No. 13378 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

EDWARD Re SIKORSKI, Plaintiff and Respondent,

RAY OLIN and ROLIN MFG., INC., Defendants and Appellants.

Appeal from: District Court of the Sixteenth Judicial District, Honorable Alfred B. Coate, Judge presiding. Counsel of Record: For Appellants: Denzil R. Young argued, Baker, Montana For Respondent: Gene Huntley argued, Baker, Montana

Submitted: May 6, 1977 Decided: fF,' !$.[ Filed:



## -. i: * LI"' ' \ - ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendants Ray Olin and Rolin Mfg.,Inc. appeal from a Fallon County jury verdict and judgment in favor of plaintiff Edward R. Sikorski, in the amount of $10,000 forbreach of 

### a sales representative.contract. Edward Sikorski filed suitagainst Ray Olin as the manager of RolinMfg.,Inc. alleging a breach of contract. Defendants answered by admitting the existence of a contractual relationshipbut denying any liability for a breach. Discovery consisted of Sikorski'

### s deposition of Olin and interrogatories answered by Sikorski. On the day of trial, the trialcourt allowed Sikorski to amend one answer to the interrogatories to reflect the fullextent of the asserted agreement. Following trial, the jury returned a verdict for $10,000 in favor of Sikorski and against Olin and Rolin Mfg., Inc. (hereinafter referred toas Olin and Rolin or Olin). Olin and Rolin appeal. This Court on appeal is asked to consider numerous questions regarding the trial of this matter. In substance, these questions constitutebut two arguable issues: (1) Whether the district court erred inpermitting Sikorski to amend the previously answered interrogatories, and 

### (2) Whether the evidence offered by Sikorskiwas sufficient to support thejury's award of $10,000 damages. The facts are: Sikorski alleged inhis complaint and provided evidence attrial that in January 1971, Olin and Rolin agreed Sikorskiwould become a sales representative for Rolin in the sale of machinery and equipment produced by Rolin. Sikorski maintained the contract was to extend for one year and he was toreceive as compensation therefor 7%of dealer costs for allsales up to $60,000 and 

### 8%for allsales exceeding that amount. Attrial, Sikorski testifiedhe was toreceive a 5% commission on improvements he might make, based on wholesale prices of the improved equipment. Sikorski alleged fullperformance on his part, consisting of numerous demonstrations of the machinery and arrangements for dealer distribution. He testified that over a period of four months, he spent approximately 75%of his time inperforming under the agreement. Sikorski's testimony attrialthat he should have received $3,750 for his efforts in this regard was received without objection. Also, received without objection,

was proof that Sikorskihad devised improvements for certain functions of the machinery and he should have realized therefrom

a $2,000 commission. He testified had he been allowed toperform, he would have realized an estimated $4,800 in commissions by the end of the firstyear. This, too, was received without objection. In support of the estimate, Sikorski offered uncontroverted testimony he arranged for the sale of a large amount of equipment, which Rolin refused todeliver. Sikorskiargued he was never in fact "terminakd" as sales representative by Rolin but rather that he himself ceased performance inJune 1971, when Rolin refused todeliver requested machinery and delegated his sales territory toanother agent. Rolin, on the otherhand, contended the terms of the contract

were those embodied ina letter sentby Olin to Sikorski, received by Sikorski inMarch 1971. The letterpurported to

### limitthe length of the contract to three months, subject toextension toone year. Under its terms, Sikorskiwas toreceive a 

### 7%commission on sales up to $60,000 and 

### 8%for amounts in excess of $60,000. Itwas Olin'and4Rolihl

### s position in their answer to sikorskit

### s complaint that Sikorskihad made no sales and earned no commissions and therefore was not damaged because he failed toperform. However, Olin, inhis testimony inhis deposition and as an adverse,wttnessattrial, recanted and admitted a sale. Olin and Rolin's first contention 

### is that they were surprised and prejudiced when the trial court permitted Sikorski to amend an answer to his own-interrogatorieson the day of trial. They claim Sikorskiwas allowed to interjectwhat, in effect, constituted a "new contract" by comparison to the contract as pled and as disclosedby prior discovery. It 

### ismaintained the "new contract" created new issues, and therefore Sikorski's proof attrial should have been limited to those damages, if any, occasioned by breach of the originally disclosed contract. However, the record consisting of the pleadings, answers to interrogatories and Olin's testimony through deposition and attrial, establish that Olin and Rolin were well aware of the broader contractual terms upon which Sikorski intended to rely attrial. Moreover, it 

### isnoteworthy Rolin did not request a continuance, on the ground of such alleged surprise orundue advantage, Rule 33, M.R.Civ.P. authorizes use of interrogatories for the purpose of pretrial discovery from an adverse party. This rule 

### is liberally construed tomake allrelevant facts available toparties in advance of trial, and toreduce the possibilities of surprise and unfair advantage. Wolfe v. Northern Pacific Ry. Co., 147Mont, 29, 409 P.2d 

### 528 (1966).However, failure toproperly answer certain interrogatories

### willnot be deemed in every case to effect censure of materialwhich should rightfullybe developed in

### a trialon the merits. A detailed statement of the applicable rule and corresponding reasoning appears inWolfe v. Northern Pacific Ry. Co., supra: 

### "*

# ** Even though under Rule 

### 37 sanctions may be imposed upon a partywho fails to comply with the discovery requirements of the rules, and specifically upon a partywho fails to properly answer his interrogatories, necessarily itmust liewithin the authority of the trial judge to determine from the circumstances of each casewhat constitutes compliance and noncompliance and to determinewhat sanctions, if any, are tobe imposed. A strictrule of exclusion could inmany instances defeat the desired goal of a decision on the merits, Such a misfortune, we feel, may be avoided ifwe heavily rely upon the watchful eye of the trialjudge whose vision normally isfocused upon the delicate balance which weighs the server's right to demand answers tohis interrogatories and the extent of the adverse party's compliance. In interpreting these rules we willreverse the trialjudge only when his judgment may materially affect the substantial rights of the appellant and allow a possible miscarriage of justice." 147Mont. 

### 29, 40-41. We note, in reviewing the claims of surprise and unfair advantage, that Sikorski's complaint sets forth the same precise contractual terms as to duration and remuneration for sales

aswere subjected toproof attrial. Moreover, testimony of Olin establishedhe had made certain contractual promises to Sikorski, specifically regarding compensation for improvements. It is clear the central issues of the casewere formulated well in advance of trial, and Olin and Rolin had knowledge of all facts responsive to~ikorski's claims attrial. Hence, any surprise or prejudice toOlin and Rolin in this regard was minimal, atmost. Moreover, by not requesting a continuance afterthetrialjudge granted the right toamend the interrogatory, Olin and Rolin waived any rfght to claim error on appeal. Spencer v. Robertson, 151Mont. 507, 445 P.2d 48 (1968); 17 C.J.S. Continuances 

### 5 13. The action of the trialjudge, inpermitting the amendment tothe single interrogatory answer, was proper and should be sustained. Olin andtRolinwere afforded every opportunity, through cross-examination, to test the credibility of Sikorski's version of the contract. We find no miscarriage of justice by permitting the amendment. Since Olin and Rolin also failed to obj'ect to almost allof the evidence introduced by Sikorski, this Court's function on review, except where there

### willbe a manifest miscarriage of justice, 

### is extremely limited. Here, the jury returned a general verdict in favor of Sikorski in the amount of $20,000. Items of damage specifically offeredby Sikorski, by his testimony, included these amounts: 1.$3,750 for the value of time expended inperformance of the contract; 

### 2. $4,800 for loss of sales commissions which would have been received but for the breach; and 3. $2,000 for loss of commissions on inventions. The law controlling the award of damages insuch cases

was placed before the jury inthe form of instructions from the court. The instructions, takenfrom sections 17-301 and 17-302, R.C.M. 1947, were: InstructionNo. 12. "For the breach of an obligation arising from contract, themeasure of damages, 

### is the amount which 

### willcompensate the party aggrieved for allthe detriment proximately caused thereby, orwhich, in the ordinary course of things, would be likely to result therefrom."Instruction No. 

### 11. "No damages can be recovered for a breach of contract which arenot clearly ascertainable in their nature and origin." See Lovely v. Burroughs Corp., 165Mont. 209, 527 P.2d 557 (1974)

# . Plainly, the damages alleged by Sikorski relate to the failure on the part of Olin and Rolin to supply equipment and machinery for resale, and premature termination of the contractual relationshipwith Sikorski. There 

### isno real question

as toproximate causation of damages. Rather,it is stressed the offered proof of damages was overly speculative and therefore an improper basis for the present damage award. Olin and Rolin concede damages to the extent of the value of time invested by Sikorski inperformance of the contract in the amount of $3,750. However, the striking fact that emerges from a review of the record 

### is that counsel for Olin and Rolin wholly failed to object to Sikorski's evidence on the other items of damage and the method of computing those damages. It 

### is elementary that unless a party urging error has made timely objection to evidence or testimony atthe trial level, itwillhot be considered by this Court on appeal. In re Stevenson, 167Mont. 220, 538 P.2d 5 (1975); Berdine

v. Sanders County, 164Mont. 206, 520 P.2d 650 (1974); ~oehler v. Sanders, 146 Mont. 158, 404 P.2d 885 (1965). While the computations offered may have been subject to the objection that they were speculative innature,we refuse to consider the matter for the first time on appeal. Wehave said, inprior cases, that any award of damages 

### is necessarily grounded, to some degree, upon conjecture and surmise.

### However, the question.of damages is clearly one tobe determined by the intelligence and common sense of thejury. Waltee v. Petrolane, Inc., 162Mont. 317, 511P.2d 975 (1973). We find the evidence, admittedwithout objection, is sufficient to support thejury verdict. We affirmthejudgment of the districtcourt.

Justices.