No. 12279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

DEE ALEXANDER, WILLIAM ALEXANDER, 

and PAUL ALEXANDER, 

Plaintiffs and Respondents, 

-VS - 

NED HARDY and TOWNSEND LUMBER COMPANY, 

Defendants and Appellants. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellants : 

Keller, Reynolds and Drake, Helena, Montana 

Argument submitted on briefs. 

For Respondents: 

Allen LeMieux, Boulder, Montana 

Argument submitted on briefs. 

Submitted : January 24, 1973 

~ecided :FEB 6 - 1973 

Filed: FEE 6 - 1972 
Mr. Justice Haswell delivered the Opinion of the Court. 

This appeal is from a judgment of the district court 

of Jefferson County, sitting without a jury, finding an indebtedness owed to plaintiffs by defendants in the amount of $1,105.87; 

foreclosure of a logger's lien therefor; and costs and attorney 

fees. The case involved payments due under a contract for the 

falling of timber. 

Defendant, Ned Hardy, was an independent contractor who 

had contracted with Townsend Lumber Company to fall, skid and 

deck the logs. Codefendant, Townsend Lumber Company, purchased 

the logs from the United States Government, By stipulation Townsend Lumber Company agreed to pay any amount unsatisfied, if 

plaintiffs recovered judgment against defendant Ned Hardy. In 

consideration of this agreement plaintiffs agreed to dismiss 

Townsend Lumber Company from this action. Hereinafter , in speaking 

of defendant, we refer to Ned Hardy alone. 

The facts of the case are: Just prior to February 11, 1971 

an oral contract for employment was negotiated between defendant 

and plaintiffs Dee, Will and Paul Alexander. Plaintiffs were employed by defendant to go upon a tract designated Block !!4, approximately six miles outh of Cataract Creek in Jefferson County, Montana, 

and cut down certain trees for saw logs. Defendant agreed to pay 

plaintiffs the sum of $5 per thousand board feet for trees cut 

down by them, payment to be made after tkees had been hauled and 

scaled. 

Plaintiffs commenced work for defendant on February 11, 

1971. After the first seven or eight days of cutting the contract 

was modified by providing for bimonthly payments of fifty cents 

per tree cut as an advance against the pay scale of $5 per thousand 

board feet, until such time as actual hauling and scaling could 

take place. Sample scales were to be taken by defendant to provide 
a comparison of the advance payment with the scale rate. Defendant paid the advances requested by plaintiffs on February 19 

and March 10, 1971. 

According to plaintiffs they sawed, limbed and cut 6,570 

trees as of March 25, 1971. Evidence of the number of trees cut 

was from a record kept by plaintiffs on a day by day basis, which 

was introduced. Thus plaintiffs contend they are entitled (at the 

rate of fifty cents per tree) to $3,285 less payments of $2,179.13, 

leaving a balance of $1,105.87 unpaid and due from defendant. 

On the other hand, defendant contends that $825 was paid 

by him to plaintiffs on February 19, 1971, And again on March 10, 

1971, $1,050 was paid to plaintiffs. In addition, testimony 

indicates that 287,276 board feet of lumber was delivered to 

Tolamsend Lumber Company from Block #4. This amount was attested 

to by Gerald Delin, a forester and wood boss for Townsend Lumber 

Company, whose duty it was to scale logs and keep a record of what 

was actually delivered to the sawmill. Based on this accounting, 

Delin indicated to defendant Hardy that he was overestimating 

the board footage. As it became clear to defendant that the 

advances were exceeding the $5 per thousand compensation, he 

denied further advances on March 25, 1971, 

Delin also testified that he went out to the cutting area 

in early summer and again in October after plaintiffs had quit 

cutting, for the purpose of estimating the board footage left; 

which had not been delivered. He estimated there were 50,000 

board feet of decked logs and another 2,000 board feet of merchantable logs or trees down which had not been decked. His testimony was corroborated by Doyne L. Tank, a timber assistant for 

the United States Forest Service. 

Thus, at the rate of $5 per thousand, defendant owed 

plaintiffs a total of $1,696.38 for 339,276 board feet. Plaintiffs admitted payment in the amount of $2,179.13. Based on these 

figures, defendant's advances were exceeding the $5 per thousand 

compensation. 
When defendant refused to make payment on March 25, 1971, 

plaintiffs filed a logger's lien the following day, pursuant to 

section 45-407, R.C.M. 1947. On March 29, 1971, this action was 

filed. Trial was had on November 8, 1971, the court sitting without 

a jury. Judgment was rendered on February 24, 1972, in favor of 

plaintiffs in the amount of $1,105.87 based on payment of fifty 

cents per tree; the logger's lien was ordered foreclosed and sale 

of the timber was ordered to be made accordingly. 

The issue involved in this litigation is what were the 

terms of the contract between the parties and whether or not defendant completely compensated plaintiffs for their services under 

that contract. 

The district court concluded that defendant had breached 

the contract by his failure to submit timber for scaling, therefore 

giving plaintiffs the right to elect the alternative method of 

payment, i.e. fifty cents per tree, citing Thomas v. Cloyd, 110 

Mont. 343, 100 P.2d 938. 

This is error. The fifty cents per tree was not an 

alternative means of compensation but rather an advancement until 

scaling and board footage was estimated. 

Plaintiffs cite 95 ALR2d 504, as authority for liability 

of an employer for agreed advances which exceed the share of profits or commissions earned. However, the annotation also discloses 

that the employer's liability depends upon the language of the contract. The result depends on whether the particular contract provisions involved are considered as guaranteeing to the employee 

a minimum amount represented by the advances to which he is entitled, or whether the amount of the compensation depends entirely 

on the amount of his commissions, i.e, board footage. 

Here, the facts are clear. The parties intended the fifty cents 

per tree as only an advancement, not a guarantee. The ultimate 

compensation was to be based on $5 per thousand board feet and not 

on fifty cents per tree cut. 
There is substantial credible evidence in the record by 

plaintiff Paul Alexander that plaintiffs were to be paid at the 

rate of $5 per thousand board feet for their labors. In answer 

to questions by defendant's attorney concerning any change made 

in the original agreement, Paul Alexander testified: 

"A. Yes, after we had sawed there about a week to 

a week and a half * * 9: we could see that he wasn't 

going to move the timber as fast as we was cutting; 

therefore, we couldn't get paid right. If we had 

two or three weeks timber laying on the ground we 

wouldn't get paid for it unless they were moving it 

and scaling it, so he come up with the idea in the 

presence of me, my brother, and my dad that he would 

pay us as an advance 5044 per tree. Now that was 

until they got this timber hauled down to the mill 

and scaled and we would take either a cut or a gain, 

depending on how it scaled. 

"Q. And did you accept that agreement then? A. We 

accepted that. I I 

I I Q. And now you were sawing by the tree for an 

advance purpose only, isn't that correct? A, hat's 

correct, yes. 

"0. There seems to be a little confusion. and I 

w&t to be sure we are in agreement on this. You 

correct. 

"Q. But on that, you were to receive advances under 

your testimony at the rate of 50d per tree? A. Per 

tree every two weeks without fail.' (Emphasis supplied). 

William and Dee Alexander testified that they agreed with 

the testimony of Paul and that ultimately they were to be paid at 

the rate of $5 per thousand and the fifty cents per tree was an 

advance only. 

Regardless of when or how the advances were to be made 

the ultimate compensation was to be $5 per thousand board feet, 

By applying simple mathematics, it is thus established that the 

plaintiffs earned $1,725 for the cutting of 345,076 board feet 

of timber, the highest figure appearing anywhere in the record. 

To this, we add the $75 cleanup allowance agreed upon by the 

parties. It is admitted that plaintiffs have been paid $2,179.13. 

Thus, plaintiffs have been overpaid in the amount of $379.13. 
For these reasons, the judgment of the district court 

is vacated and the cause dismissed. 

Associate Justice 

Justice 

.............................. Associate Justices.