No. 12676 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

HOLLAND CONSTRUCTION COMPANY, 

Plaintiff and Appellant, 

-vs - 

NEIL F. LAMPSON, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant : 

Evalyn B. Carson argued, Billings, Montana 

For Respondent : 

Moulton, Bellingham, Longo and Mather, Billings, 

Montana 

Ward Swanser argued, Billings, Montana 

Filed : 

-- - 

Submitted: November 14, 1974 

Decided: DEC 10 1974 
Mr. Justice John C. Harrison delivered the Opinion of the Court. 

This is an appeal from a judgment adverse to plaintiff entered 

in the district court, Yellowstone County. The matter was tried by 

the court sitting without a jury. Plaintiff Holland Construction 

Company, Inc. alleged an indebtedness to it by defendant Neil F. 

Lampson, Inc. for labor, parts and materials furnished on the repair 

of equipment owned by Lampson. 

On appeal, plaintiff Holland brings three issues: 

1. Is there substantial evidence to support the findings of 

fact and conclusions of law of the trial judge who found that the 

reasonable value of the services of Holland Construction Co. was 

$18,292.45? 

2. Did the trial court err in refusing to allow any testimony 

offered by plaintiff? 

3. Was the court correct in applying the rule that plaintiff 

was entitled to recover only the reasonable value of the services 

performed? 

Holland alleged that Lampson was indebted to Holland for 

$33,557.82. Lampson in its answer admitted certain work was performed on its equipment; that there was no contract between the 

parties for the work performed; and therefore Holland was entitled 

to recover only for reasonable services rendered. The trial 

court found the amount owed Holland to be $18,292.45. 

Prior to submission of its statement for the total cost of 

the repair work to the Lampson crane there was no discussion of the 

total cost, or hourly cost for the work done between the parties, 

unless it could be said that ~olland's statement that the shop was 

It competitive in the area", was a discussion of cost. The work 

took approximately 30 days of shop work. When the statement was 

submitted to Lampson, it was considered exorbitant and Lampson 

refused to pay. Holland alleges it is entitled to recover for all 

time spent by its staff of thirteen employees, plus office staff, 

spent on the job. Lampson alleges the work could have been performed 
in far less time and that Holland is only entitled to recover for 

the reasonable number of hours it would take to perform the job. 

At trial Holland introduced time cards to show the number of 

hours worked by its personnel to establish what was a reasonable 

hourly figure. No other testimony was introduced to support the 

reasonableness of the statement submitted. A problem arose as to the 

time cards in that they were discredited because of the manner in 

which they were kept and the obvious errors which appeared on the 

face of the cards. One difficulty was that due to the inclement 

weather the time clock froze and had to be repaired. Another 

was that the workers were supposed to keep their job time allocated 

to the various jobs they worked on during the day, but when the 

cards were checked the times written in on the various cards appeared to be in only one person's handwriting. As a result, the 

trial court rejected the time card evidence as proof of reasonableness of the total job cost inasmuch as Holland offered no 

other explanation for the time required to perform the work on the 

crane. 

In an effort to ascertain a proper figure for the amount owed 

Holland, the court viewed ~olland's machine shop operation; checked 

the crane itself to determine the work performed; and, after so 

doing concluded the time charged was excessive, although it 

accepted ~olland's figures on the proper hourly charge. 

Lampson introduced as a witness one Draper, its foreman, who 

was present when most of the work was done. Draper testified that 

80% of the work was done on the crane within ten days, after about 

313 man hours. The bill submitted showed 1300 man hours. Lampson 

also introduced the testimony of an expert, one Peterson from an 

independent machine shop in Portland, Oregon, who testified as to, 

in his opinion,the number of hours reasonable to do the worksrequired. Lampson introduced other testimony to support Peterson's 

testimony and compared the number of hours charged by Holland with 

hours charged by other machine shops for similar work. 
Appellant ~olland's first issue questions the sufficiency of the 

evidence to support the trial court's findings of fact and conclusions of law. This Court has long held that it will uphold a 

trial court's findings unless the evidence decidedly and with 

decisive clarity predominates against them, Christensen v. Hunt, 

147 Mont. 484, 414 P.2d 648. Further, we have held that in 

reviewing the record in the trial court it is not within our 

province to determine whether we agree with the conclusions 

reached if they are supported by the evidence. Stromberg & 

Brown v. Seaton Ranch Co., 160 Mont. 293, 502 P.2d 41; Hellickson 

v. Barrett Mobile Home Transport, Inc., 161 Mont. 455, 507 P.2d 

523; Nissen v. Western Const. Equip. Co., 133 Mont, 143, 320 P. 

2d 997, 

The question here is whether Holland has shown there was an 

insufficiency of evidence to support the judgment. We find 

appellant failed to overcome the presumption of the correctness 

of the trial court's findings (1) by failing to introduce evidence 

to support the reasonableness of the hours charged to the Lampson 

job, and (2) that Lampson's witnessesf testimony supports the 

court ' s findings. 

As noted heretofore, the validity of the time cards was 

questioned and at best they only show the number of hours charged 

to the job and not the hours necessary to accomplish it, Holland 

totally failed to show by the time cards the number of hours 

necessary or reasonable to perform the work. 

The only real evidence before the trial court to assist in 

determining the reasonable number of hours to do the necessary 

work was introduced by amps son's witness Peterson, who testified 

without objection. Peterson was qualified,through years of 

experience in bidding on similar jobs, to testify on the reasonable number of hours necessary to accomplish the work performed 

by Holland. His testimony took into consideration the type of 

work, Holland's equipment, and the new parts used. He inspected 

the work done on the crane and testified he could have done the 
same work, using new parts, for $12,750. However, he testified that 

in ~olland's shop, without using new parts used by Holland, and 

doing the same work that Holland did, that the reasonable number 

of hours, using ~olland's charges per hour, would bring the amount 

due to $16,172.66. peterson's testimony was substantiated by 

Lampson by introducing bills for similar work done in other areas 

and by foreman Draper's testimony. We find no merit in issue one. 

Issue two concerns appellant's allegation that the trial 

court erred in not allowing certain testimony offered by appellant. 

This refused testimony was evidence attempted to be introduced 

through two witnesses, Clarence Merry and John Bus tell, concerning 

the reasonableness of the charge per hour. Merry was the owner 

of the Yellowstone Hydraulics & Elevator Co., and had been a 

working machinist for 24 years. Bustell was one of the owners of 

Billings Machine & Welding Co., and had been a working machinist 

for over 30 years. When Merry was asked if he had an opinion with 

regard to the number of hours charged, the testimony was objected 

to on the grounds a proper foundation was not laid, and none was 

laid after the objection. However, ~olland's attorney later clarified 

what she was trying to get from the witness by these questions: 

"Q. Your Honor, I believe that Igave the wrong 

impression. I was only asking him for the hourly 

rate for that type of work, if you will recall.'' 

And later: 

"Q. I realize that you would not know the number of 

hours and therefore the total bill. I only ask you 

to testify as to the reasonableness of the charge per 

hour for the particular operation on the particular 

piece of equipment. It 

The testimony was to go to the hourly rate which was not disputed, but could not, as Holland desired, be considered when applied 

to the hours of the total job. 

The second witness Bustell was merely asked if he concurred with 

the testimony given by Merry as to the reasonableness of the hourly 

rate, and was never asked to comment upon the number of hours it 

took to do the job. 
The trial court had already admitted all of ~olland's exhibits 

to support the hourly charge and used them in its findings, conclusions and judgment. We find no merit in appellant's issue two. 

Issue three considers whether the court was correct in applying 

the rule Holland was entitled to recover only the reasonable value 

of services performed. Considering the facts the correct and 

controlling law applicable is section 13-507, R.C.M. 1947, which 

provides : 

"When a contract does not determine the amount of the 

consideration, nor the method by which it is to be 

ascertained, or when it leaves the amount thereof to the 

discretion of an interested party, the consideration must 

be so much money as the ob'ect of the contract is 

reasonably worth. (Emp&added). 

While a case applying the above quoted statutory provisions 

has not been previously considered in this jurisdiction, other 

jurisdictions have applied it. Braden Winch Company v. Surface 

Equipment Company, 196 Okla. 444, 165 P.2d 640; Hawkins v. Delta 

Spindle of Blytheville, Inc., 245 Ark. 830, 434 S.W.2d 825, 827. 

In Hawkins, the court noted: 

''Where labor or material is furnished by a party and 

no price is agreed upon, the law will imply an agreement to pay what it is worth. [Citing case.] If a 

contract makes no statement as to the price to be paid 

for services, the law invokes the standard of reasonableness and the fair value of the services is recoverable. 

[Citing cases and authority.] This principle has been 

applied by this court in cases involving professional 

services. [Citing cases.] There is no reason why it should 

not be applied in the circumstances existing here. The 

burden was upon appellee to show that the amount for 

which it sought recovery was the fair and reasonable value 

of the parts, materials and labor furnished. It failed 

to do so. I1 

In Hawkins the court considered the fact that the work was 

stretched over a three day period of time when it could have been 

done in one day. The same principle of law has been covered by 

11 contract cases quantum merit" in a series of cases before this 

Court. Higby v. Hooper, 124 Mont. 331, 221 P.2d 1043; Smith v. 

Gunniss, 115 Mont. 362, 144 P.2d 186. 

The burden is upon plaintiff to show what is the reasonable 

value of the parts, materials and labor furnished. Here, Holland 

relied solely on the time cards to establish the reasonableness of 
the services. However, there was sufficient evidence to refute 

their accuracy, and Holland offered no evidence to justify the 

total hours or to show that they were required to accomplish the 

work. In Delaware Engineering Co. v. Pusey & Jones Co., 31 Del. 

163, 112 A. 371, the court noted that where one person engages 

another to make an article for him, and the person employed is 

to be paid by the hour for the work, it is the duty of that person 

to furnish the work on the article in a reasonable number of hours, 

and if the person engaged takes unreasonable time to complete the 

work, he is entitled to be compensated for only such time as would 

reasonably have been required to do the work. 

We find no merit in appellant's issue three. 

The judgment of the trial court is affirmed. 

We Concur: 

Mr. Justice Frank I. Haswell took no part in the above Opinion.