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 HERBERTM. 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

## 1978Honorable Bernard W. Thomas,DistrictJudge, sitting in place of Chief Justice Paul G. Hatfield,delivered the Opinion of the Court. Plaintiff obtained judgment in DistrictCourt,Cascade County, for the recovery of money claimed to be due for the delivery of gravel and certainmachinework, and for the foreclosure of amechanic's and materialman's lien. Defendant appeals. In the DistrictCourt 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 claimwas heard and the action brought by Mahaffeys isnot involved in this appeal. Defendants Gilbert D. Wells and HerbertM. 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 contractwas 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 DistrictCourtmade general findings of fact that commencing onMay 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 loaderwork @ $25.00 per hr., 175.00 Total due That defendants paid the sum of Leaving a balance due of TheDistrictCourt further found that the labor and materialswere used on certain real property owned by defendants; concluded the lienwas valid and subject to foreclosure,and entered judgment in accordancewith its findings and conclusions. The only issue presented on appeal is the sufficiency ofthe evidence to support the findings, conclusionsand 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 itpreponderates 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 evidencemust be viewed in the lightmost favorable to the prevailing party in the District Court. Johnsonv. Johnson, Mont. (19771, 

## , 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, 103Mont. 306, 63P.2d 123. The transactions between the partieswere 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 onwhich 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 Shumakerwho also owned a truck and who had a lease on a gravel pit. Ten loads of gravel were delivered by plaintiffand Shumaker onMay 30, and on that date defendantpaid plaintiff for those 10 loadsby a $300 check. Shortly thereafter, defendant ordered a second 10 loadswhich were delivered by plaintiff and paid for by defendant's check in the amount of $300dated June 7, 1974. At or about the time the second order

was delivered the parties had a discussion aboutdelivery of further gravel and use of a loader, following which plaintiff did delivermore gravel to defendant's land and did somework therewith a loader. On July 7, 1974,plaintiff received a payment of $200by a check given to him by Nancy Mahaffey, and at that time plaintiff gaveMrs. 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. OnAugust 16, 1974, defendantpaid another $200by 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 gravelwas 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 therewere 26 to 30 loads at $30per load. From this, it appears that defendant concedes that around 760 yards of gravel were delivered,but argues that deliverywasmade 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'sevidence shows that the two trucks used by him had capacities of 13.4 yards and 14yards respectively; that each load delivered contained a good 10yards, whichwas 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 defendantwas billed by plaintiff.As stated above, there is no disagreementabout the first two orders which resulted in the delivery of the first 20 loads. Nor is it disputed that therewas 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. (Noissue is urged relative to the loaderwork.) Plaintiffmaintains that he was authorized to deliver sufficient gravel to finish the project defendant had inmind; that is, enough gravel to complete the driveway and to provide a base for the footings, foundation and slab floor of the shop building defendantplanned to erect. Since the evidence on this issue is conflicting,we must determinewhether 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 firstmeeting of the parties defendant told plaintiff that he wanted to build a shop and needed gravel for a driveway. Defendantwanted to hold delivery of gravel down to 10 loads or 100yards a week because he could not afford to pay more than $300 a week. Plaintiff had further conversationswith defendant from time to time. Thingswere 

### " 

## * * * 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 itbuilt, and plaintiff went on from there. Defendant once changed the dimensions for the shop and that change requiredmore gravel. As they were hauling defendantdiscussed with plaintiff what they were doing, where he wanted the gravel, howmuch he wanted covered. Sometime after the second 10 loadswere 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 wouldhaul in the balance of the gravel defendantneeded before they left town and defendant could continue to pay at the rate of $300per week. Defendantagreed. Plaintiff does not rememberwhen this conversation occurred but thinks it was after either the second or third checkwas received from defendant. Shumakerwas present one time at ameeting with defendant and plaintiff after the first 20 loads had been hauled. At thatmeeting 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 Shumakerwere going to deliver. He was there once when they brought in the trucks. Plaintiffmet defendant atplaces other than the site, including once at defendant's shop and once at his home. At those meetings plaintiff asked whether defendanthad been at the site and defendant said he had been, that it looked good, and for them to haul more. He apparentlywas satisfied and they went ahead and finished the job. Plaintiff thinkshe gave defendants estimates for the footingsand slab,but because of the rough terrain itwas 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, foundationand slab. After looking it over,defendantmentioned that he would like a circular driveway, soplaintiff and Shumaker hauled fourmore loads for thatpurpose. Defendant testifiedwithout 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 himwhen 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 gravelwas 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 $30per 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 courtbelow. The documentary evidence consists of the four cancelled checks representing payments by defendant to plaintiff, a record of the loads hauled keptby Shurnaker, and the statementwhich 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 loadswere 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 loadswere hauled. This appears contrary to the undisputed testimony that the second order was for only 10 loads and that plaintiff was not authorized to haulmore 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 inwhich 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 rememberwhen defendant authorized him to finish the job; that itwas either after the second or third check. The second checkwas dated June 7, 1974,and if the order to finish the jobwas not made until then, itwould 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 loadswere necessary for thatpurpose. Another contradiction appearswhen the statementmade outby plaintiff and delivered to Mrs. Mahaffey on July 7, 1974, is examined. This statement isdated June 10, 1974, and shows that 72 loads of gravel had been delivered as of that date, although Shumakersrecord shows only 51 loads delivered through June 10,with 13 loads delivered on June 11 and 8 loads on June 12. These circumstanceswere 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 contradictionsmay raise doubts,we do not consider them sufficient to destroy the overall effect of the evidencewhich, when viewed in the lightmost 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 inplace of Mr. Chief JusticePaul G. Hatfield.We concur:



# ..

fr

-,-,-,--,,C,,,,,,,,-----------

Justices