No. 80-113 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

WILLIAM V. CARROCCIA and 

MICHELE V. C. CARROCCIA, 

Plaintiffs, Respondents and 

Cross-Appellants, 

CHARLES S. TODD, d/b/a 

TODD CONSTRUCTION CO., 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial ~istrict, 

In and for the County of Sweet Grass. 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

James A. Tulley, Big Timber, Montana 

Far Respondents: 

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, 

Montana 

Submitted on briefs: July 11, 1980 

Decided : AUG 1 3 1980 

Filed: AUG 13 198Q 
Mr. Justice John C. Sheehy delivering the Opinion of the 

Court. 

This is an appeal by the defendant Charles S. Todd, 

from a judgment against him in the sum of $15,717.42, 

entered in the District Court, Sixth Judicial District, 

Sweetgrass County. The suit was for negligence by the 

defendant in the construction of a log home for the plaintiffs 

(Carroccias). After a nonjury trial, the District Court 

entered its damage award for the plaintiffeland also dismissed 

Todd's counterclaim for payment of work completed, and 

ordered all parties to pay their respective costs. Todd 

appeals from the judgment of damages against him and from 

the order dismissing his counterclaim. Plaintiffs crossappeal from the denial by the District Court of their suit 

costs. 

Todd's appeal presents two issues: one, whether the 

evidence was sufficient to support the District Court's 

finding of liability on the part of Todd; and two, whether 

the counterclaim was properly dismissed. 

In the Carroccia's cross-appeal, the single issue is 

whether the plaintiffs are entitled to costs. 

In December 1973, William V. Carroccia and Michele V. 

Carroccia entered into a contract with Charles S. Todd, 

d/b/a Todd Construction Company, for the construction of a 

log home on the Carroccia ranch near Big Timber. Todd had 

been recommended as a skilled homebuilder who had previous 

experience in building log homes. 

Before the Carroccias moved into the log home, it was 

damaged during a windstorm in December 1973 and the roof was 

displaced during a January 1974 windstorm. ~ollowing the 

latter windstorm, the Carroccias agreed that odd should 

place tie rods in the wall of the log home in an attempt to 

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correct the structural problems of the house. After the 

completion of those repairs, the Carroccias discharged Todd 

from the contract. Todd was not paid for the installation 

of the tie rods. 

The Carroccia family moved into the home in March 1974. 

In January 1975, another windstorm occurred and again the 

house was damaged. The Carroccias reported that a breeze 

came through the west wall, the pictures were swinging 

freely on the south wall which was flexing, a lantern which 

hung from the lower truss of the ceiling was swinging uncontrollably and one of the upper trusses in the living room 

loudly cracked. 

Following the windstorm, the Carroccias made repairs. 

The roof was replaced, the west wall was dismantled and 

properly insulated, sway braces were installed in the roof 

trusses, and door and window installation was corrected. 

Necessary remaining repairs not done at the time of trial 

included correction of improper base log installation, 

restoration of three log walls to plumb, and straightening 

of the bowed west wall. 

The dispute of facts at trial was whether the damages 

to the house were caused by unsound building techniques, or 

by defective home design and construction plans. The 

Carroccias presented two expert witnesses, the log salesman 

and the builder who repaired the home. Each testified that 

the construction techniques employed by Todd on the base 

logs, doors and windows, chimney and roof, all contributed 

to the instability of the home. Todd produced an expert who 

was an architect and structural engineer who testified that 

the home's design was inadequate due to the excessive wind 

loading prevalent at the home's site. 

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The District Court in its findings found essentially 

that Todd had not constructed the roof of the home according 

to the details provided and in contradiction to representations 

made by Todd in his construction bid and that other construction 

defects by Todd brought about the instability of the house 

and its hazard to safety. Todd contends that these findings 

are not supported by substantial credible evidence especially 

since the District Court did not accord any weight to the 

testimony of his expert architect. 

In Lumby v. Doetch (1979), - Mont . - 

, 600 P.2d 200, 

202, 36 St.Rep. 1684, 1687, this Court stated: 

"In resolving this issue, we are guided by a number 

of principles established by this Court. The 

credibility of witnesses and the weight to be given 

their testimony are matters for the District Court's 

determination in a nonjury case. (Citation omitted.) 

Thus, in examining the sufficiency of the evidence, 

we must view the same in a light most favorable to 

the prevailing party, and we will presume the findings 

and judgment by the District Court are correct. (Citation 

omitted.) We will not overturn the findings and conclusions of the District Court unless there is a decided 

preponderance of the evidence against them, and when 

the evidence furnishes reasonable grounds for different 

conclusions, the findings of the District Court will not 

be disturbed. (Citation omitted.) The burden of proof 

is on the appellant. (Citation omitted.)" 

Appellant argues the District Court erred in not accepting 

the testimony of his expert witness, because he had expertise 

in engineering and architecture, which plaintiffs' witnesses 

did not. However, this Court recently stated in Berger v. 

City of Billings (1980), - Mon t . , 607 P.2d 558, 560, 

37 St.Rep. 397, 400, that where substantial evidence in the 

record supports the findings of the District Court, the fact 

that the prevailing party does not present expert testimony 

does not mean that the testimony produced by experts on the 

other side is inherently superior. Where the evidence is 

conflicting, but the findings are supported by substantial 

credible evidence, the findings of the District Court will 

be upheld. Rule 52 (a), M.R.Civ.P. 
On the second issue, Todd's counterclaim concerns 

the Carroccias'refusal to pay for installation of the tie 

rods inserted in the walls of the house. The Carroccias 

authorized the installation of the rods after the January 

windstorm and ratified the agreement after the installation 

was completed. However, there was testimony that the tie 

rods themselves were improperly installed in grooves meant 

to accommodate splines in window and door openings. Also, 

the house exhibited severe instability in January 1975, 

nearly a year after the installation of the rods. 

Todd had a common law duty to construct the house in a 

workmanlike manner. Mitchell v. Carlson (1957), 132 Mont. 

1, 10, 313 P.2d 717, 721-2. Here the duty of construction 

included proper installation of logs, doors and windows in 

such a manner as to assure stability. The tie rods were 

installed only after the original construction had proven 

inadequate. The instability persisted after the installation 

of the rods. 

A promise to do what a person is already obligated by 

law or contract to do is not sufficient consideration for a 

promise made in return. Kovacich v. Metals Bank & Trust 

Company (1961), 139 Mont. 449, 451, 365 P.2d 639, 640. 

Todd's duty as a contractor to provide a stable log home was 

not fulfilled by him at anytime before or after the installation 

of the tie rods. Consideration was therefore lacking in the 

claimed supplemental agreement. 

Rules 41(b) and (c), M.R.C~V.P., provide that a counterclaim 

may be dismissed where, upon the facts and the law, the 

claimant has shown no right to relief. Consideration is an 

essential element of a contract. Section 28-2-102(4), MCA. 

Since consideration was lacking, the contract could not be 

enforced, and Todd had no right to relief on his counterclaim. 

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However, Todd claims an estoppel here because the 

Carroccias promised to pay for the tie rods after they 

were installed when they collected the insurance for damages 

on the home. The Carroccias did in fact collect insurance 

for the home damage, but thereafter refused to make payment 

to Todd for the tie rods. Todd claims an estoppel against 

the Carroccias on this point. 

One of the elements that a party must establish in the 

evidence to justify estoppel in his favor is that the party 

claiming estoppel relied on the representation or promise 

made to him and acted upon it to his prejudice. State ex 

rel. Howeth v. D. A. Davidson & Co. (1973), 163 Mont. 355, 

367, 517 P.2d 722, 728. This element is lacking here. The 

party claiming estoppel must in fact act upon the promise or 

representation in such manner as to change his position for 

the worse. Smith v. Krutar (1969), 153 Mont. 325, 332, 457 

P.2d 459, 463. Moreover, estoppel has reference to conduct 

of the person estopped, and has no application where the 

omissions of the party claiming estoppel brought about the 

problem. First Sec. Bank of Bozeman v. Goddard (1979), 

1046, 

Mont . - , 593 P.2d 1040,/36 St.Rep. 854, 860-1; and section 

The third issue relates to the ~arroccias'cross-appeal 

from the denial of their costs by the District Court. Rule 

54 (d) , M. R.Civ. P. , provides costs to the prevailing party 

unless the court otherwise directs, except where expressly 

provided by statute. Section 25-10-101(3), MCA, expressly 

provides costs, as of course, in actions in which plaintiff 

recovers money or damages exceeding $50.00. 

Here, plaintiffs sought monetary damages from the 

defendant and received judgment in the amount of $15,717.42. 

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Pursuant to section 25-10-101(3), MCA, plaintiffs were 

entitled to costs. Medhus v. Dutter (1979) , Mont . - I 

603 P.2d 669, 674, 36 St.Rep. 2044, 2051. The District 

Court erred in denying the plaintiffs' claim for costs. 

The judgment for damages in favor of the plaintiffs is 

affirmed. The order of the District Court dismissing Todd's 

counterclaim is also affirmed. The order denying costs to 

the Carroccias is reversed. The cause is remanded for 

determination of the ~arroccias'costs. 

We Concur: 

~hfef Justice 

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