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 

.. -. -, 

Filed: - 

Submitted: September 30, 1977 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

Defendant appeals from a judgment of 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 suit discussed the possibilities of plaintiff feeding and fattening defendant's cattle. A written contract was signed in November, 1974, 

setting forth the services and 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, defendant delivered to plaintiff 204 head of cattle to be fed and 

fattened in plaintiff's feedlot. Defendant was thereafter billed 

monthly for feeding costs. Accordingly, defendant paid $27,935.11 

as payment for plaintiff's feeding of the cattle before 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 difference between the anticipated and actual cost was due to plaintiff's breach of both the 

written contract and an oral agreement apart from the written 

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 in plaintiff'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 that plaintiff had fully performed his part of the Custom Cattle Feeding 

contract? 

2. Did the District Court err in awarding plaintiff 

$20,037.41 plus interest as damages? 

3. Did the District Court 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 facts as found by the 

District Court. Issues one and two are combined in reviewing 

whether evidence exists to support the findings of the District 

Court. In considering the totality of the facts before 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 Court will not review 

such findings unless there is a clear preponderance of evidence 

against such findings. Merritt v. Merritt, (1975) 165 Mont. 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 District Court's determination in a nonjury case. 

Miller v. Fox, (1977) Mont. -f - P.2d , 34 St.Rep. 1367, 

1370. 

Defendant argues that plaintiff failed to perform his 

part of the written contract and therefore was not entitled to 

the damages awarded. 

Included within this failure to perform was 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 heifers were not aborted thereby causing 
a 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 

agreement and maintained a continuing objection as to any 

evidence not supported by the written contract being 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 that plaintiff had performed his part of the written agreement. while no mention of 

the oral agreement was made by the District Court, the findings 

of fact are inconsistent with 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 there was, 

then the plaintiff performed his part of that agreement. This 

Court must sustain the District Court's ruling on this point: 

"From these conflicting versions presented by 

plaintiff and defendant as to the terms of their 

contract, the trial judge chose to believe defendant * * *. This Court must sustain the trial 

judge's ruling on this point. 

"' * * * The credibility and weight given to witnesses, however, is not for this Court to determine. This is a primary function of a trial judge 

sitting without 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 to witnesses by the District Court in establishing 

performance of the cattle feeding contract, this Court will review the sufficiency of the evidence to support the damages 

awarded. From the record, a written contract was entered into by 

the parties. Section 13-705, R.C.M. 1947, sets forth the rule of 

interpretation of contracts: 

"When a 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 Fulton v. Clark, 167 Mont. 399, 538 P.2d 1371 in stating: 

" * * * The plain and clear meaning of the 

instruments is to control and the intent of the 

parties is to be ascertained from the instruments. " 

Pursuant to the contract, defendant was to pay for "Purchased 

barley and hay at cost plus interest at 1% p/mon, "Raised 

haylage at market value", "Minerals and vitamins--supplements 

(hand mixed) at cost". Plaintiff testified that the average 

cost of all the barley fed to defendant's cattle was $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 cost of a capital improvement. Defendant contends 

that although the charge for storage may 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 clear meaning of the instrument" controls the intent of the 

parties. Nowhere in the written agreement is there a provision 

to charge defendant for capital items. 

Additionally, paragraph I of the contract states the 

following: 

"Feeder hereby agrees to take delivery of said 

cattle for the purpose above stated and to 

handle and care for them in keeping with his 

experience and knowledge of the cattle feeding 

and artificial insemination businesses and acts, 

upon which 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 it was all purchased at the same price? 

A. No. 

"Q. Did it follow the market price? A. Well, 

I hope it did. 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 chronological order, 6.35 was 

the last? A. $6.35 was the last - no. No. The 

last bunch of barley I bought was $6.25. 

"Q. Isn't it a fact that the price of barley 

from November, '74 to March, '75, went down? 

A. No, it was 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 given by the 

manager of the Con-Agra grain elevator in Lewistown, Montana. 

The manager 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 in March, 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 contract under which plaintiff sued provided for 

recovery of reasonable attorney fees in the event the defendant 

failed to make payments as provided by the contract. The only 

evidence presented to establish reasonable attorney fees was 

the testimony of plaintiff's attorney. That testimony revealed 

15 hours had been spent working on the case. For this 15 hours over 
$6,000 was charged based on a contingent fee arrangement between 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: 

"We disapprove 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., 168 Mont. 113, 541 P.2d 56 (1975). * * * 

"The retainer agreement between plaintiff and 

her attorney does not conform to the above 

requirements. The result of 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 accordance with the guidelines enumerated 

in Crncevich." 

This case warrants the same result. The award must be based 

in accordance with the guidelines enumerated in Crncevich. 

For the above reasons, this case is remanded for a redetermination of the amount of 

t 

We concur: