No. 80-355 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

JOHN CARRIGER, Plaintiff and Respondent,

-vsGLEN BALLENGER AND BILL CLARK, Defendantsand Appellants.

Appeal from: DistrictCourtof the Second Judicial District, Inand for the Countyof Silver Bow, The Honorable Arnold Olsen, Judge presiding.

Counselof Record: For Appellant: Daniel R. Sweeney, Butte, Montana

For Respondent: Burgess, Joyce & Whelan, Butte, Montana

Submittedon Briefs: March 11, 1981 ~ecidedJlJN

## 2

## 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion 

### of the Court. On January 24, 1979, John Carriger filed a complaint in the Second Judicial District Court alleging breach of contract and damages due 

### to the alleged failureof appellants Ballenger and Clark tocomplete the construction work according 

### to the contract 

### terms. The appellants counterclaimed for breach of contract and damages 

### as a resultof alleged conduct of respondent preventing theirperformance. Trial was held on April 3, 1980, before the court without a jury. The trial court's findings and conclusions 

### were entered on April 30, 1980. Judgment 

### was entered in favor of respondent Carriger in the amount of $1,200, plus interest. From the denial of theirmotion to amend the findings and conclusions 

### or in the alternative for a rehearing, Ballenger and Clark appeal. John Carriger owns a home inButte, Montana. Prior 

### to August, 1978, there

### was no basement in the home and the heating consisted of wallheaters. Carriger thought the heating system



### was dangerous and should be replaced, but inorder to do so it

was necessary tohave a basement constructed. The appellants, under the name of B & B Landscaping, 

### were engaged in the business of installing lawns and doing excavation and construction work. Creighton Walsh, Jr., who is now married to Carriger's daughter, was employed as a parttime laborerby the appellants. Carriger, through Walsh, obtained a written bid from the appellantson the cost of excavating and installing a finished basement under hishouse with a cement floorand pumice block walls. The writtenbid was broken down into three components as follows: Excavation $1,200 Pumice block walls $3,800 Floor $2,000The 

### total cost

### was $7,000. On July20, Carriger took the estimate to a bank and obtained a $8,527 loan for the construction and the heating system. There 

### was conflicting testimonywith regard 

### to the final agreement of the parties and the sequence of events. Carriger testified thathe toldWalsh to 

### tell appellants 

### to 

### startwork. Carriger and Walsh both testified thatwork began on August 1. Carriger testified thaton August 4 the appellants came to him and requested a downpayment of eitherone-third of the excavation work 

### or one-third of the entirecontract. Carriger stated he asked them if they could get the work done by August 31and when theyboth agreed 

### to do so he gave them a check for $2,400. Walsh testified he 

### was present onAugust 4 and witnessed the agreement

on the completion date. Ballenger and Clark denied that they agreed to complete the work by August 31but said they agreed 

### to do it before winter. Clark testified thatwork had not started before they received the check, but that they began one ortwo days afterAugust 4. The trial court found that the respondent accepted the bid

on August 4, 1978on the condition that the work 

### was to be completed by August 31, 1978. Due 

### to delays the excavation work 

### was not completed until August 31, and the work on the floorand 

### walls had not yet begun. Upon Carrigerlsinquiry, the appellants advised him that they could not do the remaining work themselves. They sentYork, a masonry and concrete contractor, 

### to the premises. Carriger 

### was most anxious 

### to have the job completed because of the risk of freezingwater pipes. ApparentlyYork would not give Carriger priority unless he 

### was hired directlyinstead of on a subcontract basis. According to Carriger, Ballenger agreed to thisarrangement and agreed to refund $1,200 of the downpayment. Ballenger testified thatYork 

### was tobe a subcontractor, thathe never gave permission 

### to Carriger to hireYork directly, and thathe had notagreed 

### to return $1,200. York completed the work on September 22, 1978, with Carriger and Walsh doing the hod carrying and backfilling work. Atthat

### timeWalsh 

### was no longer employed by B & B. Carriger demanded the return of $1,200 from the appellants, but appellants refused to return 

### it. The 

### matter was heard on April 3, 1980, and the trial court entered its findings and conclusions on April 30, 1980. The court found that Carriger accepted appellants' bid on the condition that they finishthe entirejob on August 31, 1978, and that the appellantsbreached the contract by failing to complete the work by thatdate 

### or at all. The trial court awarded damages to respondent in the amount of $1,200, plus interest at the legal 

### rate from August 31, 1978, and 

### costs. Appellants 

### raise the following issues: (1)Did the writtenbid constitute a written cdntract? (2)Did the parol evidence rule bar admission of testimony regarding an oral agreement as 

### to the completion date? (3)Did the 

### trial court errin failing 

### to find that the respondent partiallyrescinded the contract and that appellants



### were entitled to the reasonable value of their work in the amount of $2,400? (4)Did the trial court 

### err in finding respondent suffered damages in the amount of $1,200? (5)Did the 

### trial court 

### err in awarding interest from the dateof breach rather than from the date of judgment? Appellants firstargument is based upon the premise that their writtenbid constituted a contract. From thatpremise, appellants argue that the parol evidence rule bars testimony concerning a completion date not contained in the writing, and that 

### time 

### is not of the essence unless expresslyprovided in the writing.Appellants' basic premise is not consistent with contract law. Their reliance on Higby v. Hooper (1950), 124Mont. 331, 221 P.2d 1043, 

### is misplaced. In that 

### case the construction contractor 

### was seeking to recover his

### costs inexcess of the contract price of $8,300. The contractor had written a 

### letter certifying to the U. S. Government that the cost would not exceed $8,300, for the purpose of facilitating the buyer's V.A. loan. The 

### letter was held to be the contractor's statement that he had contracted with the buyer and he 

### was estopped to deny it. A writtenbid has consistently been construed 

### as nothing



### more than an offer 

### to perform labor 

### or supplymaterials, and the offer does not ripen into a contract until accepted by the offeree. Gulf OilCorp. v. Clark County (1978), 94 Nev. 116, 575 P.2d 1332; Clover Park School District No. 400 v. Consolidated DairyProducts Co. (1976), 15Wash.App. 429, 550 P.2d 47; Savoca Masonry Co

# ., Inc

# .v. Homes & Son Cons

### tr

# .Co

# ., Inc. (1975), 112Ariz. 392, 542 P.2d 817; 0. C. Kinney, Inc. v. PaulHardeman, Inc. (1963), 151Colo. 571, 379 P.2d 628. The trial court found that Carriger accepted the bid on August 4, 1978, upon the condition that the work be completed by August 31, 1978. According 

### to Montana 

### law, a purported acceptance which varies

### or adds to the 

### terms of the offer is not an acceptancebut

a counteroffer

# . Section 28-2-504, MCA. Upon acceptance by the appellantsof Carriger's counteroffer

## ,the contract would have ripened. The trial court found that the parties had orallyagreed 

### to the completion date of August 31, 1978, which amounts to a finding that the counteroffer was orallyaccepted by appellants. Appellants dispute this finding, asserting thatCarriger did not

even mention a completion date other than "before winter," but the 

### trial court found otherwise. This Court willnot 

### set aside findingsof fact unless clearlyerroneous and 

### willgive due regard to the opportunity of the 

### trial judge 

### to determine the credibi-lityof the witnesses. Rule 52(a),M.R.Civ.P. The contractwhich resulted from the written bid (the offer)

## ,the counteroffer and the acceptance was partlywritten and partlyoral. Since therewas not a final, complete written document intended by the parties 

### to contain allof the 

### terms of the contract, the par01 evidence rule does not apply. Section 28-2-904, MCA. Section 28-3-602, MCA, providing that

### time is not of the

essence in a contract unless expresslymade 

### so by 

### its terms, does not pertain solely

### to written contracts. Parties to an oral contract may alsoprovide that 

### time is of the essence. By agreeing 

### to the completion datewith the knowledge that Carriger deemed the date essential due to the approaching cold weather, the appellantsagreed that 

### timewas of the essence. Time being of the essence, appellants

### were thus in substantial breach asof August 31, 1978, when the entirecontract had not been performed. Appellants

## ' second argument is that Carriger rescinded the contract when he hired York on a direct basis to complete the job, thus preventing performance by appellantswho had intended touse York asa subcontractor. Appellants argue thatby virtue of thisrescission they 

### are entitled 

### to the reasonable value of the excavation work in the amount of $2,400. But where, ashere, the trial court based 

### itsjudgment on a prior breach of contract by appellants, thisargument lacks 

### merit. The final 

### two issues concern the measure of damages and amount of interest due the respondent asa result of the appellants' breach. For breach of contract, the measure of damages is stated generally as the amount which willcompensate the aggrieved party for allthe detriment proximately caused thereby. Section 27-1-311, MCA. In a construction contract where the contractor abandons the project 

### or otherwise failsto complete 

### it, the normal measure of damages 

### is the reasonable 

### cost ofcompletion by another plus any damages suffered by the delay. Kirbyv. Kenyon-Noble Lumber Co. (1976), 171Mont. 329, 558 P.2d 452. In this

### case, York completed the contract atessentially the 

### same price quoted by the appellants, except thatCarriger and hisson-in-law contributed their own labor inorder to get the job done faster. The trial court found Carriger suffered damages in the amount of $1,200, which 

### we find 

### is adequate compensation for the detriment caused by the breach. The trial court awarded interest from the dateof the breach of contract, August 31, 1978. Appellants argue that interest commences on the date of judgment pursuant to section 25-9-204, MCA. The court erred in applying section 27-1-211, MCA, 

### to this

case. That statuteprovides: "Every person who 

### is entitled to recover damages 

### certain

### or capable of being made certainby calculation and the right 

### to recover which 

### is vested inhim upon a particular day 

### is entitled 

### also 

### to recover interest thereon from that day except during such 

### time as the debtor is prevented by law orby the act of the creditor from paying the debt

# ."
Two of the criteria in the above-quoted statuteare

### met, i.e. Carriger

### was entitled 

### to recover damages and the right to recover damages vested on the date of breach. However, the amount of the damages due upon breach 

### was not clearlyascertainable until determined by the trial court. This Court has interpreted the statute 

### to mean thatno interest can run until a fixed amount of damages has been arrived 

### at, eitherby agreement, appraisal, 

### or judgment. School Dist. No. 1v. Globe & Republic Ins. Co. (1965), 146Mont. 208, 404 P.2d 889. Since this is not an action

on a negotiable instrument or for the definite unpaid balance of

a contract 

### or account, see Agrilease, Inc. v. Gray (1977), 173 Mont. 151, 566 P.2d 1114; Sun River Cattle Co. v. Miner's Bank of Montana (1974), 164Mont. 479, 525 P.2d 19; where the damages 

### are

a sum certain, section 27-1-211, MCA, 

### is not applicable. Interest from the dateof judgment at the legal 

### rate of 10%perannum is allowable under sections 25-9-204 and 25-9-205, MCA. The 

### case is remanded formodification of the judgment 

### to provide interest at 10%from the dateof judgment and as so modified

## ,the judgment is affirmed

# .

Chief Justice