No. 13910 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

CURTIS HAGFELDT, 

Plaintiff and Respondent, 

BOYD C. MAHAFFEY, a/k/a BOYD MAHAFFEY, 

and NANCY MAHAFFEY, his wife, GILBERT D. 

WELLS and HERBERT M. SHERBERNE, 

Defendants and Appellants. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record: 

For Appellants: 

Scott, Linnell, Neil1 & Newhall, Great Falls, 

Montana 

For Respondent: 

Dola Wilson, Great Falls, Montana 

Cause submitted on briefs. 

Submitted: January 6, 1978 

Decided: MAR - 1 1978 
Honorable Bernard W. Thomas, District Judge, sitting in place 

of Chief Justice Paul G. Hatfield, delivered the Opinion of the 

Court. 

Plaintiff obtained judgment in District Court, Cascade 

County, for the recovery of money claimed to be due for the 

delivery of gravel and certain machine work, and for the foreclosure of a mechanic's and materialman's lien. Defendant 

appeals. 

In the District Court this action and a prior one filed 

by Boyd C. Mahaffey and Nancy Mahaffey, defendants in this case 

against Curtis Hagfeldt, plaintiff, for removal of the lien and 

to recover damages for its filing, were consolidated for trial. 

At the trial only Hagfeldt's claim was heard and the action 

brought by Mahaffeys is not involved in this appeal. 

Defendants Gilbert D. Wells and Herbert M. Sherberne were 

joined as parties to this action because at the time of the 

events in question they were vendors of the land here involved 

under a contract for sale to Mahaffeys as purchasers. The contract was paid off during the pendency of this action so Wells and 

Sherberne are not affected by the judgment and should be dismissed as parties. 

The District Court made general findings of fact that 

commencing on May 30, 1974, and ending on June 14, 1974, plaintiff, at the special instance and request of Mahaffeys, delivered 

certain labor and materials to them, as follows: 

76 loads of gravel @ $30.00 per load, $2,280.00 

7 hours of loader work @ $25.00 per hr., 175.00 

Total due 

That defendants paid the sum of 

Leaving a balance due of 

The District Court further found that the labor and materials were used on certain real property owned by defendants; 

concluded the lien was valid and subject to foreclosure, and 

entered judgment in accordance with its findings and conclusions. 

The only issue presented on appeal is the sufficiency of 
the evidence to support the findings, conclusions and judgment. 

On the appeal of equity cases, this Court shall review all 

questions of fact arising upon the evidence presented in the 

record and determine the same. Section 93-216, R.C.M. 1947. 

If the evidence is not conflicting or if it preponderates 

decidedly against the findings of the trial court, this Court 

may make its own conclusions, but where there is substantial 

evidence to support the trial court, even though the evidence 

is conflicting, this Court will not disturb the findings. The 

credibility of witnesses and weight to be given their testimony is a matter for the trial court's determination. The 

evidence must be viewed in the light most favorable to the 

prevailing party in the District Court. Johnson v. Johnson, 

(19771, Mont. , 560 P.2d 1331, 34 St.Rep. 191; Keller 

v. Martin, Jr., 153 140nt. 9, 452 P.2d 422; State ex rel. Nagle 

v. Naughton, 103 Mont. 306, 63 P.2d 123. 

The transactions between the parties were conducted orally 

and occurred in the late spring and summer, 1974. The trial 

took place on February 10, 1977. By then time had taken its 

usual toll on the memory of the participants, resulting in 

uncertainty and confusion as to dates and details, and leaving 

the evidence unsatisfactory in some respects. 

A review of the record shows that the parties are in substantial agreement on the following facts: Prior to May 30, 

1974, plaintiff and Boyd C. Mahaffey held one or more discussions 

relative to plaintiff supplying defendant with a quantity of 

gravel to be delivered to a tract of land on which defendant 

planned to erect a shop building. These discussions culminated 

in an order by defendant for 10 loads of gravel at a price of 

$30 a load. Plaintiff owned a truck and he enlisted the aid of 

Gene Shumaker who also owned a truck and who had a lease on a 

gravel pit. Ten loads of gravel were delivered by plaintiff 
and Shumaker on May 30, and on that date defendant paid plaintiff for those 10 loads by a $300 check. Shortly thereafter, 

defendant ordered a second 10 loads which were delivered by 

plaintiff and paid for by defendant's check in the amount of 

$300 dated June 7, 1974. At or about the time the second order 

was delivered the parties had a discussion about delivery of 

further gravel and use of a loader, following which plaintiff 

did deliver more gravel to defendant's land and did some work 

there with a loader. On July 7, 1974, plaintiff received a 

payment of $200 by a check given to him by Nancy Mahaffey, and 

at that time plaintiff gave Mrs. Mahaffey a statement showing 

delivery of 72 loads of gravel at $30, for a total of $2,160; 

3+ hours building an approach at $28, or $98; grand total of 

$2,258, less credit for $800, balance due, $1,458. On August 

16, 1974, defendant paid another $200 by check. Since then he 

has refused to pay more. 

Defendant in his brief argues that the dispute is not 

about the amount of gravel delivered, but rather over how the 

gravel was to be measured and what defendant agreed to pay; 

that, while plaintiff maintains he delivered 76 ten-yard loads 

or 760 yards of gravel at $3.00 per yard, defendant claims 

that there were 26 to 30 loads at $30 per load. From this, it 

appears that defendant concedes that around 760 yards of gravel 

were delivered, but argues that delivery was made in 26 to 30 

loads instead of the 76 loads as claimed by plaintiff. This 

would mean that the loads would have to average 25 yards or 

more each. There is substantial evidence against such a contention. Plaintiff's evidence shows that the two trucks used 

by him had capacities of 13.4 yards and 14 yards respectively; 

that each load delivered contained a good 10 yards, which was 

also the customary load size in the trade, ana that the price 

was $3.00 per yard or $30 for a ten-yard load, which was the 

way defendant was billed by plaintiff. 
As stated above, there is no disagreement about the 

first two orders which resulted in the delivery of the first 

20 loads. Nor is it disputed that there was a third agreement 

for the delivery of more gravel. The difficulty arises on 

the terms of the third agreement. Defendant insists that he 

ordered only another 10 loads of gravel, plus some work with 

the loader. (No issue is urged relative to the loader work.) 

Plaintiff maintains that he was authorized to deliver sufficient 

gravel to finish the project defendant had in mind; that is, 

enough gravel to complete the driveway and to provide a base 

for the footings, foundation and slab floor of the shop building defendant planned to erect. Since the evidence on this 

issue is conflicting, we must determine whether the record 

contains substantial evidence to support the court's findings 

for plaintiff on this point. 

The testimony submitted in behalf of plaintiff shows the 

following: At the first meeting of the parties defendant told 

plaintiff that he wanted to build a shop and needed gravel 

for a driveway. Defendant wanted to hold delivery of gravel 

down to 10 loads or 100 yards a week because he could not afford 

to pay more than $300 a week. Plaintiff had further conversations with defendant from time to time. Things were " * * * 

kind of planned as they went along * * *." Defendant gave 

plaintiff his ideas of what he wanted done; gave him the dimensions for the shop and where he wanted it built, and plaintiff 

went on from there. Defendant once changed the dimensions for 

the shop and that change required more gravel. As they were 

hauling defendant discussed with plaintiff what they were doing, 

where he wanted the gravel, how much he wanted covered. Sometime after the second 10 loads were hauled plaintiff talked 

to defendant about finishing the job. He told defendant that 

he and Shumaker had other work out of town, but that they would 
haul in the balance of the gravel defendant needed before 

they left town and defendant could continue to pay at the 

rate of $300 per week. Defendant agreed. Plaintiff does not 

remember when this conversation occurred but thinks it was 

after either the second or third check was received from defendant. Shumaker was present one time at a meeting with defendant and plaintiff after the first 20 loads had been hauled. 

At that meeting the parties discussed finishing the job, with 

defendant to pay later, but he is not sure that defendant 

decided at that time that they should finish the job. Defendant was not advised each time plaintiff or Shumaker were going 

to deliver. He was there once when they brought in the trucks. 

Plaintiff met defendant at places other than the site, including once at defendant's shop and once at his home. At those 

meetings plaintiff asked whether defendant had been at the site 

and defendant said he had been, that it looked good, and for them 

to haul more. He apparently was satisfied and they went ahead 

and finished the job. 

Plaintiff thinks he gave defendants estimates for the 

footings and slab, but because of the rough terrain it was 

difficult to estimate yards. Plaintiff furnished defendant only 

one statement, which was after 72 loads had been hauled. He 

went to the property with defendant after they had hauled gravel 

for the approach driveway and for the footings, foundation and 

slab. After looking it over, defendant mentioned that he would 

like a circular driveway, so plaintiff and Shumaker hauled 

four more loads for that purpose. 

Defendant testified without contradiction that he requested 

plaintiff to do his hauling during working hours so that his 

wife could check the loads, but that plaintiff never did inform 

him when he was going to haul. Defendant further testified 

that he did not know that 76 loads had been hauled. As above 

stated, he admits that a large quantity of gravel was hauled, 
but from markings on the ground he believed that no more 

than 30 loads had been hauled and that each load was a huge 

one. One reason he had plaintiff go ahead with the additional gravel was because he thought he was getting a good 

deal, with loads of 25 yards or more at $30 per load, but he 

insists that he ordered only 30 loads in all. 

Without considering the documentary evidence, the oral 

testimony summarized above, although unsatisfactory from the 

standpoint of establishing definite times and terms, is sufficient to provide the substantial evidence necessary to 

sustain the court below. The documentary evidence consists 

of the four cancelled checks representing payments by defendant to plaintiff, a record of the loads hauled kept by Shurnaker, 

and the statement which plaintiff delivered to defendant showing 

72 loads delivered. When this documentary evidence is taken 

into consideration, some inconsistencies and contradictions 

appear. 

Shumaker testified that his record was made each day 

when gravel was hauled. Plaintiff accepted the record as true 

and offered it in evidence. According to that record, the 

first 10 loads were hauled and paid for on May 30, as both 

parties agree. The record shows that the next gravel delivered 

was on June 2, during which day 26 loads were hauled. This 

appears contrary to the undisputed testimony that the second 

order was for only 10 loads and that plaintiff was not authorized to haul more until after the second order had been filled. 

An explanation of this apparent contradiction could be that 

after 10 loads had been hauled on June 2 the parties then had 

the discussion in which plaintiff claims defendant authorized 

him to continue hauling until he finished the job, and following the discussion, plaintiff and Shumaker hauled another 16 

loads on June 2. There is no express evidence to this effect. 
In fact, at the trial plaintiff could not explain why he 

hauled 26 loads on June 2, except to say that no gravel was 

hauled that was not authorized. Also, plaintiff testified 

that after the second 10 loads had been hauled, he went to 

defendant to collect; that he did not remember when defendant authorized him to finish the job; that it was either 

after the second or third check. The second check was dated 

June 7, 1974, and if the order to finish the job was not 

made until then, it would appear that no more than 20 loads 

had been authorized before June 7, 1974, although 39 loads 

had been delivered by that date according to Shumaker's 

record. However, a subsequent order to finish the job would 

cure this problem, since there is evidence to show that all 

of these loads were necessary for that purpose. 

Another contradiction appears when the statement made 

out by plaintiff and delivered to Mrs. Mahaffey on July 7, 1974, is 

examined. This statement is dated June 10, 1974, and shows 

that 72 loads of gravel had been delivered as of that date, 

although Shumakers record shows only 51 loads delivered through 

June 10, with 13 loads delivered on June 11 and 8 loads on June 

12. These circumstances were not brought out at the trial, so 

plaintiff was not called upon to explain them, and defendant 

has not raised this point in his argument. 

Although the contradictions may raise doubts, we do not 

consider them sufficient to destroy the overall effect of the 

evidence which, when viewed in the light most favorable to 

plaintiff, is adequate to sustain the judgment of the District 

Court under the principles we have previously stated. 

The judgment is affirned. 

Hon. Bernard W. Thomas, District 

Judge, sitting in place of Mr. 

Chief Justice Paul G. Hatfield. 
We concur: 

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Justices