No. 12518 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

EQUITY COOPERATIVE ASSOCIATION, 

Plaintiff and Respondent, 

FRANK J . BILLMA.YER, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable Thomas Dignan, Judge presiding. 

Counsel of Record: 

For Appellant : 

Si-as and Hendrickson, Chinook, Montana 

Oscar Hendrickson argued, Chinook, Montana 

For Respondent : 

Morrison, Ettien and Rarron, Havre, Montana 

Robert Morrison argued, Havre, Montana 

Submitted: November 26, 1973 

Decided AN 197~ 

Filed: :@H 15 1974 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant Frank J. Billmayer brings this appeal from 

a judgment of the district court of Blaine County, entered on a 

jury verdict in the amount of $1,440 in favor of plaintiff, Equity 

Cooperative Association. 

The litigants entered into a written contract on September 

25, 1970, which provided for the sale of 20,000 bushels of barley 

at the price of $1.40 per 100 pounds for 48 pound barley or better. 

The contract signed by Frank J. Billmayer as seller, and by Gerald 

McNutt as general manager and agent of Equity Cooperative Association as buyer, was on a printed form entitled "Contract of Sale". 

The delivery date and total dollar amount blanks of the contract 

were crossed out and not completed. Testimony of litigants indicated they understood the grain would be picked up by the buyer 

at the seller's ranch at such time and as soon as trucks became 

available to haul it, and payment would be made after physical transfer was completed and the grain weighed. Gerald McNutt stated this 

was the usual business practice of Equity Cooperative Association, 

but that payment could be made to the seller upon his request prior 

to pick up of the grain. 

Defendant Billmayer testified that he had made no demand 

for payment on the contract, nor had provision been made to have 

the grain picked up on or by any certain date. In early November 

defendant sold the barley to another elevator company at a price 

more favorable to him than the price he had accepted from Equity 

Cooperative Association. 

Plaintiff brought action for damages based on loss of 

commission profits from the grain purchase. ~efendant's crossclaim for damages for the expense of hauling the grain to market 

was dismissed on plaintiff's motion. 

The issue presented to this Court on appeal is whether the 

trial court erred in denying defendant's motions for a judgment 

notwithstanding the verdict and for a new trial. The controlling 
issue is the precise time that title to the grain passed, i.e. 

at the time of the execution of the contract or at the time of 

delivery to the elevator. 

The contract executed by the parties and received in 

evidence is clear and unambiguous on its face as a "Contract of 

Sale" and not a "Contract for Sale". Delivery was to be made by 

defendant and accepted by plaintiff at defendant's farm at a price 

certain for 100 pounds. Full settlement for total price contemplated market premiums or discounts and any advance payment. 

Additionally, the testimony of defendant Billmayer established that he considered the grain sold upon his signing the 

contract of sale, and no further performance was required on his 

part. He stated he understood the problem of arranging for trucks 

to pick up the grain and agreed to the indefinite pick-up date. 

He stated he personally had requested two delays in the pick-up 

date of the grain during periods he was away from his ranch. 

Further, he never made any demand for payment or for pick-up of 

the grain, although he had contacted Gerald McNutt on different 

occasions concerning the pick-up. Nor had he otherwise notified 

Equity Cooperative Association prior to his sale of the grain 

early in November. 

By reason of the foregoing we find substantial credible 

evidence to support the jury finding that title to the grain passed 

upon the execution of the contract of sale. 

The j udgment of the distri 
Chief Justice , / 

Mr. Justice Wesley Castles dissenting: 

I dissent. 

The majority opinion is strange. The contract involved 

reads : 

"CONTRACT OF SALE 

11~~~~~~~~~- 

"Harlem File Copy 

"THIS A.GREEMENT, entered into this 9-25,1970 between 

Frank Billmayer of Hogeland, Montana first party, and 

Equity Coop Assn of Harlem, Montana second party, 

WITNESSETH: 

I I That in consideration of the sum of $------ , in hand 

paid by second party to first party, the receipt of which 

is hereby acknowledged, first party hereby sells and agrees 

to deliver to said second party at its elevator at Farm 

within ---- days of this date, the following described 

wheat, subject to reasonable dockage, to-wit: 

"20,000 Bu. Bly a. 1.40 per lOO# on Farm. 

(48# Bly or Better) 

"1t is agreed settlement for wheat shall be made by 

second party on the basis market preiums or discounts 

and the above amount of advance payment shall be dededucted as a part of such full settlement. 

"1f first party has not made full delivery of said grain 

to second party, as above specified, said second party 

may at its option provide facilities for securing said 

delivery, and first party agrees to peaceably permit such 

delivery. (This grain is being sold to arrive--therefore 

the necessity of immediate delivery.) 
It First party warrants full title of said grain 

and that same is free and clear of all liens and 

encumbrances. 

"1t is understood and Agreed that this is a Contract 

of Sale, and not a Contract for Sale. 

11 In the presence of: S/ Frank Billmayer 

First Party and Seller 

S/ Equity COO^ Assn. 

Second Party and Purchaser 

S/ By: Gerald C McNutt II 

The contract is for wheat -- yet it is for barley. The 

11 delivery date blank is drawn through -- yet it states immediate 

delivery". The price is $1.40 per lOOd on Farm---yet it provides 

settlement of wheat on the basis of "market premiums or discounts". It provides 488 barley or better, 

The contract on its face is totally ambiguous, but the 

majority opinion states that h he controlling issue is the precise 

time that title to the grain passed * * *." 

Interestingly the majority opinion says that "the contract 

* * * is clear and unambiguous * * *." 

From the contract itself, there are clearly uncertainties. 

Unless the contract called for immediate delivery and payment, it is 

certainly uncertain as to the delivery date and date of payment. 

Either the contract is for barley (or wheat), for immediate delivery 

or an indefinite time; for immediate payment or settlement on the 

basis of market premiums or discounts; or, we leave these matters 

to the testimony of the parties. 

The manager of plaintiff Equity Cooperative testified that 

the parties who were to pick up the barley were informed to do so as 

soon as possible, and they were to do it at the time the barley was 

sold. One Stewart, a trucker, was to pick it up. Stewart was to 

pay Rlu.ity $1.45 and Equity was to deduct five cents per hundred 

as its commission. It is this five cent commission that Equity is 

suing for. The resale of the barley to the trucker responsible 

for picking the barley up was testified to by the manager of Equity 

Cooperative Association. 
The written agreement referred to the necessity of 

immediate delivery. There were no trucks operating in October. 

Defendant expected the grain, particularly that laying on the 

ground exposed to grazing cattle to be picked up and paid for 

in two weeks. Stewart, who was to pick it up, never did and 

there is no testimony that he ever picked up replacement grain 

or that Equity Cooperative ever lost a nickel because of it. 

The verdict is simply not justified by the evidence. 

There is no substantial evidence to uphold it, and I would 

reverse. 

c"" - 1 

J-I,wO~W-&I-----Y-r------ ------- 

Justice. 

Mr. Justice John Conway Harrison: 

I concur in the foregoing dissent of Justice Wesley 

Castles.