### No. 81-17 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

JOHN KINJERSKI

### , Plaintiff and Appellant,
-vsFRITZ LAYEY, individually, et al., Defendants and Respondents,
-vs

### ANNA KINJERSKI, ~hird Party Defendant and Appellant.

.1from: District Court of the Nineteenth Judicial District, In and for the County of Lincoln,The Honorable Robert Holter,Judge presiding,
Counsel of Record: For Appellant: Morrison, Jonkel, Kemmis & 

### Rossbach, Missoula, Montana For Respondents: Fennessy,Crocker, Harman & 

### Bostock, Libby,Montana

Submitted on Briefs: August 13, 1981 Decided: 

### OCT

### 29 

### I#n

Filed:Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. John Kinjerski brought this action inMay of 1978

### to
recover 49 head of 

### cows purchased from defendants as evidenced by
a written billof 

### sale. Following a jury verdict in favor of defendants, plaintiff appealed 

### to this Court and 

### we remanded for
new trial. Kinjerski v. Lamey (1979)

## , Mont

# . 604 P.2d 782, 36 St.Rep. 2316. A new 

### trial was held on October 21, 1980 and judgment on the verdict 

### was entered againstplaintiff, who
now appeals from the judgment and the denial of hismotion for a
new trial. Fritz Lamey 

### was the president of PhillipsCreek Ranch, Inc., a cattle ranching operation near Eureka, Montana. On October 3, 1967, Kinjerski and Lamey executed a writtenbillof 

### sale for 131head of Hereford 

### cattle for $59,000. The cattle 

### were further specified to be 80 

### cows, 31bulls and 20 calves. It 

### is uncontested that the bulls, the calves, and 31of the 80 

### cows 

### were delivered to Kinjerski. It 

### is the fateof the 49 remaining 

### cows which is indispute. Shortlyafter the execution of the billof sale, Kinjerski and Lamey became business partners ina new corporation known as K & LLivestock, Inc. for the purpose of raising and selling registered Hereford 

### cattle. The new corporationpurchased cattle from both the Phillips Creek Ranch and Kinjerski. During the short lifeof the corporation, cattle belonging 

### to Kinjerski, Lamey, Phillips Creek Ranch and K & L Livestock 

### were commingled and maintained together on Phillips Creek Ranch property. InApril, 1978, afterthe dissolutionof K & L Livestock, Inc., Kinjerski made demand forpossession of 49 of the cows referred to inthe billof sale. Lamey refused, stating thathe did not have possession of the cows. This lawsuit resulted. The first

### trial resulted in

### a verdict and judgment for defendants, but upon appeal 

### we remanded for 

### a new trial based on violations of the par01 evidence rule. Kinjerski v. Lamey,supra. Upon remand, the districtjudge partiallygranted a motion by plaintiff for summary judgment

## , stating: 

### " [TIhe Court now decides that the Defendants owe to said plaintiffs and Third Party Defendants certain

### cows, but is unable at thisjuncture to specificallydesignate which 

### cows or their offspring. That question 

### is leftfordetermination in thismatter." Atthe new trial evidence was adduced showing that a list of tattoo numbers of cattle 

### was submitted with the billof sale to the FirstNorthwestern Bank of Kalispell 

### as collateral for Kinjerskils loan. The evidence further showed that an entirely different list of 

### tattoo numbers accompanied the complaint in thisaction. Lamey testified thathe did not have possession of any of ~injerski's cattle inApril, 1978when demand was made. The case 

### was submitted to the jury with a special interrogatory form which 

### was to constitute the jury verdict. In pertinent part, the interrogatories

### were: "1) Did Fritz Lamey 

### or Phillips Creek Ranch, Inc. have any cattle belonging 

### to the plaintiff inApril, 1978? "Answer: (Circleone) Yes
"2) If the answer to Number 1is No, do not proceed any further. If the answer to Number 1 is Yes, how many 

### cattle did Fritz Lamey or hilli ips Creek Ranch, Inc. have, and what 

### was their value?" The jury answered the first interrogatory in the negative and leftthe 

### rest of the questions unanswered inaccordance with the directions

# . Judgment 

### was entered against plaintiff. Kinjerski argues that the special interrogatories

### were contraryto the lawof the case as determined by Kinjerski v. Lamey, supra, and by the partial summaryjudgment entered by the districtjudge. Kinjerski further contends that the interrogatories, verdict and judgment 

### were contrary to the 

### lawof Montana concerning a buyer's remedies for failure of the seller todeliver. Section 30-2-711, MCA.The use of a special verdict 

### is authorized by Rule 49(a), M.R.Civ.P., and 

### is left

### to the discretion of the trial court. While it is within the trial court's discretion to structure the form and frame the questions of a special verdict, the interroga

### tories must be adequate to enable the jury 

### to determine the factual issues essential tojudgment. Glickv. Knoll (1959) t 136 Mont. 176, 346 P.2d 987; Coburn Cattle Co. v. Small (1907), 35 Mont. 288, 88 P. 953; 5A Moore's Federal Practice § 49.03[2]. In determining the adequacy of the special interrogatories, the federal courts consider the following factors: 

### "(i)whether, when read as a whole and in conjunction with the general charge the interroga

### tories adequately presented the contested issues 

### to the jury; (ii)whether the submission of the issues to the jury 

### was 'fair'; and (iii) whether the 

### 'ultimate questions of fact' 

### were clearly submitted to the jury." Dreiling v. General Electric Co. (5th Cir. 1975), 511F.2d 768, 774. (Citationsomitted.) When measured against the above standards, the special verdict in this case is inadequate. The central issue, whether the plaintiff in factobtained deliveryof the 

### cattle which he had bargained for, was not submitted to the jury by the interrogatories. The jury found that the defendant did not have any of plaintiff

### 's cattle on the date of demand. The answer to thatquestion, however, is not dispositiveof all the issues in the 

### case. It is not 

### clear whether the jury determined that defendantdid not have the cattle because plaintiff had already received delivery

### or because defendant sold them atmarket. If operating under the latter possibility, the jury 

### was precluded by the directions in the second interrogatory from determining the value of the cattle and the damages, if any, suffered by plaintiff. In order 

### to adequatelycover the issues in the case, the specialverdict should have included, inter alia

## ,questions concerningwhat happened 

### to the 

### cattle af

### ter the billof 

### sale 

### was executed, which list of tattoo numbers correctly identified theanimals which 

### were the subject of the billof sale, whether plaintiff received delivery of the 49 

### cows afterexecution of the billof 

### sale and if not, what damages 

### were due to him. We find that the special interrogatories

### were fatallydeficient and 

### we remand for a new trial. We note for guidance of court and counsel on remand that our prior opinion did not require the exclusion of any evidence, oral 

### or written, of events occurring afterthe execution of the billof sale. The par01 evidence rule operates 

### to exclude evidence of agreements of the parties prior to orcontemporaneous with the execution of a final written expression of the agreement. Section 28-2-904, MCA. Evidence of the lists of tattoonumbers 

### was admissible to explain 

### to which specific 

### cows the billof 

### sale referred. Section 28-2-905(2) 

## , MCA. Further, 

### we note that the partial summaryjudgment granted by the 

### trial court


### was in 

### error. In order 

### to decide that defendants owed 

### to plaintiff certain cows, the trial court had to resolve disputed factual issues which should have been leftfor the jury. Reversed and remanded for a new trial.

Chief ~us 

### tice

We concur: