No. 12676 INTHE 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 ThirteenthJudicial District, HonorableA. B. Martin, Judge presiding. Counsel of Record: ForAppellant

### : 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: 

## DEC10

### 1974

### Mr. Justice John C. Harrison delivered the Opinion of the Court.

This 

### isan appeal from a judgment adverse toplaintiff entered in the district court, Yellowstone County. The matter was triedby the court sittingwithout a jury. Plaintiff Holland Construction Company, Inc. alleged an indebtedness toit by defendant NeilF. 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 trialjudge who found that the reasonable value of the services of Holland Construction Co. was $18,292.45? 2. Did the trialcourt 

### err inrefusing toallow 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 toHolland 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 torecover only forreasonable servicesrendered. The trial court found the amount owed Holland tobe $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 thework done between the parties, unless itcould be said that ~olland's statement that the shop was

Itcompetitive in the area", was a discussion of cost. The work took approximately 30 days of shop work. When the statement was submitted toLampson, it was considered exorbitant and Lampson refused topay. Holland alleges it 

### is entitled to recover for all time spent by 

### its staff of thirteen employees, plus office staff, spent on thejob. Lampson alleges thework could have been performedin far less

### timeand that Holland 

### is only entitled torecover for the reasonable number of hours it would take toperform the job. At trialHolland introduced time cards to show thenumber of hours worked by 

### itspersonnel to establishwhat 

### was a reasonable hourly figure. No other testimony was introduced to support the reasonableness of the statement submitted. A problem arose 

### as to the 

### timecards in that they 

### were discreditedbecause of the manner in which they were kept and the obvious errorswhich appeared on the face of the cards. One difficultywas that due to the inclement weather the time clock froze and had tobe repaired. Another

was that the workers were supposed tokeep theirjob time allocated to the various jobs they worked on during the day, but when the cardswere checked the timeswritten in on the various cards appeared tobe in only one person's handwriting. 

### As a result, the trialcourt rejected the time card evidence asproof of reasonableness of the totaljob cost inasmuch asHolland offered no other explanation for the time required toperform 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 todetermine 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 thework 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, inhis opinion,the number of hours reasonable todo 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 similarwork.

### Appellant ~olland'sfirst 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 findingsunless the evidence decidedly and with decisive clarity predominates against them, Christensenv. Hunt, 147Mont. 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 determinewhetherwe agree with the conclusions reached if they are supportedby the evidence. Stromberg & 

### Brown v. SeatonRanch Co., 160Mont. 293, 502 P.2d 41;Hellickson

v. Barrett Mobile Home Transport, Inc., 161Mont. 455, 507 P.2d 523;Nissen 

### v. Western Const. Equip. Co., 133Mont, 143, 320 P. 2d 997, The question here is whether Holland has shown therewas 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 cardswas 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 showby 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. Petersonwas qualified,throughyears of experience inbidding 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

### samework,using new parts, for $12,750. However, he testified that in ~olland'sshop, without using new parts used by Holland, and doing the samework that Holland did, that the reasonablenumber of hours,using ~olland'scharges per hour,would bring the amount due to $16,172.66. peterson's testimonywas substantiatedby Lampsonby introducingbills for similarwork 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 testimonywas evidence attempted to be introduced through two witnesses, Clarence Merry and John Bustell, 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 aworking machinist for over 30 years. When Merry was asked if he had an opinion with regard to the number of hours charged, the testimonywas objected to on the grounds a proper foundationwas not laid,and none was laid after the objection. However, ~olland'sattorney later clarified what she was trying to get from the witness by these questions: "Q. Your Honor, 

### Ibelieve that Igave the wrong impression. Iwas only askinghim for the hourly rate for that type of work, if youwill recall.'' And later: "Q. 

### Irealize that youwould 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 testimonywas to go to the hourly ratewhich was not disputed, but could not, as Holland desired,be consideredwhen applied to the hours of the total job. The secondwitness Bustellwas merely asked if he concurredwith the testimonygiven 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 allof ~olland's exhibits to support the hourly charge and used them in 

### its findings, conclusions and judgment. We findno merit in appellant's issue two. Issue three considers whether the court was correct in applying the rule Holland was entitled torecover 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 tobe ascertained, orwhen it leaves the amount thereof to the discretion of an interested party, the consideration must be somuch money asthe 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 thisjurisdiction, 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 

### isagreed upon, the law willimply an agreement topay what it 

### isworth. [Citing case.] If a contract makes no statement as tothe price tobe paid for services, the 

### law invokes the standard of reasonableness and the fairvalue of the services 

### isrecoverable. [Citing cases and authority.] This principle has been applied by this court incases involving professional services. [Citing cases.] There 

### isno reason why it should not be applied in the circumstances existinghere. 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 thework was stretched over a three day period of timewhen 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, 124Mont. 331, 221 P.2d 1043; Smith v. Gunniss, 115 Mont. 362, 144 P.2d 186. The burden 

### isupon plaintiff to show what 

### is the reasonable value of the parts, materials and labor furnished. Here, Holland relied solely on the 

### timecards toestablish the reasonableness ofthe services. However, there was sufficient evidence torefute their accuracy, and Holland offered no evidence tojustify the totalhours or to show that they were required toaccomplish the work. In Delaware Engineering Co. v. Pusey & Jones Co., 31Del. 

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

### make an articleforhim, and the person employed 

### is tobe paid by the hour for the work, it 

### is the duty of that person to furnish thework on the article in a reasonable number of hours, and if the person engaged takes unreasonable time to complete the work, he 

### is entitled tobe compensated for only such timeaswould reasonably have been required todo the work. We findno 

### meritinappellant's issue three. The judgment of the trialcourt 

### is affirmed.

We Concur:

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