### No. 12150 INTHE SUPREME COURTOF THE STATEOF MONTANA 1972

THOMAS J. KAMP, PlaintiffandAppellant,

FIRSTNATIONAL BANKAND TRUST COMPANY OF HELENA, Defendant and Respondent.

Appeal from: District Court of the Eighteenth Judicial District, Honorable GordonR. Bennett,Judgepresiding. Counsel of Record: 

### For Appellant: 

### Bolinger andWellcome, Bozeman,Montana. G. PageWellcome argued, Bozeman,Montana, ForRespondent: Gough,Booth, Shanahanand Johnson, Helena,Montana. Ronald F. Waterman argued and Myron E. Pitch appeared,

Helena,Montana.

Filed: 

### Submitted: September 18, 

### 1972 Decided: dAh'

## 2 1973Mr. Chief JusticeJames T. Harrison delivered the Opinion of the Court. This is an appeal by Thomas J. Kamp,plaintiff, from a judgment entered in the district court of Gallatin County. The Hon. Gordon R. Bennett in a trial without jury held that the defendant, FirstNational Bank of Helena,was not liable for the debt owed to theplaintiff by the Three Forks Commercial Feed Lot. The basic issue in this case, at the trial and on appeal, iswhether the defendant FirstNational Bank entered into a contract to assume the debt of the Three Forks Commercial Feed Lot owing to plaintiff Kamp. The alleged contractwas contended to have come about as the result of three contacts between Kamp and Gibson Goodman, an officer of the bank. The first of these occurred sometime in the latter part of June, 1970by telephone. Kamp became concerned over the amount of the past due account of the feed lot. He had delivered barley to the feed lot totaling

a value of $18,644.60 for which he had not been paid. Aware that

some bank was involved with the financing of the feed lot Kamp contacted his own banker in Bozeman, Philip Sandquist. Sandquist placed a call to the FirstNational Bank inquiring about the matter and was informed that Gibson Goodmanwas handling the transaction for the bank. In talking with Goodman, Sandquist said that Kamp was concerned about thepast due account. In response to this Goodman was alleged to have said to tell Kamp not to worry that everything would be taken care of. At this Sandtell that to Kamp. Kamp and Goodman then quist then requested that Goodman then/nad a conversation over the telephonewhere the same statementwas repeated. The next contact took place in Helena at the bank. At this time Kamp, as he put it, attempted to "putpressure" on the bank for hismoney. He told Goodman that he

### was consideringfiling a suit or a lien. Goodman replied to this, according to Kamp, by asking him to hold off, that such an actionwould only force the feed lot into bankruptcy and itwould be years before anybody got theirmoney. According to Goodman, the substanceof thismeeting was that if Kamp would be patient attempts were being made to see that everybody gotpaid. These attemptswere in the nature of selling the property or obtaining refinancing. The final contact was at Kamp's home in Three Forks, Montana. Goodman, Kaminga, owner-manager of the feed lot, and Kamp were present at a meeting which took place on July 17, 1970. At thismeeting itwas agreed that Kamp would receive $6,441.60

on the account, leaving a balance of $12,000. Itwas further agreed that Kamp would continue to deliver feed to the feed lot pperation. There is a dispute in the testimony as to whether this money was actually paid on thepast due account, which is the contention of Kamp,while it is the position of Goodman that thiswas payment for barley on hand at the time the bank took over the operation. Itwas on this evidence that Judge Bennett held as a matter of law: "Thatno written or oral promise, assurance, statementor contractwas made by the defendantwith or to the plaintiff to assume the debt of the feed lot owed plaintiff and therefore the defendant is not obligated to pay the debt of the Three Forks Commercial Feed Lot owing to the plaintiff." He further held: "That from the record, there is no evidence which shows that the payment by the defendant to plaintiff of the sum of $6,441.60 was a partial performance or ratificationof any oral promise of the defendant and therefore any oral promise if it had existed would be unenforceable under theprovisions of the Statute of Frauds."On appeal this Court is limited to a determination of whether the facts of this case are sufficient to sustain the findings of the trial judge, the trier of facts,who expressly held that therewas no contractbetween Kamp and the bank. There are two principles of lawwhich aid us in this determination. First, "That this court indulges the presumption that the judgment of the district court is correct and will be upheld unless clearly shown to be erroneous, the burden of showing which rests upon the appellant." Dalbey v. Equitable L. Assur. Soc. of U.S., 105Mont. 587, 598, 74 P.2d 432. Secondly, "That the finding of the trial courtwill not be disturbed or reversed if the evidence, fully considered, furnishes reasonable grounds for different conclusions." Dalbeyat 598. These principles have been carried forward intoMorrison v. City of Butte, 150 Mont. 106, 112, 431 P.2d 79,where this Court held: 

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## * This court will not overturn the holding or findings of a trial court unless there is a decided preponderance of the evidence against them, and,when the evidence furnishes reasonable grounds for different conclusions findingswill not be disturbed." In that framework and reviewing the record of this case
we are of the opinion that the district court did not err in making itsdecision. The formation of contracts in the State of Montana is governed by statute. Section 13-102,R.C.M. 1947, provides: "Essential elements of contract. It is essential to the existence of a contract that there should be: "1. Parties capable of contracting; "2. Their consent; "3. A lawful object;and "4. A sufficient cause or consideration." Of the four elements which are essential to the existence of a contract it appears in this case that the elements of consentand object aremissing. Taking Kamp's evidence atits strongest it would not appear that Goodman ever agreed on behalf of the bank toassume the debt. We certainly find nothing inthe record which would preponderate against the findings thatweremade by the districtcourt. Therefore, holding that therewas no contract between the parties, there is no need for this Caurt togo further in discussing the issue of t The judgment of t

We concur: 

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................................ Associate Justices