No. 92-324 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

PETER MERKES, Plaintiff and Appellant,

v. 

### GRAY MAPSTON, Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Ed McLean, Judgepresiding.

COUNSEL OF RECORD: For Appellant: David N. Hull, Attorney at Law, Helena, Montana For Respondent: Victor F. Valgenti, Attorney at Law Missoula, Montana

Submitted on Briefs: October 14, 1992Justice Terry N. Trieweiler delivered the opinion of the 

### Court. plaintiff Peter Merkes appeals from an order of the Fourth JudicialDistrict Court,Missoula County,orderingMerkes to accept the return of a 1972 Peterbilt truck, in lieu of $5454.26 in monetary damages, ascompensation fordefendantMapston's breach of contract. We reverse and remand to the ~istrict Court. The sole issue on appeal is: Did the District Court err when 

### it ordered Merkes to accept the return of the 1972 ~eterbilt truck from Mapston and denied an award of monetary damages to Merkes? In September 1989,Mapston purchased a 1972 Peterbilt truck fromMerkes for $5500. On about October 5, 1989,Mapston entered into a subsequent agreementwith Merkes to purchase "as is" a 1979 Freightliner truck and a 1972 Fruehauf log trailer for $29,500. The purchase agreement for the truck and trailer provided that Mapston would (1)pay Merkes $24,000 in cash, and (2) return to Merkes the 1972 Peterbilt truck (that Mapston purchased 

### in September) 

### as consideration for the balance due. Mapston paid Merkes $24,000 in cash. However, he did not return the 1972 Peterbilt truck to Merkes as pramised. On December 1, 1989, Merkes sent a letter to Mapston 

### notifying him that he had five calendar days to return the Peterbilt truck or felony theft chargeswould be filed against 

### him. Mapston did 

### not return the truck. OnApril 25, 1990,Merkes commenced a lawsuit againstMapston. The complaint sought damages of $5500, plus interest at 10percent

### per annum, from and afterOctober 5, 1989, 

### forMapston's breach of contract. On January 4, 1991, 

### Mapston filed an answer and counterclaim inwhichhe allegedMerkes inducedhim topurchase the 1979 

### Freightliner truck and the 1972 

### Fruehauf log trailer by misrepresentingandwarrantingthat thevehicles were "roadready." 

### Mapston asserted that the truck, trailer, and related equipment were defective and that he was entitled to the $5000 

### in repair costs that he incurred to fix the truck, trailer, and related equipment. On February 18, 1992, 

### the District Court issued its findings of fact, conclusions of law, and judgment. The court concluded that: (1) 

### the parties entered into a binding contract for the purchase of the 1979

### Freightlinerand the 1972

### Fruehauf log trailer for a sum of $29,500; (2) 

### Mapston breached the contractbecause he

never returned the Peterbilt truck to Merkes as promised: and (3) 

### Mapston owed Merkes damages for the breach. The court determined Merkes was entitled to $5500 

### in damages, less repair costs for a balance of $4422.46. 

### The court added to the $4422.46 

### balance $1031.80 

### in interest for 

### a total damage amount of $5454.26. 

### Inhis complaint,Merkes soughtmonetarydamages. However, in its judgment, the District Court ordered Merkes to retrieve the 1972 

### Peterbilt truck in Mapston's possession in lieu of monetary damages. The court reasoned that the truck had 

### a current value of less than $5500

### because it had been sitting outside for two years; and therefore,thevehicle's currentvalue offset the $5454.26 

### that Mapston owed to Merkes. The court determined that the return of

### the truck,not monetary damages, compensatedMerkes for Mapston's breach of contract. On appeal,Merkes asserts that the District Court erredwhen: (1) it valued the 1972 Peterbilt truck as equivalent in value to the debt Mapston owed to Merkes; and (2) 

### it ordered that Merkes accept the return of the 1972 Peterbilt truck instead of the monetarydamageshe requested inhis complaint. Our disposition of Merkes' appeal is based on his second contention. Therefore, we need not discussMerkes' first contention. Merkes asserts that there isno legal authorityto supportthe court's decision to require Merkes to accept property in lieu of monetary damages. Merkes contends that 5 

### 27-1-311,MCA, requires that a nonbreaching party be compensated by an award of strictly monetary damages. Therefore,Merkes maintains, he is entitled to $5454.26 in monetary damages. He argues that neitherparty sought rescission of the contract. Furthermore,he did not initiate an action for claim and delivery for return of personal property,nor did he request specific performance. He asserts that the court's order to return the property was an inappropriate remedy and that only monetary damageswill compensate him. We agree with Merkes' second argument that the court acted without legal authority when it orderedMerkes to acceptthe truck, in lieu of monetary damages, as compensation forMapston's breach of contract. We conclude that the court erroneously ordered the performance of the original sales agreement when monetarycompensation was the only appropriate remedy under the circumstances. The controlling statute inMontana fordamages in a breach of contract is 5 27-1-311, MCA, which provides: For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary courseof thingswould be likelyto resulttherefrom. Damages whicharenot clearly ascertainable in both their nature and origin cannot be recovered for a breach of contract. [Emphasisadded.] In construing 5 27-1-311,MCA, our Court has emphasized that the purpose behind 5 27-1-311, MCA, is: to compensate an aggrieved party for the loss he has sustained

# . ... [Tlhenonbreachingparty shouldreceive a

## sumwhich will givehim an economic status identical to that which he would have enjoyed had the contract been performed. [Emphasis added.] Comov.RItiites (1982), 198 Mont. 279, 286, 645 P.2d 948, 952;Wyattv. Sc/zoolDkt.No.104,FewCounty (1966), 148 Mont. 83, 89, 417 P.2d 221,

When the District Court denied monetary damages and ordered the return of the Peterbilt truck to compensate Merkes for Mapston's breach, the court erroneously relied on the specific relief statutes, found at 

### 55 27-1-401 to -433, MCA, and 55 28-2-1601 to -1716, MCA. Specific relief or specific performance is an appropriate remedy for breach of contract in certain circumstances; however, this case is not one of them.section 27-1-401,MCA, is clear that specific relief may only be given in the cases specified therein and inno others. Section 27-1-411, MCA, provides: Except as otherwise provided in this part and Title 28, chapter 2,parts 16 and 17, the specific performance of an obligation may be compelled when: (1) the act to be done is 

### in the performance, wholly or 

### partly, of an express trust; (2) the act to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief; (3) it would be extremely difficult to ascertain the actual damage caused by the nonperformance of the act to be done; or (4) it hasbeen expressly agreed in writing, between the parties to the contract, that specific performance thereof may be required 

### by either party or that damages shall not be considered adequate relief. Neither the circumstancesprovided for in 5 27-1-401 or -411, MCA, are present in this case. When it ordered the return 

### of the truck and refused to award monetary damages to Merkes, the court failed to act in accordance with the lawof damages forbreach of contractas provided in 5 27- 1-311,

### NCA. Further, the courterroneously ordered specific relief and specific performance in contravention of the preliminary requirements stated in 

### 55 27-1-401 and -411,

### MCA. We reverse and remand thisDistrict Court decision and direct the lower court to award monetary damages to Merkes 

### in accordance with 

### 5 27-1-311, 

### MCA. Merkes is entitled to receive $5454.26 

### in damages as compensation forMapston's breach of contract.

### we concur: