No. 13734 IN THE SUPREME COURT OF THE STATE OF MONTANA

MARTIN OLSON, Plaintiff and Respondent,

-vsCLARK CARTER, Defendant and Appellant.

Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Bradley B. Parrish argued, Lewistown,Montana For Respondent: Rapkoch and Knopp,Lewistown,Montana Peter L. Rapkoch argued,Lewistown, Montana

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-. -, Filed: - Submitted: September 30, 1977Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Defendant appeals from a judgmentof the District Court, Fergus County, awarding plaintiff the unpaid balance on a contract for fattening cattle,plus attorney fees. During September, 1974, the parties to this suitdiscussed the possibilities of plaintiff feeding and fattening defendant's cattle. A written contractwas signed inNovember, 1974, setting forth the servicesand feed to be supplied by plaintiff, the compensation to be paid by defendant,and the basis for computation of the feeding charge. Pursuant to this contract,defendantdelivered to plaintiff 204 head of cattle to be fed and fattened inplaintiff's feedlot. Defendantwas thereafter billed monthly for feeding costs. Accordingly, defendantpaid $27,935.11

aspayment forplaintiff's feeding of the cattlebefore refusing to pay any additional sums. Plaintiff sued defendant for the unpaid balance on the contract for feeding and fattening the cattle. The complaint alleged that defendant owed $20,037.41. Defendant refused to pay this amount on the ground that the total billing placed the cost per pound of gain at $.98 whereas the anticipated price for fattening assured by plaintiff was to be around $.50 per pound of gain. Defendant contends the differencebetween the anticipated and actual costwas due to plaintiff's breach of both the written contract and an oral agreement apart from thewritten contract. Following a nonjury trial, the District Court found plaintiff performed his part of the contract and was entitled to a judgment as prayed for inplaintiff's complaint. 

### In addition, plaintiff was also entitled to recover attorney fees in the amount of $6,679.14. From this judgment defendant appeals.Defendant raises the following issues on appeal: 1. Did the District Court err in finding thatplaintiff had fully performed his part of the Custom Cattle Feeding contract? 2. Did the District Court err in awarding plaintiff $20,037.41 plus interestas damages? 3. Did the DistrictCourt err in awarding attorney fees in the amount of $6,679.14? The parties to this appeal are not disagreeing as to the law applied, but rather over the factsas found by the District Court. Issuesone and two are combined in reviewing whether evidence exists to support the findingsof the District Court. In considering the totality of the factsbefore the District Court, this Court notes two principles of appellate review. First,where there is substantial evidence to support the findings of the District Court, this Courtwill not review such findingsunless there is a clear preponderance of evidence against such findings. Merritt v. Merritt, (1975) 165Mont. 172, 177, 526 P.2d 1375. Second, the credibility and weight given to the witness, especially where the evidence is conflicting, is a matter for the DistrictCourt's determination in a nonjury case. Mont. Miller v. Fox, (1977) -f 

## - P.2d 

## , 34 St.Rep. 1367, 1370. Defendant argues that plaintiff failed to perform his part of the written contract and thereforewas not entitled to the damages awarded. Included within this failure to performwas plaintiff's breach of the collateral oral agreement apart from the written agreement. Pursuant to this collateral oral agreement plaintiff allegedly agreed to abort the heifers included in the cattle delivered for feeding. The heiferswere not aborted thereby causinga high death loss and poor fattening result. At trial, when defendant offered testimony concerning this oral agreement, plaintiff offered evidence to contradict the existence of such agreementand maintained a continuing objectionas to any evidence not supportedby the written contractbeing inadmissible under the par01 evidence rule. Such objections were overruled. From the conflicting versions presented by plaintiff and defendant the District Court chose to rule thatplaintiff had performed his part of thewritten agreement. while no mention of the oral agreementwasmade by the District Court, the findings of fact are inconsistentwith and contradictory to the existence of such an oral contract. The inference of such

### a ruling is that no collateral oral agreement existed,or, if therewas, then the plaintiff performed his part of that agreement. This Court must sustain the District Court's ruling on thispoint: "Fromthese conflicting versions presented by plaintiff and defendantas to the terms of their contract, the trial judge chose to believe defendant

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## *. This Courtmust sustain the trial judge's ruling on thispoint. 

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## * * * The credibility and weight given to witnesses, however, is not for this Court to determine. This is a primary function of a trial judge sittingwithout a jury; it is of special consequence where the evidence is conflicting.'" Miller, supra at 1370. Although this Court will not review the credibility and weight given towitnesses by the District Court in establishing performance of the cattle feeding contract, this Court will review the sufficiencyof the evidence to support the damages awarded. From the record, a written contract was entered intoby the parties. Section 13-705, R.C.M. 1947, sets forth the rule of interpretation of contracts: "Whena contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter."In Batey Land & Livestock Co. v. Nixon, (1977) Mont. 

## , 560 P.2d 1334, 34 St.Rep. 105, 110, this Court cited Fultonv. Clark, 167Mont. 399, 538 P.2d 1371 in stating: 

### " 

## * * * The plain and clearmeaning of the instruments is to control and the intentof the parties is to be ascertained from the instruments.

### " Pursuant to the contract, defendantwas to pay for "Purchased barley and hay at costplus interestat 1%p/mon, "Raised haylage atmarket value", "Mineralsand vitamins--supplements

(handmixed) at cost". Plaintiff testified that the average cost of all the barley fed to defendant's cattlewas $6.41 per hundred weight. Plaintiff also testified that the charge to defendant for the barley was $6.75 per hundred weight. Plaintiff included in the total charge for barley an additional $0.13 per hundred weight for storage and $0.15 per hundred weight to pay for the costof a capital improvement. Defendant contends that although the charge for storagemay be correct, the $0.15 charged on the barley to construct capital items should not be charged to him pursuant to the contract. We agree. The "plain and clearmeaning of the instrument" controls the intent of the parties. Nowhere in thewritten agreement is there a provision to charge defendant for capital items. Additionally,paragraph Iof the contract states the following: "Feederhereby agrees to take delivery of said cattle for the purpose above stated and to handle and care for them inkeeping with his experienceand knowledgeof the cattle feeding and artificial inseminationbusinesses and acts, uponwhich the Owner relies, and pursuant to the standard of practice of said businesses in the Central Montana area.

### " The average cost of all the barley charged to defendant

was $6.41 per hundred weight. Plaintiff's testimony as to his cost is as follows:"A. No. We purchased this barley, some of this barley arrived prior to December 30th, December 2nd, 31st and 20th, and most of it in January. "Q. But itwas all purchased at the sameprice? A. No.

"Q. Did it follow themarket price? A. Well, 

### Ihope itdid. We purchased some at $7.00, some at $5.70, some at $6.08, some at $6.25, some at $6.55 and 6.55, 6.50 and 6.35. "Q. That's in a chronologicalorder, 6.35 was the last? A. $6.35 was the last

## - no. No. The lastbunch of barley Ibought was $6.25. "Q. Isn't ita fact that the price of barley fromNovember, '74 to March, '75, went down? A. No, itwas not. "Q. It didn't go down? A. No. After January lst, it went up. T-Bone paid $7.25 for barley, if you please." Contrary testimony as to the price of barley was givenby the manager of the Con-Agra grain elevator in Lewistown,Montana. Themanager stated that the highest cost for barley between October, 1974,and March, 1975 was during November, 1974, when Barley reached $6.50 per hundred weight. From that month forward, the price went down reaching a low inMarch, 1975 of $5.20 per hundred weight. No evidence exists to explain the difference between the price paid by plaintiff and the price of barley sold at the local grain elevator in Lewistown. The third issue raised on appeal concerns the award of attorney fees. Defendant contends the District Court abused its discretion in awarding attorney fees in the amount of $6,679.14. We agree. The contractunder which plaintiff sued provided for recovery of reasonableattorney fees in the event the defendant failed to make payments asprovided by the contract. The only evidencepresented to establish reasonable attorney feeswas the testimony of plaintiff's attorney. That testimony revealed 15hours had been spentworking on the case. For this 15hours over$6,000was charged based on a contingent fee arrangementbetween the plaintiff and his attorney. On the basis of this evidence, the court awarded plaintiff $6,679.14 as reasonable attorney fees. In Engebretson v. Putnam, Mont

# .-- I P.2d I 1246. 34 St.Rep. 1241,/(#13679, filed 11/4/77) this Court faced the

same question under almost identical facts. This Court stated: "Wedisapprove of an award of attorney fees based on this type of documentation. We have previously approved guidelines for such an award. Crncevich v. Georgetown Recreation Corp., 168Mont. 113, 541 P.2d 56 (1975).

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"Theretainer agreement between plaintiff and her attorney does not conform to the above requirements. The resultof the negotiations between an attorney and his client as to their fee agreement is not controlling in fixing a reasonable attorney fee to assess against the opposing party. Such an award must be determined in accordancewith the guidelines enumerated in Crncevich." This case warrants the same result. The award must be based in accordancewith the guidelines enumerated in Crncevich. For the above reasons, this case is remanded for a redetermination of the amount of

t We concur: