No. 85-10 INTHE SUPREME COURT OF THE STATEOF MONTANA 1985

LLOYDMELAND, PLaintiffand F-espondent,

INTERMOUNTAIN SYSTEMS, INC., aMont. corp., and RUSSELL RAPP, DefendantsandAppellants.

APPEAL FF-OM: District Court of the Eighth Judicial District, Inand for the CountyofCascade, TheHonorable ThomasMcKittrick,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Stephens Law Firm;Robert L. Stephens,Jr., Billings, Montana

For Respondent: Robert

### M. Kampfer, GreatFalls,Montana

Submitted onBriefs: Oct. 31, 1985 Decided: December 31, 1985 

## DEC3

## 17985 Filed.

ClerkMr. Justice William 

### E. Hunt, Sr., delivered the Opinion of theCourt.

The respondent, Lloyd Meland, filed a complaint in District Court against the appellant, Intermountain Systems, Inc., and the appellant's salesrepresentative,RussellRapp, alleging breach of a contract for the sale of goods and fraudulent misrepresentation. Russell Rapp defaulted. A District Court nonjury trial resulted in a finding that the appellant committed no fraud, but did breach the sales contract. The respondent was awarded damages and attorney fees. This appeal followed. We affirm the award ofdamages but reverseon the award of attorney fees. The issue in this case is whether the District Court's conclusions of law are in accord with the Uniform Commercial Code provisions on sales, particularly in the area of acceptance of non-conforming goods and damages therefore. The respondent, Lloyd Meland, is engaged in wheat farming in the Vaughn area in Cascade County,Montana. He agreed in a written contract to purchase a metal, quonset-type "curvette," building kit from the appellant, Intermountain Systems, Inc., a business located in Billings, Montana, engaged in selling farm buildings. There is some factualdisputeas to exactlywhat the respondent stated that he required as far asbuilding dimensions and the need for a specified height of the completed structure, but the termsof the written sales contract clearly demonstrate that the building was to be 50 feet wide, 60 feet long, and 18 feet high. Beyond the contract terms, which are sufficient in themselves to establish the agreed dimensions, there isstrong indication that the respondent expressed a need for the 18 feet height to accommodate certain machinery storage and the dumpingofgrain in thebuilding. The contract price

was $6,950. The respondent paid $2,000 down and $4,950 on delivery of the componentparts. Under the terms of the agreement the respondent was purchasing the component parts of the building. He ha.dthe responsibility of assembling the structure and selecting and laying a foundation for the building. The respondent was aware that his choice of a foundation type could vary the overall building height. There is reference in the record tha.tthe respondent chose a trough-type foundationthatwould lower the overall buildingheight from the specified 18 feet. The record shows that this type foundation lowered the building overallheight approximately 8 inches. Upon receipt

### of the component parts the respondent began construction. He learned then that the overallheight of the completed structure was going to be less than 18 feet. He determined that the building would only be slightly over 15 feet high. The District Court determined that the building

as delivered would be 16 feet 5 inches high if completed according to the included instructions. TheDistrictCourt's calculation is based on measurements from the top rib to the bottom steel which the parties agree is the accepted way to measure suchbuilding. Respondent called the appellantand notified them of the problem. He was informed. by the appellant that if the building was constructed according to instructions it would turnout fine. The respondentdid not agree and then altered the construction sequence by using panels out of the specified orderof assembly to obtain thedesiredheight. 

### Mewas later told, after running out of panels, to reassemble tlze building correctly and he would have enough material. The appellant made no inspection of the construction. The respondent then ordered additional panels factory-direct from Arch Technology Corporation in 11-linois. He also purchased several temporary grain storage facilities because the building would not be completed in time for harvest. The cost of the additional panels and labor and the temporary storage facilitieswas $4,085. The respondent then filed suit against the appellant alleging breach of the sales contract and fraud. The District Court at a non-jury trial found no fraud but did find that the appellanthad breached the sales contract. It awarded the respondent $4,085 as damages as an amount that the respondent was forced to spend as a result of the appellant's delivery of non-conforming goods. Costs were awarded as were attorney fees in the amount of $500. This appeal fol-lowed. Substantial credible evidence exists to support the District Court's determination that the goods delivered hy the appellant to the respondent were non-conforming goods. Under section 30-2-106, MCA, goods are "conforming"when they

are in accordance with the obligations under the contract. The component parts of the delivered building kit, if assembled according to the instructions,would have resulted in a completed structure16 feet 5 incheshigh. The terms of the written contract between the parties required the building to be 18 feet high at completion. The delivered goods were not "conforming" goods as they were not in accord with the obligationsof the contract.Substantial credible evidence also exists to support a determination that the respondent accepted the goods. The respondent received the goods on July 7, 1981. About ten days later he began assembling the building and discovered the non-conformity. He contacted the appellant to notify them of the problem. He then went ahead with construction and used the component parts in a fashion thatwould produce

a building height that he desired. Section 30-2-606 (1)(c)

### , MCA, provides that acceptance of goods occurs when the buyer does any act inconsistent with the seller's ownership. Use of the delivered goods to construct a building was inconsistent with the seller's ownership and constituted acceptanceof the goods. The appellant relies heavily on an argument that once there is acceptance no damages may be had. Acceptance of non-conforming goods does not preclude recovery for damages due. Acceptance precludes rejection of the goods or revocation if made with the knowledge of the non-conformity unless there is a reasonable assumption that the non-conformitymay be reasonably cured. Section 30-2-607(2), MCA

# . Where the buyer has accepted goods and given notification he may recover damages for any non-conformity. Section 30-2-71.4

### (I),MCA. The notificationrequired by this section is that contained in section 30-2-607(3),MCA. It requires that the buyermust,within a reasonable time after he discovers any breach, notify the seller. Here the respondentnotified the appellant immediately upon discovery of thenon-conformity. That is sufficientnotice. Theproper award ofdamages in this case is set forth in statute. Section 30-1-106(1), MCA, provides that remedies under the Uniform Commercial Code shal.1 be liberallyadministered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in the Uniform Commercial Code or by other rule of law. Section 30-2-714(1)

## , MCA, provides that where a buyer has accepted goods and given notice he may recover damages from the seller's breach as determined in any manner which is reasonable. Section 30-2-714(3), MCA, provides that where accepted goods are in issue, in a proper case incidental and consequential damages may also be recovered. Section 30-2-715, MCA, governs incidental and consequential damages awardable in this case. In relevant part, it defines incidental damages as any commercially reasonable charges or expenses in connection with effecting cover and any other reasonable expense incident to delay or other breach. It defines consequentialdamagesas includingany loss resulting from general or particular requirements and needs of which the seller at the time of contractinghad reason to know and which could not reasonably be prevented by cover or otherwise. The District Court awarded the respondent $4,085 in damagesas an amount the respondentwas forced to expend as a result of the appellant's delivery of non-conforming goods. This amount represents the cost of materials and labor for completing the building and for temporary grain storage facilities necessitated by the harvest and delay in completionof the building. The appellant argues that these damages are excessive and that there were reasonable alternatives available to the respondent that would have minimized the cost of completingthe structure. There is little merit in the appellant's argument. Respondent informed the appellant of the problem that existed and gave the appellant reasonablenotice and the time required to take note of the problem and make an interested effort to remedy it. The appellant however took a rather disinterested approach initially by only expressing its thoughts that everything would be fine if the assembly instructions were followed. No active participation or sincere interestwas expressed initially. By the time that the appellant did take theproblem seriously itwas too late to require the respondent to delay in anticipation of a resolution. The respondent. was justified in taking a reasonable approach to remedying the problem. We will not now criticize it simplybecause theremay have been a better approach in the eyes of the appellant. We hold that the damages as awarded are proper under the Uniform Commercial Code and the factsof this case. The District Court awarded attorney fees to the respondent. No reasonwas stated. It i.sthe law inMontana that absent statute or contract provisions on attorney fees, with the exception of particular circumstances not relevant here, attorney fees are not allowed as costs or damages. Martin

### v. Crown Life Insurance Company (Mont.1983), 658P.2d 1099, 1104, 40 St.F.ep. 216, 221. There is no statute or contract provision here. The attorney fees are not allowable. Affirmed with the exception of the award of attorney fees. The award of attorney fees is reversed.We Concur: