No. 14370 

IN THE SUPREME COUEiT OF THE STATE OF MONJ!ANA 

1978 

HOWARD KOSTBADE, 

Plaintiff and Appllant, 

-vslaxrLxE BucKlxHAM, 

Defendant ard Wspndent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Jack Shanstrm, Judge presiding. 

Counsel of Record: 

For Appellant: . - 

Longan and Holmstroan, Billings, Wntana 

For Respondent: 

Anderson, Symnes, Brown, Gerbase, Cebull and Jones, Billings, 

b!kmtana 

SuSHnitted on briefs: Nov* 3, 1978 

Decided: JAN 18 1979 

Filed: JAN 1 $ 1979 

d-f Clerk 
Mr. Justice John 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. Trial was held 

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

sitting without a jury, in the District Court of the Thirteenth Judicial District. The court filed its findings of 

fact and conclusions of law on March 29, 1978, and a judgment for plaintiff in the amount of $1,712.69 plus costs was 

entered on April 25, 1978. Plaintiff appeals the judgment 

inasmuch as he sought judgment in the amount of $4,690.26. 

Plaintiff-appellant owns a commercial feedlot near 

Laurel, Montana, which is managed and operated by A1 Herden, 

a copartner. During early November 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 in the 

White Sulphur Springs, Montana, area, traveled to Laurel and 

discussed with Herden, as agent for appellant, the various 

terms and conditions of the feeding operation. At that time 

Herden and respondent entered into an oral contract for the 

feeding of respondent's cattle. 

Pursuant to the oral contract respondent delivered to 

the Laurel feedlot 109 head of steers on November 19, 1976; 

12 head of steers and 77 head of heifers on November 23, 

1976; and 46 head of heifers and 71 head of steers on December 

31, 1976. On December 11, 1976, 88 head of steers were sold 

from the feedlot and the remaining cattle were removed 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 life of the contract respondent was billed for 

appellant's services in feeding his cattle on 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 

bills he also received a breakdown showing the total weight 

and cost of each feed ingredient which was fed to his cattle 

for that period. 

After receiving a feed statement and bill for the 

period ending January 15, 1977, respondent called and then 

went to Laurel on January 25 to obtain a check weight on his 

cattle, believing that they could not possibly have consumed 

the amount of feed for which he had been charged for that 

period. There was considerable discussion between Herden 

and respondent at that 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 to respondent's testimony, when his 

wife first called the feedlot and when he first talked to 

Herden, they had been assured that the cost would not be 

above 36g! per pound of gain. This alleged assurance on the 

part of Herden was the reason for the difficulties which 

arose, and at the end of this discussion on the 25th, 

respondent decided to remove his cattle from appellant's 

feedlot. 

Respondent then made arrangements for trucks to remove 

the cattle from appellant's feedlot and take them to another 

feedlot in the same area. After the removal of approximately 

two loads of cattle, Herden would not permit respondent to 

remove any more cattle until the total bill was paid. 

Respondent issued a check made out to appellant in the 
amount of $4,690.26. This check was tendered to Herden and 

the remaining cattle removed 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 

at the rate of 366 per pound of gain. This check was not 

negotiated by appellant. In his suit appellant sought the 

total amount of $4,690.26. 

The sole issue before 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 in pertinent part: 

"Findings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge 

of the credibility of the witnesses." 

This Court, in describing its function in reviewing the 

findings of fact and conclusions of law of a District Court 

sitting without a jury, has many times set forth the following: 

"This Court's function . . . is not to substitute 

its judgment in place of the trier of facts, but 

rather it is 'confined to determining whether 

there is substantial credible evidence to support' 

the findings of fact and conclusions of law. 

(Citations omitted. ) Although conflicts may 

exist -- in the evidence presented, it is the duty 

- and function of -- the trial judge to resolve such 

conflicts. His findings will notbe disturbed 

on appeal where they are based on substantial 

though conflicting evidence. (Citations omitted.)" 

Olson v. Westfork Properties (1976), 171 Mont. 

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 will convince reasonable men and 

on which such men may not reasonably differ as to 

whether it establishes the plaintiff's case, and, 

if all reasonable men must conclude that the evidence does not establish such case, then it is 

not substantial evidence. The evidence may be 

inherently weak and still be deemed 'substantial', 

and one witness may be sufficient to establish the 

preponderance of a case. (Citations omitted.)" 

Olson, 557 P.2d at 823, 33 St.Rep. at 1136. 
With the above guidelines in mind, we note that the 

trial court was required to decide whether or not appellant 

met the burden of proving the terms he claims to have comprised the contract. Respondent denied having agreed to pay 

a price per pound of gain in excess of 36$. The trial court 

did not rewrite the contract between appellant and respondent; it simply found from the testimony that appellant 

through his agent and respondent entered into an oral contract 

and agreed that the maximum 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 fact and 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, all that can 

be said in the instant case is that the evidence was conflicting. In attacking the court's conclusion that the oral 

contract between the parties contained a maximum cost per 

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 cattle in a commercial feedlot and 

testified that on several occasions Herden advised her the 

maximum cost would not exceed 362 per pound. The trial 
court, in its findings of fact, found the maximum to be 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 in view of the fact that 

respondent had tendered a payment of $2,800 to resolve the 

conflict. However, this tendered offer of respondent, refused 

by appellant, was merely to resolve the conflict between the 

parties. We find no error in the sum arrived at by the 

trial court in fixing 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: