No. 13395 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

BILLINGS LEASING CO., a Montana Corporation, Plaintiff and Appellant,

-vsJEROLD PAYNE

## , Defendant and Respondent.

Appeal from: DistrictCourt of the Thirteenth Judicial District Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: R. P. Ryan argued, Billings, Montana For Respondent: Brown Bnd Huss, MilesCity, Montana George Huss argued, MilesCity, Montana Brandt, Miller, Nelson & Chrisopherson, SaltLake

City, Utah Robert W. Millerargued, SaltLake City, Utah

Submitted: September 13, 1977 Decided: 

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## 1: 1978Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Plaintiff Eillings Leasing Co. appeals from a jury verdict and judgment in the Yellowstone County DistrictCourt denying its claim and awarding $9,194.25 to defendant Payne on his counterclaim. As we attempt to unscramble the issues raised on appeal, we find that neither party had a coherent theory of recovery which

was presented to the jury and covered by jury instructions. For this reason it is extremely difficult to analyze most of the issues raised on appeal. However,we do agree with Billings Leasing that there was a complete failure to instruct the jury on damageswith relation to Payne's counterclaims,and for this reasonwe must

reverse. Because there were additional errors in the instructions,

we will discuss a few of thesematters which hopefully will give

some guidance for the retrial of this cause. This case arises from a lease agreementbetween Billings Leasing and Jerald Paynewhereby Payne leased for fiveyears a new Renworth truck at $750.00 per month for the first 30months and $550.00 per month for the second 30 months. Payne fell several payments behind within a year of the time he leased the truck, and there were several contactsbetween him and Billings Leasing in an effort to bring the payments up-to-date. These contacts formpart of the dispute in this case because Payne alleges that Billings Leasing extended or waived the time within which he was tomake the payments in dispute, although Payne did not plead extension orwaiver as an affirmative defense. In any event, satisfactory arrangementswere notmade, and Billings Leasing sued Payne in a debt action for back rent on the truck. Later, in the same debt action,Billings Leasing obtained a writ of attachmentand garnished Payne's wages in the amount of $2,433.00. Thismoney was depositedwith the p ell ow stone Countyclerk of courtpending the outcome of litigation.Shortly after it filed the debt action,Billings Leasing, in a separate action, filed a claim and delivery action and obtained possession of the truck because Payne refused to voluntarily give up possession of the truck. Billings Leasing claimed itwas entitled to possession under the terms of the leasing agreement. Without notifying Payne that it intended to sell the truck,Billings Leasing sold it at a private sale and realized $20,000.00 from the sale. Payne filed two counterclaims in each of the actions. In the debt action he alleged that Billings Leasing had wrongfully obtained possession of the truck in the claim and delivery action. He claimed that the truck was repossessed without notice to him which violated his rights to due process of law. He also alleged in the same counterclaim that he was damaged in the amount of $6,OOO.OO because the private sale was not conducted in a commercially reasonablemanner. He did not allege that he was also damaged because itwas conducted without notice to him. The second counterclaim in the debt action alleged that the writ of attachment garnishing Payne's wages was an unlawful abuse of process because itwas issuedwithout notice to him and therefore deprived him of due process of law. He sought damages in the amount of $2,433.00, which was the amount of the wage garnishment, and interest on that amount from the date his wages were seized. Payne's counterclaims in the claim and delivery action were essentially the same as those he filed in the debt action. The debt and actiodthe counterclaim were consolidated for trialby jury. It is not at all clear how Paynewas proceeding during trial on his counterclaims for damages. The claimshe now asserts

were not clearly set out in hispleadings; there was no pretrial conference or order;and he offered no instructionson the damages that he now is claiming. In his brief, he argues that therewerethree separate claims of damages. The firstdamage claim is that Payne was damaged in the debt action by thewrongful attachment in the amount of $2,433.00. Payne did not ask for the return of the $2,433.00 in his counterclaim; rather, he asked for damages in that amount in addition to interest from the date of attachment. The second claim of damages is that he was deprived of a truck for four months before he could obtain another one and that he lost $4,000.00 net income as a result of the wrongful repossession. Payne testified to this without objection from Billings Leasing. The third claim of damage is that Paynewas damaged in the amount of $3,500.00 by the failure of Billings Leasing to sell the truck in a commercially reasonablemanner, in violation of section 87A9-504(3), R.C.M. 1947,which is part of the Uniform CommericalCode

as adopted in this state. Payne seeks to justify the jury verdict in the amount of $9,194.25 on the basis that the damages testified to at trial amounted tomore than the jury awarded and therefore the jurywas well within the evidence in returning its verdict. However, the claim of Billings Leasing is not that the award was excessive. It is that Payne offered no instructionson the elements of damages he was seeking,and the trial court refused to instruct the jury

on the elements of damages. We discuss first themisleading and incomplete instructions covering the issues raised by ~ayne's counterclaims, and then we discuss the failure to instruct the jury on damages. We note at the outset that thiswas clearly a case calling for a pretrial conference under Rule 16,M.R.Civ.P., but nonewas held. As a result, this casewent to trialwith neither counsel for the parties nor the trial judge having a grasp of the legal issues.At the close of the trial Billings Leasing moved for judgment as amatter of law on its claim for the back lease installmentsfor the truck. It was denied. The trial court did rule,however, that Payne's allegationsof unconstitutional attachment and unconstitutional repossession of the truck could not go to the jury, and he specifically instructed the jurynot to consider those claims. As a result of this ruling,Billings Leasing argues that the only remaining counterclaim was Payne's contention that he was damaged in the amount of $6,000.00 because of the failure of Billings Leasing to conduct the sale of the truck in a commercially reasonable

manner. Payne,on the other hand, argues that other damages are still in the casebecause of waiver. Waiver applies,he contends, because Billings Leasing waived the payment dates onwhich the installments were due and no new times were set formaking thepayments; therefore, the payments were not due at the time Billings Leasing attached Payne's wages and repossessed his truck. Accordingly, Payne argues, itwas unlawful for Billings Leasing to attach his wages and to repossesshis truck. Payne did not urge waiver as an affirmative defense to the action brought by Billings Leasing as required under Rule 8(c), M.R.Civ.P. Neither did he assertwaiver in his counterclaimas a basis to claim that his wages were unlawfully attached and his truck unlawfully repossessed. Rather, his claims for unlawful attachmentand unlawful repossession were based solely on denials of due process, and the District Court dismissed those counterclaims. Despite these limitations, waiver was considered throughout the trial, althoughwe are not certain from the record of exactly how it was urged to apply. The jurywas also instructed on the elements of waiver. Accordingly,we are reluctant to hold that Eillings Leasing

was not aware of the allegations of damages arising from Payne's claims of waiver. Billings Leasing also argues that under section 87A-1-107, R.C.M. 1947,of the Uniform CommercialCode, a waiver can only existif it is inwriting. But that sectiondoes not exclude an oral waiver. It simply allows a written waiver to be enforced even though it is not supported by consideration. Moreover, the official comment to 1Uniform Laws Annotated,Vol. 1, 51-107, states that 

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## * * * thisAct fully recognizes the effectiveness of waiver and estoppel." See also United Statesv. Greenwich Mill & Elevator Co.,

(D.C. Ohio, 1968), 291 F.Supp. 609, 614. Nor has this Court, in analogous situations to this before the enactment of the Uniform Commercial Code, required that a waiver be inwriting. Hewitt v. Novak, (1945),117Mont. 365, 370-372, 158 P.2d 627. We next discuss the principle instruction stating the issues raised by Payne's counterclaims. Itwas totally inadequate as a statement of the law and could only have caused jury confusion. This instruction reads: "Beforeyoumay find in favor of defendant, JERALD PAYNE, on his counterclaim,youmust find that one of the following propositions is true: "1. That Plaintiff extended the time for payments or waived the requirements for timely payments without notice to Defendant to the contrary. "2. That the LeaseAgreement was an agreement to purchase and that: "(a) Plaintiff failed to send notice to Defendantabout the sale of the tractor; orI "(b) Plaintiff did not conduct the sale in a commercially reasonablemanner. "If you find that either proposition 1 or 2 is true,youmay award Defendant suchdamages as are allowed under the other instructionsherein." This instructionpermitted the jury to award damages to Payne if they found either proposition 1 or proposition 2 to be true. It allowed the jury to award "suchdamages as are allowed under the other instructionsherein." However, the only other instruction on damageswas one simply telling the jury it could award no more than Payne's prayer for relief in the amount of $9.194.25. Therewere no instructions defining the elements of damages for each claim and there were no instructions limiting the damages for the separate claims of unlawful attachment,unlawful repossession,and failure to sell in a commercially reasonablemanner. Under these circumstances, it is not surprising that the jury's verdictwas exactly $9.194.25. We consider first the matter of waiver or extension of the installment payments and.how it applied to Payne's separate counterclaims. A jury finding of waiver of the times for making the installment payments was not necessary for Payne to recover on his counterclaim of failure to sell the truck in a commercially reasonable

manner. On the other hand, a finding of waiver was essential if the jurywas to find for Payne on his claim of damages because of wrongful attachment and wrongful repossession of the truck. Obviously, if Billings Leasing did not waive the time forpayment of the truck installments itwould not have been unlawful (beingthat the constitutional counterclaims concerning due process were dismissed) for Billings Leasing to attach Payne's wages or to repossess the truck. The failure of the instruction in not tying the waiver into wrongful attachment and wrongful repossession allowed the jury to award Payne all the damages he alleged. Thus, on this basis, the jury couldwell have awarded damages to Payne for his claim of failure to sell in a commercially reasonablemanner. For the instruction onwaiver to be proper, the jury should have been told that it related only to Payne's claims of wrongful attachment and wrongful repossession. Likewise, the instruction is similarly deficient inparagraph 2(a) by allowing the jury to award all the damages alleged if it found that the agreement involved was one to purchase and that Billings Leasing did not send advance notice to Payne about the sale of the truck. Clearly, the failure of Billings Leasing to sendnotice to Payne /before the sale does not by itself entitle Payne to damages. ~ailure

to send notice does not in any way establish either a wrongful attachment orwrongful repossession,both of which had already occurred. Those were two entirely separate counterclaims. Moreover, if there

was a separate claim that Paynewas damaged solely because Billings Leasing failed to give notice to Payne of its intent to sell the truck, itwas not raised in the pleadings. Nor did the evidence at trial indicate that failure to give noticewas a separate claim for damages.Under paragraph 2(b) of the instruction, the jury could award damages to Payne if it found an agreement to purchase coupled with a failure to sell the truck in a commercially reasonablemanner. Even if the jury could find damages resulting from a failure to sell in a commercially reasonablemanner, the jury could not also for the same reason award damages forwrongful attachment and wrongful repossession. Again, those were two separate counterclaims whichwould arise only upon a finding of waiver and also that Payne

was damaged as a result. Inhis brief Payne seeks to justify part of the jury award

as damages for wrongful attachment and another part of the award as damages for wrongful repossession. Not one instruction defined attachment or wrongful attachment or attempted to place them within the issues of the case. The same can be said for the claim of damages for wrongful repossession of the truck. As previously indicated,the record isbarren of instructions defining the separate elements of damages which Payne claims he suffered. At the close of the case and during the settlement of jury instructions, counsel for Billings Leasing twice emphatically reminded the court and Payne's counsel that there were no instructions on damages and stated that the jury should not be allowed to speculate on the damageswith no guidelines. Payne's counsel and the trial court ignored these warnings, and the casewent to the jurywith no guidelines.The duty of the trial court to instruct the jury has been generally recognized as one that is necessary and inherent in the court. An excellent work written for trial judges,McBride, 

### - The Art of Instructing the Jury (1969,Anderson Publishing Co.) states at page 16: "Today,the law in nearly all states requires the judge to instruct the jury. Even in the absence of statuteor rule, the duty to do sowithout request isnot only obvious and necessary but it is apower inherent in the court.I' McBri.defurther emphasizes the need for jury instructionsby quoting from CaliforniaJury Instructions (Criminal,page 8) at page 17: 

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## * * 

## * 'Ininstructing the jurors,wemust assume that they have no knowledge of the rules of law and that therefore,theymust be instructed on allpoints of lawwhich, under any reasonable theory,might be involved in their deliberations, to the end that their decision will be according to the law and the evidence and untinged by any private and possibly false opinion of the law that they entertain.'" While the necessity to instruct and to properly instruct is

no doubt greater in a criminal casebecause of the fundamental constitutionalprotections, the above statement serves to underline the importance of the trial judge's function to instruct the jury in all cases--civil as well as criminal. That duty cannotbe delegated to counsel. Jury instructions are crucial to a jury's understanding of the case and, unfortunately,counsel cannot always be relied upon to provide those instructions. InWright & Miller, Federal Practice and Procedure,Civil S2556, the duty of the trial judge is stated: "It is the inescapableduty of the trial judge to instruct the jurors, fully and correctly,on the applicable law of the case,and to guide,direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth. The courtmust instruct the jury properly 

### on the controlling issues in the case even though there has been no request for 

# - an instruction or the instruction requested is - --

~ defective." (Emphasisadded.)Moreover, there is a statutory duty in this state to instruct the jury, imposed by section 93-5101(6), R.C.M. 1947,which provides: "When instructionshave been passed upon and settled by the court,and before the arguments of counsel to the jury have begun, the court shall charge the jury inwriting,giving in such charge only such instructions as are passed upon and settled at such settlement. 1n charging the jury, the court shall give to them allmatters of lawwhich it thinks 

## 1 verdict.

### " (Emphasisadded.) In Zanos

### v. GreatNorthern Ry. Co., (1921),60Mont. 17, 22, 198 P. 138, this Court construed Section 6746,a predecessor to section 93-5101,and stated there are at least minimum standards to which a trial judgemust adhere when instructing the jury: 

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## * * Itmay be stated as a general rule thatwhere the instruction, in appropriate language,calls the attention of the jury to the subject matter to be considered and fairly states and presents the questions to be determined, it is sufficient.- Section 6746,Revised Codes,does not require more than this of the court's ownmotion. If, in such a case,amore specific instruction than that given is desired by a party, it ishis duty to tender one,or to tender amodification of the one given. It is not sufficientmerely to demand that the court do it. 

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## * *n (Emphasisadded.) Nor do we believe that Rule 51,M.R.Civ.P., dilutes these minimum responsibilities. The ruleprovides inpertinent part that 

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## * * * No party may assign as error the failure to instruct

on any point of law unless he offers an instruction thereon." This rule was designed to place a burden on counsel topresent the proper instructions to the trial court; itwas not designed to water-down theminimum duties of the trial court to instruct the jury. There are other errors in the instructions,but we feel thosewe have mentioned are sufficient to demonstrate that there

was a complete failure to instruct the jury on damages and a failure to properly instruct the jury on the issues relating to Payne's counterclaims.We vacate the judgment of the District Court and remand for a new trial consistent with this opinion.

We Concur:

Justices

Mr. Chief Justice Frank I. Haswell, specially concurring. I concur in the result in this case granting a new trial. 

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