No, 12886 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

MARTEL CONSTRUCTION, INC,, 

a Montana corpora tion, 

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: 

For Appellant : 

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 2 8 7975 
Mr. 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 

in the district court, Gallatin County, in favor of plaintiff, 

Martel Construction, Inc., hereinafter referred to as buyer, 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 sell the crane as described 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 items of correspondence 

which taken together constituted the substance of the agreement 

between buyer and seller. Although there was no statement in the 

writings specifically stating that time was of the essence to the 

contract or naming a delivery date, there were statements that 

seller was to supply the crane "promptly" and "to suit your convenience". Over objection, the district court permitted 

Walter Martel, secretary-treasurer of the buyer, to testify 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 suit buyer's convenience 

and needs; and, that a material part of the contract inducing buyer to purchase the crane was seller's assurances that the crane 

would be delivered to buyer the last week in May or the first part 

of June 1973. 

The crane arrived by railroad in Bozeman on June 3, 1973. 

Seller's service engineer, Joe Ashley, arrived in Bozeman on June 

7, 1973, and buyer was able to unload the crane the following 
day. In unloading the crane, the following parts were discovered to be missing which rendered the crane inoperable: a 

350 foot cable; hook, block and ball; and two drive wedges. 

Buyer immediately gave notice to seller of the missing parts. 

Following joint efforts by 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 

to deliver to the plaintiff the crane in operable condition." 

The district court judgment awarded these damages: 

$40,demurrage to the 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 in Billings; and, $1,378.23, the reasonable 

rental value of the crane from June 5, 1973, (the date the court 

found the crane first could have been unloaded) to June 26, 1973. 

While a number of issues were raised by the parties, we 

find the resolution of two to be determinative of this appeal: 

(1) Whether parol evidence was admissible in support of a finding 

that time was of the essence in this contract? (2) Whether there 

is substantial credible evidence to support the district court's 

finding of fact No. IV? 

The first issue is whether parol evidence wa.s admissible 

in support of a finding that time of delivery was of the essence 

in this contract. We hold it was error to admit 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 terms expressly so 

provided. " 

In interpreting that section, this Court stated in Curtis v. Parham, 

49 Mont. 140, 144, 140 P. 511: 

"Under this section, but one subject is open to 

discussion, and that is not what the parties 

may have intended to say, but what they did say 
in their contract. It is true, of course, that 

no set form or arrangement of words is necessary, but the contract must, upon its face, 

convey the meaning that time shall be of the 

essence. Our statute will not permit an oral 

extrinsic showing that such was the intention 

of the parties to a written contract, the terms 

of which are expressed in clear and explicit 

language." 

Buyer relies on statements in the correspondence between 

the parties which, it contends, create an ambiguity as to whether 

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 letter of reply, seller 

stated, "we can ship new from the factory between now and early 

May, to suit your 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 light on that later agreement. In its letter dated May 15, 1973, confirming the agreement 

of the same day, seller stated, "we will try to get [it] shipped 

from the factory by no later than Friday of this week." The 

statement is straightforward, it is not ambiguous. There is no 

hint that time is of the essence. The fact that buyer was entitled to a 12% cash discount for full payment upon delivery 

sheds no light upon the issue of when delivery was required. 

The above discussion is not altered by section 87A-2-202, 

Uniform Commercial Code, R.C.M. 1947, which states that a written 

contract "may be explained or supplemented * * * (b) by evidence 

of consistent additional terms * * *". The terms of a specific 

statute prevail over those of a general statute which otherwise 

might be controlling. Sun Insurance Co. of New York v. Diversified Engineers, Inc., 240 F.Supp. 606, 609 (D.Mont. 1965). 

The second issue is whether there is substantial credible 

evidence to support the district court's finding of fact No. IV: 
"That the material a part of the basis of the 

transaction and bargain inducing Martel to purchase the crane was Gleason's assurances that 

the crane would be delivered to Martel the last 

week in May or the first week in June of 1973, 

and further, that Gleason would have a representative in Bozeman, Montana, upon arrival of the 

crane to unload and erect the crane at no extra 

charge. " 

We do not find substantial credible evidence to support 

this finding. As previously determined, par01 evidence must be 

disregarded in making any determination as to time of delivery. 

Thus we are left with the statements in the correspondence which 

we previously discussed. From what we have said, it is evident 

there is no evidence whatsoever from which to make a determination as to time of delivery. 

The second part of finding of fact No. IV--that seller 

would have a representative in Bozeman upon arrival of the crane, 

is simply contradicted by the evidence. The only person to testify 

at the trial was Walter Martel. He stated that "When the equipment arrived" buyer was to contact seller, so that a service engineer could fly out to assist in the unloading. The service engineer arrived in Bozeman late on June 7 and the crane was unloaded 

the next day. There was no evidence the service engineer's arrival was unreasonably delayed. Since the court's finding that 

the service engineer was to be in Bozeman upon arrival of the crane 

formed the basis for the district court's judgment awarding $40 

damages for the demurrage to the railway company, that portion of 

the judgment must be reversed. Contrary to the court's finding 

No. XIV seller has never admitted liability for the $40 demurrage 

charge. 

Section 87A-2-309(1), R.C.M. 1947, states: 

"The time for 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 that the 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, in that it did not tender a complete crane in a single 
delivery, 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 is modified so as to award 

buyer judgment in the amount of $605.66, plus interest from the 

respective dates the rights to recover the damages vested in the 

buyer (section 17-204, R.C.M. 1947) through July 2, 1974, the 

date seller offered to let judgment 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 in place of Mr. Chief 

Justice James T. Harrison.