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: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

John R. Carr argued, Miles City, Plontana 

For Respondent: Gene Huntley argued, Baker, Montana 

Submitted: June 7, 1977 

Decided: dMLIl 1977 

Filed : JuL 11 1977 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

Plaintiff Equity Cooperative Association appeals from a 

summary judgment in a complaint filed in the district court, 

Fallon County, for a breach of contract to deliver grain. 

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 to defendant 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 for an advance of $5,000 on wheat 

to be delivered later and payable after October 1973. Later, 

on the same day, the parties entered into the second contract, 

a more specific one, providing for the sale of 50,200 bushels 

of wheat at a price of $1.65 per bushel, except for 14,400 

bushels which were to be 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 to the advance made to Bechtold of $5,000 on 

October 31, 1972, another in the same amount of $5,000 was made 

on December 21, 1972, at the request of Bechtold. 

In January 1973, Bechtold delivered to the 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. 

All the wheat was paid for at a price of $1.63 per bushel. 

There is conflict in the statements of Bechtold and Novak, 

Equity's manager, on whether Bechtold objected to the $1.63 price. 
5ybi.t~ 3ldirris ally .dii'I?el)er~ce irl 2rice was to be adjusted upon 

;ampletion of the contract. 

Bechtold delivered wheat to Squity over a four month 

,~erjiod, being paid each time. The last delivery was made on 

\iiay 5, 1973 when he was paid $4,175.24. All told 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 for breach 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 to any 

material fact and that the moving party is 

entitled to a 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 to adjudicate genuine i-ssues of fact 

on a motion for summary judgment cause--it merely determines 

whether such issues exist. Thus the party opposing the motion, 

Equity, will be indulged to the extent of all i-nferences which 

may be reasonably drawn. Mally v. Asanovich, 149 Mont. 99, 

Some of the genuine fact issues raised here are these 

questions : 

1. Whether under the contract there was to be an 

adjustment in the price paid of $1.63 and $1.65 and the number 

01' bushels at those prices? 

2. Was there a breach by Bechtoldfs failure to deliver? 

. Did Bechtold fail to deliver after being requested 
50 lo sd Sy 3quity! 

'4. Was Bechtolcl's i'ai lure !;o ~~erl'orm the contraci; due 

co great increase in the price of grain--after he signed the 

2 drl trac t ? 

5. Why did he not deliver? 

L'nei;e Are 3. few of the facts that must 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