# id09 No. 

### T36-36- IN THE SUPREME COURT OF THE STATE OF MONTANA

EQUITY COOPEIiATIVE ASSOCIATION, A Montana Corporation,Plaintiff and Appellant,

JOHN F. BECHTOLD, Defendant and Respondent.
Appeal from: DistrictCourt of the Sixteenth Judicial District, HonorableAlfredB. Coate, Judge presiding. Counsel of Record: For Appellant: John R. Carrargued, Miles City, Plontana For Respondent: Gene Huntley argued, Baker, Montana

Submitted: June 7, 1977
Decided: 

## dMLIl1977

Filed:

## JuL

# 111977Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiff Equity Cooperative Association appeals from a summary judgment ina complaint filed in the district court, Fallon County, for a breach of contract todelivergrain. The sole issue on appeal 

### is whether the district court's findings of fact, conclusions of law and judgment were proper in awarding summary judgment todefendant John F. Bechtold. On October 

### 31, 1972 a written contract was entered into between Equity Cooperative Association, purchaser, and John F. Bechtold, seller, for 50,200 bushels of wheat. The contract was signed in two parts, both signed on the same day and covered the same wheat. The 

### first contract, designated "Contract of Sale of Grain No. 4-0 60644" provided foran advance of $5,000 on wheat tobe delivered later and payable after October 

### 1973. Later, on the same day, the parties entered intothe second contract, a more specific one, providing for the sale of 50,200 bushels of wheat ata price of 

### $1.65 per bushel, except for 14,400 bushels which were tobe purchased at $1.63 per bushel, plus 4,742 bushels which required a protein check before determining the actual price. This contract was designated No. 4-0 60660. In addition tothe advance made toBechtold of $5,000 on October 

### 31, 1972, another in the same amount of $5,000 was made on December 21, 1972, atthe request of Bechtold. In January 1973, Bechtold delivered tothe Equity elevator 12,700 bushels of wheat. Equity paid Bechtold, deducting the $10,000 advance, and he accepted and cashed a net check in the amount of 

### $10,387.55. Allthe wheat was paid for ata price of $1.63 per bushel. There 

### is conflict in the statements of Bechtold and Novak, Equity's manager, on whether Bechtold objected tothe 

### $1.63 price.5ybi.t~ 3ldirris ally .dii'I?el)er~ce irl 2rice was tobe adjusted upon ;ampletion of the contract. Bechtold delivered wheat toSquity over a four month ,~erjiod, being paid each time. The lastdeliverywas made on \iiay 

### 5, 1973when he was paid $4,175.24. Alltold some 15,069 bushels were delivered and Equity sought specific performance 31' the contract seeking the delivery of 

### 35,161 bushels of grain '~r; i.n the alternative damages forbreach of contract in the dmount of $5.00 per bushel or $175,805. Rule 56(c), M.R.Civ.P. provides that summary judgment is proper if: 

## "** * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as toany material fact and that the moving party 

### is entitled toa judgment as a matter of 

### law

## * * 

## *." See: Harland v. Anderson, Mont

## . 

## , 548 P.2d 613, 

### 33 St.Rep. 363. Here the record 

### is replete wi.th fact questions. The dls trict zourt erred in granting summary judgment. The district court does not function toadjudicate genuine i-ssuesof fact on a motion for summary judgment cause--it merely determines whether such issues exist. Thus the party opposing the motion, Equity, willbe indulged to the extent of alli-nferenceswhich may be reasonably drawn. Mally v. Asanovich, 149Mont. 99,
Some of the genuine fact issues raised here are these questions: 1. Whether under the contract there was tobe an adjustment in the price paid of $1.63 and $1.65 and the number 01' bushels atthose prices? 2. 

### Was there a breach by Bechtoldfsfailure todeliver?



## . Did Bechtold failtodeliver afterbeing requested50 lo sd 

### Sy 3quity! '4. 

### Was Bechtolcl's i'ailure 

### !;o~~erl'orm the contraci;due co great increase inthe price of grain--after he signed the
2drltrac 

### t?



### 5. Why did he not deliver? 

### L'nei;e Are 3. few of the facts thatmust be answered by a jury t;~lia 1

# . Judgment of the district court is reversed and the cause r.emailileJ for further proceedings.

Chief J u s t i c e