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, 

-vsANNA KINJERSKI, ~hird Party Defendant and Appellant. 

.1 from: 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 2 9 I#n 

Filed: 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

John Kinjerski brought this action in May of 1978 to 

recover 49 head of cows purchased from defendants as evidenced by 

a written bill of 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 against plaintiff, who 

now appeals from the judgment and the denial of his motion for a 

new trial. 

Fritz Lamey was the president of Phillips Creek Ranch, 

Inc., a cattle ranching operation near Eureka, Montana. On October 

3, 1967, Kinjerski and Lamey executed a written bill of sale for 

131 head of Hereford cattle for $59,000. The cattle were further 

specified to be 80 cows, 31 bulls and 20 calves. It is uncontested that the bulls, the calves, and 31 of the 80 cows were 

delivered to Kinjerski. It is the fate of the 49 remaining cows 

which is in dispute. 

Shortly after the execution of the bill of sale, Kinjerski 

and Lamey became business partners in a new corporation known as 

K & L Livestock, Inc. for the purpose of raising and selling 

registered Hereford cattle. The new corporation purchased cattle 

from both the Phillips Creek Ranch and Kinjerski. During the 

short life of the corporation, cattle belonging to Kinjerski, 

Lamey, Phillips Creek Ranch and K & L Livestock were commingled 

and maintained together on Phillips Creek Ranch property. 

In April, 1978, after the dissolution of K & L Livestock, 

Inc., Kinjerski made demand for possession of 49 of the cows 

referred to in the bill of sale. Lamey refused, stating that he 

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 district judge partially granted a 

motion by plaintiff for summary judgment , stating : 

" [TI he Court now decides that the Defendants owe 

to said plaintiffs and Third Party Defendants 

certain cows, but is unable at this juncture to 

specifically designate which cows or their 

offspring. That question is left for determination in this matter." 

At the new trial evidence was adduced showing that a list 

of tattoo numbers of cattle was submitted with the bill of sale 

to the First Northwestern Bank of Kalispell as collateral for 

Kinjerskil s loan. The evidence further showed that an entirely 

different list of tattoo numbers accompanied the complaint in 

this action. Lamey testified that he did not have possession of 

any of ~injerski's cattle in April, 1978 when 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 

in April, 1978? 

"Answer: (Circle one) Yes 

"2) If the answer to Number 1 is 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 

left the rest of the questions unanswered in accordance with the 

directions . Judgment was entered against plaintiff. 

Kinjerski argues that the special interrogatories were 

contrary to the law of the case as determined by Kinjerski v. 

Lamey, supra, and by the partial summary judgment entered by the 

district judge. Kinjerski further contends that the 

interrogatories, verdict and judgment were contrary to the law of 

Montana concerning a buyer's remedies for failure of the seller 

to deliver. 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 interrogatories must be adequate to enable the jury to determine the factual issues essential to judgment. Glick v. 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 interrogatories 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), 511 F.2d 768, 774. 

(Citations omitted. ) 

When measured against the above standards, the special 

verdict in this case is inadequate. The central issue, whether 

the plaintiff in fact obtained delivery of 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 

that question, however, is not dispositive of all the issues in 

the case. It is not clear whether the jury determined that 

defendant did not have the cattle because plaintiff had already 

received delivery or because defendant sold them at market. 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 adequately cover the issues in the case, the 

special verdict should have included, inter alia , questions concerning what happened to the cattle af ter the bill of sale was 

executed, which list of tattoo numbers correctly identified the 
animals which were the subject of the bill of sale, whether 

plaintiff received delivery of the 49 cows after execution of the 

bill of sale and if not, what damages were due to him. We find 

that the special interrogatories were fatally deficient 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 after the execution of 

the bill of sale. The par01 evidence rule operates to exclude 

evidence of agreements of the parties prior to or contemporaneous 

with the execution of a final written expression of the 

agreement. Section 28-2-904, MCA. Evidence of the lists of tattoo numbers was admissible to explain to which specific cows the 

bill of sale referred. Section 28-2-905(2) , MCA. Further, we 

note that the partial summary judgment 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 left for the jury. 

Reversed and remanded for a new trial. 

Chief ~us tice 

We concur: