No. 14211 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

MAW;E KIS and ROBFRT HAPP, 

Plaintiffs and Appllants, 

-vsHARRY PIFER, 

Defendant and Respondent. 

Appeal frm: District Court of the Eleventh Judicial District, 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellants: 

H. James Oleson argued, Kalispell, Montana 

For Respondent : 

Warden, Walterskirchen and Christiansen, Kalispell, Montana 

Frederick F. Shemad argued, Kalispell, mntana 

McGarvey, Lence and Heberling, Kalispell, mntana 

?Q72 > - Filed: - 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The District Court, Flathead County, sitting without a 

jury, dissolved the parties' partnership and ordered an 

accounting and the assets distributed. Plaintiff, Marge 

Kis, appeals from the court's order denying her motion to 

amend the findings of fact. 

In August 1973, Marge Kis, Robert Happ and Harry Pifer 

entered into a verbal partnership agreement for the purpose 

cf buying real property in Flathead County, Montana. The 

parties intended to realize a profit by developing the 

property and reselling it. The agreement contemplated that 

each of the parties would contribute funds periodically and 

that such contributions would be approxi~ately equal between 

the parties, as circumstances permitted and the needs of the 

partnership dictated. It was further agreed that each of 

the parties would own a one-third interest in the properties 

purchased. 

The partnership purchased a tract of land in October, 

1973, known for purposes of this appeal as the "Meridian 

Road" property. Contributions for purchase of the Meridian 

Road property were made in cash in the following amounts: 

Marge Kis -- $6,000.00; Robert Happ -- $4,000.00; Harry 

Pifer -- $8,000.00, of which the amount of $2,000.00 was 

later refunded to him out of partnership funds. The total 

purchase price of the land was $35,000.00, so Marge Kis 

obtained a loan of $20,000.00 from her father to pay the 

remainder owing. This loan was later repaid out of the 

proceeds of a loan against the land, obtained from a commercial 

lending institution in Kalispell, Montana. Title to the 

property was taken in the name of Harry Pifer only, by 

mutual consent and for the convenience of the parties. 

Consequently, Pifer signed the note and mortgage when the 

loan against the property was obtained. 
In 1974, the parties constructed eight storage units on 

the Meridian Road property. In 1975, it was agreed that 

additional units were necessary as well as two larger structures 

for rental purposes. Harry Pifer supervised the construction 

which was financed from the joint funds of the parties and 

$20,000.00 deposited by Marge Kis. 

During the spring of 1976, Harry Pifer assumed control 

of the Meridian Road property and advised plaintiffs that he 

considered himself its sole owner. 

Plaintiffs instituted this action July 14, 1976, seeking 

a dissolution of the partnership and an accounting of its 

assets. The District Court entered its findings of fact, 

conclusions of law, order and decree on October 24, 1977. 

Subsequently, plaintiff Marge Kis moved to amend findings of 

fact No. 20, which concerned the construction of the additional 

storage units and two larger structures. Finding of fact 

No. 20 states: 

"20. That such construction was financed initially 

from the joint funds of the parties and from $20,000 

deposited by Marge Kis which represents additional consideration for the deed from Defendant Harry J. Pifer 

to her and which deed transferred his interest in the 

Lake View Arms property in Whitefish, Montana, said 

property not being involved in the partnership at 

hand. " 

The finding was made on the basis of testimony by Harry 

Pifer. Plaintiff contended that the court should have 

believed her testimony on the matter, rather than Harry 

Pifer's, because his credibility had been impeached on 

another issue, while plaintiff's credibility had never been 

impeached. The District Court denied the motion and this 

appeal followed. 

1. Did the District Court improperly make finding of 

fact No. 20, since it had been agreed that the trial would 

be in two phases -- first, a determination of who owned the 

Meridian Road property, and then an accounting of partnership property? 
2. If the finding of fact was properly made, did the 

District Court abuse its discretion by ruling in defendant's 

favor, after his credibility had been impeached on a separate 

matter? 

Plaintiff contends she understood that the trial would 

be conducted in two phases. Specifically, the first phase 

would be limited to deciding whether Harry Pifer or the 

partnership owned the Meridian Road property. In the second 

phase an accounting of partnership matters would take place. 

Plaintiff states she withheld evidence relevant to the 

Meridian Road dispute because of this "understanding". 

We find that, because of developments in the course of 

the proceedings, plaintiff was fully aware that the District 

Court would be rriaking a finding concerning the nature of her 

$20,000.00 contribution. 

Count I1 of defendant's counterclaim, filed August 19, 

1976, clearly placed the issue concerning the nature of 

plaintiff's $20,000.00 contribution before the court. 

Defendant's prayer under Count I1 stated: 

"That the plaintiff, Marge Kis, be required to 

accept the transfer of the defendant's equity in 

the Whitefish Arms property, as a full satisfaction 

of any monies advanced by Marge Kis personally, and 

particularly, the sum of $20,000.00 for the improvement of the Meridian Road property;" 

Plaintiff moved to strike the count on the grounds that it 

was redundant and immaterial to the dispute. Her notion was 

denied January 11, 1977. At this point plaintiff was on 

notice that the court would be deciding the issue. 

At the conclusion of the trial plaintiff offered a 

finding of fact on the precise issue she now contends she 

understood would be decided in a subsequent proceeding: 

"XX. That such construction was financed 

initially from the joint funds of the parties and 

from a $20,000.00 loan made by Marge Kis to the 

joint operation of the parties which loan has 

never been repaid and is still outstanding." 

(Page 6 of Proposed Findings of Fact and Conclusions of Law of Plaintiffs.) 
On October 25, 1977, the day after the District Court 

entered its findings of fact, conclusions of law, order and 

decree, plaintiff filed a document entitled, "Exceptions to 

findings of fact and motion to amend same." Specifically, 

plaintiff excepted to finding of fact No. 20, contending 

that her testimony should have been believed rather than the 

defendant's, and that the finding shculd have been made in 

her favor. She did not contend that the court shculd not 

have made any finding on the subject, as she has in this 

Court, rather she contended the result of the finding was 

improper. 

Plaintiff's actions during the course of the trial 

demonstrate that she was fully aware that the court would be 

resolving the issue concerning the nature of her $20,000.00 

contribution. 

Alternatively, plaintiff contends the District Court 

abused its discretion by relying on defendant's testimony, 

rather than hers, to make finding of fact No. 20. The 

following dialogue between plaintiff Happ's counsel and 

defendant is offered to show that defendant's credibility 

was impeached and that he should not have been believed on 

any point. 

"Q. And did anybody else put any money in at that 

time in connection with that purchase? A. Yes, my 

father. 

"Q. And who and ~GW much, as you recall? A. My 

father lent me $20,000.00 And Marge -- 

"Q. Just a minute. Let's get to that now. You 

said your father lent you $20,000.00? A. That 

is correct. 

"Q. Did you give him a note for it? A. No. 
"Q. And was any note given to your father for it? 

A. Not to my knowledge at that time. 

"Q. Well, did you find out later that any note was 

given? A. Yes, Sir. 

"Q. Okay. And who gave that note? A. Marge did. 

"Q. So Marge in effect borrowed the money from 

your father on her note for $20,000.00? A. No. 

I borrowed the money but she signed the note. 

"Q. Were you here when your father testified last 

fall, when the poor man broke down and cried on the 

witness stand, and we had to take a recess, Mr. Pifer. 

When he stated that he loaned the money to Marge, he 

was dealing with Marge. Are you now saying that he was 

lying? A. No. Mr. Warden. 

"Q. Your own father? A. That 

"Q. Answer yes or no. Answer the question as I asked. 

A. No, he is not lying. 

"Q. Then he loaned the money to Marge on Marge's 

note and that went into evidence at that time. It 

is in the Court file. A. Yes." 

The $20,000.00 referred to above is the contribution 

made in October 1973, for the purchase of the Meridian Road 

property, not the $20,000.00 which is the subject of finding 

of fact No. 20. 

"There is a general principle of law that where 

a witness has testified falsely to some material 

matter in a case, his testimony in other respects 

may be disregarded unless it is corroborated by 

other proof . . . In order for the principle 

to be operative, the false testimony must be 

upon a point material to the issue . . . The principle or maxim above stated as to disregarding the testimony of a witness who has 

knowingly testified falsely on a material 

issue does not necessarily mean that the 

jury is required to reject the rest of the 

witness' testimony . . . The right and 

the duty of the jury to determine to what 

extent they believe or disbelieve the 

witness thus continue." 81 Am.Jur.2d 

Witnesses 8669. 

To a similar effect, we stated in Batchoff v. Craney 

(1946), 119 Mont. 157, 172 P.2d 308: 
". . . [Wlhile proof of falsity in one part of a 

witness' testimony, inconsistent statements at 

other times, contradictory evidence, and reputation 

may discredit the witness, such proof goes only 

to the credibility of the witness, of which the jury 

remains the sole judge, as well as the weight to 

be given thereto . . . [Allthough the jury may 

reject the false testimony and assume regarding 

the rest of it, an attitude of distrust, the 

jurors may render a verdict based upon the testimony of such witness if after examination they 

find it worthy of belief." 

The District Court was the trier of fact in the instant 

case. The dialogue offered by plaintiff was not essential 

to the issue which was resolved by finding of fact No. 20. 

Even assuming defendant was impeached on the earlier issue, 

the court was not bound to rule against him on every fact 

issue in the trial. 

We will not set aside findings of fact unless they are 

clearly erroneous and we will give due regard to the opportunity of the trial court to judge the credibility of the 

witnesses. Rule 52, P4ont.R.Civ.P. 

The decision of the District Court is affirmed. 

? Justice 

We Concur: 

Mr. Justice John Conway Harrison dissenting: 

I dissent. 

ea-. 4Q4www Justice