No. 13653 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

NELSON E. CORSCADDEN, 

Plaintiff and Respondent, 

-vsSTEPHEN J. KENNEY, 

Defendant and Appellant. 

Appeal from: District Court of the Seventeenth Judicial 

District, 

Honorable Thomas Dignan, Judae presiding. 

Counsel of Record: 

For Appellant: 

Douglas Y. Freeman argued, Hardin, Montana 

For Respondent: 

Robert Hurly argued, Glasgow, Montana 

Filed: 

Submitted: December 2, 1977 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

Nelson E. Corscadden, d/b/a Corscadden Steel Construction 

Company, brought this action against Stephen J. Kenney, seeking 

damages occasioned by an alleged breach of contract by Kenney. 

Kenney answered and counterclaimed for alleged equipment rental due 

and damages resulting from alleged defective workmanship and default 

by Corscadden. A nonjury trial was commenced in the District Court, 

Valley County, on December 2, 1976. By its findings of fact and 

conclusions of law dated December 30, 1976, the District Court, 

the Honorable Thomas Dignan presiding, rendered judgment for plaintiff Corscadden in the amount of $8,961.55 with interest at 6 percent 

per annum, and denied Kenney's counterclaim. Kenney appeals the 

judgment and the denial of his counterclaim. 

Defendant Kenney, a contractor from Hardin, Montana, was 

the successful bidder with the United States Corps of Engineers on 

a contract to rehabilitate a barge at Fort Peck, Montana. A portion of the rehabilitation consisted of welding on the barge. 

Corscadden submitted a bid to Kenney, seeking to subcontract performance of the welding services. The bid was rejected. However, 

in May, 1975, a verbal agreement was entered into between Kenney, 

by his superintendent Ralph Marcher, and Corscadden. Kenney hired 

Corscadden and his employees on an hourly basis to furnish labor 

by certified welders, welding material and two welding machines at 

a rate of pay of $16 per man hour. Corscadden and his employees 

were to begin performance in May, 1975. Although Corscadden and 

his employees were based in Glasgow, Montana, a distance of 17 miles 

from the job site, no agreement was reached at the time concerning 

mileage charges. 

Corscadden moved the welding equipment from Glasgow to Fort 

Peck and began performance on May 12, 1975. On June 22, however, 
a dispute arose between the parties concerning the rate at which the 

work was progressing. Corscadden terminated the employment and 

moved his men and equipment off the job. 

On June 24, unable to locate replacement welders, Marcher 

reached a verbal agreement with Corscadden for continued performance, 

the terms of which, for the greater part, are in dispute. The 

parties agree that Corscadden and his men were entitled to a new 

rate of pay of $22 per hour. Corscadden contends, however, the parties agreed the new rate of pay would operate retroactively to the 

beginning of the job, covering some 145-1/2 man hours worked, and 

mileage charges of $1 per actual mile traveled between Glasgow and 

Fort Peck, also applicable retroactively. Such items were alleged 

to have been payable upon completion of the work. Marcher disputes 

the latter terms. In any event, Corscadden and his men did return 

to work on June 24, 1975, and commenced performance under the terms 

of the new agreement. 

At trial, the parties disputed liability for rent on certain 

items of Corscadden welding equipment. Kenney and Marcher admitted 

liability for an exhaust fan, one grinding machine, oxygen and acetylene bottles and gauges, and a cutting head. However, Corscadden 

testified additional items of equipment, consisting of a second 

grinding machine, a paint respirator, a "scarfing tip", and flood 

lights were also rented. Marcher asserted the rental rates were 

to have been those established by a local rental agency, Moen's 

Equipment Rental of Glasgow. Corscadden testified there was no 

agreement to so restrict the rental rates, but rather the rates 

charged were those he typically charges for rental of such items; 

a rate higher than that charged by Moen's. It should be noted, in 

this regard, that certain of the items in dispute were not available 

for rental at Moen's. 

A further dispute concerns the cost of time and travel for 

a three day testing and recertification of one of Corscadden's 
employees, Zane Geer. Corscadden contends Kenney is liable for such 

costs under the express terms of the prime contract between the 

United States and Kenney. Kenney denies liability for such costs, 

arguing Corscadden had agreed to provide certified welders. 

In support of his counterclaim for damages due to delay and 

defective workmanship, Marcher testified Corscadden failed to provide the two-man work force agreed upon during May and June, 1975. 

Other welders were employed by Kenney to complete the job. Kenney 

stated that, due to the delay, he was unable to bid on other potential 

jobs. Other defense witnesses indicated, however, the delays were 

due primarily to the failure of Kenney's crew to have welding steel 

available and make the job site ready for work. It is undisputed 

that Kenney was subjected to no fine or penalty due to the ultimate 

delay in completing performance on the prime contract. Additionally, 

proper 

Marcher testified Corscadden's failure to provide the/one-fourth-inch 

welds required by the terms of the prime contract resulted in approximately 200 hours of rewelding and, thus, additional delay and cost 

to Kenney. Kenney stated he was damaged in an approximate amount 

in excess of $10,000. Corscadden testified, however, he was not 

made aware of the specifications regarding weld thickness and was 

not informed of the insufficiency of the work at the time it was 

being performed, although Marcher himself was in constant supervision 

of the welding work. 

Corscadden testified that due to Kenney's failure to make 

scheduled payments on their agreement, he was forced to obtain high 

cost bank loans to finance his employees' salaries and continued 

operations. As a result, Corscadden allegedly suffered a loss of 

credit and damages to his business reputation. 

Corscadden and his men completed their work on August 20, 

1975. Kenney contends his final payment of $6,541.44, by check dated 

October 30, 1975, was accepted and cashed in full satisfaction of 

the account. Corscadden denied such sums were accepted as final 

payment. 

-4- 
The District Court gave judgment for Corscadden on all 

items of damage, save those for loss of credit and business reputation. Awarded to Corscadden were the following: 

Total 824-1/2 hours labor at $22 per hour, 

including 24 hours compensation for 

recertification of Corscadden employee 

Geer . . . . . . . . . . . . . . . . . .$18,139.00 

Mileage charges, retroactive to May 12, 1975 . 3,706.00 

Equipment rental and other charges . . . . . . 3,727.55 

TOTAL DUE CORSCADDEN FROM KENNEY. .$25,572.55 

Less payments made by Kenney. .(16,611.00) 

BALANCE DUE AND OWING. .$ 8,961.55 

The court computed 6 percent interest on the rental and 

other charges from December 15, 1975, the date at which the last of 

the equipment was returned, and 6 percent interest on the balance 

owing on the labor and mileage accounts from October 30, 1975, the 

date at which the last of the payments on such account was made. 

The District Court denied Kenney's counterclaim on the 

ground that the work was done under the direct supervision of Kenney's 

foreman, Marcher, who failed to disclose the plans and specifications 

to the welders. Thus, Corscadden could not be 5eld responsible for 

the delays due to faulty welding. The court also denied Kenney's 

counterclaim for rental due on a welding machine present at the 

site of the work, finding that its presence was at all times for 

the convenience of Kenney. 

The sole determination to be made on this appeal concerns 

the sufficiency of the evidence adduced at the trial, to sustain 

the findings of fact and conclusions of law of the District Court, 

and the judgment subsequently entered thereon. 

The thrust of appellant's argument on appeal is that the 

evidence is insufficient to support the judgment of the District 

Court. 
The proper standard for review of a lower court's findings 

of fact and judgment based thereon was recently stated in the case 

of Strong v. Williams, (1969) 154 Mont. 65, 68, 460 P.2d 90: 

"* * * Where the evidence is conflicting, but 

substantial evidence appears in the record to 

support the judgment, the judgment will not be 

disturbed on appeal, and this is especially 

true when the district court, as here, has 

passed upon the sufficiency of the evidence * * **'I 

See also: McGuire v. American Honda Co., (1977) - Mont . - , 566 

P.2d 1124, 34 St.Rep. 632; Rearns v. McIntyre Const. Co., (1977) 

Mont . , 567 P.2d 433, 34 St-Rep. 703. 

While the evidence offered below by the respective parties 

is, in varying degrees, in direct conflict, we conclude the evidence 

taken as a whole substantially supports the findings of the District 

Court, with two minor exceptions. 

Respondent Corscadden contends, and the record makes plain, 

that appellant Kenney's offered evidence is often unclear and, in 

certain respects, contradictory. Kenney's primary evidence, in the 

form of the testimony of his supervisor, Marcher, is ambiguous 

regarding numerous terms of both the original and renegotiated agreements between the parties. 

The credibility and weight accorded given witnesses is a 

primary function of a trial judge sitting without a jury and is of 

special consequence where the evidence is in conflict. This Court 

will ordinarily sustain such a determination on appeal. Hellickson 

v. Barrett Mobile Home Transport, Inc., (1973) 161 Mont. 455, 507 

P.2d 523; Eliason v. Eliason, (1968) 151 Mont. 409, 443 P.2d 884. 

We feel the judgment of the District Court, given the facts 

as presented, is essentially correct. However, the dispute concerning the retroactivity of the increased pay rate and mileage 

charges necessitates a modification of judgment in this case. Corscadden never demonstratedthatwcherhad agreed to such terms, as 

the following direct testimony of Corscadden himself will disclose: 
"Q. Did you reach any agreement on whether or 

not this $22 per hour would go back to the start 

of the contract? A. We had talked about that. 

We hadn't even been paid for the 145 hours, I 

don't think, at that- time, and I just assumed 

that we did. You know, that it would start right 

from the start. 

"Q. Did you discuss that with Ralph [Marcher]? 

A. Yes, we did, and he talked back and forth 

about it, and I don't remember any decision made 

whether, you know, that was the way it was going 

to be or not. 

"BY THE COURT: Did you ever make an agreement on 

that? Or what was the situation? A. I don't 

think there was ever an agreement made one way 

or the other. 

"BY THE COURT: On the -- A. I know he didn't 

want to pay it, and I wanted it. We argued it 

out, but I don't think there was ever any final 

agreement made whether they were going to pay 

it or not." (Emnhasis added.) 

Further, a Corscadden invoice admittedly submitted subsequent to 

renegotiation of the agreement on June 24, 1975, gave credit for 

the additional rate of pay at 145-1/2 hours. This, we feel, constitutes a clear admission of nonretroactivity. 

Likewise, the following direct testimony of Corscadden concerning mileage charges indicates no agreement was reached concerning 

retroactivity of such charges: 

"A. * * * I told him [Marcher] I wanted a dollar 

a mile, and he said, 'What? For three men that 

would come to quite a bit.' I said, 'The men drive 

their own outfits, but my truck runs over the road, 

it would be 34 miles a day.' 

"Q. Did you agree on that? A. Yes. 

ee --- on whether or - not that would 

be retroactive or not? Whether - or not that would 

go back to the start of the contract .- or not? 

A. No. - " (~rn~hasis added. ) 

There being no evidence of record to justify a finding that 

Corscadden was entitled to the above retroactive rates and, indeed, 

the entire weight of evidence to the contrary, the judgment must 

be reduced accordingly, under the previously noted "substantial 

credible evidence" standard of review. 
The judgment of the District Court is therefore affirmed, 

as modified. The cause is hereby remanded to the District Court 

for recomputation of the amount of judgment under the standards 

outlined herein. 

\ 

yhief Justice