No. 81-271 

IN THE 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: District Court of the Fourteenth Judicial District, 

In and for the County of Golden Valley, The Honorable Nat 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 ; DEC 3 0 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Hilmer Weyler initiated this action in the District Court, 

Golden Valley County, to recover the balance due and damages 

arising out of 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 in Golden Valley County near 

Lavina, Montana, and another farm near Laurel, Montana. During 

the summer of 1978, the Kaufmans required assistance in converting grazing land to seeded farm ground on the Golden Valley 

place. Weyler, an independent contract farmer, was hired for the 

discing jobs at the rate of $51.27 per hour. The discing was 

completed in June and in August, and Weyler was promptly paid for 

his work. 

On july 26 and 27 , 1978 , Weyler and the ~aufmans entered 

into an oral contract for the seeding of the Golden Valley farm. 

Weyler was to furnish his own drills, and to seed the farm at the 

rate of $4.00 per acre. The starting date was to be August 25, 

1978, and the completion date September 20, 1978. Weyler 

testified he advised the Kaufmans that he would need an advance 

payment in order to meet the $9,000 down payment on the drills he 

was purchasing. Weyler testified that in August when he 

approached the Kaufmans for the advance and they refused, he told 

them he would have to finish another job in order to get the 

money for the drills. As a result of this and other delays, the 

seeding was started on September 10 and 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 

satisfied with the work. 

Prior to seeding, Weyler spot-disced one of the fields 

which had areas of heavy sage brush. He billed the Kaufmans for 

this work at $627.30, but they refused to pay because they main- 
tained the spot discing was included in the seeding contract. 

Weyler demanded payment on the seed ing contract several 

times, then filed a lien against the Golden Valley property and 

commenced this action. The Kaufmans alleged that Weyler improperly performed the seeding and caused a poor crop yield, and 

counter-claimed for damages 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, 

for the spot discing in the amount of $627.30, for consequential 

damages of $920 due to the inability of the plaintiff to perform 

winter maintenance on his equipment, and for costs and attorney 

fees. The court further found that the Kaufmans sustained no 

damages as a result of the plaintiff Is farming and that the 

Kaufmans failed to present evidence on their claim for damages 

due to the filing of the lien. 

The issue on review is whether the evidence was sufficient 

to support 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 will be viewed in the light most favorable to the 

prevailing party and the judgment of the trial court will be presumed correct unless it is clearly erroneous. Rule 52(a), 

M.R.Civ.P.; Toeckes v. Baker (1980), Mont . , 611 P.2d 609, 

37 St.Rep. 948. 

The Kaufmans contend that the evidence was not sufficient 

to support the finding that Weyler fully performed the seeding 

contract and was entitled to full payment. Specifically they 

argue that Weyler failed to perform by September 20, the agreed 

completion date, and further that his failure to timely perform 
caused 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 details of the job including the equipment to be used, the 

depth of the seed placement, the starting date of August 25, 

the completion date of September 20, and the rate. By telephone 

on July 27, 1978, George Kaufman told Weyler to go ahead with the 

job. Weyler testified: 

" . . . And I said fine, and I was really happy 

about it. I just said the only condition that I 

was--the only condition I said was in order 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 

out on that." 

George Kaufman denied that Weyler told him he needed an advance 

in order to acquire the drills, although he admits knowing that 

Weyler did not have his own drills. 

not the function of this Court resolve con£ licts 

in the evidence. The District Court has the advantage of 

observing the demeanor and credibility of the witnesses. The 

trial court has resolved this conflict in favor of Weyler and 

this finding is supported by substantial evidence. Weyler 

accepted the Kaufmanst offer on the condition that he 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 condition which had to be 

performed before Weyler was absolutely bound to the specified 

time frame. Section 28-1-403, MCA. When the condition was not 

performed by the Kaufmans , Weyler was relieved of his obligation 

to meet 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. 

Yet both George Kaufman and Roy Kaufman testified that Weyler had 

seeded 4690 acres at $4.00 per acre. An initial estimate of 4500 

acres was agreed upon by the parties pending final measurement, 

but the official measurement 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 

properly entered judgment for this amount. 

The bulk of the evidence at trial concerned the manner in 

which the seeding was performed and the yield of winter wheat 

harvested by the Kaufmans the following summer. The Kaufmans 

attempted to prove that Weyler performed unsatisfactorily and 

that their low yield was a direct result of 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 kill and a dry summer in 1979, that neighboring farms had 

similar low yields, 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. His detailed testimony indicated 

numerous causes for the poor spots, primarily the severe winter 

kill and dry summer of that year. Neighboring farmers testified 

they had similar low yields that year. 

Finally, the Kaufmans contest the award of damages for the 

spot discing and the repair of the tractor. With regard to the 

spot discing, there was a conflict in the testimony of both 

parties. The Kaufmans maintained the spot discing was included 

in the seeding contract. Weyler testified that he had given the 

Kaufmans his rate sheet showing $51.27 per hour for discing. 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 the 
previous discing jobs at the rate specified. The District Court 

resolved this conflict in Weylerls favor, and this Court will not 

substitute its judgment for that of 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 time he entered into the seeding 

contract with the Kaufmans. Prior to that time he had received 

payment for the first discing jobs. Damages are not recoverable 

unless they are proved to have 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 failure of the Kaufmans to pay the 

balance when due. 

No evidence was presented by the Kaufmans on their counterclaim for damages resulting from the filing of the lien, 

therefore the District Court properly denied that relief. 

Remanded with directions to reduce the judgment by $920, 

and as so modified the judgment is af f irmed . 

-. 

Chief ~ustice 

We concur: L