No. 81-185 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

E. F. MATELICH CONTRUCTION COMPANY a Montana Corporation, Plaintiff and Appellant,

-vsGOODFELLOW BROTHERS, INC., et al., Defendants and Respondents.

STATE OF MONTANA, Cross-Claimant.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Mineral, The Honorable James B. Wheeiis, Judge presiding.

Counsel of Record: For Appellant: Donald R. Murray; Murphy, Robinson, Heckathorn and Phillips, Kalispell, Montana For Respondents: Page Wellcome, Bozeman, Montana Donald A. Douglas, Highway Legal Dept., Helena, Xontana

Submitted on Briefs: February 18, 1982 Decided: MAY6 1982

Filed: 

# '1982 .* 0Mr. Chief JusticeFrank I. 

### Haswell delivered the Opinion of the Court.

Plaint iff subcontractor sued the general contractor and the State fordamages forbreach of its subcontract to contruct bridges and concrete work on a highway project. Atthe conclusion of the subcontractorIscase-in-chief 

## , the District Court dismissed the action on the ground that plaintiff had shown no right to relief under the factsand 

### law. Following denial of its motion for a new 

### trial, the subcontractor appeals. Wereverse. On November 23, 1970, defendant Goodfellow Bros., Inc., the general contractor, contracted with defendant Stateof Montana 

### to construct a segment of interstate highway inMineral County, Montana. Thereafter Goodfellowcontracted with E. F. Matelich Construction Co., the subcontractor, for the construction of certainbridges and concrete work on the project. Prior 

### to submitting its bid 

### to Goodfellow, Matelich obtained a bid for the concrete work from Robert OIConner, a spe

### cialist in the construction of curbs and sidewalks. The bid submitted by OIConner stated that the estimates given were contingent upon concrete being available at the job site. Matelich accepted OIConnerlsbid on April 12, 1971. The contract between Matelich and Goodfellowprovided that the work 

### was to be completed in 270 calendar days. The constructionwork began in the spring of 1971but the concrete work 

### was not completed until late fallof 1973because necessary preparatorywork had not been completed by Goodfellow until September, 1973. When the preparatory work 

### was finallydone, there

### was no longer a source of concrete available at the job site. By reason thereof, OIConnerrefused to perform the concrete work under his agreement with Matelich. There had been a sourceof concrete available atthe job siteduring the 1971work season and for most of the 1972 season. SinceOtConnerrefused 

### to perform the work, Matelich 

### was forced to complete the concrete work itself.Af

### ter the work 

### was completed

## ,Mate1ich brought suit againstGoodfellow and the Stateof Montana in the District Court of Mineral County. Matelich alleged that it 

### was prevented from performing 

### its work within the 

### timeperiod specified in 

### its subcontract with Goodfellow because the work schedule for the project had been changed by Goodfellow and the State. Matelich sought damages for increased costs allegedly caused by Goodfellow's breach of its subcontract innot performing the preparatorywork within the time period specified in its subcontract. Matelich sought damages to the extent of the differencebetween the actual costs it incurred in completing the concrete work and the bid price submitted by O'Conner. Matelich dismissed 

### its claim against the State prior 

### to trial, but the Stateremained a party on Goodfellow's 

### cross-claim for indemnification against it. A bench 

### trial was held on August 21, 1980. O'Conner testified as a witness for Matelich, and the agreement entered intobetween Matelich and OIConner

### was admitted into evidence. Evidence 

### was also presented regarding the actual costs incurred by Matelich in completing the concrete work. Atthe close of Matelich's case-in-chief the District Court granted the defendants' motion to dismiss because it found that there

### was no valid evidence before the court to establishdamages. The District Court determined that the evidence pertaining 

### to O'Connerls bid price could not be used to establish damages because OIConnerhad not prequalified with the Montana State Department of Highways asrequired by specifications adopted by the Montana StateHighway Commission which were incorporated into the contract between the Stateof Montana and Goodfellow. The terms of that contract were in turn incorporated into the contract between Goodfellowand Matelich. The 

### sole issue is whether the District Court erred in dismissing the actionbased upon 

### itsdetermination that the evi-dence 

### was insufficient 

### to establishdamages. The parties disagree 

### as to whether OIConner

### was required to prequalify under the circumstances of thiscase. 

### We find it unnecessary to resolve that issue indeciding whether the evidence presented by Matelich 

### was sufficient to establish damages. The following statuteestablishes the measure of damages forbreach of contract: "For the breach of an obligation arising from contract, the measure of damages, except when otherwise expresslyprovided by thiscode, is the amount which will compensate the party aggrieved for all the detriment which 

### was proximately caused thereby 

### or in the ordinary course of thingswould be likelyto result therefrom. Damages which 

### are not clearlyascertainable in both their nature and origin cannot be recovered for a breach of contract." Section 27-1-311, MCA. With regard 

### to evidence of damages 

### we have stated: "While exact proof of damage 

### is not necessary theremust be 

### some evidence fromwhich the amount may be determined

# ." Brown v. First Fed. Sav. & L. Assln of Great Falls (1969), 154Mont. 79, 88, 460 P.2d 97, 102. In thiscase there

### was evidence from which the amount of damages could have been established. 0'Connerls testimony and the agreement between 0'Conner and Matelich 

### were evidence of the reasonable 

### cost atwhich the work could have been performed had it been done at an 

### earlier datewhen there 

### was still a source of concrete available at the construction site. Additionally,Matelich testified that Goodfellow paid him on the basisof OIConnerlsbid which is 

### some indication of the reasonable cost of the concrete work. The defendants do not contend that thisevidence should not have been admitted. Their onlyargument is thatbecause OIConnerwas not prequalified evidence of hisbid price could not be used to establish damages. The District Court agreed with thiscontention and held as a matter of lawthat the evidence could not be used to determine damages. The District Court erred in thisdetermination. 0'Connerwas a specialist in curb, sidewalks and flatconcrete work with 26 years experience. Hisexpert opinion evidence was admissible to establish the reasonable 

### cost of the concrete work under the subcontract without regard 

### to whether he was prequalified to perform the concrete work himself. OIConnerlstestimony and bid created a factual issue on damages for determination by the District Court. Such evidence precluded dismissal under Rule 41(b), M.R.Civ.P., for failure of proof of damages. Reversed and remanded for a new trial.

Chief Justice

We concur: 

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