No. 81-271 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

HILMER D. WEYLER, Plaintiff and Respondent,

ROY KAUFMAN, RALPH KAUFMAN, GEORGE KAUFMAN, et al., Defendants and Appellants.

Appeal from: DistrictCourt of the Fourteenth Judicial District, In and for the County of Golden Valley, The HonorableNat Allen, Judge presiding.

Counsel of Record: For Appellants: Pedersen, Herndon, Harper, Munro & Hartman, Billings, Montana Herman & Mohr, Laurel, Montana

For Respondent: Ask & Pratt, Roundup, Montana

Submitted on Briefs: November 25, 1981 Decided; 

### DEC30Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. HilmerWeyler initiated this action in the District Court, Golden Valley County, 

### to recover the balance due and damages arisingoutof a farming contract. Judgment 

### was entered for Weyler against the Kaufman brothers in the amount of $6,307.30, plus 

### costs and attorney fees. The Kaufmans appeal. The Kaufmans own one farm inGolden Valley County near Lavina, Montana, and another farm near Laurel, Montana. During the summer of 1978, the Kaufmans required assistance inconverting grazing land 

### to seeded farm ground on the GoldenValley place. Weyler, an independent contract farmer, 

### was hired for the discingjobs at the rate of $51.27 per hour. The discing 

### was completed inJune and inAugust, and Weyler 

### was promptly paid for hiswork. On july 26 and 27

## , 1978

## ,Weyler and the ~aufmans entered intoan oral contract for the seeding of the Golden Valley farm. Weyler was 

### to furnish his own drills, and to seed the farm atthe 

### rate of $4.00 per 

### acre. The starting date 

### was tobe August 25, 1978, and the completion date September 20, 1978. Weyler testified he advised the Kaufmans thathe would need an advance payment inorder 

### to meet the $9,000 down payment on the drillshe

was purchasing. Weyler testified that inAugust when he approached the Kaufmans for the advance and they refused, he told them he would have 

### to finish anotherjob in order 

### to get the money for the drills. As a result of this and otherdelays, the seeding

### was started on September 10and completed on October 6. Weyler seeded 4690 acres at $4.00 per 

### acre and for a total contract price of $18,760. The Kaufmans made payments totaling $14,000, but refused to pay the balance claiming they were not satisfiedwith the work. Prior to seeding, Weyler spot-disced one of the fields which had areas of heavy sage brush. He billed the Kaufmans for thiswork at $627.30, but they refused 

### to pay because theymain-tained the spot discing 

### was included in the seeding contract. Weyler demanded payment on the seeding contract several times, then filed a lienagainst the Golden Valley property and commenced thisaction. The Kaufmans alleged thatWeyler improperlyperformed the seeding and caused 

### a poor crop yield, and counter-claimed fordamages of $85,000 due 

### to crop loss and for damages of $600,000 due to the filing of the lien. Following trial, the District Court entered its findings, conclusions and judgment, awarding Weyler damages for the balance due on the seeding contract in the amount of $4,760 plus interest, forthe spotdiscing in the amount of $627.30, for consequential damages of $920 due 

### to the inabilityof the plaintiff to perform wintermaintenance on hisequipment, and for 

### costs and attorney fees. The court further found that the Kaufmans sustained no damages 

### as a result of the plaintiffIsfarming and that the Kaufmans failed to present evidence on their 

### claim fordamages due to the filingof the lien. The issue on review is whether the evidence 

### was sufficient tosupport the findings and conclusions of the District Court with regard to the performance of the contract, the damages and the counterclaim. The general rule is that the findings and conclusions will not be 

### set aside if supported by substantial evidence and by the 

### law. Evidence willbe viewed inthe light

### most favorable to the prevailing party and the judgment of the trial court willbe presumed correct unless it 

### is clearlyerroneous. Rule 52(a), M.R.Civ.P.; Toeckes v. Baker (1980), Mont

# . ,611P.2d 609, 37 St.Rep. 948. The Kaufmans contend that the evidence was not sufficient to support the finding thatWeyler fullyperformed the seeding contract and 

### was entitled 

### to fullpayment. Specificallythey argue thatWeyler failed 

### to perform by September 20, the agreed completion date, and further thathis failure 

### to timelyperformcaused them extensive loss due to poor crop yield. In addition the Kaufmans claimed Weyler's performance 

### was unsatisfactory. Prior 

### to entering into the contract, the parties discussed the detailsof the job including the equipment 

### to be used, the depth of the seed placement, the starting dateof August 25, the completion dateof September 20, and the 

### rate. By telephone

on July27, 1978, George Kaufman toldWeyler to go ahead with the job. Weyler testified: 

### "

# . .

# .And I said fine, and I 

### was reallyhappy about it. I just said the onlycondition that I was--the onlycondition I said 

### was inorder 

### to meet the 

### time frame 

### we talked about it was going to be imperative that I get 

### some help on the $9,000.00 down payment on the drills. And George said 

### well I think 

### we can work something outon that." George Kaufman denied thatWeyler told him he needed an advance inorder 

### to acquire the drills, although he admits knowing that Weyler did not have hisown drills. not the function of this Court resolve con£

### licts inthe evidence. The District Court has the advantage of observing the demeanor and credibilityof the witnesses. The trial court has resolved this conflict in favor of Weyler and thisfinding 

### is supported by substantial evidence. Weyler accepted the Kaufmanst offer on the condition thathe get 

### some assistance from them on the down payment. George Kaufman manifested his assent 

### to that condition. The oral contract thus contained a condition precedent; i.e. a conditionwhich had to be performed beforeWeyler was absolutelybound to the specified 

### time frame. Section 28-1-403, MCA. When the condition 

### was not performed by the Kaufmans

## ,Weyler was relieved of hisobligation tomeet the specified dates of performance. Roy Kaufman admitted that they gave Weyler an extension on the starting date. Once Weyler was no longer bound to the specified dates, the contract



### was to be performed within a reasonable 

### time. Section 28-3-601, MCA.The Kaufmans on appeal disagree with the finding of the District Court that the balance due on the contract 

### was $18,760. Yetboth George Kaufman and Roy Kaufman testified thatWeyler had seeded 4690 

### acres 

### at $4.00 per acre. An initial

### estimate of 4500



### acres 

### was agreed upon by the partiespending finalmeasurement, but the officialmeasurement 

### was 4690 

### acres. Subtracting payments of $14,000 made on the contract from the total contract price of $18,760, the balance due 

### was $4,760. The trial court properlyentered judgment for thisamount. The bulk of the evidence attrial concerned themanner in which the seeding 

### was performed and the yield of winter wheat harvested by the Kaufmans the following summer. The Kaufmans attempted toprove thatWeyler performed unsatisfactorily and that their 

### lowyield was a direct resultof his faulty performance. The trial court found that the farming was done in

a workmanlike manner, that the lower yield 

### was due 

### to severe winter killand a dry summer in 1979, that neighboring farms had similar 

### lowyields, and that the Kaufmans sustained no damage as

a result of Weyler's performance. These findings

### are supported by the evidence. Ray Choriki, an agricultural consultant, meticulously examined the fields and found no evidence of shallow seeding 

### or unevenly set drills. Hisdetailed testimony indicated

numerous causes for the poor spots, primarily the severewinter killand dry summer of thatyear. Neighboring farmers testified they had 

### similar 

### lowyields thatyear. Finally, the Kaufmans contest the award of damages for the spotdiscing and the repair of the 

### tractor. With regard 

### to the spotdiscing, there was a conflict in the testimony of both parties. The Kaufmans maintained the spot discing 

### was included inthe seeding contract. Weyler testified thathe had given the Kaufmans hisrate sheet showing $51.27 per hour fordiscing. He bid the seeding at$4.50 per 

### acre but settled for$4.00 per 

### acre. He understood the discing would be under the 

### same terms 

### as theprevious discingjobs at the 

### rate specified. The District Court resolved thisconflict inWeylerls favor, and this Court willnot substitute itsjudgment for thatof the trial court. However, 

### we find that the award of $920 for the maintenance and towing of Weylerls tractor 

### is not supported by the evidence. Weyler testified that he 

### was aware of the problem with the ring and pinion of his 

### tractor at the 

### timehe entered into the seeding contract with the Kaufmans. Prior to that 

### timehe had received payment for the firstdiscing jobs. Damages 

### are not recoverable unless they 

### are proved tohave been proximately caused 

### or likely 

### to result from the breach of contract. Section 27-1-311, MCA. The evidence does not establish that the 

### tractor breakdown 

### was proximately caused by the failureof the Kaufmans to pay the balance when due. No evidence 

### was presented by the Kaufmans on their coun

### terclaim fordamages resulting from the filing of the lien, therefore the District Court properlydenied that relief. Remanded with directions to reduce the judgment by $920, and as 

### so modified the judgment 

### is affirmed

# .

-. Chief ~ustice

We concur: L