No. 81-185 

IN THE 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: District Court 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 : MAY 6 1982 

Filed: '1982 .* 0 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Plaint iff subcontractor sued the general contractor and the 

State for damages for breach of its subcontract to contruct 

bridges and concrete work on a highway project. At the conclusion of the subcontractor Is case-in-chief , the District Court 

dismissed the action on the ground that plaintiff had shown no 

right to relief under the facts and law. Following denial of its 

motion for a new trial, the subcontractor appeals. We reverse. 

On November 23, 1970, defendant Goodfellow Bros., Inc., 

the general contractor, contracted with defendant State of 

Montana to construct a segment of interstate highway in Mineral 

County, Montana. Thereafter Good fellow contracted with E. F. 

Matelich Construction Co., the subcontractor, for the construction of certain bridges 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 specialist 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 OIConnerls bid on April 12, 1971. 

The contract between Matelich and Good fellow provided that 

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

not completed until late fall of 1973 because necessary preparatory work had not been completed by Goodfellow until September, 

1973. When the preparatory work was finally done, there was no 

longer a source of concrete available at the job site. By reason 

thereof, OIConner refused to perform the concrete work under his 

agreement with Matelich. There had been a source of concrete 

available at the job site during the 1971 work season and for 

most of the 1972 season. Since OtConner refused to perform the 

work, Matelich was forced to complete the concrete work itself. 
Af ter the work was completed , Mate1 ich brought suit 

against Goodfellow and the State of Montana in the District Court 

of Mineral County. Matelich alleged that it was prevented from 

performing its work within the time period 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 

Good fellow' s breach of its subcontract in not performing the preparatory work within the time period specified in its 

subcontract. Matelich sought damages to the extent of the difference between 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 

State remained a party on Good fellow' s cross-claim for indemnif ication against it. 

A bench trial was held on August 21, 1980. O'Conner 

testified as a witness for Matelich, and the agreement entered 

into between Matelich and OIConner was admitted into evidence. 

Evidence was also presented regarding the actual costs incurred 

by Matelich in completing the concrete work. At the 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 establish damages. 

The District Court determined that the evidence pertaining to O'Connerls bid price could not be used to establish damages 

because OIConner had not prequalified with the Montana State 

Department of Highways as required by specifications adopted by 

the Montana State Highway Commission which were incorporated into 

the contract between the State of Montana and Goodfellow. The 

terms of that contract were in turn incorporated into the 

contract between Good fellow and Matelich. 

The sole issue is whether the District Court erred in 

dismissing the action based upon its determination that the evi- 
dence was insufficient to establish damages. 

The parties disagree as to whether OIConner was required 

to prequalify under the circumstances of this case. We find it 

unnecessary to resolve that issue in deciding whether the evidence presented by Matelich was sufficient to establish damages. 

The following statute establishes the measure of damages 

for breach of contract: 

"For the breach of an obligation arising from 

contract, the measure of damages, except when 

otherwise expressly provided by this code, is the 

amount which will compensate the party aggrieved 

for all the detriment which was proximately 

caused thereby or in the ordinary course of 

things would be likely to result therefrom. 

Damages which are not clearly ascertainable 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 there must be some evidence from which the amount may be determined ." Brown v. First 

Fed. Sav. & L. Assln of Great Falls (1969), 154 Mont. 79, 88, 460 

P.2d 97, 102. In this case 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 at which the 

work could have been performed had it been done at an earlier 

date when there was still a source of concrete available at the 

construction site. Additionally,Matelich testified that 

Goodfellow paid him on the basis of OIConnerls bid which is some 

indication of the reasonable cost of the concrete work. The 

defendants do not contend that this evidence should not have been 

admitted. Their only argument is that because OIConner was not 

prequalified evidence of his bid price could not be used to 

establish damages. The District Court agreed with this contention and held as a matter of law that the evidence could not be 

used to determine damages. 

The District Court erred in this determination. 0' Conner 
was a specialist in curb, sidewalks and flat concrete work with 

26 years experience. His expert 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. OIConnerls testimony 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: -