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: f F,' !$.[ 

Filed: 

-. 

i: * 

LI"' ' \ 

- Clerk 
Mr. 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 for breach of a 

sales representative .contract. 

Edward Sikorski filed suit against Ray Olin as the 

manager of Rolin Mfg.,Inc. alleging a breach of contract. 

Defendants answered by admitting the existence of a contractual 

relationship but 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 trial court 

allowed Sikorski to amend one answer to the interrogatories to 

reflect the full extent 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 to as 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 constitute but two arguable issues: 

(1) Whether the district court erred in permitting Sikorski 

to amend the previously answered interrogatories, and 

(2) Whether the evidence offered by Sikorskiwas sufficient 

to support the jury's award of $10,000 damages. 

The facts are: Sikorski alleged in his complaint and 

provided evidence at trial that in January 1971, Olin and Rolin 

agreed Sikorski would 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 to 
receive as compensation therefor 7% of dealer costs for 

all sales up to $60,000 and 8% for all sales exceeding that 

amount. At trial, Sikorski testified he was to receive a 5% 

commission on improvements he might make, based on wholesale 

prices of the improved equipment. 

Sikorski alleged full performance 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 in performing 

under the agreement. Sikorski's testimony at trial that he 

should have received $3,750 for his efforts in this regard was 

received without objection. Also, received without objection, 

was proof that Sikorski had devised improvements for certain 

functions of the machinery and he should have realized therefrom 

a $2,000 commission. He testified had he been allowed to perform, he would have realized an estimated $4,800 in commissions 

by the end of the first year. 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 to deliver. Sikorski argued he was never 

in fact "terminakd" as sales representative by Rolin but rather 

that he himself ceased performance in June 1971, when Rolin refused 

to deliver requested machinery and delegated his sales territory 

to another agent. 

Rolin, on the other hand, contended the terms of the contract 

were those embodied in a letter sent by Olin to Sikorski, received 

by Sikorski in March 1971. The letter purported to limit the 

length of the contract to three months, subject to extension to 
one year. Under its terms, Sikorski was to receive a 7% commission on sales up to $60,000 and 8% for amounts in excess of 

$60,000. 

It was Olin' and4 Rolihl s position in their answer to sikorskit s 

complaint that Sikorski had made no sales and earned no commissions and therefore was not damaged because he failed to perform. 

However, Olin, in his testimony in his deposition and as an 

adverse,wttness at trial, 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-interrogatories on the day of 

trial. They claim Sikorski was allowed to interject what, in 

effect, constituted a "new contract" by comparison to the contract as pled and as disclosed by prior discovery. It is maintained the "new contract" created new issues, and therefore 

Sikorski's proof at trial 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 

at trial, establish that Olin and Rolin were well aware of the 

broader contractual terms upon which Sikorski intended to rely 

at trial. Moreover, it is noteworthy Rolin did not request a 

continuance, on the ground of such alleged surprise or undue 

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 to make all relevant facts available to parties in advance of trial, and to reduce the possibilities of surprise and unfair advantage. Wolfe v. Northern Pacific 

Ry. Co., 147 Mont, 29, 409 P.2d 528 (1966). 
However, failure to properly answer certain interrogatories will not be deemed in every case to effect censure of 

material which should rightfully be developed in a trial on 

the merits. A detailed statement of the applicable rule and 

corresponding reasoning appears in Wolfe v. Northern Pacific 

Ry. Co., supra: 

"* * * Even though under Rule 37 sanctions may 

be imposed upon a party who fails to comply 

with the discovery requirements of the rules, 

and specifically upon a party who fails to 

properly answer his interrogatories, necessarily 

it must lie within the authority of the trial 

judge to determine from the circumstances of 

each case what constitutes compliance and noncompliance and to determine what sanctions, if 

any, are to be imposed. A strict rule of exclusion 

could in many instances defeat the desired goal 

of a decision on the merits, Such a misfortune, 

we feel, may be avoided if we heavily rely upon 

the watchful eye of the trial judge whose vision 

normally is focused upon the delicate balance 

which weighs the server's right to demand answers 

to his interrogatories and the extent of the adverse 

party's compliance. In interpreting these rules 

we will reverse the trial judge only when his 

judgment may materially affect the substantial 

rights of the appellant and allow a possible 

miscarriage of justice." 147 Mont. 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 

as were subjected to proof at trial. Moreover, testimony 

of Olin established he had made certain contractual promises 

to Sikorski, specifically regarding compensation for improvements. It is clear the central issues of the case were formulated 

well in advance of trial, and Olin and Rolin had knowledge of all 

facts responsive to ~ikorski's claims at trial. Hence, any 

surprise or prejudice to Olin and Rolin in this regard was minimal, 

at most. Moreover, by not requesting a continuance after the 
trial judge granted the right to amend the interrogatory, 

Olin and Rolin waived any rfght to claim error on appeal. 

Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48 (1968); 

17 C. J.S. Continuances 5 13. 

The action of the trial judge, in permitting the amendment to the single interrogatory answer, was proper and 

should be sustained. Olin andtRolin were 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 

all of the evidence introduced by Sikorski, this Court's 

function on review, except where there will be 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 

offered by Sikorski, by his testimony, included these amounts: 

1.$3,750 for the value of time expended in performance 

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 in such cases 

was placed before the jury in the form of instructions from 

the court. The instructions, takenfrom sections 17-301 and 

17-302, R.C.M. 1947, were: 

Instruction No. 12. "For the breach of an obligation 

arising from contract, the measure of damages, is the 

amount which will compensate the party aggrieved for 

all the detriment proximately caused thereby, or which, 

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 are not clearly 

ascertainable in their nature and origin." 

See Lovely v. Burroughs Corp., 165 Mont. 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 relationship with Sikorski. There is no real question 

as to proximate 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 in performance 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 at the trial 

level, it will hot be considered by this Court on appeal. 

In re Stevenson, 167 Mont. 220, 538 P.2d 5 (1975); Berdine 

v. Sanders County, 164 Mont. 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 in nature,we refuse to consider 

the matter for the first time on appeal. 

We have said, in prior cases, that any award of damages is 

necessarily grounded, to some degree, upon conjecture and surmise. 
However, the question.of damages is clearly one to be determined 

by the intelligence and common sense of the jury. Waltee v. 

Petrolane, Inc., 162 Mont. 317, 511 P.2d 975 (1973). 

We find the evidence, admitted without objection, is 

sufficient to support the jury verdict. 

We affirm the judgment of the district court. 

Justices.