No. 12150 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THOMAS J. KAMP, 

Plaintiff and Appellant, 

FIRST NATIONAL BANK AND TRUST COMPANY 

OF HELENA, 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record : 

For Appellant : 

Bolinger and Wellcome, Bozeman, Montana. 

G. Page Wellcome argued, Bozeman, Montana, 

For Respondent: 

Gough, Booth, Shanahan and Johnson, Helena, Montana. 

Ronald F. Waterman argued and Myron E. Pitch appeared, 

Helena, Montana. 

Filed : 

Submitted: September 18, 1972 

Decided : 

dAh' 2 1973 
Mr. Chief Justice James 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, First National Bank of Helena, was not liable for 

the debt owed to the plaintiff by the Three Forks Commercial 

Feed Lot. 

The basic issue in this case, at the trial and on appeal, 

is whether the defendant First National Bank entered into a contract to assume the debt of the Three Forks Commercial Feed Lot 

owing to plaintiff Kamp. The alleged contract was 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, 1970 by 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 First National Bank inquiring about the 

matter and was informed that Gibson Goodman was handling the 

transaction for the bank. In talking with Goodman, Sandquist 

said that Kamp was concerned about the past 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 telephone where the same statement was repeated. 

The next contact took place in Helena at the bank. At 

this time Kamp, as he put it, attempted to "put pressure" on the 

bank for his money. He told Goodman that he was considering 
filing a suit or a lien. Goodman replied to this, according to 

Kamp, by asking him to hold off, that such an action would only 

force the feed lot into bankruptcy and it would be years before 

anybody got their money. According to Goodman, the substance of 

this meeting was that if Kamp would be patient attempts were 

being made to see that everybody got paid. These attempts were 

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 this meeting it was agreed that Kamp would receive $6,441.60 

on the account, leaving a balance of $12,000. It was 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 the past due account, which is 

the contention of Kamp, while it is the position of Goodman that 

this was payment for barley on hand at the time the bank took 

over the operation. 

It was on this evidence that Judge Bennett held as a 

matter of law: 

"That no written or oral promise, assurance, 

statement or contract was made by the defendant with 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 ratification of any 

oral promise of the defendant and therefore 

any oral promise if it had existed would be 

unenforceable under the provisions 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 there was no contract between Kamp and the bank. 

There are two principles of law which 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., 105 Mont. 587, 598, 74 P.2d 432. Secondly, "That 

the finding of the trial court will not be disturbed or reversed 

if the evidence, fully considered, furnishes reasonable grounds 

for different conclusions." Dalbeyat 598. These principles 

have been carried forward into Morrison v. City of Butte, 150 

Mont. 106, 112, 431 P.2d 79, where this Court held: 

" * * * 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 findings will 

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 its decision. 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 consent 
and object are missing. Taking Kamp's evidence at its strongest 

it would not appear that Goodman ever agreed on behalf of the 

bank to assume the debt. We certainly find nothing in the record 

which would preponderate against the findings that were made by 

the district court. 

Therefore, holding that there was no contract between 

the parties, there is no need for this Caurt to go further in 

discussing the issue of t 

The judgment of t 

We concur: /' 

................................ 

Associate Justices