No. 87-127


### INTHE SUPREME COURTOF THE STATEOF MONTANA 1987

VIRGIL and BARBARA BURNS, Plaintiffsand Appellants,-vsJIMHINMAN, Defendantand Respondent.

APPEAL FROM: District Court of the Twentieth Judicial District, Inand for the County of Lake, TheHonorableC. B. McNeil, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Manley, Smith & Dupuis; JamesA. Manley, Polson, Montana
For Respondent: M. Richard Gebhardt, Ronan,Montana

Submitted onBriefs: Aug. 20, 1987 Decided: October 29, 1987 

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ClerkMr. JusticeFred J. Weber delivered theOpinion of theCourt.

Plaintiffs Burns sued Mr. Hinman for breach of a haying contract. The District Court for the Twentieth Judicial District, Lake County, concluded that plaintiffs had proven breach, but had failed toprove thatMr. Hinman caused their damages. It ordered that plaintiffs take nothing by their complaint and awarded Mr. Hinman his costs of suit. We affirm. The issuesare: 1. Did the District Court err in denying plaintiffs consequential damages for their lost secondhay crop? 2. Did the District Court err in denying plaintiffs recovery for damages to their tractor? In the spring of 1985, the parties entered an oral agreement thatMr. Hinman would cut and bale the Burns' first hay cutting of the year. Mr. Hinman is in the business of custom farming other people's land. Mr. Hinman had cut the Burns' hay in the previous year, and was familiar with the Burns' hay operation. He was also familiarwith the Burns'
summer scheduleof conducting ten-daypack trips into theBob Marshall Wilderness. The parties agreed that the cutting and baling would be done by July 10. However, because he got a late start and because of equipment problems, Mr. Hinman did not actually complete the cutting and baling until July 20. By that time, the crew which the Burns had hired to stack the bales had returned to the Bob Marshall. The Burns asked Mr. Hinman to get someone to put thehay up, and Mr. Hinman agreed that he would try. Mr. Hinman hired three high school age boys who stacked approximately 40 acres of the 100 acres to bestacked. The Burns returned from the Bob Marshall August 3 and completed the hay stackingwith their own crew. Mr. Hinman presented the Burns with a $1,507 statement for the swathing, baling, and stacking he had done. Mrs. Burns gaveMr. Hinman a check for $750onAugust 3,but later stopped payment on the check. Mr. Hinman obtained a justice court default judgment for his work. The Burns have paid that judgment. The Burns filed their own suit in justice court,alleging that the lateharvest of their firsthay crop prevented them from harvesting a second hay crop thatyear. They also alleged damages to their tractorwhile itwasunder Mr. Hinman's control. The Burns obtained judgmentof $3,500 in justice court. Mr. Hinman appealed to district court. The District Court ruled that the Burns had "failed to prove that the ten-day delay in the comp1.etion of the swathing and baling by [Mr. Hinman] was the cause of [the Burns] not getting a second cutting ofhay in 1985." Italso ruled that the record failed to establish that Mr. Hinman bore any fault for the damages to the Burns' tractor. The court therefore ordered that the Burns take nothing by their complaint. I Did the District Court err in denying plaintiffs consequentialdamages for their lost secondhay crop? The DistrictCourt found

[tlhat the Plaintiffs failed to prove that the failure to get a second cutting of hay in 1985was causedby Defendant not completing the swathing and baling until July 20, 1985 rather than July 10, 1985 according to the terms of their oral agreement. The District Court's findings will be affirmed if they are supported by substantial credible evidence. Cameron v. Cameron (1978),179Mont. 219, 227, 587 P.2d 939,

### 944. Wherethe evidence conflicts, the trial judge's resolution of those conflicts will not be disturbed unless there is a clear preponderance of evidence against the court's findings. Cameron, 587 P.2d at 944. The record contains conflicting evidence on this issue. Mr. Burns testified at trial that thedelay inharvesting and stacking his firsthay crop caused his second crop to dry up from not being irrigated during the delay. However, Mr. Hinman was not obligated under the parties' oral contract to stack the hay. Therefore,only ten days of delay is attributable to Mr. Hinman's late performance under the contract. Mr. Burns admitted that no second cutting was made off the fields in 1984,either. Mr. Hinman offered his opinion that the Burns should have startedwatering on each field as soon
as thehay baleswerepicked 

### up, instead ofwaiting until the baleswerepicked up from all the fields beforebeginning any watering. Further,Mr. Hinman testified thathe had finished harvesting and stacking the Burns' hay in 1984 on approximately the samedate as he finished in 1985. We conclude that substantial evidence supports the District Court's finding that there was a failure to prove that the absence of a second crop in 1985 was a result of delay causedby Mr. Hinman.

Did the District Court err indenying plaintiffs recovery fordamages to their tractor? TheDistrict Court found that Plaintiffs' evidence established that approximately $981.00 in damages were done to their tractor, but the record does not establish by any preponderance of the evidence as to who caused the damages or that there was any fault on the part of the Defendant.Again, the issue is whether substantial evidence supports this finding,onwhich there was conflicting testimony. The damages to the tractor included a dent in one side which prevented a door from operating properly, broken windows,and abroken steeringwheel. Although Mr. Burns testified that it appeared the tractor had been dented in a collision with his haying wagon, Mr. Hinman testified that the position of the dent on the tractor was not consistent with such an explanation. Mr. Burns admitted that persons other than Mr. Hinman could have had access to the tractor during the relevant time. One of the high school boys hired by Mr. Hinman testified the door wouldn't close on the tractor when they first used it. The boys denied breaking windows in the tractor, although they did admit that onewindow accidentally broke while they were haying on rough ground. The Burns' mechanic admitted that he could not determine by inspection exactly when the damage to the tractor occurred. We conclude that substantial evidence supports the lower court's finding that damages to the tractor were not proven to be Mr. Hinman's fault. The District Court did not err. A£firmed.