No. 93-428 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

BILL WATKINS, 

Plaintiff and Respondent, 

TOM WILLIAMS and 

VIRGINIA WILLIAMS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Defendants and Appellants: 

Kevin E. Vainio, Butte, Montana 

For Plaintiff and Respondent: 

Gilbert U. Burdett, Burdett Law Firm, 

Billings, Montana 

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.- .a A?,~,~.; ; 3Ld , Submitted on Briefs: A~ril 21. 1994 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Tom and Virginia Williams appeal from a judgment of the Second 

Judicial District Court entered against them following a jury 

verdict awarding Bill Watkins $20,191. They also appeal the denial 

of their motions for judgment notwithstanding the verdict and for 

a new trial. 

We rephrase the dispositive issues as follows: 

1. Whether the District Court erred in permitting Watkins to 

testify about the amount of damages he suffered. 

2. Whether the court erred in determining that evidence 

about circumstances surrounding Watkins' alleged criminal arrest 

was inadmissible. 

3. Whether the court erred in finding that the parties' 

attempted accord agreement was not satisfied and therefore did not 

extinguish their previously existing oral contract. 

4. Whether the court erred by excluding evidence concerning 

the alleged forgery of a bill of sale. 

5. Whether the court erred in excluding from evidence a 

letter, introduced by the Williamses at trial, which purported to 

contain material terms of compensation for Watkins' horse training 

services. 

Tom and Virginia Williams own racehorses. At times, their 

horses have raced on tracks in Montana, Wyoming, Idaho and 

Oklahoma. 

During March 1989, the Williamses asked Bill Watkins, a 

licensed horse trainer, to train six of their racehorses on 
location at Sallisaw, Oklahoma. Watkins agreed. The parties 

dispute whether their oral agreement contained material terms 

regarding compensation for Watkinsl services. 

The Williamses and Watkins opened an account at Blue Ribbons 

Downs racetrack, located near Sallisaw. As one of the Williamsesl 

horses placed in or won a race, the winnings were deposited in the 

account. Racetrack expenses, such as entry fees, were taken out of 

the account. The parties agreed that Watkins could withdraw 

certain monies from the account to cover his training costs and 

charges. 

Watkins provided the horses with hay, alfalfa, grain, 

vitamins, stables and exercise, among other things. At his 

request, jockeys galloped the horses around the track. Watkins 

also had veterinarians attend to the horses1 medical needs. 

Two of the six horses, The Right Key and Bodella, were taken 

off training status during the Fall of 1989. The Williamses drove 

from Montana to Oklahoma with a horse trailer and picked up The 

Right Key; Watkins put Bodella out to pasture after the horse 

failed to qualify in speed tests at the track. 

Tom Williams occasionally visited Sallisaw to meet with 

Watkins and check on the horses during the course of the parties1 

contractual relationship. The Williamses irregularly paid Watkins 

portions of the amount they owed him; also, Watkins withdrew funds 

from the racetrack account from time to time. 

The parties1 contractual relationship ended approximately one 

year after it began. They met during March 1990 and worked out an 
accord to extinguish the Williamses' existing debt to Watkins. 

They agreed that the Williamses would pay Watkins $5,000, and, at 

that time, Tom Williams tendered two $2,500 checks to Watkins. 

Watkins sent the checks to his bank. When his account was not 

credited with the second $2,500 check, Watkins learned that the 

check had become lost. 

He called the Williamses and asked them to stop payment on the 

check. They did. Watkins also asked the Williamses to issue 

another $2,500 check to complete their accord agreement. They 

ref used. 

The Williamses stated that they refused because when they 

retrieved their racehorses after making the accord agreement with 

Watkins, they found the horse Bodella to be in poor condition. 

Specifically, they alleged that Bodella had been mistreated and 

starved by Watkins. 

Watkins obtained the services of an attorney. Through his 

attorney, Watkins again requested that the Williamses complete 

their accord agreement by reissuing the second $2,500 check. The 

Williamses again refused. 

When Watkins sued the Williamses on the original oral 

agreement, he stated that the Williamses had incurred a debt of 

approximately $38,000. Watkins further stated that the Williamses 

had directly and indirectly paid approximately $18,000 ofthe debt, 

leaving a balance of $20,191 owing. 

The Williamses responded by alleging that the parties had 

reached a separate accord agreement which had extinguished the 
original oral contract. The Williamses also counter-claimed 

against Watkins, alleging that he mistreated their horse, Bodella. 

At trial, testimony established that Watkinsg charges for 

training horses was reasonable in Sallisaw, Oklahoma. The jury 

returned a verdict for Watkins, stating that the Williamses owed 

him $20,191. The jury found that Watkins did not owe the Williamses anything for the alleged mistreatment of Bodella. Judgment was 

entered accordingly, and the Williamses appeal. 

STANDARD OF REVIEW 

We review a district court's findings of fact for clear error 

and its conclusions of law to determine whether the conclusions are 

correct. Steer, Inc. v. Depgt of Revenue (1990), 245 Mont. 270, 

803 P.2d 601. Regarding questions concerning the admissibility of 

evidence, the "question[s] . . . must in every case be left largely 

to the sound discretion of the trial court, subject to review only 

in case of manifest abuse." Cech v. State (1979), 184 Mont. 522, 

604 P.2d 97, citing Gunderson v. Brewster (l97O), 154 Mont. 405, 

466 P.2d 589. 

ISSUE ONE 

Did the District Court err by permitting Watkins to testify 

about the amount of damages he suffered? 

The Williamses argue that the court erred by permitting 

Watkins to testify about the amount of damages he suffered because, 

while testifying, Watkins allegedly read from a document which was 

excluded from evidence. The document was a summary of contents 

contained in a wall calendar kept by horse trainers in Sallisaw. 
Watkins presented it to the court for admission into evidence and 

the Williamses objected, stating that the summary was not the best 

evidence of Watkins' training services. After voir dire of 

Watkins, the Williamses also alleged that the document should be 

excluded as self-serving. The court sustained the Williamses' 

objection. 

Watkins thereafter testified about the amount of training 

services he rendered. He specifically stated that he charged $18 

per day per horse trained. The $18 figure included a myriad of 

services, from shoeing to galloping to feeding and sheltering. 

Watkins charged a different amount for attending to Bodella's needs 

while the horse was at pasture. The total bill for his services 

for the year was $37,888. And, Watkins testified, the Williamses 

had paid him $17,697 of the debt they owed him, reducing the amount 

owing to a balance of $20,191. 

Disputing the figure, the Williamses argue that the court 

erred by allowing Watkins to testify while reading from the 

calendar summary. They allege that the testimony is improper 

according to Rules 1002 and 1006, M.R.Evid. Watkins responds by 

asserting that the best evidence rule does not exclude oral 

testimony and that the court correctly permitted him to testify 

about the damages he suffered. 

Rule 1002, M.R.Evid., the best evidence rule, requires that 

"[tlo prove the content of a writing . . . the original writing 

. . . is required . . . .I1 Rule 1006, M.R.Evid., provides that: 

The contents of voluminous writings, recordings, or 

photographs which cannot conveniently be examined in 
court may be presented in the form of a chart, summary, 

or calculation. The originals, or duplicates, shall be 

made available for examination or copying, or both, by 

other parties at a reasonable time and place. The court 

may order that they be produced in court. 

The best evidence rule pertains to evidentiary documents only when 

the terms of the writing are material. State v. Cronin (1978), 179 

Mont. 481, 587 P.2d 395. It comes into play only when the terms of 

a writing are being established and an attempt is being made to 

offer secondary evidence to prove the contents of the original 

document. See Application of Angus (0r.App. 1982), 655 P.2d 208, 

cert. denied (1983), 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109. 

Secondary evidence may include a copy of an original or 

testimony in regards to the contents of the original. See 32A 

C.J.S.2d Evidence, 5 775. The secondary evidence is admissible 

over a best evidence objection if one of the requirements set forth 

at Rule 1004, M.R.Evid., has been met and proper foundation is 

laid. 

Witness testimony adduced from personal experience or 

knowledge is not within the ambit of secondary evidence; witnesses 

may freely testify about events which have occurred independently 

from and may have been memorialized by an antecedent writing. See, 

e.g., Roods v. Roods (Utah 1982), 645 P.2d 640; see also D'Angelo 

v. United States (1978), 456 F.Supp. 127; Cf. Rule 602, M.R.Evid. 

The best evidence rule remains inapplicable when a witness 

testifies about personal knowledge of a matter, regardless whether 

the same information may be contained in an inadmissible writing. 
Moreover, our rules of evidence permit witnesses to use writings to 

refresh their memory while testifying. Rule 612, M.R.Evid. 

After reviewing the record, we conclude that Watkins testified 

from personal knowledge and experience and that his concurrent use 

of the summary of contents from the wall calendar was not reversible error. The summary's contents, as stated by Watkins during 

oral testimony, merely set forth the number of days he trained the 

horses and the resulting charges which were incurred by the 

Williamses. Neither party disputes the length of time the horses 

were in Watkins' possession and the jury found Watkins' charge of 

$18 per day per horse to be a reasonable fee given the facts of 

this case and the location in which the training occurred. 

Indeed, the Williamses did not offer any significant rebuttal 

evidence concerning damages; after hearing Watkins' testimony the 

jury was free to find that the Williamses owed him $20,191. 

Section 26-1-301, MCA. We conclude that the District Court did not 

commit reversible error in permitting Watkins to testify about the 

amount of damages he suffered. 

ISSUE TWO 

Did the court err in determining that evidence about circumstances surrounding Watkins' alleged criminal arrest was inadmissible? 

On Watkins' motion in limine, the court excluded evidence 

concerning Watkins' alleged arrest. After reviewing the record, we 

hold that the court did not err in granting the motion in limine. 
ISSUE THREE 

Did the court err in finding that the parties1 attempted 

accord agreement was not satisfied and therefore did not extinguish 

their original oral contract? 

Originally the court, on Watkinsl motion in limine, excluded 

all evidence pertaining to the parties1 attempted accord agreement 

because the court found that the agreement was not satisfied. 

During trial, however, Watkins "opened the doorv1 to the subject by 

testifying that he had attempted to resolve the parties1 differences by entering into an accord with the Williamses. The Williamses 

then presented evidence of the accord, specifically alleging that 

they were justified in not completing the accord when they found 

Bodella in poor condition. The jury disregarded the Williamsest 

accord and satisfaction argument and returned a verdict in favor of 

Watkins. 

The Williamses argue that the court's initial exclusion of the 

accord and satisfaction affirmative defense was reversible error 

because it prejudiced their case. Watkins counters by asserting 

that the Williamses were permitted a generous latitude in which to 

present their accord and satisfaction defense, and that the jury 

was justified in returning its verdict given the evidence and 

testimony presented at trial. 

An accord is Itan agreement to accept in extinction of an 

obligation something different from or less than that to which the 

person agreeing to accept is entitled." Section 28-1-1401, MCA. 

Satisfaction is "acceptance by the creditor of the consideration of 
an accord." Section 28-1-1402, MCA. Where there is no satisfaction, the original debt is not extinguished and the debtor remains 

liable for damages. Goggins v. Bookout (1963), 141 Mont. 449, 378 

P.2d 212; see also Hetherington v. Ford Motor Co. (1993), 257 Mont. 

395, 849 P.2d 1039. 

We affirm the District Court's determinations that the 

Williamses did not satisfy the accord and that evidence of the 

failed attempt at settling their differences was properly initially 

excluded from trial pursuant to Rule 408, M.R.Evid. Although the 

Williamses initially tendered two $2,500 checks to Watkins and 

normally a check constitutes valid consideration, see 5 28-2-801, 

MCA, the court, when determining when an accord has been satisfied, 

will look to substance over form. Section 1-3-219, MCA. The court 

here was justified in determining that the accord was not satisfied 

because the Williamses stopped payment on the second check and then 

repeatedly refused to tender another to Watkins. We conclude that 

the court did not err. 

ISSUE FOUR 

Did the court err by excluding evidence concerning the alleged 

forgery of a bill of sale? 

During trial, in support of their accord and satisfaction 

defense, the Williamses attempted to introduce evidence of an 

alleged theft or sale of their horse trailer. They asserted that 

the horse trailer belonged to them, but was in Watkinsl possession, 

when it disappeared. They further asserted that Watkins forged a 

bill of sale relating to the horse trailer. Being caught with 
forgery, contend the Williamses, was the reason thatwatkins agreed 

to the terms of the parties1 accord. The court excluded the 

evidence of the alleged forgery as being irrelevant and outside of 

the scope of the Williamsesl pleadings; the court did, however, 

permit the Williamses to inquire about the horse trailer during 

trial. 

A court has authority or jurisdiction to decide issues as they 

are framed by the partiest pleadings. Old Fashion Baptist Church 

v. Deplt of Revenue (l983), 206 Mont. 451, 671 P.2d 625. The 

parties may plead by complaint, answer or counterclaim, among other 

things. Rule 7 (a) , M.R.Civ.P. 

Rule 13(a), M.R.Civ.P., provides: 

A pleading shall state as a counterclaim any claim which 

at the time of serving the pleading the pleader has 

against any party, if it arises out of the transaction or 

occurrence that is the subject matter of the opposing 

party's claim . . . . 

Permissive counterclaims, those which do not arise out of the same 

transaction, may also be pled by a defendant. Rule 13(b), 

M.R.Civ.P. Additionally, if a party has erroneously omitted a 

counterclaim, the party may, with the leave of court, set up the 

counterclaim by amendment. Rule 13(f), M.R.Civ.P. 

The Williamses raisedtwo issues in their counterclaim against 

Watkins: That the partiest original agreement was extinguished by 

an accord and satisfaction, and that Watkins owed the Williamses 

damages for mistreating Bodella. No pleading asserts that Watkins 

forged a bill of sale; the Williamses did not at any time attempt 

to amend the pleadings to reflect a forgery claim. 
After reviewing the record, we conclude that the court did not 

err in excluding the forgery evidence because it was irrelevant to 

this debt action and because it was outside the scope of the issues 

presented in the parties' pleadings. 

ISSUE FIVE 

Did the court err in excluding from evidence a letter, 

introduced by the Williamses at trial, which purported to contain 

material terms of compensation for Watkins' horse training 

services? 

The Williamses' proposed evidence, a letter which purported to 

set out the oral agreement of the parties concerning compensation 

for Watkins' horse training services, was first introduced during 

trial. 

Counsel for Watkins objected to the letter because it had not 

been produced during discovery. The letter was not listed in the 

parties' exhibit lists and was not listed in the court's pretrial 

order. Counsel for the Williamses stated that he had only seen the 

letter a few days prior to trial, and that he thought the letter 

had been listed as an exhibit. After discussion, the court 

sustained Watkins' objection and instructed the jury not to 

consider the document. 

The Williamses argue that the letter was wrongly excluded from 

evidence because it was introduced in rebuttal to Watkins' oral 

testimony. Watkins states that the Williamses failed to make an 

offer of proof on the document and that the court appropriately 

excluded it from evidence under the circumstances in this case. 
The District Court is in the best position to determine 

whether a party has violated the rules of civil procedure. Dassori 

v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 728 P.2d 430. 

Failure to disclose evidence during discovery may lead to sanctions. Vehrs v. Piquette (1984), 210 Mont. 386, 684 P.2d 476. As 

a sanction, the court may limit one party's testimony and evidence, 

according to Rule 37, M.R.Civ. P. Owen v. F. A. Buttrey Co. (1981) , 

192 Mont. 274, 627 P.2d 1233. 

The court issued its scheduling order on March 31, 1992, and 

stated that: 

Copies of proposed exhibits shall be submitted to the 

court at least five (5) days prior to the trial date. A 

fully completed Record of Exhibit forms [sic] from all 

parties along with witness lists setting forth the 

general order in which the witnesses will appear and 

testify is required. 

The Williamses did not submit the letter to the court prior to 

trial. Also, the Williamses failed to give the letter to Watkins 

in response to Watkins' requests for discovery. We conclude that 

the court did not err in refusing to admit the letter into 

evidence. Affirmed. 
We concur: 
June 2, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Kevin E. Vainio 

Attorney at Law 

27 W. Park St. 

Butte, MT 59701 

Gilbert U. Burdett 

Burdett Law Firm, P.C. 

2929-3rd Ave. No., Ste. 325 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT BY^- Depu