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, Judge presiding. 

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, 1992 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

plaintiff Peter Merkes appeals from an order of the Fourth 

Judicial District Court, Missoula County, ordering Merkes to accept 

the return of a 1972 Peterbilt truck, in lieu of $5454.26 in 

monetary damages, as compensation for defendant Mapston'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 

from Merkes for $5500. On about October 5, 1989, Mapston entered 

into a subsequent agreement with 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 charges would be filed against him. Mapston did not 

return the truck. 

On April 25, 1990, Merkes commenced a lawsuit against Mapston. 

The complaint sought damages of $5500, plus interest at 10 percent 
per annum, from and after October 5, 1989, for Mapston's breach of 

contract. On January 4, 1991, Mapston filed an answer and 

counterclaim in which he alleged Merkes induced him to purchase the 

1979 Freightliner truck and the 1972 Fruehauf log trailer by 

misrepresenting and warranting that the vehicles were "road ready. " 

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 Freightliner and the 1972 Fruehauf log trailer 

for a sum of $29,500; (2) Mapston breached the contract because 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. 

In his complaint, Merkes soughtmonetary damages. 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, the vehicle's current value offset the $5454.26 that 

Mapston owed to Merkes. The court determined that the return of 
the truck, not monetary damages, compensated Merkes for Mapston's 

breach of contract. 

On appeal, Merkes asserts that the District Court erred when: 

(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 

monetary damages he requested in his complaint. Our disposition of 

Merkes' appeal is based on his second contention. Therefore, we 

need not discuss Merkes' first contention. 

Merkes asserts that there is no legal authority to support the 

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 neither party 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 damages will compensate him. 

We agree with Merkes' second argument that the court acted 

without legal authority when it ordered Merkes to accept the truck, 

in lieu of monetary damages, as compensation for Mapston's breach 

of contract. We conclude that the court erroneously ordered the 

performance of the original sales agreement when monetary 
compensation was the only appropriate remedy under the 

circumstances. 

The controlling statute in Montana for damages 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 course of things would be likely to 

result therefrom. Damages which are not clearly ascertainable 

in both their nature and origin cannot be recovered for a 

breach of contract. [Emphasis added.] 

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 . . . . [Tlhe nonbreaching party should receive 

a sum which will give him 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, Few County (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 in no 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 has been 

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 circumstances provided 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 law of damages for breach of contract as provided in 5 27- 

1-311, NCA. Further, the court erroneously 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 this District 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 for Mapston's breach of contract. 
we concur: