No. 85-035 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

PAT WILKERSON, 

Plaintiff and Appellant, 

SCHOOL DISTRICT NO. 15, 

GLACIER COUNTY, IIOIJTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

Inad for the County of Glacier, 

The Honorable R. D. McPhillips, Judge presiding. 

For Appellant : 

Hartelius & Ferguson; Cameron Ferguson, Great Falls, 

Montana 

For Respondent : 

Werner, Nelson 6 Epstein 

James C. Nelson, Mcr G=ty ?&t-ut ~ank, 

Montana 

Submitted on Briefs: March 28, 1985 

Decided: May 23, 1985 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Pat Wilkerson appeals an order of the Glacier County 

District Court which granted the School District's motion for 

a judgment notwithstanding the verdict, after a jury had 

returned its verdict in favor of Wilkerson. Wilkerson sought 

to enforce a contract of employment with the School District. 

Three issues are presented for review: first, whether the 

oral conversation made prior to the parties' written contract 

had any effect on the terms of that contract; second, whether 

that oral conversation constituted a condition precedent; and 

third, if so, whether Wilkerson's failure to satisfy that 

condition precedent breached the contract. 

We reverse and remand for reinstatement of the jury 

verdict. 

On August 23, 1983, Pat Wilkerson, a 31-year-old 

divorced mother of three children, applied to the Glacier 

County School District 15, for a job as a full-time bus 

driver. On that date, she and members of the school board 

signed a written document entitled "Cut Bank Public Schools 

Bus Driver's Contract." At the time she applied for the job, 

she was working nights as a bartender in Cut Bank, Montana. 

That was a fact known to Ray Milhoan, the bus driver 

supervisor for the School District, and was a matter both he 

and Wilkerson discussed prior to entering into the contract 

of employment. Wilkerson says Milhoan agreed she could 

continue to tend bar until her first paycheck from the School 

District arrived. Rut Milhoan contends she agreed to quit 

the bartending job prior to accepting the job with the School 

District. That dispute is at the heart of the controversy. 
Wilkerson testified without objection, that after she 

had passed both the driving test and physical examination for 

the position, Milhoan told her he was hiring her for the job 

"because 7: feel that God is guiding me to give it to you 

because I don't feel a Christian should be working in a bar." 

Her first day of driving the school bus was August 29, 

1983. On September 15, 1983, two conversations took place 

between Wilkerson and Milhoan, discussing the fact that she 

was still working as a bartender at night and driving the bus 

during the da.ytime. 

When questioned by her own counsel, about those 

conversations, she stated: 

"A. . . . I was delivering the kids and was still 

on the outside of town and he called me on the 

radio and said, 'When you put the bus in the barn I 

want to see you in my office,' and I said, 'Yes, 

sir. ' So I parked my bus and went in to see him 

and he said to me, 'You're still working in the 

bar,' and I said, 'Well, yes, I am.' He said, 

'You've got a choice to make. You either want to 

tend bar or drive bus, but you can't do both.' And 

I said, 'Ray, you know that you already discussed 

that and agreed that I could work until after the 

20th of September and until I had a bus check to 

live on. ' He said, 'You've got a choice to make, 

and you make it now.' He said, 'I want your answer 

today. ' 

"Q. Then wha.t happened? A. I said, 'I was going 

to quit. ' He said, 'Do you mean you are not going 

to quit now?' and I said, 'No. ' I said, 'I would 

have quit on my own after L was financially able to , do so. ' 

"Q. Referring to the time when you would have 

received a bus check? A. Yes. 

"Q. What happened then? A. He said, 'You either 

quit the bar or I'm going to have to fire you.' I 

said, 'On what grounds?' He said, 'Because you are 

a bartender.' I said, 'No, I won't make a decision 

on an ultimatum,' and he said, 'Well, I have no 

alternative but to fire you.' 

"Q. Then what happened? A. I went home and. then 

I came back in the afternoon and pulled my bus out 

of the barn at three o'clock in the afternoon, and 

he jumped on the bus and said, 'What's your 

answer?' I said, 'Ray, there's no answer.' Then 
he said, 'Then I have to fire you. ' I said, 'All 

right, what's your reason for firing me?' He said, 

'Because you're a bartender.' I said, "Effective 

when?' He said., 'Effective immediately.' 

"Q. Why do you feel he fired you? A. My own 

personal feeling? 

"Q. Yes, your own feeling. A. Because he is the 

minister of the church and the church takes a very 

strong stand against alcohol and tobacco and drugs, 

and the use and sale of them. 

"Q. And you feel that was his reason because you 

were working as a bartender? A.. Yes." 

Wilkerson testified she told Milhoan that she wanted to drive 

a bus, that she did not want to work in a bar, and that as 

soon as she was financially able, she would quit the 

bartending job. She said there was no way she could afford 

to quit before September 20, 1983, because that is the only 

da.y during the month when the School District pays its 

employees. 

Our review of the record suggests that the particul-ar 

language exchanged between Wilkerson and Milhoan gave rise to 

this controversy. The foregoing discussion does not 

establish as a matter of law that Wilkerson refused to quit 

her bartending job. It is reasonable that the School 

District took the position that: "DO you mean you're not 

going to quit now?," to which she answered "No," meant she 

determined at that point that she was not going to quit - at 

any time. But the use of the word "now" is equally 

susceptible of another interpretation. Wilkerson could have 

meant she was not going to quit now, right this minute; tha.t 

she intended to keep both jobs for five more days, until 

September 20, just as she and Milhoan had previously agreed. 

When questioned on cross-examination, she was asked 

whether she recalled answering opposing counsel's questions, 
put to her in a January 6, 1984 deposition. She indicated 

she did recall that situation. The exchange was as follows: 

"Q. Miss Wilkerson, when you gave your deposition 

did I ask you this question?" 

"'When you were terminated did you tell him that 

you only needed to work until after the first check 

and that then you would quit bartending?' 

"A. Yes. 

"Q. Did you give the following answer?: 

"'I told him, "Ray, you agreed with me when you 

hired me that I could continue work, and that there 

was no way I could quit until after the 20th.'' 

That's when he made the ultimatum and said, "Well, 

Chris says you've got to answer now." ' A. Yes." 

CChris Mattocks was Superintendent of the School 

District. ] 

During the trial, Wilkersonls counsel moved to admit the 

parties ' written contract into evidence. Opposing counsel 

did not object to its admission, but only on the condition 

that the School District be allowed to preserve its position 

that the document was not a legal contract. 

At the close of argument, the School District moved for 

a directed verdict. That motion was d.enied, and the matter 

was submitted to the jury. The jury returned a verdict for 

Wilkerson, awa-rding her monetary damages of $3,500.00 for the 

amount due her on the remainder of the 1983-1984 school bus 

driver contract, less amounts earned at other employments 

during that period. After hearing the verdict, the School 

District moved for a judgment notwithstanding the verdict, 

and the District Court granted it. 

The foregoing language between Wilkerson and Milhoan is 

a typical example of potentially conflicting testimony 

particularly appropriate for jury resolution. If there is 

conflicting evidence in the record, the credibility and 

weight given to such conflicting evidence is the province of 
the jury and not of this Court. And if there is substantial 

evidence to support the finding of the jury, then the 

directed verdict should have been denied. Lackey v. Wilson 

(Mont. 1983), 668 P.2d 1.051, 1053, 40 St.Rep. 1439, 1441.. 

The first issue presented is whether the discussion 

between Wilkerson and Milhoan, which took place before the 

contract was entered into, should be seen to vary the terms 

of that contract. As a general rule, S 28-2-904, MCA, 

provides : 

"Effect of written contract on oral agreements. 

The execution of a contract in writing, whether the 

law requires it to be written or not, supersedes 

all the oral negotiations or stipulations 

concerning its matter which preceded or accompanied 

the execution of the instrument." 

Section 28-2-905(1) (b), MCA, allows for an exception, namely, 

when the validity of the agreement is the fact i.n dispute. 

The School District takes the position that the contract is 

invalid because there was no meeting of the minds. It 

asserts the parties intended all along that Wilkerson would 

have only one job--that of bus driver. Wilkerson, on the 

other hand, points out that she made it very clear to Milhoan 

that while she intended to quit the bartending iob, she 

informed him that she could not afford to do so until 

September 20, 1983--the day on which the School District 

would issue her first paycheck. The School District cites 

Smith v. Fergus County (1934), 98 Mont. 377, 39 P.2d 193, 

wherein it was held that par01 evidence was admissible not to 

vary the terms of the contract, hut rather to show that what 

appears on its face as a valid, binding contract is, in fact, 

no such thing. However, Smith is distinguishable. There, 

the Court was of a mind that if the lease was executed and 

delivered to be used merely as a lever to oust the tenant in 
possession, and it was then and there distinctly understood 

and agreed that it should serve no other purpose unless and 

until the tenant relinquished possession, then parol evidence 

would be admissible to show it was not a legally binding 

contract, although apparently so on its face. But when 

applied. to the present case, the analogy fails. The School 

District would have to show that if the contract was entered 

into merely as a lever to oust Wilkerson out of her 

bartending job, and that it was then and there distinctly 

understood and agreed. that it should serve no other purpose 

unless and until she relinquished that prior job, then parol 

evidence would be admissible to show it was not a legally 

binding contract. The object of this contract was employment 

in exchange for wages. 

In Smith, the premises obviously could not be leased 

until the holdover tenant left. However, no such impediment 

exists here; Wilkerson could perform both jobs because she 

obviously did work them both. Further, a contract is not 

invalid simply because it does not contain all the provisions 

or conditions the parties might have incorporated into it. 

Milhoan may have intended that while Wilkerson was an 

employee of the School District she not simultaneously be a 

baxtender, but the wa-y to deal with that concern is to 

provide for it in the contract. Our review of the contract 

discloses that there is no mention whatsoever in it of 

Wilkerson not holding a second job, or relinquishing one 

already held at the time of signing before taking a second 

iob. There is nothing in the contract which suggests an 

intent to incorporate the conversation. Thus, the jury was 

free to conclude that that discussion did not vary the 

contract. 
The second issue is whether Wilkerson's duty to quit the 

bartending job was a condition precedent to beginning the bus 

driving job. Certainly there was no such condition expressed 

in the contract. To determine whether it was an implied 

condition precedent, we look to the record to glean the 

demeanor and conduct of the parties. The School District 

contends it never would have allowed Wilkerson to drive the 

school bus and would not have executed. the written agreement 

if it had. known she had no intention of quitting the 

bartending job. 

In its order, the District Court stated that School 

District 15 has a standing policy that anyone with a job at 

night that requires keeping late hours will not be hired as a 

bus driver. But in a deposition taken on February 14, 1984, 

Chris Mattocks, Superintendent of the School District, 

testified that there was no such written policy--that the 

difficulties encountered by holding two such jobs reflected 

his own feeling. 

Wilkerson testified that she fully intended to quit 

bartending as soon as her first paycheck arrived from the 

School District, and that she could not afford to do so 

before that time. The School District concedes this was a 

disputed point. Such conflicts in the evidence were for the 

trier of fact to resolve, and it did resolve them, in favor 

of Wilkerson. 

Further, even when specific language is included. in a 

contract, it will not always be considered a condition 

precedent. As we stated in Palmquist v. Allardyce Petroleum 

Corp. (1974), 164 Mont. 178, 180, 520 P.2d 783, 784: 

"It is a principle of contract law that a mere 

stipulation or covenant in a contract will not be 

construed as a condition precedent, particularly 
where a forfeiture would result and where it 

appears a condition precedent, if desired, could 

have been provided for by express agreement." 

Here, there was no mention at all in the contract of a 

stipulation or covenant by Wilkerson not to work a second 

job. If the School District had intended Wilkerson's 

terminating her first emp1.oyment to be a prerequisite to 

hiring her, it could have been provided for in the contract. 

Whether the parties intended it to be so included was a 

question of fact, as we have noted, and the jury resolved 

that question in Wilkerson's favor. 

The third issue is whether Wil-kerson breached the 

contract by failing to satisfy a condition precedent by 

resigning her bartending job before beginning work with the 

School District as a bus driver. Because we hold. that the 

jury verdict must be reinstated, this issue does not present 

to us a justiciable controversy. The jury could have found 

there was a condition precedent to quit her bartending job on 

September 20, and Milhoan's firing her on the 15th precluded 

Wilkerson from satisfying that condition. Or it could have 

found no condition precedent existed at all. Either option 

supports the jury verdict, and such verdict is entitled to 

the treatment accorded by our holding in Lackey, supra. 

The standard of review in appeals from a judgment 

notwithstanding the verdict made pursuant to Rule 50 (b) , 

M.R.Civ.P. is the same as that for review of a motion for a 

directed verdict, and a directed verdict may be granted only 

where it appears as a matter of law that a plaintiff could 

not recover upon any view of the evidence, including the 

legitimate inferences to be drawn from it. Standish v. 

Business Men's Assur. Co. (1977), 172 Mont. 264, 265, 563 

P.2d 552, 553. Further, in Jacques v. Montana Nat. Guard 
(Mont. 1982), 649 P.2d 1319, 1325, 39 St.Rep. 1565, 1573, we 

noted: 

"Motions for directed verdict or for judgment 

N.O.V. are proper only when there is a complete 

absence of any evidence to warrant submission to a 

jury. 

Here, there is evidence, proffered by Wilkerson, and conceded 

and defined by the School District as a "dispute in the 

evidence" whether Wil.kerson promised to quit her bartending 

job immediately upon being hired as a bus driver, or whether 

she promised to quit after having received her first. 

paycheck. 

Because there was ample evidence upon which the jury 

could render its verdict, the District Court should have 

deferred to that verdict. It should not have set aside that 

verdict solely because it chose to believe testimony 

different from that believed by the jury. To do so would 

create a bench supremacy and sap the vitality of the jury 

verdict. Nelson v. Hartman (Font. 19821, 648 P.2d 1-176, 

1178-1179, 39 St.Rep. 1409, 1412. 

The evidence in this case was susceptible of more than 

one interpretation. We are satisfied there was substantial 

credible evidence in the record from which the jury could 

have resolved any conflict in favor of Wilkerson. Therefore, 

the District Court erred in granting the School District's 

motion for judgment notwithstanding the verdict. 

We reverse the order of the District Court and remand 

for reinstatement of the jury verd 

We Concur: 
7 

Chief Justice