No. 12103 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JAMES H. CLAVER, 

Plaintiff and Respondent, 

VS . 

BYRON N. ROSENQUIST and KATIE ROSENQUIST, 

Defendants and Appellants. 

Appeal from: District Court of the Tenth Judicial District 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appell ant: 

Robert L. Johnson argued, Lewistown, Montana. 

For Respondent: 

Peter L. Rapkoch, Lewistown, Montana. 

B. Miles Larson argued, Stanford, Montana. 

Submitted: May 17, 1972 

Decided: JUL 2 11972 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

In a controversy involving the sale of gravel under a written 

contract, the district court of Fergus County, the Honorable LeRoy L. 

McKinnon, district judge, presiding without a jury, granted plaintiff a 

permanent injunction restraining the defendants from interfering in any 

way with plaintiff's access, control and disposition of reject gravel stored 

on defendants' land; from interfering with plaintiff 's trade or business of 

selling this reject gravel during the term of the contract; and awarded 

plaintiff nominal damages of $100. Following denial of defendants ' motion 

to amend the findings of fact, conclusions of law and judgment defendants 

now appeal from the final judgment. 

The underlying facts of this matter may be summarized. In the fall 

of 1968, defendants Byron N. Rosenquist and his elderly mother Katie Rosenowned quist, jointlylland near Stanford, Montana containing gravel deposits. In 

November, 1968 plaintiff James H. Claver entered into a contract with the 

Rosenquists as foll ows: 

"THIS AGREEMENT made this 19 day of November, 1968, 

between Byron N. Rosenquist and Katie Rosenquist of 

Stanford, Montana, herein call ed the sell ers , and James 

H. Claver of Stanford, Montana, herein called the purchaser; 

"For the consideration hereinafter set forth, the 

sellers do hereby agree to sell to the purchaser all 

gravel and sand, required for any Great Northern Railway gravel bid, whether bid direct or indirectly by 

said purchaser, located in and on the following described 

land in the County of Judith Basin, State of Montana, 

described as foll ows : 

"From the pit of the said sellers next to 

the seller's feed yard on the Southern edge 

of the Town of Stanford, in Section 16, 

Township 16, Range 12, 

"for the price of six cents (6t) per cubic yard. The 

purchaser shall have full rights of ingress and egress 

in, on, over and across and through the above described 

land for the purpose of mining, storing and removing the 

sand and gravel purchased hereunder. The sellers agree 

that their livestock shall not run at large on said premises during the mining and storing operations. 
"The purchaser shall have the right to construct any and a1 1 

roadways as may be reasonably necessary or convenient to 

the mining, storing and removing of the sand and gravel pur- chased hereunder. Further, the purchaser shall have the 

right to stockpile on any ground adjacent to said pit, all 

of the reject sand and gravel, and shall have access to 

said stockpile for a period of five (5) years. 

"Purchaser shall use all possible care and diligence and 

shall conduct his operations in such a manner as not to 

cause undo damage to the above described land. 

"Upon the termination of operations under this agreement, 

the surface of the ground appurtenant to the gravel pit shall be smooth and restored by the purchaser to as near 

the present condition as possible and any stripping 

material shall be placed back into the pit. 

"It is further agreed between the parties hereto that the 

purchaser shall have the exclusive right to the sand and 

gravel from said pit in future years at the price herein 

agreed upon for so long as the said purchaser shall comply 

with the terms of this Contract. 

"This agreement shall be binding upon-the heirs, executors, 

administrators, and assigns of the parties hereto. 

"/s/ B. N. Rosenquist 

"/s/ Katie Rosenqui st 

"/s/ James H. Claver" 

Thereafter plaintiff contracted with Zook Brothers Construction 

Company, who had a contract to supply gravel to the Great Northern Railway, 

to use gravel from the Rosenquist land under the contract that plaintiff 

had with the Rosenquists. Plaintiff received a down payment of $2,500 from 

Zook under his contract with them and paid the Rosenquists $1,200 down on 

his contract with them, all in 1968. In March, 1969,the Zook Brothers Construction Company moved onto defendants' property and began excavating and 

processing gravel for the Great Northern Railway Company. By the end of 

May, 1969, Zook had completed his job of furnishing gravel to the Great 

Northern and had taken his crusher off of defendants' property; at this time 

a1 1 gravel had been delivered to the Great Northern. According to Zook's 

figures they had delivered 100,000 cubic yards of gravel to the Great 

Northern, but according to the Great Northern Zook had furnished them only 

86,625 cubic yards; in any event whatever the volume was it was sufficient 
to satisfy the Rail road's requirements. Zook Brothers remitted a total 

of $1 1,261.25 to plaintiff for 86,625 cubic yards of gravel for the Great 

Northern. This includes the $2,500 down payment in 1968, $5,950 paid in 

June 1969, and $2,811.25 with no payment date specified. As payments 

came in to plaintiff from Zook, plaintiff made corresponding payments 

at 6jt per cubic yard to defendants Rosenquist. There was no rejection of 

payments by Rosenquists on gravel furnished the Great Northern. 

However, a controversy arose over sale by plaintiff to the general 

public of reject gravel piled on Rosenquists' land. This reject gravel was 

a by-product of producing dimensional gravel to meet the Great Northern 

Railway's requirements. Plaintiff began making sales to the pub1 ic of this 

reject gravel. About May 2, 1969, defendant Byron Rosenquist contacted 

plaintiff and demanded payment for a1 1 amounts outstanding, contending that 

nothing had been paid him by plaintiff since the preceding December while 

nearly 300,000 cubic yards of gravel had been taken from defendants' land. 

On May 5, 1969, plaintiff did go to see defendant but no offer of payment 

or settlement was made at that time. Plaintiff contended that the entire 

reject pile of gravel was his by virtue of the agreement heretofore set 

forth and that he had the right to sell the reject and remit 6$ per cubic 

yard to defendants. Defendant Byron Rosenquist thereafter on occasion attempted to and did personally stop further removal of reject gravel from 

his property by plaintiff. 

On May 8, 1969, plaintiff tendered to the defendants a check for 

$353.70 for reject gravel , which check was refused by defendants. 

Subsequently plaintiff purchased various pieces of equipment such 

as a loader, a dump truck and a pickup in order to sell gravel to the general public. He also began negotiating with a ready-mix firm in Great Falls 

to bring water onto the defendants ' land to set up a washing plant but the 

deal never material ized. 

On June 4, 1969, defendant Rosenquist published a notice in the Judith 
Basin Press disclaiming any agency relationship with plaintiff, and began 

calling some of plaintiff's customers telling them, in effect, that plaintiff 

had no right to sell the gravel. Defendant Rosenquist also attempted to 

dissuade them from paying plaintiff for gravel previously del ivered. 

On June 24, 1969, plaintiff instituted the instant suit containing 

three claims: (1) a claim for a permanent injunction against interference 

by Rosenquist, together with reasonable attorney's fees for securing the 

same; (2) a claim for damages in the amount of $1,760.11 , resulting from 

alleged malicious and oppressive conduct by Rosenquist which induced thirdparty purchasers to refuse del ivery and payment for gravel furnished by 

Claver to them; (3) a claim for punitive damages of $10,000 for alleged 

malicious and oppressive interference by defendant Byron Rosenquist with 

Claver's gravel business. On the basis of the verified complaint the district court issued a temporary restraining order prohibiting defendants 

from interfering with plaintiff's gravel business and from dealing with or 

disposing of the reject gravel. 

Subsequently defendants ' answer and countercl aim was f i 1 ed, a hearing was held, and the district court granted an injunction pendente lite in 

favor of pl ainti ff and against defendants. Thereafter defendants f i 1 ed 

their amended answer and counterclaim. 

Defendants answer contained five defenses: (1) failure to state a 

claim; (2) a general denial of everything other than the written contract; 

(3) that plaintiff was not in any event entitled to attorney's fees; (4) 

failure of performance by plaintiff, consisting of nonpayment by him for 

gravel delivered to the Great Northern Railway and failure to level the pit 

after completion of the gravel operation; (5) that plaintiff was not entitled 

to exemplary damages in any event as his claims arose out of breach of a 

contract obl igation. 

In addition defendants f i 1 ed three counterclaims: (1 ) fai 1 ure of 
the plaintiff to furnish an accounting of sales to the public after demand 

by defendants; (2) failure of the plaintiff to pay defendants the balance 

due for delivery of gravel to the Great Northern Railway Company in the 

amount of $2,100 with interest; (3) failure of plaintiff to restore the 

land to its original condition with accrued damages of $2,500. 

The case came on for trial commencing July 30, 1970, and after all 

testimony and evidence was submitted the district court granted the parties 

additional time to file briefs and motions resulting in submission of the 

case for decision about February 1, 1971. 

The district court entered its findings of fact, conclusions of law 

and judgment on March 9, 1971. In substance the court construed the contract as follows: 

"That the plaintiff should open and develop a gravel pit 

on defendants' land; that the overburden be stripped off 

and stored; that the plaintiff should dig, process, and 

supply the gravel needed by the Great Northern Railway 

Company, and store the reject produced on the defendants' 

land; that the plaintiff should restore the overburden to 

the pit area, and leave it as nearly as possible as smooth 

as it originally was; that during this time the defendants' 

1 ivestock would not be permitted on the pit area; that 

thereafter for a period of five years the plaintiff was 

to have access to the reject pile for the purpose of selling the said reject; that the defendants were to receive 

.06f per cubic yard of gravel sold for both specification 

and reject gravel ". 

The court also found that the plaintiff was entitled to at least 

nominal damages and entitled to an order restraining defendantsfrom further 

interference with his rights under the contract. Judgment was entered accordingly. Following denial of defendants' motion to amend the findings, 

defendants appeal from the final judgment. 

Defendants raise three issues for review upon appeal which can be 

summarized in this manner: 

1. Is plaintiff entitled to injunctive relief against defendants? 

2. Did the district court err in failing to grant defendants' judgment for money due them under the contract? 
3. Did the district court err in denying defendants' motion for 

leave to amend their pleadings to conform to the evidence. 

On the first issue, defendants contend that the plaintiff was not 

entitled to injunctive relief because plaintiff was in default on his payments under the contract and under such circumstances defendants were 

entitled to employ self-help to ha1 t further removal of the gravel until a reckoning was made for the gravel already removed. 

We find no error in the district court's finding with respect to the 

terms of the contract. Plaintiff was clearly entitled to sell the reject 

gravel to others at the contract price. Otherwise the provision in the contract that the purchaser shall have access to the stockpile of reject sand 

and gravel for a period of 5 years, and that he shall have the exclusive 

right to the sand and gravel from the pit in future years would be meaningless. 

Section 13-707, R.C.M. 1947 provides: 

"Effect to be given to every part of contract. 

The whole of a contract is to be taken together, so 

as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." 

The only possible meaning of the quoted provisions of the contract is 

that plaintiff ha& the right to sell the reject gravel which was a by-product 

of the Great Northern Railway gravel bid. 

A great deal of argument by counsel was directed at when payment was 

due under a contract which was silent as to time of payment. This is a spurious issue under the facts of this case. Insofar as the dimensional gravel 

sold to the Great Northern Railway Company is concerned, the record shows that 

at the time of trial payment by the plaintiff to the defendants for 86,625 cubic 

yards of gravel had been made; that defendant at no time objected to payment 

by plaintiff for this dimensional gravel as was actually made; that the defendants were satisfied with the payments made for the Great Northern gravel 

excepting for the 13,375 cubic yards about which a dispute existed between 

the Great Northern Railway and Zook Brothers. Here there is no substantial 
evidence as to the amount actually delivered, nor any resolution of whether 

~ookk del ivery figures of 100,000 cubic Jl&d$ or the Great Northern 's figures 

of 86,625 cubic yards were correct. Under such circumstances, there is a 

failure of proof that anything is owed by Claver to the Rosenquists for the 

sale of the dimensional gravel to the Great Northern Railway Company. 

Insofar as gravel sales from the reject pile are concerned, the 

tender by plaintiff to defendants of a cashier's check for $353.70 representing payment for reject gravel sold was refused by defendants. Counsel for 

defendants on oral argument contended that the reason they didn't accept 

the tender of May 8 was for fear of estoppel against their contention that 

they didn't have to wait for payment until plaintiff sold the gravel from 

the reject pile. Whatever the reason may have been, the tender of payment 

was in fact rejected pending determination of this controversy, excusing 

plaintiff from further tenders on sales of reject gravel. Section 49-124, 

R.C.M. 1947 provides that the law does not require idle acts. As applied to 

tenders, see Sherl ock v. Vinson, 90 Mont. 235, 1 P .2d 71 . 

For the foregoing reasons plaintiff was not in default of payments 

due the Rosenquists under his contract with them and accordingly is not precl uded from securing injunctive re1 ief here. 

Directing our attention to the second issue for review, we hold 

that the district court should have entered findings of fact, conclusions of 

1 aw, and judgment determining the issues raised by defendants'countercl aims. 

These counterclaims include: (1) a demand for an accounting; (2) a claimed 

balance of $2,100 and interest owing defendants for dimensional gravel delivered to the Great Northern Railway; and (3) damages of $2,500 for failure 

of Claver to restore the land of defendants to its original condition after 

the digging and crushing of the gravel. No findings, one way or the other, 

were entered by the district court on these counterclaims, and no mention 

was made of any of the counterclaims in the district court's judgment. We 
hold that the district court should have made findings concerning these 

issues and entered judgment accordingly . 

The third issue for review concerns whether the district court committed error in not allowing the defendants to amend their answer and 

counterclaim to conform to the evidence pursuant to Rule 15(b), M.R.Civ.P. 

Defendants' motion to amend requests permission to insert a counterclaim to 

the effect that in addition to the 100,000 cubic yards of dimensional gravel 

that was delivered to the Great Northern Railway Company from defendants' 

property, an additional 400,000 cubic yards of reject was severed from defendants ' lands; that in the event the reject became the property of the 

plaintiff upon severance from the defendants' 1 ands, defendants are entitled 

to the sum of 6$ per cubic yard, or a total of $24,000 with interest. 

Suffice it to say that there is simply no substantial, credible basis 

in the evidence to support such a claim. Accordingly the district court 

correctly denied defendants motion to amend. 

In summary then, we affirm the judgment of the district court heretofore entered, but remand this cause to the district court for entry of findings 

of fact, concl usions of 1 aw and judgment granting defendants an accounting and 

disposing of the bal ance of defendants ' counterclaims. 

Associate Justice 

w 

Associate Justices 

-9- 
Mr. Justice Wesley Castles dissenting: 

I dissent. The district court and the majority of this Court 

have misconstrued the contract under the facts here. If as plaintiff, the 

purchaser, claims, he has a right to sell the reject gravel ; then he must 

pay for it at the agreed rate, when it was produced--not when and if he 

ever sells it. 

The proof is clear that the seller produced 100,000 yards of gravel 

for the Great Northern contract. This amount is his own figure. Whether 

a dispute between Zook Brothers and Great Northern exists as to its delivery 

should have no bearing here. Thus, no injunction should have issued as 

plaintiff was in default of payments due. 

The majority opinion does, however, grant defendants an accounting 

with which I agree. The accounting should allow payment to the defendant of 

the amount due for delivery of gravel to Great Northern. It should also 

allow in its resolution of the counterclaim a finding that plaintiff did not 

restore the land to its original condition; and that thus there was a breach 

of the contract. This latter finding would make the injunction issued improper. 

Under the circumstances here, Claver, the purchaser,had his own 

attorney draw the contract. Ambiguities should be interpreted against him. 

Additionally, it appeared at trial that the purchaser was clearly impeached 

in his testimony by prior inconsistent statements made on depositions, and 

his testimony should not have been accepted. It simply was not credible. 

The purchaser removed the gravel from its natural state, produced it, and 

is obligated to pay for it at the agreed price whether he sold it or stored 

it. I would reverse the judgment and direct further proceedings in accounting to determine the amounts owing by plaintiff and the damages, if any, for 

failure to live up to the terms of the contract. 

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Associate dtice