DA 07 - 0124 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 349N KADE KRAUSE, Plaintiff and Appellant, v. JOHN ERB, Defendant and Appellee.

APPEAL FROM: District Court of the Fift h Judicial District,

In and For the County

of Beaverhead, Cause No. DV 03 - 12629, Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD:

For Appellant: Marj orie L. Thomas, Dick & Thomas, P.C., Butte, Montana For Appellee : Andrew P. Suenram and R. Jean Bergeson, Erb & Suenram, PLLC, Dillo n, Montana Submitted on Briefs: October 31, 2007 Decided: December 18, 2007 Filed:

__________________________________________ Clerk December 18 20072

Justice W. William Leaphart delivered the Opinion of the Court . ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this C ourt’s quarterly list o f noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 John Erb (“Erb ” ) , a rancher and stockyard owner, asked Kade Krause (“Krause”) , a welder and fabricator, to build a custom ma chine to unload hay from his flatbed truck (“the unloader”). The two entered into an oral contract, but did not specify a price or a deadline for the unloader’s completion. The partiesagreed that the unloader would unload a full load of bales from the truck b ed but never specified how many bales constituted afull load. ¶3 Krause notified Erb that he had completed the unloader, and one of Erb’s employees took delivery of it. Several days later, Erb notified Krause that the unloader did not work, and refused to pay for it. ¶4 Prior to delivering the unloader, Krause performed some tests on theunloader, but never tried to load or unload any hay bales from the truck. Krause met Erb at his stockyard to inspect the unloader . The parties disagreed over the cause of the unloader’s failure: Erb claimed the unloader did not meet the agreed- to design specifications, while Krause blamed Erb for overloading the ma chine. K rause felt that the unloader would3

work properly if fewer hay bales were in the truck bed. Ultimately, neither party succeeded in loading or unloading any hay bales with theunloader at Erb’s stockyard. ¶5 Erb asked Krause to modify the unloader, and offered to pay him $12,000 . Krause refused. Erb told Krausehe would deliver the truck to hisgarage so the unloader could be removed , but Erb never did deliver it . ¶6 The truck sat on Erb’s property for several years. K rause made multipleattempts to locate and repossessthe unloader. At some point, Erb took his truck to a third party business to have the unloader removed. When Krause found it, after this suit was filed, parts of the unl oader were damaged and missing. ¶7 Krausesued Erbto recover the price of the un loader ($18,959.46, plus 12 p ercent interest), as well as his attorney’s fees and costs. The District Court found that the unloader was defective, that Krause had breached the contract by delivering a non conforming good, and that Krause failed to cure his breach by making a conforming delivery . The c ourt further f ound that Erb had

ad uty to take reasonable care of the unloader after he had rejected it and failed to do so. Krause was awarded $2,822.28 in damages for the missing parts . ¶8 Weu

phold the District Court’s conclusions of law and f indings of fact. Put simply, the unloader did not unload. Both parties tested the unloader, and tried to operate it without success. K

rause failed to show that the unloader could successfully perform the function of unloading even a single bale of hay, let alone a truckload. Thus, the unloader was a non - conforming good.4

¶9 Under § 30 - 2 - 601, MCA, Erb had a right to reject the unloader a s a non conforming good . Erb communicated his rejection to Krause “within a reasonable time after delivery,” as required by § 30 - 2 - 602, MCA. ¶10 Krause had the right to cure his im perfect tender. S ection 30 - 2 - 508, MCA. T o exercise this right, Krause should have “ seasonably notif [ied] the buyer of his intention to cure ”and then made a conforming delivery. Section 30 - 2 - 508, M CA. Krause did not makea conforming delivery. A seller is not entitled to demand payment as a condition of curing a defective product. Erb’s refusal to pay does not excuse either Krause’s breach or his failure to cure. I f Krause had cured and Erb still refusedto pay, then Krause could have recovered his costs and damages through any one of the myriad seller’s remedies provided by §§ 30 - 2 - 703, 30 - 2 - 708 - 709, MCA. ¶11 The District Court correct lyc oncluded that Erb failed to fulfill the duty imposed by § 3 0 - 2 - 602(b), MCA, which required him to hold the unloader “with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove [it.]” Section 30 - 2 - 602(b), MCA. We seeno clear error in the District Court’s findings of fac t concerning the resulting damages Krausesustained . ¶12 It is appropriate to decide this case pursuant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for me morandum opinions. It is manifest on the f ace of the briefs and the record before us that the appeal is without merit because the findings of fact are supported by substantial evidence, the legal issues are clearly controlled by settled Montana law which the District5

Court correctly interpreted, and there was clearly no abuse of discretion by the District Court. ¶13 We affirm. /S/ W. WILLIAM LEAPHART

We concur: /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ BRIAN MORRIS /S/ JIM RICE