                                  No. 12279

         I N THE SUPREME COURT OF THE STATE OF M N A A
                                                OTN

                                    1973



DEE ALEXANDER, WILLIAM ALEXANDER,
and PAUL ALEXANDER,

                           P l a i n t i f f s and Respondents,

         -VS   -
NED HARDY and T W S N L M E COMPANY,
               O NE D U B R

                           Defendants and A p p e l l a n t s .



Appeal from:        District Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                    Honorable Frank E. B l a i r , Judge p r e s i d i n g .

Counsel o f Record:

    For Appellants :

               K e l l e r , Reynolds and Drake, Helena, Montana
               Argument submitted on b r i e f s .

    For Respondents:

               A l l e n LeMieux, Boulder, Montana
               Argument submitted on b r i e f s .



                                              Submitted : January 24, 1973

                                                 ~ e c i d e :FEB
                                                             d      6 - 1973
Filed:     FEE 6 - 1972
M r . J u s t i c e Haswell d e l i v e r e d t h e Opinion of t h e Court.


            T h i s a p p e a l i s from a judgment o f t h e d i s t r i c t c o u r t
of J e f f e r s o n County, s i t t i n g w i t h o u t a j u r y , f i n d i n g an indebted-
n e s s owed t o p l a i n t i f f s by defendants i n t h e amount of $1,105.87;
f o r e c l o s u r e of a l o g g e r ' s l i e n t h e r e f o r ; and c o s t s and a t t o r n e y
fees.      The c a s e involved payments due under a c o n t r a c t f o r t h e
f a l l i n g of timber.
            Defendant, Ned Hardy, was an independent c o n t r a c t o r who
had c o n t r a c t e d w i t h Townsend Lumber Company t o f a l l , s k i d and
deck t h e l o g s .     Codefendant, Townsend Lumber Company, purchased
t h e l o g s from t h e United S t a t e s Government,                 By s t i p u l a t i o n Town-
send Lumber Company agreed t o pay any amount u n s a t i s f i e d , i f
p l a i n t i f f s recovered judgment a g a i n s t defendant Ned Hardy.                        In
c o n s i d e r a t i o n of t h i s agreement p l a i n t i f f s agreed t o d i s m i s s
Townsend Lumber Company from t h i s a c t i o n .                   H e r e i n a f t e r , i n speaking
of defendant, we r e f e r t o Ned Hardy a l o n e .
            The f a c t s of t h e c a s e a r e :        J u s t p r i o r t o February 11, 1971
an o r a l c o n t r a c t f o r employment was n e g o t i a t e d between defendant
and p l a i n t i f f s Dee, W i l l and Paul Alexander.                  P l a i n t i f f s were em-
ployed by defendant t o go upon a t r a c t d e s i g n a t e d Block ! ! 4 , approxi-
mately s i x miles outh of C a t a r a c t Creek i n J e f f e r s o n County, Montana,
and c u t down c e r t a i n t r e e s f o r saw logs.             Defendant agreed t o pay
p l a i n t i f f s t h e sum of $5 p e r thousand board f e e t f o r t r e e s c u t
down by them, payment t o be made a f t e r t k e e s had been hauled and
scaled.
            P l a i n t i f f s commenced work f o r defendant on February 11,
1971.     A f t e r t h e f i r s t seven o r e i g h t days of c u t t i n g t h e c o n t r a c t
was modified by providing f o r bimonthly payments of f i f t y c e n t s
p e r t r e e c u t a s an advance a g a i n s t t h e pay s c a l e of $5 p e r thousand
board f e e t , u n t i l such time a s a c t u a l h a u l i n g and s c a l i n g could
take place.          Sample s c a l e s were t o be taken by defendant t o provide
a comparison of t h e advance payment w i t h t h e s c a l e r a t e .                 De-

fendant paid t h e advances r e q u e s t e d by p l a i n t i f f s on February 19
and March 1 0 , 1971.

            According t o p l a i n t i f f s they sawed, limbed and c u t 6,570
trees a s of March 25, 1971.                Evidence of t h e number of t r e e s c u t
was from a r e c o r d kept by p l a i n t i f f s on a day by day b a s i s , which
was i n t r o d u c e d . Thus p l a i n t i f f s contend they a r e e n t i t l e d ( a t t h e
r a t e of f i f t y c e n t s p e r t r e e ) t o $3,285 l e s s payments of $2,179.13,
l e a v i n g a b a l a n c e of $1,105.87 unpaid and due from defendant.
            O t h e o t h e r hand, defendant contends t h a t $825 was paid
             n

by him t o p l a i n t i f f s on February 19, 1971,               And a g a i n on March 1 0 ,

1971, $1,050 was p a i d t o p l a i n t i f f s .         I n a d d i t i o n , testimony
i n d i c a t e s t h a t 287,276 board f e e t of lumber was d e l i v e r e d t o
Tolamsend Lumber Company from Block # 4 .                    This amount was a t t e s t e d
t o by Gerald Delin, a f o r e s t e r and wood boss f o r Townsend Lumber
Company, whose duty i t was t o s c a l e l o g s and keep a r e c o r d of what
was a c t u a l l y d e l i v e r e d t o t h e sawmill.     Based on t h i s accounting,
Delin i n d i c a t e d t o defendant Hardy t h a t he was o v e r e s t i m a t i n g
t h e board footage.          As i t became c l e a r t o defendant t h a t t h e
advances were exceeding t h e $5 per thousand compensation, h e
denied f u r t h e r advances on March 25, 1971,
            Delin a l s o t e s t i f i e d t h a t he went o u t t o t h e c u t t i n g a r e a
i n e a r l y summer and a g a i n i n October a f t e r p l a i n t i f f s had q u i t
c u t t i n g , f o r t h e purpose of e s t i m a t i n g t h e board f o o t a g e l e f t ;
which had n o t been d e l i v e r e d .       He e s t i m a t e d t h e r e were 50,000
board f e e t of decked l o g s and a n o t h e r 2,000 board f e e t of mer-
c h a n t a b l e l o g s o r t r e e s down which had n o t been decked.             His testi-
mony was c o r r o b o r a t e d by Doyne L. Tank, a timber a s s i s t a n t f o r
the United S t a t e s F o r e s t Service.

            Thus, a t t h e r a t e of $5 per thousand, defendant owed
p l a i n t i f f s a t o t a l of $1,696.38 f o r 339,276 board f e e t .            Plain-
t i f f s admitted payment i n t h e amount of $2,179.13.                     Based on t h e s e
f i g u r e s , d e f e n d a n t ' s advances were exceeding t h e $5 p e r thousand
compensation.
            When defendant r e f u s e d t o make payment on March 25, 1971,
p l a i n t i f f s f i l e d a l o g g e r ' s l i e n t h e following day, pursuant t o
s e c t i o n 45-407, R.C.M.         1947.      On March 29, 1971, t h i s a c t i o n was
filed.      T r i a l was had on November 8 , 1971, t h e c o u r t s i t t i n g w i t h o u t
a jury.       Judgment was rendered on February 24, 1972, i n f a v o r of
p l a i n t i f f s i n t h e amount of $1,105.87 based on payment of f i f t y
c e n t s per t r e e ; t h e l o g g e r ' s l i e n was ordered f o r e c l o s e d and s a l e
of t h e timber was ordered t o be made a c c o r d i n g l y .
            The i s s u e involved i n t h i s l i t i g a t i o n i s what were t h e
terms of t h e c o n t r a c t between t h e p a r t i e s and whether o r n o t de-
fendant completely compensated p l a i n t i f f s f o r t h e i r s e r v i c e s under
that contract.
            The d i s t r i c t c o u r t concluded t h a t defendant had breached
t h e c o n t r a c t by h i s f a i l u r e t o submit timber f o r s c a l i n g , t h e r e f o r e
g i v i n g p l a i n t i f f s t h e r i g h t t o e l e c t t h e a l t e r n a t i v e method of
payment, i . e .      f i f t y c e n t s per t r e e , c i t i n g Thomas v . Cloyd, 110
Mont. 343, 100 P.2d 938.
            This i s e r r o r .      The f i f t y c e n t s p e r t r e e was n o t an
a l t e r n a t i v e means of compensation b u t r a t h e r an advancement u n t i l
s c a l i n g and board f o o t a g e was e s t i m a t e d .
            P l a i n t i f f s c i t e 95 ALR2d 504, a s a u t h o r i t y f o r l i a b i l i t y
of an employer f o r agreed advances which exceed t h e s h a r e of pro-
f i t s o r commissions earned.               However, t h e a n n o t a t i o n a l s o d i s c l o s e s
t h a t t h e employer's l i a b i l i t y depends upon t h e language of t h e con-
tract.      The r e s u l t depends on whether t h e p a r t i c u l a r c o n t r a c t pro-
v i s i o n s involved a r e considered a s g u a r a n t e e i n g t o t h e employee
a minimum amount r e p r e s e n t e d by t h e advances t o which he i s en-
t i t l e d , o r whether t h e amount of t h e compensation depends e n t i r e l y
on t h e amount of h i s commissions, i . e , board footage.
    Here, t h e f a c t s a r e c l e a r .    The p a r t i e s intended t h e f i f t y c e n t s
per t r e e a s only an advancement, n o t a guarantee.                          The u l t i m a t e
compensation was t o be based on $5 per thousand board f e e t and n o t
on f i f t y c e n t s per t r e e c u t .
           There i s s u b s t a n t i a l c r e d i b l e evidence i n t h e record by
p l a i n t i f f Paul Alexander t h a t p l a i n t i f f s were t o be paid a t t h e
r a t e of $5 per thousand board f e e t f o r t h e i r labors.           I n answer

t o questions by defendant's a t t o r n e y concerning any change made
i n t h e o r i g i n a l agreement, Paul Alexander t e s t i f i e d :
           "A.      Yes, a f t e r we had sawed t h e r e about a week t o
           a week and a h a l f     **           9: we could s e e t h a t he wasn't
           going t o move t h e timber a s f a s t a s we was c u t t i n g ;
           t h e r e f o r e , we c o u l d n ' t g e t paid r i g h t . I f w e had
           two o r t h r e e weeks timber laying on t h e ground we
           wouldn't g e t paid f o r i t unless they were moving i t
           and s c a l i n g i t , s o he come up with t h e idea i n t h e
           presence of me, m b r o t h e r , and m dad t h a t he would
                                       y                       y
           pay us a s an advance 5044 per t r e e . N w t h a t was   o
           u n t i l they got t h i s timber hauled down t o t h e m i l l
           and scaled and we would take e i t h e r a c u t o r a g a i n ,
           depending on how i t scaled.
           "Q.  And d i d you accept t h a t agreement then?               A.    We
           accepted t h a t . I I


           II
            Q. And now you were sawing by t h e t r e e f o r an
           advance purpose only, i s n ' t t h a t c o r r e c t ? A, hat's
           c o r r e c t , yes.
           "0.     There seems t o be a l i t t l e confusion. and I
           w&t     t o be s u r e we a r e i n agreement on t h i s . You

           correct.
           "Q.     But on t h a t , you were t o r e c e i v e advances under
           your testimony a t t h e r a t e of 50d per t r e e ? A. Per
           t r e e every two weeks without f a i l . ' (Emphasis s u p p l i e d ) .
           William and Dee Alexander t e s t i f i e d t h a t they agreed with
t h e testimony of Paul and t h a t u l t i m a t e l y they were t o be paid a t
t h e r a t e of $5 per thousand and t h e f i f t y c e n t s per t r e e was an
advance only.
           Regardless of when o r how t h e advances were t o be made
t h e u l t i m a t e compensation was t o be $5 per thousand board f e e t ,
B applying simple mathematics, i t i s thus e s t a b l i s h e d t h a t t h e
 y
p l a i n t i f f s earned $1,725 f o r the c u t t i n g of 345,076 board f e e t
of timber, t h e h i g h e s t f i g u r e appearing anywhere i n t h e record.
To t h i s , we add t h e $75 cleanup allowance agreed upon by t h e
parties.        It i s admitted t h a t p l a i n t i f f s have been paid $2,179.13.
Thus, p l a i n t i f f s have been overpaid i n t h e amount of           $379.13.
         For these reasons, the judgment of the district court
is vacated and the cause dismissed.




                                      Associate Justice




          Justice




..............................
   Associate Justices.
