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 theFifthJudicialDistrict, Honorable Frank E. Blair, Judgepresiding. 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 

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# - 1973 Filed: 

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# - 1972Mr. JusticeHaswell delivered the Opinion of the Court.
This appeal isfrom a judgment of the districtcourt of Jefferson County, sittingwithout a jury, finding an indebtedness owed toplaintiffs by defendants inthe 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 contractorwho had contractedwith Townsend Lumber Company to fall, skid and deck the logs. Codefendant, Townsend Lumber Company, purchased the logs from the United States Government, By stipulationTownsend Lumber Company agreed topay any amount unsatisfied, if plaintiffs recovered judgment against defendant Ned Hardy. In consideration of this agreement plaintiffs agreed todismiss Townsend Lumber Company from this action. Hereinafter

## , in speaking of defendant, we refer toNed Hardy alone. The facts of the case are: Just prior toFebruary 

### 11, 1971
an oral contract foremployment was negotiatedbetween defendant and plaintiffs Dee, Willand Paul Alexander. Plaintiffswere employed by defendant togo upon a tract designated Block 

### !!4,approximately sixmiles outh of Cataract Creek inJefferson County, Montana, and cut down certain trees for saw logs. Defendant agreed topay plaintiffs the sum of $5 per thousand board feet for trees cut down by them, payment tobe made aftertkees had been hauled and scaled. Plaintiffs commenced work fordefendant on February 

### 11, 1971. After the first seven or eight days of cutting the contract
was modified by providing forbimonthly payments of fiftycents per tree cut asan advance against the pay scaleof 

### $5 per thousand board feet, until such time as actualhauling and scaling could take place. Sample scaleswere tobe taken by defendant toprovidea comparison of the advance payment with the scalerate. Defendant paid the advances requested by plaintiffs on February 19 and March 10, 1971. According toplaintiffs 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 plaintiffscontend they are entitled (at the rate of fiftycents 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 toplaintiffs 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 toby Gerald Delin, a forester and wood boss forTownsend Lumber Company, whose duty itwas to scale logs and keep a record of what
was actually delivered to the sawmill. Based on this accounting, Delin indicated todefendant Hardy that he was overestimating theboard footage. As itbecame clear todefendant 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 afterplaintiffs had quit cutting, for the purpose of estimating theboard footage left; which had not been delivered. He estimated therewere 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, atthe 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 tomake payment on March 25, 1971, plaintiffs filed a logger's lien the following day, pursuant to section45-407, 

### R.C.M. 1947. On March 29, 1971, this actionwas filed. Trialwas had on November 8, 1971, the court sittingwithout
a jury. Judgment was rendered on February 24, 1972, in favor of plaintiffs inthe amount of $1,105.87 based on payment of fifty cents per tree; the logger's lienwas ordered foreclosed and sale of the timber was ordered tobe made accordingly. The issue involved in this litigation 

### iswhat were the terms of the contractbetween the parties and whether ornot defendant completely compensated plaintiffs for their services under that contract. The district court concluded that defendant had breached the contractby his failure to submit timber for scaling, therefore giving plaintiffs the right to elect the alternative method of payment, i.e. fiftycents per tree, citingThomas v. Cloyd, 110 Mont. 343, 100 P.2d 938. This 

### is error. The fiftycents per treewas not an alternativemeans of compensation but rather an advancement until scaling and board footagewas estimated. Plaintiffs cite95 ALR2d 504, as authority for liability of an employer for agreed advances which exceed the share of profits orcommissions earned. However, the annotation also discloses that the employer's liabilitydepends upon the language of the contract. The result depends on whether the particular contract provisions involved are considered as guaranteeing tothe employee
a minimum amount represented by the advances towhich he is entitled, orwhether 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 fiftycents per tree as only an advancement, not a guarantee. The ultimate compensation was tobe based on $5 per thousand board feet and not
on fiftycents per tree cut.There 

### is substantial credible evidence in the record by plaintiff Paul Alexander that plaintiffswere tobe paid atthe 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, afterwe had sawed there about a week to a week and a half

# ** 9: we could see that he wasn't going tomove the timber as fast aswe was cutting; therefore, we couldn't get paid right. If

### wehad two or threeweeks timber laying on the ground we wouldn't get paid for itunless they were moving it and scaling it, sohe 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.II

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 tobe a littleconfusion. and I 

### w&t tobe surewe are inagreement on this. You
correct. "Q. But on that, you were toreceive advances under your testimony atthe 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 tobe paid at the rate of $5 per thousand and the fiftycents per treewas an advance only. Regardless of when or how the advances were tobe made the ultimate compensation was tobe $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, thehighest figure appearing anywhere in the record. To this, we add the $75 cleanup allowance agreed upon by the parties. It isadmitted that plaintiffshave been paid $2,179.13. Thus, plaintiffshave been overpaid in the amount of $379.13.

### For these reasons, the judgment of 

### the district court isvacated and the cause dismissed.

Associate Justice

Justice



# .............................. Associate Justices.