### No, 12886 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1975

MARTEL CONSTRUCTION, INC,, 

### a Montana corporation, Plaintiff and Respondent,

GLEASON EQUIPMENT, INC., 

### an Illinois co~poration, Defendant and Appellant,

Appeal from: District Court of the Eighteenth Judicial District, Honorable W, W, 

### Lessley, Judge presiding, Counsel of Record: ForAppellant: 

### Berg, Angel, Andriolo and Morgan, Bozeman, Montana Gregory 0, Morgan argued, Bozeman, Montana For Respondent : 

### Drysdale, McLean and Scully, Bozeman, Montana James A. 

### McLean argued, Bozeman, Montana

Submitted: 

### April 8, 1975 Decided: 

## APR

## 28

## 7975Mr. Justice Wesley Castles delivered the Opinion of the Court.

This is an appeal by the defendant, Gleason Equipment, Inc., hereinafter referred to as seller, from a judgment entered inthe districtcourt, Gallatin County, infavor of plaintiff, Martel Construction, Inc., hereinafter referred toasbuyer, in the amount of $2,101.39. On April 19, 1973, buyer entered into negotiations for the purchase of a P & H Model 440 TC-40 ton truck crane by 

### writing a letter of inquiry to the seller. Seller replied by letter dated April 24, 1973. On May 15, 1973, buyer agreed to purchase and seller agreed to sellthe crane asdescribed in seller's quotation 7173 for the sum of $93,328.40, plus the cost of freight in the amount of $3,186.48. The contract consisted of several 

### itemsof correspondence which taken together constituted the substance of the agreement between buyer and seller. Although there was no statement inthe writings specifically statingthat time was of the essence tothe contract or naming a delivery date, there were statements that seller was to supply the crane "promptly" and "to suityour convenience". Over objection, the district court permitted Walter Martel, secretary-treasurer of the buyer, totestify that buyer advised seller the crane was needed during the latter part of May 1973; that seller represented the crane desired was available and would be shipped promptly to suitbuyer's convenience and needs; and, that a material part of the contract inducing buyer topurchase the crane was seller's assurances that the crane would be delivered tobuyer the lastweek inMay or the firstpart of June 1973. The crane arrived by railroad inBozeman on June 3, 1973. Seller's service engineer, Joe Ashley, arrived inBozeman on June 7, 1973, and buyer was able tounload the crane the followingday. Inunloading the crane, the following parts 

### were discovered tobe missing which rendered the crane inoperable: a 350 foot cable; hook, block and ball; and two drivewedges. Buyer immediately gave notice to seller of the missing parts. Following joint effortsby buyer and seller, the missing parts



### were received on June 26, 1973. On September 26, 1973, buyer filed its complaint alleging damages resulting from "failure todeliver to the plaintiff the crane inoperable condition." The districtcourt judgment awarded these damages: $40,demurrage tothe railway company; $62.18,freight on the hook and block; $351.61 cost of cable and freight; $191.87,overcharge for freight of crane; $77.50, the net sum expended by buyer for the rental of a crane inBillings; and, $1,378.23, the reasonable rental value of the crane from June 5, 1973, (thedate the court found the crane firstcould have been unloaded) toJune 26, 1973. While a number of issues

### were raised by the parties, 

### we find the resolution of two tobe determinative of this appeal: (1)Whether parol evidence was admissible in support of a finding that time was of the essence inthis contract? (2) Whether there is substantial credible evidence to support the district court's finding of fact No. IV? The firstissue is whether parol evidence wa.s admissible in support of a finding that time of delivery was of the essence inthiscontract. We hold it was error toadmit such parol evidence. Section 13-724, R.C.M. 1947, provides: "Time is never considered as of the essence of a contract, unless by its termsexpressly so provided.

## " In interpreting that section, this Court stated in Curtisv. Parham, 49 Mont. 140, 144, 140P. 511: "Under this section, but one subject is open to discussion, and that isnot what the parties may have intended to say, but what they did sayintheir contract. It 

### is true, of course, that no set form or arrangement of words 

### isnecessary, but the contractmust, upon 

### its face, convey themeaning that

### time shallbe of the essence. Our statute

### willnot permit an oral extrinsic showing that such was the intention of theparties toa written contract, the terms of which areexpressed in clear and explicit language." Buyer relies on statements inthe correspondence between the parties which, it contends, create an ambiguity astowhether time was of the essence and that par01 evidence was admissible for the resolution of that ambiguity. We find no ambiguity. In his initial letter of inquiry, Walter Martel stated that the

crane was "Required May 15, 1973". In its letterof reply, seller stated, "we can ship new from the factory between now and early May, to suityour convenience." These statements were made four and three weeks prior to the agreement entered into on May 15, 1973, over the telephone, and shed no lighton that later agreement. In its letterdated May 15, 1973, confirming the agreement of the same day, seller stated, "we 

### willtry toget [it]shipped from the factory by no later than Friday of thisweek." The statement is straightforward, it isnot ambiguous. There isno hint that time is of theessence. The fact that buyer was entitled toa 12%cash discount for fullpayment upon delivery sheds no light upon the issue of when delivery was required. The above discussion isnot altered by section 87A-2-202, Uniform Commercial Code, R.C.M. 1947, which statesthat a written contract "may be explained or supplemented 

## * * * (b) by evidence of consistent additional terms 

## * 

## * 

## *". The terms of a specific statuteprevail over those of a general statutewhich otherwise might be controlling. Sun Insurance Co. of New York v. DiversifiedEngineers, Inc., 240 F.Supp. 606, 609 (D.Mont. 1965). The second issue 

### iswhether there is substantial credible evidence to support the districtcourt's finding of factNo. IV:"That the material a part of the basis of the transaction and bargain inducingMartel topurchase the crane was Gleason's assurances that the crane would be delivered toMartel the last week inMay or the firstweek inJune of 1973, and further, that Gleason would have a representative inBozeman, Montana, upon arrival of the crane tounload and erect the crane atno extra charge.

### " We do not find substantial credible evidence to support this finding. As previously determined, par01 evidence must be disregarded inmaking any determination as totime of delivery. Thus we are leftwith the statements in the correspondence which

we previously discussed. From what we have said, it is evident there is no evidence whatsoever from which tomake a determination asto time of delivery. The second part of finding of factNo. IV--that seller would have a representative inBozeman upon arrival of the crane, is simply contradicted by the evidence. The only person to testify atthe trialwas Walter Martel. He stated that "When the equipment arrived" buyer was tocontact seller, so that a service engineer could flyout to assist inthe unloading. The service engineer arrived inBozeman lateon June 7 and the crane was unloaded the next day. There was no evidence the service engineer's arrivalwas unreasonably delayed. Since the court's finding that the service engineer was tobe inBozeman upon arrival of the crane formed the basis for the districtcourt's judgment awarding $40 damages for the demurrage tothe railway company, that portion of the judgment must be reversed. Contrary to the court's finding No. XIV sellerhas never admitted liability for the $40 demurrage charge. Section 87A-2-309(1), R.C.M. 1947, states: "The timefor shipment of delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable 

### time.

### " No contention has been made thatthe delivery of a complete crane by June 26, 1973, was not within a reasonable time. Seller admitted its breach of section 87A-2-307, R.C.M. 1947, inthat it did not tender a complete crane in a singledelivery, and admitted its liability for these damages: $62.18, freight on the hook and block; $351.61, cost of cable and freight; $191.87, overcharge for freight of crane. Accordingly, the judgment 

### ismodified so astoaward buyer judgment inthe amount of $605.66, plus interest from the respective dates the rights torecover the damages vested in the buyer (section 17-204, R.C.M. 1947) through July 2, 1974, the date seller offered to letjudgment be rendered against it for the sum of $605.66 (section 58-427, R.C.M. 1947). Costs on appeal

are awarded to seller.

, 

## ." ---, ~---,L,~Cz,4,--i---i--i--i--i-A 

## -------------- !Justice We concur:

Hon. E. Garaner Brcwnlee, district judge, sitting inplace of Mr. Chief Justice James T. Harrison.