No. 80-355 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

JOHN CARRIGER, 

Plaintiff and Respondent, 

-vsGLEN BALLENGER AND BILL CLARK, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, The Honorable 

Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniel R. Sweeney, Butte, Montana 

For Respondent : 

Burgess, Joyce & Whelan, Butte, Montana 

Submitted on Briefs: March 11, 1981 

~ecidedJlJN 2 1981 
Mr. 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 failure of appellants Ballenger 

and Clark to complete the construction work according to the 

contract terms. The appellants counterclaimed for breach of 

contract and damages as a result of alleged conduct of respondent 

preventing their performance. 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 their motion to amend the findings 

and conclusions or in the alternative for a rehearing, Ballenger 

and Clark appeal. 

John Carriger owns a home in Butte, Montana. Prior to 

August, 1978, there was no basement in the home and the heating 

consisted of wall heaters. Carriger thought the heating system 

was dangerous and should be replaced, but in order to do so it 

was necessary to have 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 laborer by the 

appellants. 

Carriger, through Walsh, obtained a written bid from the 

appellants on the cost of excavating and installing a finished 

basement under his house with a cement floor and pumice block 

walls. The written bid was broken down into three components as 

follows : 

Excavation $1,200 

Pumice block walls $3,800 

Floor $2,000 
The total cost was $7,000. On July 20, Carriger took the estimate to a bank and obtained a $8,527 loan for the construction 

and the heating system. 

There was conflicting testimony with regard to the final 

agreement of the parties and the sequence of events. Carriger 

testified that he told Walsh to tell appellants to start work. 

Carriger and Walsh both testified that work began on August 1. 

Carriger testified that on August 4 the appellants came to him 

and requested a downpayment of either one-third of the excavation 

work or one-third of the entire contract. Carriger stated he 

asked them if they could get the work done by August 31 and when 

they both agreed to do so he gave them a check for $2,400. Walsh 

testified he was present on August 4 and witnessed the agreement 

on the completion date. Ballenger and Clark denied that they 

agreed to complete the work by August 31 but said they agreed to 

do it before winter. Clark testified that work had not started 

before they received the check, but that they began one or two 

days after August 4. 

The trial court found that the respondent accepted the bid 

on August 4, 1978 on 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 floor and walls had not yet begun. 

Upon Carrigerls inquiry, the appellants advised him that they 

could not do the remaining work themselves. They sent York, a 

masonry and concrete contractor, to the premises. Carriger was 

most anxious to have the job completed because of the risk of 

freezing water pipes. Apparently York would not give Carriger 

priority unless he was hired directly instead of on a subcontract 

basis. According to Carriger, Ballenger agreed to this arrangement and agreed to refund $1,200 of the downpayment. Ballenger 

testified that York was to be a subcontractor, that he never gave 

permission to Carriger to hire York directly, and that he had not 
agreed to return $1,200. York completed the work on September 

22, 1978, with Carriger and Walsh doing the hod carrying and 

backfilling work. At that time Walsh 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 finish the 

entire job on August 31, 1978, and that the appellants breached 

the contract by failing to complete the work by that date 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 written bid 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 err in failing to find that the 

respondent partially rescinded 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 

date of breach rather than from the date of judgment? 

Appellants first argument is based upon the premise that 

their written bid constituted a contract. From that premise, 

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 expressly provided in the 

writing. 
Appellants' basic premise is not consistent with contract 

law. Their reliance on Higby v. Hooper (1950), 124 Mont. 331, 

221 P.2d 1043, is misplaced. In that case the construction 

contractor was seeking to recover his costs in excess 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 written bid has consistently been construed as nothing 

more than an offer to perform labor or supply materials, and the 

offer does not ripen into a contract until accepted by the 

offeree. Gulf Oil Corp. v. Clark County (1978), 94 Nev. 116, 

575 P.2d 1332; Clover Park School District No. 400 v. 

Consolidated Dairy Products Co. (1976), 15 Wash.App. 429, 550 

P. 2d 47; Savoca Masonry Co . , Inc . v. Homes & Son Cons tr . Co . , 

Inc. (1975), 112 Ariz. 392, 542 P.2d 817; 0. C. Kinney, Inc. v. 

Paul Hardeman, Inc. (1963), 151 Colo. 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 acceptance but 

a counteroffer . Section 28-2-504, MCA. Upon acceptance by 

the appellants of Carriger's counteroffer , the contract would 

have ripened. 

The trial court found that the parties had orally agreed 

to the completion date of August 31, 1978, which amounts to a 

finding that the counteroffer was orally accepted by appellants. 

Appellants dispute this finding, asserting that Carriger did not 

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

the trial court found otherwise. This Court will not set aside 

findings of fact unless clearly erroneous and will give due regard 

to the opportunity of the trial judge to determine the credibi- 
lity of the witnesses. Rule 52(a), M.R.Civ.P. 

The contract which resulted from the written bid (the 

offer) , the counteroffer and the acceptance was partly written 

and partly oral. Since there was not a final, complete written 

document intended by the parties to contain all of 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 expressly made so by its terms, does 

not pertain solely to written contracts. Parties to an oral 

contract may also provide that time is of the essence. By 

agreeing to the completion date with the knowledge that Carriger 

deemed the date essential due to the approaching cold weather, 

the appellants agreed that time was of the essence. Time being 

of the essence, appellants were thus in substantial breach as of 

August 31, 1978, when the entire contract 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 appellants who had intended 

to use York as a subcontractor. Appellants argue that by virtue 

of this rescission they are entitled to the reasonable value of 

the excavation work in the amount of $2,400. But where, as here, 

the trial court based its judgment on a prior breach of contract 

by appellants, this argument lacks merit. 

The final two issues concern the measure of damages and 

amount of interest due the respondent as a result of the 

appellants' breach. For breach of contract, the measure of damages is stated generally as the amount which will compensate the 

aggrieved party for all the detriment proximately caused thereby. 

Section 27-1-311, MCA. In a construction contract where the 

contractor abandons the project or otherwise fails to complete 

it, the normal measure of damages is the reasonable cost of 
completion by another plus any damages suffered by the delay. 

Kirby v. Kenyon-Noble Lumber Co. (1976), 171 Mont. 329, 558 P.2d 

452. In this case, York completed the contract at essentially 

the same price quoted by the appellants, except that Carriger and 

his son-in-law contributed their own labor in order 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 date of 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 statute provides : 

"Every person who is entitled to recover damages certain or capable of being made certain by calculation 

and the right to recover which is vested in him 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 or by the act of the creditor from paying the debt ." 

Two of the criteria in the above-quoted statute are 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 clearly ascertainable until 

determined by the trial court. This Court has interpreted the 

statute to mean that no interest can run until a fixed amount of 

damages has been arrived at, either by agreement, appraisal, or 

judgment. School Dist. No. 1 v. Globe & Republic Ins. Co. 

(1965), 146 Mont. 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), 164 Mont. 479, 525 P.2d 19; where the damages are 

a sum certain, section 27-1-211, MCA, is not applicable. 

Interest from the date of judgment at the legal rate of 10% per 
annum is allowable under sections 25-9-204 and 25-9-205, MCA. 

The case is remanded for modification of the judgment to 

provide interest at 10% from the date of judgment and as so 

mod if ied , the judgment is af f irmed . 

Chief Justice