### No. 80-229 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

JOHN MILLER, Plaintiff and Respondent,

VS. 

### JOHN TITECA, Defendant and Appellant.

Appeal from: District Court of the Sixth Judicial District, In and for the County of Sweet Grass. Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: J. Brian Tierney, Butte,Montana For Respondent: Paulson and Tulley, Big Timber,Montana

Submitted on briefs: February 5, 1981 Decided: June 

### 1, 1.981

I 

# * ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiff and respondent, John Miller, buyer, brought this action inorder torecover damages caused by the 

### seller's breach of a cattle-sales contract. A nonjury trialwas held in the District Court of the Sixth Judicial District, Sweetgrass County, the Honorable Jack Shanstrom presiding. Seller and defendant, John Titeca, now appeals from the judgment entered in favor of the buyer in the amount of $6,492.50. The sellerpresents nine separate issues for review: 1. Did the District Court 

### err by not barring maintenance of the buyer's action by reason of the fictitiousname statutes? 2. Did the DistrictCourt 

### err by not ruling upon and granting the seller's motion for summary judgment for the reason that the contract dated July 

### 20, 1978, was void as a matter of law? 3. Did the DistrictCourt 

### err innot making findings and conclusions upon the issue of the buyer's reliance and right torelyupon the contract of July 

### 20, 1978, asalleged in the complaint? 4. 

### Were the findings and conclusions made by the DistrictCourt supported by the evidence as to the issues of mutuality of obligation and valid consideration relating to the contract of July 20, 1978? 

### 5. Did the DistrictCourt err in the findings and conclusions relating to the issue of excuse of performance by the seller? 6. Did the DistrictCourt 

### err inthe findings and conclusions relating to the issue of impossibility of performance by the Seller? 7. Did the DistrictCourt 

### err by not entering findings

### and conclusions relating to excuse of performance by reason of the actions and rejection of thebuyer after the seller's finaloffers? 8. 

### s id 

### the trial court err inthe findings and conclusions as to the measure of damages based upon the allegations of the complaint? 9. id 

### the trial court 

### err inawarding attorney fees to the buyer? We

### affirm the District

### Court on all

### issues except no. 9

as to attorney fees; we reverse on that issue. The-seller and buyer entered intoa written contract on July 20, 1978, for the saleof 80 head of mixed calves. The saleprice was 67 centsper pound for 45 choice steer calves and 60 cents per pound for 35 

### choice heifer calves, which prices were the then-prevailing market prices. The contract called for the 

### seller to deliver the calves on or before the tenth tofifteenthof November 1978, with the understanding that the calveswere tobe weaned on hay and oats for at

### least 45 days prior to delivery. The seller executed the contractby and for himself, even though title to the calveswas held by hiswife alone. The buyer executed the contractby and through his agent, who signed "J. Miller 

### Livestock Co., by Earl 

### ~utler".The agent gave the 

### seller a check for $2,000 asdownpayment at the time of execution. There is conflicting testimony as to whether the agent was told atthe 

### timeof execution that the seller 

### would not cash the check and that the calves were in factowned by the seller's 

### wife. The agent was told that the calves were located atthe seller'svarious properties inPark, Golden Valley and Wheatland counties. Three weeks after execution, on August 

### 14, 1978, the seller informed the agent thatpersonal problems had arisen,and the 

### seller asked the agent to obtain replacement calves. The agent replied thathe could acquire replacement calves. Sixweeks after telling the agent of his problems, on September 28, 1978, the sellerphoned the buyer himself and informed the buyer that no delivery could be made until af

### ter January 1, 1979, and that the agent had indicated that replacement calves could be obtained. The buyer, inresponse, informed the 

### seller that the calves had already been sold by the buyer to a feeder inMinnesota. On October 16, 1978, the 

### seller 

### metthe buyer's agent inBillings, and again advised him of the impossibility of delivery until after January 

### 1. The seller asked the agent whether replacement calves had been obtained. The agent replied thathe would acquire them that same day. Replacement calves

### were acquired, so thatbuyer 

### was able to fulfillhis contractwith the feeder inMinnesota. The day after the meeting inBillings, on October 17, the buyer entered into another contract for the transfer of the calves which he was buying from the seller. That second contractwas made with a Fred Schwartz, who the seller claims

was a business partner of the buyer. The buyer sent the seller a letter on October 29, warning the seller of the need to comply with the contract, and extending the date of delivery by one month, toDecember 15. Heavy snow fellon November 

### 8. The next day, November 9, the seller returned the uncashed $2,000 check to the agent, which check had been given asdownpayment. In a 

### letter accompanying the check, the seller stated thatdeliverywas impossible, and requested more 

### time, On November 13, the buyer called the seller and demanded delivery by December 15. The seller replied that deliveryby thatdate would be impossible due to the bad weather. The 

### seller informed the buyer that the calveswere located atthe seller's various properties, requiring a 160-mile round trip to feed them. The buyer stated thathe would refuse to take delivery after January 1, because he wound up his business atthe end of the year and because the calves would be so heavy by then 

### as to be considered yearlings. On November 17, the seller informed the buyer's attorney that delivery would 

### be unZikely by December 15, due to the calves' poor condition and to the bad weather. On November 18, the seller stated to the buyer's attorney by phone thatno delivery could be made until after January 1, because of the period of 

### timerequired forweaning and weight gain. The buyer filed suiton December 8, praying for specific performance or for damages inthe event the 

### seller failed to deliver by December 15. The seller hired persons toplow his ranch road, and after two days of plowing was able to truck out some calves. Eighteen of the calves

### were sold inan unweaned condition on December 15

### inBillings. The remaining 72 calves 

### were weaned and grain fed for 45 days, and 

### were sold inBillings

over four separatedates inJanuary and February 1979, for prices of up to $1per pound. Allmoney was paid to the 

### seller'swife, the owner of record. The seller filed a motion tojoin an indispensable party and 

### a motion todismiss on January 18. The "indispensable party" was apparently the buyer's agent. ~earing

on the motion was held on February 1. No ruling was made. On February 

### 9 the seller filed his answer, affirmatively alleging that the suitwas barred because of the buyer'sfailure to comply with the Montana fictitiousname registration statutes. On August 

### 6, 1979, the sellermoved for summary judgment, based upon alleged voidness of the contract due to the seller's not owning the calves. A hearing was held but no ruling

### was made. The seller filed another motion for summary judgment on March 25, 1980, based upon an alleged failureof consideration. No hearing was ever held. Nonjury trialwas held on April 3 and 15, 1980. The DistrictCourt entered judgment for the buyer in the amount of $6,492.50, together with costs and attorney fees. The seller appeals. 1. FICTITIOUS NAME The appellant, 

### seller, alleged, as an affirmative defense inhis answer, that the buyer's action 

### isbarred for failure toregister the fictitiousname "J. MillerLivestock Co.", asrequired by former section 30-13-111, MCA, 1978, ineffectatthe time this contractwas executed (July 20, 1978) but sincerepealed (Sec. 18, Ch. 260, Laws of Montana, 1979). The former statutewas quite old, and had been construed and applied several 

### times. Generally, thisCourt held that if a business name fairlydisclosed the true names of allpersons interested inthe business, then no compliance with the statutewas necessary; and, that the duty 

### was on the defendant asserting the bar to affirmatively prove lack of compliance. Canonica v. St. George (1922), 64 Mont. 200, 205, 206, 208 P. 607, 608; Croft v. Bain (1914), 49 Mont. 484, 489, 143P. 960, 962. The seller has plainly failed to carry his burden of proof. Although he refers to the agent and the eastern feeder asbuyer's "partners" throughout thepleadings, transcript and brief, the record contains no evidence to show that anyone besides John 0. Millerhas any interest inthe business "J. MillerLivestock co." 

### ~t

### is not enough for the 

### seller tomerely claim thathe 

### iswithout knowledge or that he has raised questions about the status of the business. Croftv. Bain, supra. The business name here fairlydiscloses the name of the person interested in the business. Because the 

### seller failed toprove his allegations, any errorsby the trialcourt infailing torule upon hismotions were harmless, as the motions should have been denied. 2. WHETHER THE CONTRACT IS VOID Theseller argues that the contract of July 20, 1978, 

### is void due to the fact thathe did not own the calves atthe time of execution, claiming the contract 

### iswholly impossible and unlawful asproscribed in section 28-2-603, MCA. The 

### merefact that a party contracts to sell something he does not own does not raise the defense of impossibility. Mont. Barrett v. Ballard (1980), 

## - - 

## , 622 P.2d 180, 184, 37 St.Rep. 2038, 2041. The burden of proving impossibility 

### rests on the party asserting the defense; such partymust demonstrate thathe took virtually every actionwithin his powers to perform his duties under the contract. Smith v. Zepp (1977), 173Mont. 358, 365-366, 567 P.2d 923, 927. The seller offered no evidence as towhy 

### itwas impossible for him to obtain hiswife's consent to the sale or to buy her out. "The object of a contractmust be lawful when the contract 

### ismade and possible

# . . . by the time the contract 

### is tobe performed." Section 28-2-602, MCA. The 

### seller has failed to show that 

### itwas impossible for him to obtain the calves for delivery. The DistrictCourt's failure to rule upon the seller's motion for summary judgment on this ground 

### isharmless because 

### it should have been denied.3. BUYER'S RIGHT TO RELY The seller argues that the buyer's complaint sought damages due to the buyer's detrimental reliance upon the contract, inthat the buyer had obligated himself to resell the calves to an eastern feeder, which obligation the buyer 

### isnow unable to fulfilland for which the buyer 

### is liable. The seller argues that, based upon the buyer's own pleadings, the buyer cannot recover because he could 

### - not detrimentally rely on the contract; the sellerhad informed the buyer on several occasions that the 

### seller would not be able to fulfill the contract. This argument 

### isbeside the point. Damages were ultimately determined on the simple basis of difference between market prices on the date of delivery and the date of execution, asprovided by Montana's Uniform Commercial Code (section30-2-713, MCA)

# . It 

### is true that the DistrictCourt's method of resolving damages did not conform precisely with the buyer's complaint, but the court's action

### was proper. Allpleadings shallbe so construed as to do substantial justice. Rule 8(f),3I.R.Civ.P. The courts should "look to the 

### claimas a whole, to the subjectwith which 

### it deals, to the reason and spiritof the allegations inascertaining 

### itsrealpurpose. If such purpose can reasonably be said to be within the scope of the language used, thatpurpose should be honored." Hidden Hollow Ranch v. Collins (1965), 146 Mont. 321, 325, 326, 406 P.2d 365, 368. The purpose and spiritbehind the buyer's complaint 

### is to recover for breach of contract, and damages based upon the changes inmarket prices 

### are within the scope of the complaint. 4: LACK OF CONSIDERATION AND LACK OF MUTUALITY OF OBLIGATION The seller argues thatvalid consideration and mutuality of obligation areessential to a contract, that the ~istrictCourt's findings and conclusions failto setforth these elements, that the buyer has suffered no legal detriment in the nature of consideration for the reason that his later contract for resale of the calves to an eastern feeder has not been enforced by the feeder. The seller fails to recognize thatmutual promises arevalid consideration. The buyer promised topay the seller a certain amount inreturn for the seller's promise todeliver the calves on 

### a certain date ina certain condition. The buyer delivered a $2,000 check 

### as downpayment on his promise. Mutual promises alone

areenough toconstitute valid consideration. Section 28-2- 801, MCA; see 17C.J.S. Contracts, SS97, 98. In addition, the buyer gave the check asdownpayment, notwithstanding the seller's later return of that check. These facts areundisputed, and constitute sufficientbasis for the District Court

## 's conclusions. 5: EXCUSE OF PERFORMANCE The seller argues that the evidence shows he intended todeliver the calves by the extended date of December 15, but was excused from performance because of thebad weather. The 

### trial court, however, chose to believe that the 

### seller did not so intend, which belief 

### is supported by the facts setforth inthe discussion of issue no. 6, below. The findings arenot clearly erroneous, and 

### willnot be 

### set aside. Rule 52(a),M.R.Civ.P. 6: IMPOSSIBILITY OF PERFORMANCE The seller asserts another defense of impossibility due to harsh weather conditions atthe 

### time set for delivery. The trial court apparently found the seller did not intend to - deliver until after January 1inany case. Such a finding 

### is supported by the following facts: the 

### seller had been telling the buyer since September 28 thatno delivery couldbe made until afterJanuary 1; the 

### seller had been intimating

an unwillingness or inability to comply with the contract since atleastAugust 14; and, the 

### seller, inorder towean the cows for the agreed 45-day period, would have had to startweaninq by October 31 inorder todeliver by December 15. October 31was ninedays before the snow. There 

### is adequate evidence to support the DistrictCourt's conclusions. 7: EXCUSE OF PERFORMANCE BY REASON OF REJECTION The 

### seller argues that the buyer wrongfully rejected deliveryafterJanuary 1and such rejectionmade performance impossible due to the buyer's hindrance. The District Court found that the 

### seller had never delivered any calves (findingno. 13), and concluded that the failure of the 

### seller tomake even partial performance amounted to a complete breach of the contract. The court's finding 

### is supported by the evidence that the 

### seller failed to tender delivery after January 

### 1; that allhe didwas stateon several occasions that he would be unable todeliver until after January 1; and that the buyer always demanded delivery by the agreed date. After January 1the 

### seller took the calves toBillings and sold them atan increased pricewithout offering them to the buyer. The court's findings are not clearly erroneous. 

### 8: DAMAGES The 

### seller argues that the buyer never purchased replacement calves inorder to fulfillhis contract for resale to the eastern feeder; asa consequence, the failure tomitigate damages must be taken into account. But damages 

### were calculated on the basis of change inmarket price alone, pursuant to section 30-2-713, MCA. The buyer's capacity to fulfill hisown contract for

### resale isnot an issue here. 9: ATTORNEY FEESThe seller argues that the buyer 

### is not entitled to attorney fees. The buyer admits that attorney fees can only be granted pursuant to express statutory or contractual provision, but argues thatwhere a party acts

### inbad faith during litigation and discovery, attorney fees should be awarded to cover the other party's unnecessary expenses 

### in dealing with the bad faith. The DistrictCourt did not make any findings of bad faith. Inhis complaint the buyer sought damages for breach of contract. As stated by this Court in Masonovich v. School DistrictNo. 1 (1978), 178Mont. 138, 141,

"'Generally, there can be no recovery as damages of the expenses of litigation and attorney fees unless authorized by statute or contract.

### '" As there 

### is no contract or statute authorizing attorney fees inthis case, attorney feesmay not be awarded. CONCLUSION Weaffirm the judgment of the DistrictCourt except 

### as to attorney fees. Wereverse the judgment on that issue.

We concur: