### No. 81-117 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

RUBEN C. 

### STEINMETZ, Plaintiff and Appellant,

-VS

### RANDY ROBERTUS and DAVID ROBERTUS, Defendants and Respondents.

Appeal from: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Anderson, Brown, Gerbase, Cebull and Jones,Billings,

Montana For Respondents: Thomas L. 

### Bradley, Laurel,Montana

Submitted on briefs: August 27, 

### 1981

7 -;

## 19BI Decided

### :I, :_

_, 

### Filed:

# EC 1

# - 1981Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Inan action for the purchase price of an irrigation pump, plaintiff appeals an unfavorable judgment of the court, sittingwithout 

### a jury, inthe Thirteenth Judicial District, Yellowstone County. Plaintiff claims an acceptance of the pump on the partof the defendants with a consequent obligation topay the purchase price. Defendants claim the pump

was improperly installed and subsequently damaged, and they have refused topay for the pump. Plaintiff presents the following issues for review: 1) Whether the District Court erred infailing to make findingsof factand conclusions of law with regard to acceptance, rejection, and revocation of acceptance under the Uniform Commercial Code. 2) Whether there 

### is sufficient evidence to support the findings of fact (particularlyfinding of factno. 3), conclusions of law and judgment. We affirm the DistrictCourt, holding (1)the District Court's findings of factand conclusions of law show that the defendants did not accept the pump asacceptance 

### is defined in the Uniform Commercial Code, and (2) there 

### is substantial evidence to support the DistrictCourt's findings of fact. Plaintiff 

### isa salesman of farm seed and irrigation products inJoliet, Montana. Defendants own and run a farm inCarbon County. Between January and April of 1977, plaintiff, defendants, and Roy Bucklin, discussed the proposed installation of an irrigation system on defendants' land. Roy Bucklin

was the president of Pipe and Pump Supply of Greybull,Wyoming, which supplied the irrigation systems toplaintiff salesman. Two bids 

### were submitted and rejected. Defendants paid $2,000 on April 25, 1977. OnMay 1, 1977, plaintiff and defendants made an oral agreement for the sale todefendants of an irrigation system for the price of $19,829, which covered the price of the system 

### less installation charges and variations inthe price of the pump. Both parties agreed that the plaintiff had the obligation to install and 

### test the irrigation system. Defendants had requested a Western Land Roller pump which was unavailable. Plaintiff substituted a Fairbanks Morse pump, which, according to plaintiff was designed for the type of wheel row irrigation system ordered by defendants. Whether defendants agreed to the substitution prior to the plaintiff's ordering the Fairbanks Morse pump 

### isdisputed. The horsepower of the substitutedpump was lower, the price higher, than that of the pump initiallyrequested. Because the Fairbanks Morse pump would not be received until some days after thewheel rows themselves 

### were installed, and because, in thatdrought year, early irrigationwas essential, plaintiff supplied defendants with a temporary tractor-run pump. The main lineand wheel rows 

### were completely installed by May 10, 1977. The tractor-run power-take-off pump (PTO) was installed approximately May 14, 1977, and functioned properly, supplying sufficientwater. On May 19, 1977, defendants paid plaintiff an additional $13,384.00, which covered the purchase price of everything but the pump and its installation. The installation of the pump required the digging of a sump excavation forwater which would supply the pump through a 4'x8'x8' metal-walled pipe or sump. Mr. Bucklinspecified the location and dimensions of the excavation when he and the plaintiff visited defendants' farm inmid-May. ~ucklin also designed the metal-walled sump. The excavation for the sump was dug by Adams Construction the day after the visitof Bucklin and Steinmetz. Neither Bucklin nor Steinmetz



### waspresent 

### to supervise the excavating. The metal sump arrived and was installed approximately two weeks later. Before installation, the sump excavation 

### was re-dug, because of cave-ins. After the sump was installed, the pump 

### was attached to the sump. Because the pump's column was too long to fitdown into the sump, the pump was raised 

### by nailing railroad 

### ties together, chaining them to the sump, and bolting the pump to the top 

### tie. Bucklin testified that he did not attacha screen to the pump, that such a screen

was optional, and that the sump was screened. Plaintiff, Bucklin, and a couple of helpers supervised the installation which took allof the day of June 

### 5, 1977. Because electricity had not yetbeen extended to the system, plaintiff, Bucklin, and helpers departed before the pump was turned on, asdid plaintiff the following day when the wiring was not completed by nearly noon. The water inthe sump was "dirty

# . .

# . mucky looking," according to defendants, and when they turned the pump on, the pump ran 

### a few minutes, then quit. No water ever came out of the pump. A relative "probed around inthe bottom of the sump and found itwas full of mud and rock," That evening defendant called plaintiff, complaining that the pump did notwork. The plaintiff responded thathe would try to come out the following morning. Defendants hired another party, who cleaned the sump the next day, but the pump failed to pump any water. Plaintiff was unable tocome out thatday, and when defendant called him that evening,

a heated conversation ensued inwhich, according toplaintiff, defendant Randy Robertus threatened his life. Defendant denies he made the threatbut agrees thathe became quite angry, and demanded thatplaintiff callBucklin so the matter could be settled thatnight. That same evening, plaintiff testified, Bucklin advised plaintiff to stay outof the matter and away from the Robertus farm. Bucklin then called defendant Randy Robertus, and assured him he would come outand check the pump. In fact, Mr. Bucklin removed the pump, which he testifiedwas choked with "pieces of corn stalks, sand and gravel," which could damage the pump if leftin

### it for any length of 

### time. Bucklin cleaned the pump and his hired man returned 

### it in several days. Bucklin testified that the pump was undamaged, but admits that this 

### timehe did install a screen in the pump. The hired man, James Jones, testified thatwhen he installed thepump after Bucklin cleaned 

### it, 

### itworked "for

a short time until 

### it sucked allthe water out" of the sump. He also testified thatwhen he returned after the 4th of July topick up the PTO pump, the defendants had supplied

more water from an irrigationditch and Randy Robertus made

no complaint, but indicated he was pleased with the electrical pump (theFairbanks Morse). Both Bucklin and plaintiff testified that there was no further complaint about the working of the pump until October, well after the end of the irrigating season, when defendants' father telephoned plaintiff and demanded thatplaintiff take back the pump because 

### itdid not work properly. Plaintiff presented six witnesses, allof whom testified to "driving by" the Robertus farm and seeing the wheel rows irrigating the field ofbarley. Defendants deny that they told Mr. Jones the system "pleased" them; infact, they testified that on at

### least three occasions, they called Bucklin, complaining to his wife or secretary that the pump 

### was not functioning properly. Bucklin never responded to their complaints. Defendants testified that, for almost two weeks, they tried tomake thepump run right, switchingwater from one wheel row to the other, then toboth, then moving the wheel rows and trying again. They claim tohave run the pump 24 hours 

### a day tono avail; 

### its inefficientoperation failed to irrigate the fields sufficiently, and they suffered a severe crop loss in the fields, which produced only 20 bushels per acre of barley instead of the anticipated 80 bushels. Their testimony was corroborated by a neighbor who testified that thepump never worked properly. Defendants replaced the Fairbanks Morse pump inspringof 1978 ata cost of approximately $4,000.00. After harvest, inOctober of 1977, the defendantst father contacted plaintiff and told him to come and get the pump

# -- it didn't work, and defendants did not intend topay for 

### it. Plaintiff refused to accept the pump and demanded fullpayment for the pump and installation costs, a total of $4,865.00. The original action against the defendants was instituted by Pipe and Pump Supply. Defendants denied the allegations inthe complaint and alleged thatPipe and Pump Supply was a Wyoming corporation without a certificateof authority to do business inMontana and had no standing to sue. Defendants counterclaimed against Ruben Steinmetz requesting that plaintiff take nothing by their action and seeking damagesin the amount of $6,000.00. Subsequently, third-party defendant Steinmetz counterclaimed against defendants Robertus. Defendants Robertus moved fordismissal of the complaint of Pipe and Pump Supply and the counterclaimby Steinmetz. The motion 

### was granted by the District Court on September 5, 1979, and, ina Nunc Pro Tunc order dated September 14, 1979, 

## --- the court ordered that themotions todismiss be granted without prejudice. Steinmetz filed an amended complaint against defendants Robertus on October 12, 1979, alleging the 

### sale of a wheel row irrigation system atan agreed upon price of $20,249.00 and defendants' failure topay the balance of $4,865.00, and requesting judgment inthe amount of the balance due and costs. Defendants denied allallegations. Trial was had on December 11, 1980. On December 15, 1980, the DistrictCourt entered 

### its findings of factand conclusions of 

### lawand entered judgment for the defendants, dismissing plaintiff's complaint and awarding costs to the defendants. Plaintiff appeals.

The DistrictCourt's findings of factand conclusions of law are 

### as follows:"FINDINGS OF FACT "1. That the plaintiff and the defendants on April 25, 1977, entered into an agreement whereby plaintiff was to provide and install a wheel roll irrigation system, together with a pump, for the price of $20,249.00, which consisted of the 

### sum of $13,384.00 for the wheel roll sprinkler and $4,365.00 for the pump; that defendants have paid $13,365.00 for thewheel roll system. [Defendants made a $2,000.00 down payment on thewheel roll system inApril, and paid an additional $13,384.00 inMay. The total price of the wheel roll system was $15,384.00. The cost of the wheel rolls, plus the unpaid amount 

## -- $4,365.00 for the pump and $500.00 for 

### its installation

# -- brought the contract amount to $20,249.00.1 "2. That thewheel roll irrigation system was tobe installed and working upon defendants' farm inCarbon County, Montana, withinten (10) days."3. That the plaintiff failed toproperly install said pump in that the pump was installed ina sump thatwas filledwith mud and trash; thatno screenwas placed over the intake of saidpump; that the pump drew inmud and trash and was damaged; that the plaintiff failed to test saidpump or 

### irrigation system; thatas

### a consequence the pump failed towork and failed to adequately irrigate the lands of the defendants as called for in the agreement. 

### "4. That the defendants were forced toremove the pump of the plaintiff and subsequently had topurchase a new pump from another supplier. "5. That defendants offered toreturn the pump to the plaintiff but thatplaintiff 

### refused toaccept the same and refused tomake the wheel roll system operable. "From the foregoing Facts, the Court draws the following: "CONCLUSIONS OF LAW "1. That the plaintiff has failed to provide an operable pump asrequired under his agreement with the defendants. "2. That the defendants have offered to return plaintiff's pump, butplaintiff refuses to accept the same. "3. That plaintiff's complaint should be dismissed and judgment entered in favor of the defendants.

### " Plaintiff argues thatbecause neither the defendants'

answer denying plaintiff

## 's allegations nor the District Court's findingsof factand conclusions of 

### law specifically addressed the questions of acceptance, rejection, and revocation

as setforth inMontana's Uniform Commercial Code, this Court must reverse and remand with orders to the District Court to enter judgment in favor of the plaintiff. Plaintiff citesBallantyne v. The Anaconda Company (1978), 574 P.2d 582, 175Mont. 406, asrequiring findings of factand conclusions of law in supportof a judgment. While the Court in that

case did describe the purpose and function of a writtenopinion, the Court directed the case be remanded to the DistrictCourt which was directed to 

### set forth the reason for

### itsorder granting plaintiff's new trial in accordance with Rule 59(f),M.R.Civ.P., which specifically requires thata court granting new trial shall specify the grounds with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling. Certainly this Court would much prefer a more precise and detailed statement of findings of factand conclusions of law than those prepared by the DistrictCourt indeciding this action. Weapprove the quotation inBallantyne from the comment of Chief Justice Hughes: "[A] well-stated opinion 

### isof great assistance to the appellate court as a chart of the reasoning followed by the trialjudge inreaching a decision." Ballantyne v. Anaconda Co, 175Mont. at409, 574 P.2d at584. As 

### set forth inRule 52

### (a),M.R.Civ.P., the applicable standard for our review of findings of facts 

### is: "Findingsof fact shall not be 

### set aside unless clearly erroneous, and due regard shallbe given to the opportunity of the trialcourt tojudge of the credibility of thewitnesses." We cannot say that the trial court's findings of fact

### in this case were clearly erroneous, inlightof the evidence presented and the consistency of the findingswith the UCCrs provisions governing rejection of non-conforming goods. Montana UCC states inrelevant part: "30-2-601. 

# . .

# . [I] f the goods or the tender of delivery fail inany respect to conform to the contract, the buyer may: 

### "(a)reject the whole. 

# .

# . "30-2-602. (1)Rejection of goods must be within

### a reasonable time after their delivery or tender. It 

### is ineffectiveunless the buyer seasonably notifies the 

### seller.

### "30-2-606. (1) Acceptance of goods occurs when the buyer: 

### "(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods areconforming or that he 

### will take or retain them in spiteof their noncomformity; or 

### "(b) fails tomake an effectiverejection (subsection (1)of 30-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or 

### "(c)does any actinconsistentwith the seller's ownership; but if such act

### iswrongful 

### as against the seller 

### it is an acceptance only if ratified by him." Section 30-2-601 

### et. seq., MCA. 

# - - There was substantial evidence to support the following conclusions: (a)The goods were non-conforming orwere improperly delivered. The parties are agreed that 

### it was part of the agreement, and 

### a matter of common practice in the irrigation equipment trade, for the 

### seller to supervise the installation of an irrigation system and 

### test itsperformance. 

### Here, both plaintiff and his supplierwere present the day the pump was installed and yet there were a number of questionable

occurrences. The screenless pump drew in sufficient debris to clog 

### itbefore

### any_ water was pumped to the wheel rows. Both Bucklin and plaintiff Steinmetz leftthe farm before the irrigationpump was tested. Neither Bucklin nor plaintiff returned to the farm to test the system after 

### its "cure" and ascertain that 

### itwas functioning properly; their observations

were limited towhat they could 

### see "driving by" the farm. (b) There was a failure to cure the defects of the pump. Defendants contacted plaintiff early and emphatically, the day after the pump's installation, clearly indicating that

### itdid notwork. They made a number of unsuccessful attempts after the attempted "cure" to contactBucklin, who admittedlywas fulfilling plaintiff's duties following theharsh exchange between plaintiff and Randy Robertus, without any response from Bucklin. 

### (c) Finally and perhaps most importantly, defendants ten to twelve days' "use" of the pump inJune or earlyJuly

was infacta prolonged effort to determine why the pump failed towork and tocure the defect themselves in the absence of any response by the plaintiff (orBucklin) to defendants' complaints. As such, 

### itwas never an actinconsistent with seller's ownership under Section 30-2-606(1)(c), MCA, but rather a reasonable and timely inspection of the pump, under Section 30-2-606(1) (b),MCA, to determine if 

### itwas or could be inconformity with the agreement. The Montana Power records indicate that the pump was not used for "several months," asplaintiff charges, but for no more than two weeks total. Defendants testified that, for nearly that length of time, they tried, without success, every conceivable variation of rigging up the wheel rolls and changing their location to try tomake the pump work asplaintiff had assured them 

### itwould work. Montana's Uniform Commercial Code provides 

# ".

. . acceptance does not occur until the buyer has had a reasonable opportunity to inspect [thegoods]

# ." Section 30-2-606 (1) (b)

## , MCA. When the goods inquestion can only be inspected by putting them to the use forwhich they are intended, a reasonable 

### timefor inspection naturally 

### willbe longer than if the goods are items whose conformity or nonconformity can be determined simply by looking atthem. A courtmust be realistic inappraising the sufficiency of a buyer's opportunity to inspect, and should not hold that the buyer has accepted where because of the technical

or complex nature of the goods the buyer cannot determinewhether thay are satisfactoryuntil he actuallymakes use of them. 2 Anderson, Uniform Commercial Code, (2d ed. 1971) (~upp. 1981), 191-192. When a buyer attempts tocooperate with the 

### seller, and "work the bugs out" of a complex piece of machinery by brieflyputting themachinery to 

### its intended use, he should not be acting athis peril. Courts should be hesitant to find that such acts areinconsistentwith the 

### seller's ownership. SeeWhite and Summers, Uniform Commercial Code (2d ed. 1980), 300. Here, defendants 

### were assured that the pump inquestion

was designed to supply two to threewheel rows with adequate water. Defendants' use of the pump can be considered the "period of experimentation" recognized inCarl Beasley Ford, Inc. 

### v. Burroughs Corp. (E.D. Pa. 1973), 361 F.Supp. 325, aff'd. 

## - inunpub.

# =., (3rdCir.), 493 F.2d 1400. It

### isgenerallyheld that

### merenotification of poor quality 

### isnot sufficient toconstitute rejection under the Uniform Commercial Code. See Southeastern Steel

### v. Burton Block & Concrete (1979), 273 S.C. 634, 258 S.E.2d 888, and

cases cited therein. Here 

### we findmore than 

### mere notification. Defendant Randy Robertus 

### twice contacted plaintiff before the attempted "cure" of the pump's defects; defendants three 

### times contacted Roy Bucklin, who was acting on plaintiff's behalf, after the ineffectual "cure" of those defects; and defendants, who had paid the total price of the wheel roll system within days of its installation, refused topay any part of the pump purchase price over a period of several months. We find that the DistrictCourt's findingsof factand conclusions of law arenot inconsistent with theMontana UCC despite thatcourt's regrettable failure todevelop a clearstatement of the facts as they relate to applicableMontana law on sales. Under the factsof thiscase, therewas no acceptance by the defendants, no actual use inconsistent with the ownership of the plaintiff, and no delay inoffering

a return of non-conforming goods significantenough to justify a conclusion that defendants had accepted the pump. I1 Plaintiff argues that there 

### is not substantial evidence supporting the District Court's findings of fact. We have already discussed much of the relevant evidence. This Court 

### willuphold findingsbased on conflicting evidence when there 

### is substantial evidence on the whole record supporting such findings. The evidence must be viewed inthe lightmost favorable to the prevailing party. Weston v. Kuntz (1981), Mont. 

## , P.2d 

## , 38 St.Rep. 1691, 1693; Toeckes 

### v. Baker (1980), Mont. 

## , 611 P.2d 609, 611, 37 St.Rep. 948, 950; Hagfelt v. Mahaffey (1978), 176 Mont.

There 

### isample evidence of an agreement that plaintiff would supply a pump capable of providing two, perhaps three, wheel rows with adequate water, and thatplaintiff would supervise the installation and testing of the system once 

### it



### was installed. There 

### is substantial evidence that the system did not operate atallinitially, and that following defendants' complaints and nonpayment for the pump and installation, plaintiff's supplier, atplaintiff's request, attempted to fixthe pump. Defendants have presented substantial evidence that the pump never functioned properly and was

never made effective despite defendants' continued protests to plaintiff's supplierwho was acting asplaintiff's middleman after the June 17thquarrel between plaintiff and defendantRandy Robertus. Defendants testified that asa result of the pump's failure, a significantportion of the barley crop

was lost, and defendants purchased a new pump the following spring. We find there 

### is substantial evidence supporting the DistrictCourt's findings of fact. Affirmed.

WeConcur: 

# s-.,4dq%4 Chief Justice