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 * Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff and respondent, John Miller, buyer, brought 

this action in order to recover damages caused by the seller's 

breach of a cattle-sales contract. A nonjury trial was 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 seller presents nine separate issues for review: 

1. Did the District Court err by not barring maintenance 

of the buyer's action by reason of the fictitious name 

statutes? 

2. Did the District Court 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 District Court err in not making findings 

and conclusions upon the issue of the buyer's reliance and 

right to rely upon the contract of July 20, 1978, as alleged 

in the complaint? 

4. Were the findings and conclusions made by the 

District Court 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 District Court err in the findings and conclusions relating to the issue of excuse of performance by 

the seller? 

6. Did the District Court err in the findings and conclusions relating to the issue of impossibility of performance 

by the Seller? 

7. Did the District Court err by not entering findings 
and conclusions relating to excuse of performance by reason 

of the actions and rejection of the buyer after the seller's 

final offers? 

8. s id the trial court err in the findings and conclusions as to the measure of damages based upon the allegations 

of the complaint? 

9. id the trial court err in awarding 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 into a written contract on 

July 20, 1978, for the sale of 80 head of mixed calves. The 

sale price was 67 cents per 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 to fifteenth of November 1978, with the understanding that 

the calves were to be weaned on hay and oats for at least 45 

days prior to delivery. 

The seller executed the contract by and for himself, 

even though title to the calves was held by his wife alone. 

The buyer executed the contract by and through his agent, 

who signed "J. Miller Livestock Co., by Earl ~utler". The 

agent gave the seller a check for $2,000 as downpayment at 

the time of execution. There is conflicting testimony as to 

whether the agent was told at the time of execution that the 

seller would not cash the check and that the calves were in 

fact owned by the seller's wife. The agent was told that 

the calves were located at the seller's various properties 

in Park, Golden Valley and Wheatland counties. 

Three weeks after execution, on August 14, 1978, the 

seller informed the agent that personal problems had arisen, 
and the seller asked the agent to obtain replacement calves. 

The agent replied that he could acquire replacement calves. 

Six weeks after telling the agent of his problems, on 

September 28, 1978, the seller phoned the buyer himself and 

informed the buyer that no delivery could be made until 

af ter January 1, 197 9, and that the agent had indicated that 

replacement calves could be obtained. The buyer, in response, 

informed the seller that the calves had already been sold by 

the buyer to a feeder in Minnesota. 

On October 16, 1978, the seller met the buyer's agent 

in Billings, 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 that he would acquire them that same day. 

Replacement calves were acquired, so that buyer was 

able to fulfill his contract with the feeder in Minnesota. 

The day after the meeting in Billings, on October 17, 

the buyer entered into another contract for the transfer of 

the calves which he was buying from the seller. That second 

contract was 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, to December 

15. 

Heavy snow fell on November 8. The next day, November 

9, the seller returned the uncashed $2,000 check to the 

agent, which check had been given as downpayment. In a 

letter accompanying the check, the seller stated that delivery was impossible, and requested more time, 

On November 13, the buyer called the seller and demanded 

delivery by December 15. The seller replied that delivery 
by that date would be impossible due to the bad weather. 

The seller informed the buyer that the calves were located 

at the seller's various properties, requiring a 160-mile 

round trip to feed them. The buyer stated that he would 

refuse to take delivery after January 1, because he wound up 

his business at the 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 that no delivery could be made until after January 

1, because of the period of time required for weaning and 

weight gain. 

The buyer filed suit on December 8, praying for specific 

performance or for damages in the event the seller failed to 

deliver by December 15. 

The seller hired persons to plow his ranch road, and 

after two days of plowing was able to truck out some calves. 

Eighteen of the calves were sold in an unweaned condition on 

December 15 in Billings. The remaining 72 calves were 

weaned and grain fed for 45 days, and were sold in Billings 

over four separate dates in January and February 1979, for 

prices of up to $1 per pound. All money was paid to the 

seller's wife, the owner of record. 

The seller filed a motion to join an indispensable 

party and a motion to dismiss 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 suit was barred because of the buyer's 
failure to comply with the Montana fictitious name registration 

statutes. 

On August 6, 1979, the seller moved 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 failure of consideration. 

No hearing was ever held. 

Nonjury trial was held on April 3 and 15, 1980. The 

District Court 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 in his answer, that the buyer's action is barred for 

failure to register the fictitious name "J. Miller Livestock 

Co.", as required by former section 30-13-111, MCA, 1978, 

in effect at the time this contract was executed (July 20, 

1978) but since repealed (Sec. 18, Ch. 260, Laws of Montana, 

1979). The former statute was quite old, and had been 

construed and applied several times. Generally, this Court 

held that if a business name fairly disclosed the true names 

of all persons interested in the business, then no compliance 

with the statute was 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, 143 P. 960, 962. The seller has plainly failed to 

carry his burden of proof. Although he refers to the agent 

and the eastern feeder as buyer's "partners" throughout the 
pleadings, transcript and brief, the record contains no 

evidence to show that anyone besides John 0. Miller has any 

interest in the business "J. Miller Livestock co." ~t is 

not enough for the seller to merely claim that he is without 

knowledge or that he has raised questions about the status 

of the business. Croft v. Bain, supra. The business name 

here fairly discloses the name of the person interested in 

the business. Because the seller failed to prove his allegations, any errors by the trial court in failing to rule upon 

his motions 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 that he did not own the calves at the 

time of execution, claiming the contract is wholly impossible 

and unlawful as proscribed in section 28-2-603, MCA. 

The mere fact that a party contracts to sell something 

he does not own does not raise the defense of impossibility. 

Barrett v. Ballard (1980), - Mont. - , 622 P.2d 180, 184, 

37 St.Rep. 2038, 2041. The burden of proving impossibility 

rests on the party asserting the defense; such party must 

demonstrate that he took virtually every action within his 

powers to perform his duties under the contract. Smith v. 

Zepp (1977), 173 Mont. 358, 365-366, 567 P.2d 923, 927. The 

seller offered no evidence as to why it was impossible for 

him to obtain his wife's consent to the sale or to buy her 

out. "The object of a contract must be lawful when the contract is made and possible . . . by the time the contract is 

to be performed." Section 28-2-602, MCA. The seller has 

failed to show that it was impossible for him to obtain the 

calves for delivery. The District Court's failure to rule 

upon the seller's motion for summary judgment on this ground 

is harmless 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, in that the buyer had obligated himself to resell 

the calves to an eastern feeder, which obligation the buyer 

is now unable to fulfill and 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 seller had informed the 

buyer on several occasions that the seller would not be able 

to fulfill the contract. This argument is beside 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, as provided by Montana's Uniform Commercial Code (section 30-2-713, MCA) . 

It is true that the District Court's method of resolving 

damages did not conform precisely with the buyer's complaint, 

but the court's action was proper. All pleadings shall be so 

construed as to do substantial justice. Rule 8(f), 3I.R.Civ.P. 

The courts should "look to the claim as a whole, to the 

subject with which it deals, to the reason and spirit of the 

allegations in ascertaining its real purpose. If such 

purpose can reasonably be said to be within the scope of the 

language used, that purpose should be honored." Hidden 

Hollow Ranch v. Collins (1965), 146 Mont. 321, 325, 326, 

406 P.2d 365, 368. The purpose and spirit behind the buyer's 

complaint is to recover for breach of contract, and damages 

based upon the changes in market prices are within the scope 

of the complaint. 

4: LACK OF CONSIDERATION AND LACK OF MUTUALITY OF OBLIGATION 

The seller argues that valid consideration and mutuality 

of obligation are essential to a contract, that the ~istrict 
Court's findings and conclusions fail to set forth 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 that mutual promises are valid consideration. The 

buyer promised to pay the seller a certain amount in return 

for the seller's promise to deliver the calves on a certain 

date in a certain condition. The buyer delivered a $2,000 

check as downpayment on his promise. Mutual promises alone 

are enough to constitute valid consideration. Section 28-2- 

801, MCA; see 17 C.J.S. Contracts, SS97, 98. In addition, 

the buyer gave the check as downpayment, notwithstanding the 

seller's later return of that check. These facts are undisputed, and constitute sufficient basis for the District 

Court ' s conclusions. 

5: EXCUSE OF PERFORMANCE 

The seller argues that the evidence shows he intended 

to deliver the calves by the extended date of December 15, 

but was excused from performance because of the bad weather. 

The trial court, however, chose to believe that the seller 

did not so intend, which belief is supported by the facts 

set forth in the discussion of issue no. 6, below. The 

findings are not clearly erroneous, and will not 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 at the time set for delivery. 

The trial court apparently found the seller did not intend to - 

deliver until after January 1 in any case. Such a finding is 

supported by the following facts: the seller had been 

telling the buyer since September 28 that no delivery could 
be made until after January 1; the seller had been intimating 

an unwillingness or inability to comply with the contract 

since at least August 14; and, the seller, in order to wean 

the cows for the agreed 45-day period, would have had to 

start weaninq by October 31 in order to deliver by December 

15. October 31 was ninedays before the snow. There is 

adequate evidence to support the District Court's conclusions. 

7: EXCUSE OF PERFORMANCE BY REASON OF REJECTION 

The seller argues that the buyer wrongfully rejected 

deliveryafter January 1 and such rejection made performance 

impossible due to the buyer's hindrance. The District 

Court found that the seller had never delivered any calves 

(finding no. 13), and concluded that the failure of the seller 

to make 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 all he did was state on several occasions that 

he would be unable to deliver until after January 1; and that 

the buyer always demanded delivery by the agreed date. After 

January 1 the seller took the calves to Billings and sold 

them at an increased price without 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 in order to fulfill his contract for resale to 

the eastern feeder; as a consequence, the failure to mitigate 

damages must be taken into account. But damages were calculated on the basis of change in market price alone, pursuant 

to section 30-2-713, MCA. The buyer's capacity to fulfill 

his own contract for resale is not an issue here. 

9: ATTORNEY FEES 
The 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 that where a party acts in bad 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 District Court did not make 

any findings of bad faith. In his complaint the buyer sought 

damages for breach of contract. As stated by this Court in 

Masonovich v. School District No. 1 (1978), 178 Mont. 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 

in this case, attorney fees may not be awarded. 

CONCLUSION 

We affirm the judgment of the District Court except as to 

attorney fees. We reverse the judgment on that issue. 

We concur: