No. 81-117 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RUBEN C. STEINMETZ, 

Plaintiff and Appellant, 

-VSRANDY ROBERTUS and DAVID ROBERTUS, 

Defendants and Respondents. 

Appeal from: District Court 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 

Decided :I, :_ _, 7 -; 19BI 

Filed: EC 1 - 1981 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

In an action for the purchase price of an irrigation 

pump, plaintiff appeals an unfavorable judgment of the court, 

sitting without a jury, in the Thirteenth Judicial District, 

Yellowstone County. Plaintiff claims an acceptance of the 

pump on the part of the defendants with a consequent obligation to pay the purchase price. Defendants claim the pump 

was improperly installed and subsequently damaged, and they 

have refused to pay for the pump. 

Plaintiff presents the following issues for review: 

1) Whether the District Court erred in failing to 

make findings of fact and 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 (particularly finding of fact no. 3), 

conclusions of law and judgment. 

We affirm the District Court, holding (1) the District 

Court's findings of fact and conclusions of law show that 

the defendants did not accept the pump as acceptance is 

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

substantial evidence to support the District Court's findings 

of fact. 

Plaintiff is a salesman of farm seed and irrigation 

products in Joliet, Montana. Defendants own and run a farm 

in Carbon 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 to plaintiff 

salesman. Two bids were submitted and rejected. Defendants 

paid $2,000 on April 25, 1977. On May 1, 1977, plaintiff 

and defendants made an oral agreement for the sale to defendants 

of an irrigation system for the price of $19,829, which 

covered the price of the system less installation charges 

and variations in the 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 is disputed. 

The horsepower of the substituted pump was lower, the price 

higher, than that of the pump initially requested. 

Because the Fairbanks Morse pump would not be received 

until some days after the wheel rows themselves were installed, 

and because, in that drought year, early irrigation was 

essential, plaintiff supplied defendants with a temporary 

tractor-run pump. The main line and 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 sufficient water. 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 for water which would supply the pump 

through a 4'x8'x8' metal-walled pipe or sump. Mr. Bucklin 
specified the location and dimensions of the excavation when 

he and the plaintiff visited defendants' farm in mid-May. 

~ucklin also designed the metal-walled sump. The excavation 

for the sump was dug by Adams Construction the day after the 

visit of Bucklin and Steinmetz. Neither Bucklin nor Steinmetz 

was present 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 fit down 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 attach a 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 all of the day of June 5, 1977. Because electricity 

had not yet been extended to the system, plaintiff, Bucklin, 

and helpers departed before the pump was turned on, as did 

plaintiff the following day when the wiring was not completed 

by nearly noon. 

The water in the 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 in the bottom of 

the sump and found it was full of mud and rock," 

That evening defendant called plaintiff, complaining 

that the pump did not work. The plaintiff responded that he 

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 to 
come out that day, and when defendant called him that evening, 

a heated conversation ensued in which, according to plaintiff, 

defendant Randy Robertus threatened his life. Defendant 

denies he made the threat but agrees that he became quite 

angry, and demanded that plaintiff call Bucklin so the 

matter could be settled that night. 

That same evening, plaintiff testified, Bucklin advised 

plaintiff to stay out of the matter and away from the Robertus 

farm. Bucklin then called defendant Randy Robertus, and 

assured him he would come out and check the pump. In fact, 

Mr. Bucklin removed the pump, which he testified was choked 

with "pieces of corn stalks, sand and gravel," which could 

damage the pump if left in 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 time he did install a screen in the 

pump. The hired man, James Jones, testified that when he 

installed the pump after Bucklin cleaned it, it worked "for 

a short time until it sucked all the water out" of the 

sump. He also testified that when he returned after the 4th 

of July to pick up the PTO pump, the defendants had supplied 

more water from an irrigation ditch and Randy Robertus made 

no complaint, but indicated he was pleased with the electrical 

pump (the Fairbanks 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 that plaintiff take back the pump 

because it did not work properly. Plaintiff presented six 

witnesses, all of whom testified to "driving by" the Robertus 

farm and seeing the wheel rows irrigating the field of 
barley. 

Defendants deny that they told Mr. Jones the system 

"pleased" them; in fact, 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 to make 

the pump run right, switching water from one wheel row to 

the other, then to both, then moving the wheel rows and 

trying again. They claim to have run the pump 24 hours a 

day to no avail; its inefficient operation 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 

the pump never worked properly. Defendants replaced the 

Fairbanks Morse pump in spring of 1978 at a cost of approximately 

$4,000.00. 

After harvest, in October 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 to pay 

for it. Plaintiff refused to accept the pump and demanded 

full payment 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 

in the complaint and alleged that Pipe and Pump Supply was a 

Wyoming corporation without a certificate of authority to do 

business in Montana and had no standing to sue. Defendants 

counterclaimed against Ruben Steinmetz requesting that 

plaintiff take nothing by their action and seeking damages 
in the amount of $6,000.00. Subsequently, third-party 

defendant Steinmetz counterclaimed against defendants Robertus. 

Defendants Robertus moved for dismissal of the complaint of 

Pipe and Pump Supply and the counterclaim by Steinmetz. The 

motion was granted by the District Court on September 5, 

1979, and, in a --- Nunc Pro Tunc order dated September 14, 1979, 

the court ordered that the motions to dismiss 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 at an agreed upon 

price of $20,249.00 and defendants' failure to pay the 

balance of $4,865.00, and requesting judgment in the amount 

of the balance due and costs. Defendants denied all allegations. 

Trial was had on December 11, 1980. On December 15, 

1980, the District Court entered its findings of fact and 

conclusions of law and entered judgment for the defendants, 

dismissing plaintiff's complaint and awarding costs to the 

defendants. Plaintiff appeals. 

The District Court's findings of fact and 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 the wheel roll system. [Defendants made 

a $2,000.00 down payment on the wheel roll 

system in April, and paid an additional 

$13,384.00 in May. 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 the wheel roll irrigation system 

was to be installed and working upon defendants' farm in Carbon County, Montana, within ten (10) days. 
"3. That the plaintiff failed to properly 

install said pump in that the pump was installed in a sump that was filled with mud 

and trash; that no screen was placed over 

the intake of said pump; that the pump drew 

in mud and trash and was damaged; that the 

plaintiff failed to test said pump or irrigation system; that as a consequence the 

pump failed to work and failed to adequately 

irrigate the lands of the defendants as 

called for in the agreement. 

"4. That the defendants were forced to remove 

the pump of the plaintiff and subsequently 

had to purchase a new pump from another supplier. 

"5. That defendants offered to return the 

pump to the plaintiff but that plaintiff refused to accept the same and refused to make 

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 as required under his agreement with the defendants. 

"2. That the defendants have offered to 

return plaintiff's pump, but plaintiff refuses 

to accept the same. 

"3. That plaintiff's complaint should be dismissed and judgment entered in favor of the 

defendants. " 

Plaintiff argues that because neither the defendants' 

answer denying plaintiff ' s allegations nor the District 

Court's findings of fact and conclusions of law specifically 

addressed the questions of acceptance, rejection, and revocation 

as set forth in Montana'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 

cites Ballantyne v. The Anaconda Company (1978), 574 P.2d 

582, 175 Mont. 406, as requiring findings of fact and conclusions 

of law in support of a judgment. While the Court in that 

case did describe the purpose and function of a written 
opinion, the Court directed the case be remanded to the 

District Court which was directed to set forth the reason 

for its order granting plaintiff's new trial in accordance 

with Rule 59(f), M.R.Civ.P., which specifically requires 

that a 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 fact and conclusions 

of law than those prepared by the District Court in deciding 

this action. We approve the quotation in Ballantyne from 

the comment of Chief Justice Hughes: "[A] well-stated 

opinion is of great assistance to the appellate court as a 

chart of the reasoning followed by the trial judge in reaching 

a decision." Ballantyne v. Anaconda Co, 175 Mont. at 409, 

574 P.2d at 584. As set forth in Rule 52 (a), M.R.Civ.P., 

the applicable standard for our review of findings of facts 

is: 

"Findings of fact shall not be set aside 

unless clearly erroneous, and due regard 

shall be given to the opportunity of the 

trial court to judge of the credibility of 

the witnesses." 

We cannot say that the trial court's findings of fact in 

this case were clearly erroneous, in light of the evidence 

presented and the consistency of the findings with the UCCrs 

provisions governing rejection of non-conforming goods. 

Montana UCC states in relevant part: 

"30-2-601. . . . [I] f the goods or the tender 

of delivery fail in any 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 ineffective unless 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 

are conforming or that he will take or retain 

them in spite of their noncomformity; or 

" (b) fails to make an effective rejection (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 act inconsistent with the seller's 

ownership; but if such act is wrongful 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 or were 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 its performance. Here, 

both plaintiff and his supplier were 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 it before any_ water was pumped to the wheel rows. 

Both Bucklin and plaintiff Steinmetz left the farm before 

the irrigation pump was tested. Neither Bucklin nor plaintiff 

returned to the farm to test the system after its "cure" and 

ascertain that it was functioning properly; their observations 

were limited to what 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 it did not work. They made a number of unsuccessful 

attempts after the attempted "cure" to contact Bucklin, who 

admittedly was fulfilling plaintiff's duties following the 
harsh 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 in June or early July 

was in fact a prolonged effort to determine why the pump 

failed to work and to cure the defect themselves in the 

absence of any response by the plaintiff (or Bucklin) to 

defendants' complaints. As such, it was never an act inconsistent 

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 it was or could 

be in conformity with the agreement. The Montana Power 

records indicate that the pump was not used for "several 

months," as plaintiff 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 to make the pump work as plaintiff had 

assured them it would work. 

Montana's Uniform Commercial Code provides ". . . 

acceptance does not occur until the buyer has had a reasonable 

opportunity to inspect [the goods] . " Section 30-2-606 (1) (b) , 

MCA. When the goods in question can only be inspected by 

putting them to the use for which they are intended, a reasonable 

time for inspection naturally will be longer than if the goods are 

items whose conformity or nonconformity can be determined 

simply by looking at them. 

A court must be realistic in appraising 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 determine 
whether thay are satisfactory until he actually makes use of 

them. 2 Anderson, Uniform Commercial Code, (2d ed. 1971) 

(~upp. 1981), 191-192. When a buyer attempts to cooperate 

with the seller, and "work the bugs out" of a complex piece 

of machinery by briefly putting the machinery to its intended 

use, he should not be acting at his peril. Courts should be 

hesitant to find that such acts are inconsistent with the 

seller's ownership. See White and Summers, Uniform Commercial 

Code (2d ed. 1980), 300. 

Here, defendants were assured that the pump in question 

was designed to supply two to three wheel rows with adequate 

water. Defendants' use of the pump can be considered the 

"period of experimentation" recognized in Carl Beasley Ford, 

Inc. v. Burroughs Corp. (E.D. Pa. 1973), 361 F.Supp. 325, 

aff'd. - in unpub. =., (3rd Cir.), 493 F.2d 1400. 

It is generally held that mere notification of poor 

quality is not sufficient to constitute 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 find more 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 to pay any 

part of the pump purchase price over a period of several 

months. 

We find that the District Court's findings of fact and 

conclusions of law are not inconsistent with the Montana UCC 

despite that court's regrettable failure to develop a clear 
statement of the facts as they relate to applicable Montana 

law on sales. Under the facts of this case, there was no 

acceptance by the defendants, no actual use inconsistent 

with the ownership of the plaintiff, and no delay in offering 

a return of non-conforming goods significant enough 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 

will uphold findings based on conflicting evidence when 

there is substantial evidence on the whole record supporting 

such findings. The evidence must be viewed in the light most 

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 is ample evidence of an agreement that plaintiff 

would supply a pump capable of providing two, perhaps three, 

wheel rows with adequate water, and that plaintiff would 

supervise the installation and testing of the system once it 

was installed. There is substantial evidence that the 

system did not operate at all initially, and that following 

defendants' complaints and nonpayment for the pump and 

installation, plaintiff's supplier, at plaintiff's request, 

attempted to fix the pump. Defendants have presented substantial 

evidence that the pump never functioned properly and was 

never made effective despite defendants' continued protests 

to plaintiff's supplier who was acting as plaintiff's middleman 

after the June 17th quarrel between plaintiff and defendant 
Randy Robertus. Defendants testified that as a result of 

the pump's failure, a significant portion of the barley crop 

was lost, and defendants purchased a new pump the following 

spring. 

We find there is substantial evidence supporting the 

District Court's findings of fact. 

Affirmed. 

We Concur: 

s-.,4dq%4 

Chief Justice