### No. 14370 

### INTHE 

### SUPREME COUEiT OF

### THE STATE OFMONJ!ANA 

### 1978



### HOWARD KOSTBADE, 

### Plaintiff 

### andAppllant,

-vs

### laxrLxEBucKlxHAM,Defendant 

### ard Wspndent.

Appeal from: District Court of the ThirteenthJudicialDistrict, Honorable Jack Shanstrm, Judgepresiding. Counsel of Record: For Appellant: 

### .

## - Longan

### andHolmstroan, Billings, Wntana For Respondent: Anderson, Symnes, 

### Brown,Gerbase, Cebull and Jones, Billings,

b!kmtana

SuSHnittedonbriefs: Nov* 3, 1978 Decided:

## JAN

# 181979 Filed:

# JAN1$ 

## 1979 

# d-f ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court

# . This 

### is an appeal from a judgment on a breach of contract case involving the feeding of cattle. Trialwas held

on February 16, 1978, before the Honorable Jack D. Shanstrom, sittingwithout 

### a jury, inthe 

### District Court of the Thirteenth Judicial District. The court filed 

### its findings of factand conclusions of 

### law on March 29, 1978, and 

### a judgment forplaintiff in the amount of $1,712.69 plus costs

### was entered on April 25, 1978. Plaintiff appeals the judgment inasmuch 

### as he soughtjudgment inthe amount of $4,690.26. Plaintiff-appellant owns 

### a commercial feedlot near Laurel, Montana, which 

### ismanaged and operated by A1Herden,

a copartner. During earlyNovember 1976, defendant-respondent contacted Herden with regard to feeding a number of respondent's calves during the winter months of 1976-77. As 

### a result of the conversation, respondent, who lives inthe White Sulphur Springs, Montana, 

### area, traveled toLaurel and discussed with Herden, as agent for appellant, the various 

### terms and conditions of the feeding operation. Atthat 

### time Herden and respondent entered into an oral contract for the feeding of respondent's cattle. Pursuant tothe oral contract respondent delivered to the Laurel feedlot 109 head of 

### steers on November 19, 1976; 12head of steers and 77 head of heifers on November 23, 1976; and 46 head of heifers and 71head of steers on December 31, 1976. On December 11, 1976, 88 head of 

### steers 

### were sold from the feedlot and the remaining cattle

### wereremoved on January 26, 1977. The 88 head of 

### steers sold from the feedlot

### were the better 

### cattle, and many of them had been on the feedlot only a period of approximately 20 days.

### In the lifeof the contract respondent was billed for appellant's services infeeding his cattleon a semi-monthly basis. s ills 

### for the periods ending November 30, December 15, and December 31, 1976, totaling $5,048.57 were paid by respondent without protest. When respondent received these billshe alsoreceived a breakdown showing the totalweight and cost of each feed ingredient which was fed tohis cattle for that period. After receiving a feed statement and bill for the period ending January 15, 1977, respondent called and then went toLaurel on January 25 toobtain a check weight on his cattle, believing that they could not possibly have consumed the amount of feed forwhich he had been charged for that period. There was considerable discussion between Herden and respondent atthat time. Respondent alleged that the amount charged, by his figures over 90$ 

### per cow, violated their agreement. Herden figured the cost as approximately 45$ per head. According torespondent's testimony, when his wife firstcalled the feedlot and when he firsttalked to Herden, they had been assured that the costwould not be above 36g! per pound of gain. This alleged assurance on the part of Herden was the reason for the difficultieswhich arose, and atthe end of this discussion on the 25th, respondent decided toremove his cattlefrom appellant's feedlot. Respondent then made arrangements for trucks to remove the cattlefrom appellant's feedlot and take them to another feedlot inthe same area. After the removal of approximately two loads of cattle, Herden would not permit respondent to

remove any more cattleuntil the totalbillwas paid. Respondent issued a check made out to appellant in theamount of $4,690.26. This check was tendered to Herden and the remaining cattleremoved from the feedlot. Shortly thereafter respondent stopped payment on the check. He later tendered to appellant a check in the amount of $2,180.16, the amount he alleged was or would have been due appellant atthe rate of 366 per pound of gain. This check was not negotiated by appellant. In his suitappellant sought the total amount of $4,690.26. The sole issuebefore this Court 

### is whether the trial court's findings of fact, conclusions of law, and judgment

are substantiated by substantial evidence. Rule 52(a),M.R.Civ.P., states inpertinent part: "Findings of fact shall not be setaside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of thewitnesses." This Court, indescribing 

### its function inreviewing the findings of fact and conclusions of law of a District Court sittingwithout a jury, has many times set forth the following: "This Court's function

# .

# . . is not to substitute 

### itsjudgment inplace of the trier of facts, but rather it 

### is 'confined todetermining whether there 

### is substantial credible evidence to support' the findings of fact and conclusions of law. (Citationsomitted.) Although conflicts

### may exist 

### -- inthe evidence presented, 

### it is the duty and function of the trialjudge toresolve such 

## - -- conflicts. His findings 

### willnotbedisturbed on appeal where they arebased on substantial though conflicting evidence. (Citations omitted.)" Olson v. Westfork Properties (1976), 171Mont. 154, 557 P.2d 821, 823, 33 St.Rep. 1133, 1135. (Emphasis added.) The Court then went on to define substantial evidence: "Substantial evidence has been defined by this Court as such as

### willconvince reasonable men and on which such men may not reasonably differ as to whether 

### it establishes the plaintiff's case, and, if allreasonablemen must conclude that the evidence does not establish such case, then it is not substantial evidence. The evidencemay be inherently weak and 

### stillbe deemed 'substantial', and one witness may be sufficient to establish the preponderance of 

### a case. (Citationsomitted.)" Olson, 557 P.2d at823, 33 St.Rep. at 1136.

### With the above guidelines inmind, we note that the trial courtwas required todecide whether or not appellant met the burden of proving the 

### terms he claims to have comprised the contract. Respondent denied having agreed topay

a price per pound of gain in excess of 36$. The trial court did not rewrite the contractbetween appellant and respondent; it 

### simply found from the testimony that appellant through his agent and respondent entered into an oral contract and agreed that themaximum price per pound of gain would not exceed 36$ per pound. The trial court also determined that the amount charged by appellant did in fact exceed the maximum price of 366 per pound of gain and awarded judgment to appellant in the amount equivalent to the agreed upon price of 36$ per pound of gain after deducting monies previously paid by respondent. Appellant recognizes the function of this Court in reviewing the findings of factand conclusions of law of the District Court. Yet, after recognizing that authority, he denies that the findings and conclusions show a clear preponderance of evidence. At

### the very most, allthat can be said in the instant case is 

### that the evidence was conflicting. In attacking the court's conclusion that the oral contractbetween the parties contained a maximum costper pound of gain of 362, appellant 

### sets forth the testimony of respondent given on cross-examination. However, on direct examination, respondent did testify that appellant's agent Herden told him that the "maximum would be 366 per pound." In addition respondent's wife testified she was concerned about the cost of feeding cattleina commercial feedlot and testified that on several occasions Herden advised her the maximum costwould not exceed 362 per pound. The trialcourt, in

### its findings of fact, found the maximum tobe 

### 366 per pound, the figure 

### it found Herden used in advising respondent. Appellant alleges that the trial court erred in

### its award of $1,712.69 plus costs inview of the fact that respondent had tendered a payment of $2,800 toresolve the conflict. However, this tendered offer of respondent, refused by appellant, was merely toresolve the conflict between the parties. We find no error inthe sum arrived atby the trial court infixing the $1,712.69 figure. The weight of the evidence and the credibility of the witnesses, where that evidence was conflicting, was a matter for the trial court's determination. We find no clear preponderance of evidence against 

### its findings. Judgment 

### is affirmed.

\,J We Concur: