No. 12518 INTHE 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-asand 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

## 1974Mr. 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 forthe sale of 20,000 bushels of barley atthe price of $1.40 per 100 pounds for48 pound barley orbetter. The contract signed by Frank 

### J. Billmayer as seller, and by Gerald McNutt as general manager and agent of Equity Cooperative Association asbuyer, 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 grainwould be picked up by the buyer atthe seller's ranch at such time and as soon as trucks became available tohaul it, and payment would be made after physical transferwas completed and the grainweighed. Gerald McNutt stated this
was the usual business practice of Equity Cooperative Association, but that payment could be made to the sellerupon hisrequest prior to pick up of the grain. Defendant Billmayer testified that he had made no demand forpayment on the contract, nor had provision been made tohave the grain picked up on orby any certain date. In earlyNovember defendant sold the barley toanother elevator company ata price
more favorable tohim 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'scrossclaim for damages for the expense of hauling the grain tomarket
was dismissed on plaintiff's motion. The issue presented to this Court on appeal 

### iswhether the trialcourt erred indenying defendant's motions for a judgment notwithstanding the verdict and fora new trial. The controllingissue isthe precise time that title to the grain passed, i.e. atthe time of the execution of the contract or atthe time of delivery to the elevator. The contract executed by the parties and received in evidence 

### isclear and unambiguous on 

### its face as a "Contract of Sale" and not 

### a "Contract for Sale". Delivery was tobe made by defendant and accepted by plaintiff atdefendant's farm ata price certain for 100 pounds. Full settlement for totalprice 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 statedhe understood the problem of arranging for trucks topick up the grain and agreed to the indefinite pick-up date. He stated he personally had requested two delays inthe 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 otherwisenotified Equity Cooperative Association prior tohis sale of the grain early inNovember. By reason of the foregoing we find substantial credible evidence to support thejury finding that titleto the grain passed upon the execution of the contract of sale. The judgment of the distri

### Chief Justice



### , 

## /

Mr. JusticeWesley Castles dissenting: 

### Idissent. Themajority opinion is strange. The contract involved reads: 

### "CONTRACT OF SALE

11~~~~~~~~~- 

### "Harlem File Copy "THIS A.GREEMENT,entered into this 9-25,1970between Frank Billmayer of Hogeland,Montana first party, and Equity Coop Assn of Harlem,Montana second party, WITNESSETH:
II

### That in consideration of the sum of $------ 

## , inhand paid by second party to first party, the receipt ofwhich ishereby 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 shallbe made by second party on the basis market preiums or discounts and the above amount of advance payment shallbe 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 immediatedelivery.)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 forwheat

# -- 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---yetit 

### 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 clearlyuncertainties. 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 forbarley (or wheat), for immediate delivery
or an indefinite time; for immediatepayment or settlement on the basis of market premiums or discounts; or,we leave thesematters to the testimony of the parties. Themanager 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 theywere to do it at the time the barley was sold. One Stewart,a trucker,was to pick it up. Stewartwas 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 forpicking the barley up was testified to by the manager of Equity CooperativeAssociation.

### Thewritten agreement referred to the necessity of immediate delivery. Therewere 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 simplynot justified by the evidence. There is no substantial evidence to uphold it, and 

### Iwould reverse.
c"" - 1 J-I,wO~W-&I-----Y-r------ 

# ------- Justice.



### Mr. Justice John Conway Harrison: 

### Iconcur in the foregoing dissent of Justice Wesley Castles.