No. 80-190 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

O'NEIL LUMBER COMPANY, 

Plaintiff and Appellant, 

-vsTHE NICKELODEON COMPANIES, 

DORIS PICCARTER, Secretary, J. R. 

McCARTER, Presidient, 

Defendants and Respondents. 

Appeal from: Dist. Court of the Eleventh Judicial District, 

In and for the County of Flathead, The Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jerry O'Neil, Pro Se, Kalispell, Montana 

For Respondent : 

E. Eugene Atherton, Kalispell, Montana 

LL 31 < 

Submitted on Briefs: August 13, 1980 

Decided: 'pp 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

OfNeil Lumber Company, proceeding pro se, filed suit in 

the Eleventh Judicial District Court of the State of Montana, 

in and for the County of Flathead, alleging The Nickelodeon 

Companies had failed to make payment on materials supplied 

by O'Neil. The trial court granted judgment in favor of 

plaintiff but would not allow attorney fees or interest at a 

rate of 1.5 percent per month on the unpaid balance as 

asked. Plaintiff appeals. 

On July 30 and August 9 of 1979, defendant agreed to 

purchase certain building materials from plaintiff for 

$1,666.60. The purchases were itemized and identified on 

four invoices. Each invoice stated that a 1.5 percent 

service charge would be levied on past-due accounts. The 

materials were delivered, but after numerous requests by 

plaintiff, defendant failed to tender payment. 

On November 5, 1979, plaintiff filed a mechanic's lien 

against defendant's real property in the amount of $1,716.96, 

representing the amount due on the unpaid account and a 

service charge at the rate of 1.5 percent for two months. 

Plaintiff also asked for post-judgment interest at a rate of 

1.5 percent per month, attorney fees, and costs. The present 

action was filed in District Court for foreclosure of said 

lien. 

Af ter the District Court denied plaintiff s motion for 

summary judgment, the matter was tried in chambers on May 

16, 1980. At the beginning of the trial, defendant filed a 

confession of judgment for the full amount of the purchases, 

plus interest at a legal rate and all accumulated and taxable costs. Plaintiff rejected the confession of judgment. 
v he ~istrict Court thereafter rendered findings of fact, 

conclusions of law and judgment in favor of plaintiff for 

the amount of purchases $1,666.60, plus interest at a rate 

of 10 percent per annum and all accumulated and taxable 

costs amounting to $37.04. The trial court disallowed 

attorney fees . 

Two issues are raised on appeal: 

1. Whether the trial court erred in disallowing as liquidated damages a service charge at a rate of 1.5 percent 

per month on the unpaid balance. 

2. Whether the trial court erred in refusing to allow 

attorney fees. 

Appellant argues that the invoices specifying an interest rate of 1.5 percent on the unpaid balance coupled with 

respondent's prior dealing with him is sufficient evidence 

to represent a contractual obligation and should be enforced 

as such. Respondent, on the other hand, argues that appellant's failure to plead and prove the existence of a written 

agreement, signed by both parties, prescribing the exact 

terms of the retail installment transaction, prevent appellant from being entitled to a 1.5 percent service charge. 

Respondent further argues that appellant's failure to plead 

and prove the existence of an express contract in writing 

fixing a different rate of interest precludes it from collecting post-judgment interest at a rate in excess of that 

allowed by law. 

Regarding the first issue, section 31-1-241(4), MCA, of 

the Montana Retail Installment Sales Act, states that ". . . 

a retail charge account agreement may provide for and the 

seller or holder may charge, collect, and receive a finance 

charge as specified herein for the privilege of paying 
installments thereunder." The finance charge may not exceed 

a monthly rate of 1.5 percent. This statute clearly indicates that the interest rate charged by appellant was not in 

excess of that allowed by law. The question remaining is 

whether invoices represent a retail installment contract. 

We remember the words of Justice John H. Clarke: 

"The parties to the contract, with full understanding of the results of delay, and before 

differences or interested views had arisen 

between them, were much more competent to 

justly determine what the amount of damage 

would be--an amount necessarily largely conjectural and resting in estimate--than a 

court or jury would be . . ." Wise v. United 

States (1919), 249 U.S. 361, 366-67, 39 S.Ct. 

303, 63 L.Ed. 647. 

We hold that the invoices, two of which were signed by both 

parties, describing the materials purchased and stating the 

amount, including interest rate to be charged, are sufficient evidence to obligate respondent to pay 1.5 percent 

on the unpaid balance from September 1979 to May 1980. 

Although the invoices do not meet all the statutory specifications of a retail installment contract, the validity 

of the transaction is in issue;therefure, appellant's admission as to the authenticity of the invoices and appellant's 

confession of judgment more than adequately evidence that 

these purchases were retail installment transactions and 

should be enforced as such. See S28-2-905 (1) (b) , MCA. Also, 

pursuant to section 25-9-205, MCA, respondent is liable for 

post-judgment interest at a rate of 10 percent per annum 

plus accumulated and taxable costs amounting to $37.04. 

There was no evidence or contention before this Court 

that Jerry O'Neil, a vice president of and attorney pro se 

for O'Neil Lumber Company, is duly admitted and licensed to 

practice law in Montana. Section 37-61-215, MCA, provides: 
"It shall be unlawful for any court within 

this state to allow attorney fees in any action or proceeding before said court in which 

attorney fees are allowed by law to either 

party to such action or proceeding when such 

party is represented by anyone other than a 

duly admitted or licensed attorney at law." 

Therefore, the trial court did not err in refusing appellant 

attorney fees. 

The judgment of the trial court is affirmed as to the 

refusal of attorney fees and the allowance of post-judgment 

interest at a rate of 10 percent per annum plus costs; the 

judgment is reversed as to the disallowance of a 1.5 percent 

service charge as liquidated damages. 

We concur: 

"bndd 94l&&QQp 

Chief Justice 

Justices