### 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 

# LL31 <



### Submitted on Briefs: August 13, 1980 Decided: 

### 'ppMr. Justice Gene B. Daly delivered the Opinion of the Court. OfNeilLumber Company, proceeding pro 

### se, filed suitin the Eleventh Judicial DistrictCourt of the State of Montana, inand for the County of Flathead, alleging The Nickelodeon Companies had failed tomake payment on materials supplied by O'Neil. The trialcourt granted judgment infavor of plaintiff but would not allow attorney fees or interest ata 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 againstdefendant's real property in the amount of $1,716.96, representing the amount due on the unpaid account and a service charge atthe rateof 1.5 percent for two months. Plaintiff also asked for post-judgment interest ata 

### rate of 1.5 percent per month, attorney fees, and costs. The present action was filed inDistrict Court for foreclosure of said lien.Af

### ter the DistrictCourt denied plaintiff 

### s motion for summary judgment, the

### matterwas tried inchambers on May 16, 1980. Atthe beginning of the trial, defendant filed a confession of judgment for the full amount of the purchases, plus interest at

### a legal rate and allaccumulated and taxable costs. Plaintiff rejected the confession of judgment.v he ~istrict Court thereafter rendered findings of fact, conclusions of law and judgment infavor of plaintiff for the amount of purchases $1,666.60, plus interest ata 

### rate of 10percent per annum and allaccumulated and taxable costs amounting to $37.04. The trialcourt disallowed attorney fees

# . Two issues areraised on appeal: 1. Whether the trial court erred indisallowing as liquidated damages 

### a service charge 

### ata rate of 1.5 percent per month on the unpaid balance. 2. Whether the trialcourt erred inrefusing to allow attorney fees. Appellant argues that the invoices specifying an interestrate of 1.5 percent on the unpaid balance coupled with respondent's prior dealingwith him 

### is sufficientevidence torepresent a contractual obligation and should be enforced

as such. Respondent, on the other hand, argues that appellant's failure toplead 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 toplead and prove the existence of an express contractinwriting fixing a differentrate of interestprecludes it from collecting post-judgment interest ata rate inexcess of that allowed by 

### law. Regarding the firstissue, section 31-1-241(4), MCA, of theMontana 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 payinginstallments thereunder." The finance charge may not exceed

a monthly rateof 1.5 percent. This statute clearly indicates that the interestrate charged by appellant 

### was not in

excess of that allowed by law. The question remaining 

### is whether invoices represent 

### a retail installmentcontract. Weremember the words of Justice John H. Clarke: "The parties to the contract, with fullunderstanding of the results of delay, and before differences or interested views had arisen between them, 

### weremuch more competent to justly determine what the amount of damage would be--an amount necessarily largely conjectural and resting inestimate--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 interestrate tobe charged, are sufficient evidence toobligate respondent to pay 1.5 percent

on the unpaid balance from September 1979 toMay 1980. Although the invoices do not meet all the statutory specifications of a retail installment contract, the validity of the transaction is inissue;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 ata 

### rate of 10percent per annum plus accumulated and taxable costs amounting to $37.04. There was no evidence or contention before this Court thatJerry O'Neil, a vice president of and attorney pro 

### se for O'Neil Lumber Company, 

### is duly admitted and licensed to practice law inMontana. Section 37-61-215, MCA, provides:

### "Itshall be unlawful for any court within this state toallow attorney fees inany action orproceeding before said court inwhich attorney fees areallowed by law to either party to such action or proceeding when such party isrepresented by anyone other than a duly admitted or licensed attorney at

### law." Therefore, the trial court did not 

### err inrefusing 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 rateof 10percent per annum plus costs; the judgment isreversed as to the disallowance of a 

### 1.5 percent service charge as liquidated damages.

We concur: 

# "bndd94l&&QQp Chief Justice

Justices