No. 12292 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

STATE OF MONTANA ex rel. YELLOWSTONE PARK COMPANY, 

Relator, 

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF 

THE STATE OF MONTANA, IN AND FOR THE COUNTY OF MISSOULA, THE 

HONORABLE E. GARDNER BROhNLEE, JUDGE PRESIDING, 

Respondents. 

Original Proceedings. 

Counsel of Record: 

For Appellant : 

Gough, Booth, Shanahan and Johnson, Helena, Montana, 

Cordell Johnson, Helena, Montana, argued. 

For Respondent : 

Tipp, Hoven and Brault, Missoula, Montana. 

Vernon Hoven argued, Missoula, Montana. 

Submitted: June 16, 1972 

Decided : OCT ] 8 192 
PER CURIAM: 

Relator, Yellowstone Park Company, applied to this Court 

for a writ of supervisory control or other appropriate order 

granting relief from the order of the district court of the 

fourth judicial district, county of Missoula, dated May 25, 1972, 

wherein the district court granted plaintiffs' motion for 

summary judgment on the issue of liability. This Court issued 

an order to show cause on June 5, 1972. Briefs were submitted 

and oral argument had. 

Relator Yellowstone Park Company is the defendant in two 

separate civil actions consolidated for trial in the district 

court. The district court cases are: "Handee Foods, Inc., 

Plaintiff v. Yellowstone Park Company, Defendant", Cause No. 

35336; and "~ational Business Factors, Inc., Plaintiff v, 

Yellowstone Park Company, Defendant", Cause No. 35799. 

Plaintiffs filed a motion for summary judgment which was 

heard by the district court on May 25, 1972. On the same date, 

the district court entered its order granting summary judgment 

in part on the question of liability in both cases. 

From the pretrial order, the agreed statement of fact 

reads : 

"Handee Foods, Inc. is a business located in Missoula, 

Montana, represented by Mr. F. W. Krieger, General 

Manager and President of the Company, It is a distributor of so-called 'convenience foods', which are foods 

that have been pre-cooked, refrigerated, and kept in a 

refrigerated condition until such time asbthey are 'reconstituted' or cooked for service to a customer. It 

does not sell to the general public, but sells to institutions, restaurants, and in general, the wholesale and 
retail market. Handee Foods has '0 degree' storage 

facilities, located in Livingston, Montana, that are 

capable of handling large supplies of frozen food 

products over extended periods of time. 

"H. Shenson, Inc. is a corporation located in San 

Francisco, California, and is a meat purveyor, that 

sells generally to the retail market, institutions, 

restaurants, and similar situated businesses. It 

likewise 'breaks' or 'cuts up' meats, refrigerates 

the same, and offers them to its prospective customers. 

In the cause now before the Court, H. Shenson, Inc. 

is represented by Mr. Bud Murphy, Sales Manager for 

that company, National Business Factors, Inc., plaintiff herein, is the owner and holder of the account of 

H. Shensan, Inc., by virtue of an assignment made to it h 

by H. Shenson, Inc. 

 e ell ow stone Park Company is a corporation which operates 

as a concessionaire under a concession agreement it has 

with the United States Department of Interior, National 

Park Service. Its activities in Yellowstone National 

Park include the owning and operating of several different 

hotels and restaurants which provide food and beverage 

service to the traveling public. 

"The business of Yellowstone Park Company is highly 

seasonal with the primary concentration of visitors to 

the Park being in the months of June, J'uly and August of 

each year. Yellowstone Park Company is represented in 

this matter by Mr. R.L. Boyd, its Vice President and Controller, Mr. Peter Rogers who was the Food and Beverage 

Director for Yellowstone Park Company in 1969 and 1970, 

and Mr. Percy Butler, who is the Executive Chef for Yellowstone Park Company. II 
According to the pretrial order, plaintiffs contend: 

1. That Yellowstone Park Company was to use all of the 

products ordered from Shenson, Inc. and Handee Foods, Inc,, 

during the Yellowstone Park season of 1970, or to pay for such 

products as were not used, 

2. That the total amount of the products for which 

Yellowstone Park Company is obligated to pay, is to Shenson 

Meats the sum of $4,119.12, and Handee Foods, Inc., in the 

sum of $36,621.52. 

3. That Handee Foods, Inc., in addition to the price of 

the goods as represented by the account, is entitled to the 

cost of storage at the Livingston warehouse, at the rate of 

$600 per month from October 1, 1970, to date. 

According to the pretrial order, defendant contends: 

1. That under the terms of the agreement between Yellowstone 

Park Company and Handee Foods, Yellowstone Park Company issued 

its purchase orders for estimated approximate usages for the 

1970 season and Yellowstone Park Company was obligated to pay 

for and did pay for only those items that were ordered specifically for delivery and delivered to Yellowstone Park Company 

in Yellowstone National Park; and that the total price of the goods 

so delivered under the terms of the agreement was $630,711.73, and 

that the exact same amount, $630,711.73, was paid by Yellowstone 

Park Company to Handee Foods, Inc. 

2. That it was the intent of the parties to the agreement 

that Handee Foods, Inc. would be responsible for any oversupply 

of food products left on hand in the Handee Foods warehouse in 

Livingston at the end of the 1970 season. 

3. That Yellowstone Park Company has paid for all of the 

goods delivered to it by Handee Foods, Inc, and Yellowstone 

Park Company does not owe Handee Foods, Inc. $36,621,52 or any 

other amount. 
4. That, in connection with tk .claim of H. Shenson, Inc., 

Yellowstone Park Company has paid for all of the goods delivered directly from H. Shenson, Inc. to Yellowstone Park 

Company and Yellowstone Park Company does not owe H. Shenson, 

Inc, or National Business Factors, its assignee, the sum of 

$4,119.12 or any other amount. 

5. That, under no circumstances, and particularly under 

the circumstances that exist in this case, would Handee Foods 

be entitled to any amount of damages representing storage costs 

incurred by Handee Foods, Inc. at the warehouse it rented in 

Livingston. 

Subsequently, plaintiffs moved for summary judgment and 

the district court issued an order granting summary judgment 

on the question of liability. That order states in part: 

"On December 9, 1969 the Defendant wrote a letter 

to the Plaintiff. Plaintiff contends the letter is 

a writing expressing the agreement between the parties. 

Determination of that point before the trial is very 

necessary. If the writing contains the agreement of 

the parties, and if the Court can determine from the 

writing who is the actual owner of the food items that 

remained in the warehouse at the end of the 1970 season, 

then the question of liability is settled and no parol 

evidence would be permitted to show any other oral 

agreement. 

"In the opinion of the Court the letter does settle 

the question of liability and therefore parol evidence 

would not be admissible to vary any of its terms. The 

letter was written by the Defendant and must be interpreted as provided in Chapter 7, of Title 13, RCM 1947, 

and as provided in 13-720, the words are to be interpreted 

most strongly against the party who put them in the 

writing. I I 

The letter referred to in the court's order reads: 

"Mr. Fritz Krieger 

"Handee Foods Incorporated 

"802 Milton 

11 Missoula, Montana 59801 

"Dear Fritz : 

"So that we keep up to date with each others progress, 

we are still going ahead as scheduled on converting our 

food program to total convenience. We are in the process 
this month of preparing our purchase orders for 

convenience equipment totaling some $144,000.00. 

This equipment includes Thermotainers, Vischer 

Steamers, Convection Ovens and additional freezers. 

John King, Plans and Projects Officer and I have 

spent this past month deciding what brands of equipment we want to buy and we recently returned from 

the New York Hotel Show, at which time some of our 

questions were answered, as to the brand of equipment. 

"At the same time, I am concerned about the progress 

you are making, as we are counting on you handling our 

entire convenience food products, which will be coming 

from basically three purveyors and in addition, seven 

small purveyors. I want to make sure your warehouse 

deal is firm and that you are ready to proceed to remodel the existing building. There is going to be a 

huge volume and I want to make sure you have ample 

receiving, proper tight control systems and that you 

are going to have the equipment to distribute the product 

throughout the Park. Nothing has changed relative to 

night deliveries at four area warehouses ehroughout the 

Park. 

1 t I have made up the new menus and I am putting them into 

final form for approval of prices to the Government and 

it is estimated that we will be purchasing through you, 

some $650,000,00 to $850,000.00 worth of product, Almost 

all of this product, totaling close to 100 items will be 

set for delivery between April 1 and 15 to your facilities 

in Livingston. As we have previously discussed, you will 

receive 20% over and above the cost of the merchandise, 

to receive, to warehouse and to distribute these products 

to us. 20% will be added to the case price on each item. 

"On the big three distributors, I have made, or am in the 

process of concluding arrangements whereby you will be 

able to pay these bills in three installments- June, July 

and August, even though the product will have been delivered 

in April, However, such an arrangement is not possibly 

where manufacturers are supplying only one item, such as 

our bacon Allentown, Pennsylvania; and our sausage from 

Memphis, Tennessee; and our stuffed baked potato from Milwaukee. 

t I These awe just examples of our one-item houses, whereby 

the truck load will have to be paid for by you after 

delivery, even though we do not consume the product in its 

entirety until October. 

It In the near future, I will give you a list of all the 

purveyors and their products; the packing specs with the 

price that you will pay to them and the price that we will 

pay you which will, of course, include 20% on top of the 

factory price. 

It Please keep me advised as to your progress, so that I am 

assured you will be in the position of handling our food 

program for next year and succeeding years. 

t t Sincerely, 

S/ " Peter 

"Peter Rogers It Food & Beverage Director." 
The issue before this Court is not confined solely to the 

question of whether there remains a genuine issue of material 

fact concerning the oversupply of food in the Handee warehouse 

at the close of the 1970 season but, rather, was the evidence 

in the record produced through discovery that creates this 

issue properly excluded by the trial court. This evidence includes par01 evidence by Peter Rogers, on behalf of defendant, 

that directly disputes any inferences in the heretofore quoted 

letter of December 9, 1969, that defendant would be responsible 

for oversupply; evidence of the course of conduct contained in 

defendants exhibits "F" and "G" to be construed with the letter; 

and also evidence of "customs of the Trade". This applies to 

Cause 35336, Handee Foods. In Cause 35799, National Business 

Factors, it appears that all items sold directly to defendant 

were paid for and the dispute concerns items handled through 

Handee,and the ultimate issue in this cause would be the same 

as that of Cause 35336. 

The letter upon which the district court based its determination does not speak directly to the issue of oversupply at 

the close of the 1970 season, Any determination must be had 

from the general language contained in the letter as a whole, 

as was demonstrated by the district court. We hold the language 

to be ambiguous and subject to additional clarification as to 

the true intent of the parties under the appropriate sections of 

the Montana Uniform Commercial Code, Title 87A, R.C.M. 1947, 

and more particularly sections 87A-2-101, et,seq., R.C.M. 1947. 

Section 87A-2-202, R.C,M. 1947, provides: 

"Terms with respect to which the confirmatory 

memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties 

as a final ex ith respect 

to such terms not be contradicted by nt or of a 

contemporaneous oral agreement but may be explained or 

supplemented 

"(a) by course of dealing or usage of trade 

(section 87A-1-205) or by a course of per- 
formance (section 87A-2-208); and 

"(b) by evidence of consistent additional terms 

unless the court finds the writing to have been intended also as a complete and exclusive statement 

of the terms of the agreement," (Emphasis supplied). 

In the comment which follows Section 2-202, Uniform 

Commercial Code, Uniform Laws Annotated, it is pointed out 

that there are no prior uniform statutory provisions under 

previous uniform codes. The comment then goes on to point 

out that the purpose of Section 2-202, is to definitely 

reject: 

"(a) Any assumption that because a writing has been 

worked out which is final on some matters, it is to 

be taken as including all the matters agreed upon; 

"(b) The premise that the language used has the 

meaning attributable to such language by rules of 

construction existing in the law rather than the 

meaning which arises out of the commercial context 

in which it was used; and 

"(c) The requirement that a condition precedent to 

the admissibility of the type of evidence specified 

in paragraph (a) is an original determination by the 

court that the language used is ambiguous. I I 

Paragraph (a) of section 8712-2-202, R.C.M. 1947, makes 

admissible, evidence of course ofdealing, usage of trade and 

course of performance to explain or supplement the terms of 

any writing stating the agreement of the parties in order that 

the 'true understanding of the parties as to the agreement may 

be reached. Further, the course of actual performance by the 

parties is considered the best indication of what they intended 

the writing to mean. See: Hunt Foods & Industries, Inc. v. 

Doliner, 270 NeY.S.2d 937; Michael Schiavone & Sons, Inc, v. 

Securalloy Company, In&., (D.C.Conn. 1970), 312 F.Supp. 801, 

The judgment of the trial court is reversed and the cause 

remanded to the district court for trial in conformity with 

this opinion.