b I E COURT
   STATE OF i'fl3NTANA                          Clerk
Justice John C. Sheehy delivered the Opinion of the Court.

     Sky Country, Inc. appeals from a judgment entered in the
District Court, Eighteenth Judicial District, Gallatin County,
awarding Steve Koontz $3,768.66     in damages.     We reverse the
District Court.
     The sole issue in this case is whether Koontz was entitled to
$3,768.66 in ''invalid trailer charges.''
     Sky Country is an interstate motor carrier based in Bozeman,
Montana.   The company engages the services of owner\operators who
lease their tractor-trailer units to Sky Country to haul freight
throughout the lower 48 states.     Sky Country and Steve Koontz
entered into such a lease agreement in November of 1985.      Koontz
leased to Sky Country his Mack tractor.     Sky Country provided the
trailer.   Koontz, under the contract, was to pay for all repairs,
driver's wages, fuel, insurance and vehicle maintenance.      Koontz
was to receive 75.43 percent of all profits in the venture.   After
each trip, Sky Country provided Koontz with settlement statements
detailing gross revenues plus costs and expenses.
     The parties terminated their relationship in November of 1986.
Koontz brought suit in February, 1988, claiming money for unpaid
fuel credits, trailer repairs, fines, over advance charges and for
a trip which Koontz allegedly had not been paid.       No claim for
freight adjustment was ever made by Koontz.
     Freight adjustments, in the words        of Koontz, are made
"whenever a load is short or damaged or late or something     . .   .I1
In more practical terms, freight adjustments come about in this
manner:   The driver of the tractor-trailer is paid according to the
goods he delivers. If the customer is dissatisfied with the amount
or quality of the goods, he withholds a portion of the payment.
As Sky Country has already made its estimate of the load's worth,
it must adjust its figures. This adjusted amount is then reflected
on the settlement statement provided to Koontz.    The procedure is
set forth in the parties1 contract as follows:

     In the event damage or shortage is noted on a delivery
     receipt,   Contractor    [Koontz]   assumes    complete
     responsibility and liability for the contents of the
     load. Damages and shortages are to be charged back to
     the Contractor.   Settlements may be withheld on the
     involved trip until the claim has been settled in full
     with the shipper or consignee, as the case may be.
     While Koontz took issue at trial with freight adjustments
totalling $3,768.66, he never included a claim for those charges
in his complaint. The District Court took the offered evidence of
the settlement statements detailing the freight adjustments under
advisement.   No testimony as to the validity or invalidity of the
specific freight adjustments was offered at trial.
     In the court's conclusion of law no. 7, it stated that
I1Plaintiff1sclaim for freight charges was not raised by the
pleadings and therefore is barred. l1     However, in the courtls
settling of accounts set out in conclusion of law no. 10, the court
awards Koontz $3,768.66 in "invalid trailer charges." Sky Country
made a motion for clarification of the award as to the I1invalid
trailer charges.I1   The District Court denied the motion.     This
appeal ensued.
     Sky Country contends the lower court erred in awarding Koontz
$3,768.66 in damages, denominated by the court as invalid trailer
charges.    Sky Country points out that Koontz raised a claim in his
complaint    for trailer   repairs charged   to    him   amounting     to
$4,774.24.     The court ruled that those repairs were properly
charged to Koontz.      The only charges disputed by Koontz that
totalled $3,768.66 were for freight adjustments.            Sky Country
submits that the     lower court mistakenly       awarded   Koontz,    in
conclusion of law no. 10, the very same freight adjustment damages
it had ruled were barred in conclusion of law no. 7.
     We must concur with Sky Country.    It is clear from the facts
and the court's conclusions that it mislabeled the award.             The
amount of $3,768.66 is clearly freight adjustment, and, as such,
was improperly awarded to Koontz, as (1) the contract provided
that Koontz was to be responsible for such adjustments, and (2)
the issue as to the validity of such charges was not properly
raised in the initial or amended pleadings. Rule 15 (a), M.R. Civ.P.
     We reverse the judgment of the District Court as to damages
awarded Koontz in the sum of $3,768.66.
Justices   /   '
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