No. 79-83 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

NEWTON MARVIN, 

Plaintiff and Respondent, 

VS . 

C. LEO HARGRAVE, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead. 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

Daniel Johns argued, Kalispell, Montana 

For Respondent: 

Hash, Jellison, O'Brien and Bartlett, Kalispell, Montana 

Kenneth O'Brien argued, Kalispell, Montana 

Submitted: September 12, 1980 

~ecided: @@T 2 2 1980 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered by the 

Honorable Robert C. Sykes, Flathead County District Court, 

following a nonjury trial, awarding plaintiff Newton Marvin 

the sum of $3,736.24 pursuant to a land clearance contract. 

Defendant C. Leo Hargrave and his wife entered into a 

written land clearing agreement with Bruce Kiser on August 

16, 1974, for the purpose of converting approximately 100 

acres of timberland into additional farmland. According to 

the agreement, Kiser was to cut "all - timber, except aspen, 

and clear stumps and brush and pile same in as clear a 

manner as possible in return for all timber rights." The 

contract continued: 

"Large stumps will be tried, and if they 

can't be moved they may be left. Timber will 

be cut to the brow of the slopes for shelter 

belt, also shelter from A.M.C. Road. All 

slash disposal money will go to Bruce for 

clearing Harrding logging job--also slash 

from this job." 

Kiser began clearing the land, but had cleared only a 

small portion of the 100 acres when, with the consent of Leo 

Hargrave on November 2, 1974, he assigned his interest in 

the contract to Newton Marvin. At the time of the assignment, Hargrave explained to Marvin that the land was being 

cleared so that it would be suitable for farming. For approximately two years, Marvin performed the contract as required, removing the timber and receiving the money from its 

sale. 

Marvin ceased work in November 1977. By this time 

Marvin had cleared the property so as to comply with the 

terms of a State Fire Hazard Reduction Agreement which had 

been executed for the acreage by Hargrave with the Montana 

State Department of Natural Resources and Conservation 
(DNRC) in accordance with the section 76-13-408, MCA. The 

requirements of this agreement having been met, DNRC informed Hargrave that the remaining slash disposal deposit 

being held under the agreement was no longer necessary and 

could be retrieved. 

In accordance with the assigned contract, an initial 

slash deposit, released earlier by DNRC, was paid to Marvin 

by Hargrave. The payment was made during the two-year 

period Marvin worked on the land. The last slash deposit of 

$3,616.24 was returned in March 1978. However, instead of 

paying this sum to Marvin, Hargrave retained the money since 

he believed that Marvin had not fully performed under the 

contract. 

In an attempt to secure the monies contained in the 

slash deposit, Marvin filed a claim and notice of a mechanic's 

lien on March 10, 1978. Marvin then filed suit on June 22, 

1978, alleging that Hargrave had failed to pay him the slash 

disposal deposit in consideration for services performed in 

clearing the land. Marvin asked for $3,840.04 in damages, 

plus attorney fees, and that the property involved be sold 

and the proceeds applied to the judgment in accordance with 

the lien. Hargrave counterclaimed alleging that because of 

Marvin's failure to properly perform the contract he lost 

the use of the 100 acres as farmland for a period of three 

yzars and unless Marvin proceeds to properly complete the 

performance due, he will lose future use of the land. 

Hargrave stated his damages were as yet undetermined. 

During trial Hargrave sought to introduce evidence 

showing certain expenditures he had made in completing the 

work allegedly left undone by ~arvin. Marvin objected on 

the ground that the evidence was incompetent, irrelevant and 
immaterial to any issue in the cause and that it was beyond 

the scope of any contention that Hargrave had set forth in 

the case. The trial court provisionally allowed the evidence to be introduced subject to Marvin's right to renew 

his objection at the completion of all testimony. 

At the conclusion of the trial, Marvin by written 

motion renewed his objection to the evidence. The trial 

court granted the motion on the ground that the claimed 

expenses were outside the scope of the pleadings and the 

pretrial order and that defendant failed to present testimony at trial that a claim or bill for said expenses was 

ever presented to Marvin. 

Judgment in favor of Marvin for $3,736.24 was entered 

on September 17, 1979. The judgment was based on the 

court's findings that Hargrave had wrongfully converted the 

slash disposal monies. 

Following entry of judgment, Hargrave moved the court, 

in the alternative, to amend the findings; for judgment for 

the defendant; for a new trial; and for leave to amend the 

counterclaim so as to conform with the offered evidence pertaining to the expenditures made in completing the clearing 

of his land. Defendant's motions were denied, and amended 

findings were filed on October 9, 1979, again finding that 

Hargrave's actions constituted conversion. The court then 

ordered that each party have offsetting judgments against 

the other for $1,000 in attorney fees. Hargrave was allowed 

attorney fees pursuant to section 71-3-124, MCA, because 

Marvin had failed to establish his mechanic's lien. Hargrave appeals. 

On appeal defendant raises the following issues: 
1. id the ~istrict Court err in striking all evidence 

pertaining to monies expended or about to be expended by defendant for clearing his land? 

2. Did the District Court err by not permitting amendment of the counterclaim so as to meet the objection that 

the evidence pertaining to the expenditures was beyond the 

scope of the pleadings? 

3. Did the District Court err by awarding attorney 

fees to plaintiff? 

As to the first issue, we note that plaintiff brought 

this suit alleging that, although he had performed in accordance with the land clearing contract, defendant refused 

to release to plaintiff certain slash disposal monies due 

and owing as consideration. Defendant in response denied 

that plaintiff had fully performed under the contract and 

alleged, by way of a counterclaim, that because of this 

failure, defendant lost the use of his land as farmland for 

a period of at least three years. 

The general rule is that where a person by his contract 

charges himself with an obligation, possible and lawful, to 

be performed, he must perform in accordance with the contract terms. Smith v. Zepp (1977), 173 Mont. 358, 567 P.2d 

923; Brown v. First Federal Savings and Loan Association of 

Great Falls (1969), 154 Mont. 79, 460 P.2d 97; 17A C.J.S. 

Contracts, 8459 at 594. It has also been stated that a valid 

defense to an action on a contract arises when the obligation to perform the act allegedly required was dependent on 

some other activity which the other party was to do, but 

failed to so perform (i.e., performance of a condition is 

precedent to the right of payment) . See White v. Hulls, et 

al. (1921), 59 Mont. 98, 195 P. 850; 17A C.J.S. Contracts, 

5452 at 566. 
In this instance defendant, in his answer to the complaint, denied that plaintiff fully performed under their 

contract. Defendant then alleged at trial that because of 

plaintiff's failure he was relieved of any contractual duty 

to release the slash disposal money to plaintiff as payment 

for services. With this being the case, defendant was 

entitled to present evidence in support of his position. 

The issue now becomes whether the rejected evidence 

supports defendant's position as stated above. 

The offered evidence deals with expenditures made by 

defendant in hiring others to complete the work allegedly 

left undone by plaintiff. Certainly, when a defendant is 

required to expend money to hire others to work in clearing 

land, which a plaintiff under contract was to clear as 

"clear as possible," this gives rise to an inference that 

plaintiff failed to fully perform under his contract. Such 

is the case here, and thus, the trial court should have 

allowed defendant to present evidence of the expenditures to 

support his denial of plaintiff's allegation that he (plaintiff) fully performed and was entitled to the slash disposal 

money. 

It should be noted that this Court does not find that 

defendant's position as to nonperformance under the given 

contract is determinative in this case. We merely conclude 

that defendant should have been permitted to introduce the 

offered evidence in support of that defense. Nor do we find 

that the court's failure to admit the evidence constitutes 

reversible error. Defendant at trial was able to introduce 

evidence showing the condition of the land after plaintiff 

finished his work, as well as evidence that he hired others 

to finish work allegedly left undone by plaintiff. Defen- 
dant was only denied the introduction of evidence indicating 

the expenses he incurred in hiring the outside parties. 

Consequently, in light of the evidence presented in support 

of defendant's position, the fact that he was unable to 

introduce evidence as to his expenses did not so prejudice 

defendant's case that a different result would have been 

reached had the evidence been allowed in. 

In regard to defendant's contention that the District 

Court erred in not permitting him to amend his counterclaim, 

we acknowledge that even absent the amendment the offered 

evidence arguably should have been allowed to show damages 

as to defendant's claim that he lost the use of his land as 

farmland. However, because this evidence is not of the 

nature that to exclude it results in a different outcome and 

because the trial court found for plaintiff, thereby rejecting defendant's allegation of nonperformance as well as his 

counterclaim, we need not consider this issue further than 

to find there was no reversible error by the District Court. 

As to the final issue on appeal, defendant merely 

asserts that because plaintiff did not fully perform pursuant to their contract, he was not entitled to prevail in 

this action, and thus, is not entitled to attorney fees. As 

already stated, defendant was able to present evidence in 

support of his defense of nonperformance and was not prejudiced at the trial court level in this regard. Having then 

concluded there was no reversible error at trial, and plaintiff having prevailed on a conversion claim, we cannot find 

the District Court erred in awarding him attorney fees. 

The judgment of the District Court is ,'- hereby affirmed. 
We concur: 

%.A J4%4 

Chief Justice 

Q' ae US tices .h