Keil v. Glacier Park, Inc., 14134

Citation614 P.2d 502, 188 Mont. 455, 37 St.Rep. 1151
Case DateJuly 11, 1980
CourtUnited States State Supreme Court of Montana

Frisbee & Moore, John P. Moore argued, Cut Bank, for defendant and appellant.

Keil & Gustafson, Dale L. Keil argued, Conrad, for plaintiff and respondent.

HARRISON, Justice.

Appellant, Glacier Park, Inc. (herein Glacier), is a corporation that owns and operates hotels and concessions throughout Glacier National Park. It also owns and operates the water system that delivers water to Glacier Park Lodge and the community of East Glacier.

Flooding in the early summer of 1975 washed-out a portion of the waterline owned by Glacier. The washout cut off the water supply to East Glacier and Glacier Park Lodge. Shortly after the washout, Mr. Herb Sammons began trying to obtain a pump capable of bringing water from a creek into the water system at a point below the waterline washout. Mr. Sammons was the Search and Rescue Coordinator for Glacier County and had supervised the placing of an emergency pump on the water system in a similar washout in 1964.

After placing a pump on the waterline that could not properly handle the water supply problem, Mr. Sammons contacted respondent Don Keil by telephone. The telephone conversation between Mr. Keil and Mr. Sammons took place on either June 20 or 21, 1975. The content of the telephone conversation is one point of controversy in this case. The parties agree that Mr. Sammons asked Mr. Keil if he could provide a pump for the East Glacier water system. The parties further agree that Mr. Keil said he did have a pump that could handle the problem. The parties then discussed the payment that Mr. Keil would receive for the use of the pump. The parties disagree, however, as to the content of the conversation concerning payment. Glacier contends Mr. Sammons told Mr. Keil that the Federal Flood Disaster Program would pay a rental rate of $5.00 per operation hour up to $100.00 per day for the use of the pump. The Keils contend Mr. Sammons only said that federal disaster money was usually available for these kinds of occurrences and that in 1964 the Federal Disaster Administration paid $100.00 per day for rental of a pump. They contend Mr. Sammons indicated they would be paid the prevailing rate for the rental of the pump but that he was not sure who would make the payment. The Keils assert Mr. Sammons told Mr. Keil to contact Mr. Don Hummel, Glacier's president and general manager, for further information about payment for the use of the pump.

Don Keil subsequently asked his brother, Dale Keil, to contact Mr. Hummel to determine if Mr. Hummel was the person who had authority to make arrangements for the pump. Dale Keil called Mr. Hummel, and Mr. Hummel indicated he was making arrangements for the pump.

On June 22, 1975, the Keils delivered the pump to the pumping site at East Glacier. They then went to the Glacier Park Lodge and met with Mr. Hummel. They told Mr. Hummel that the pump had been delivered and would be hooked up the next morning. Once again there is disagreement as to the content of the conversation between the Keils and Mr. Hummel. Glacier contends Mr. Hummel and the Keils discussed and agreed upon a rental rate for the use of the pump. Glacier contends the parties agreed to the $5.00 per hour, $100.00 per day maximum discussed earlier by Mr. Sammons and Mr. Keil over the telephone. The Keils contend there was no discussion of the rental rate during the conversation.

The next morning Mr. Keil put the pump into operation. The pump operated until June 29, 1975, without further contact between Mr. Keil and Mr. Hummel. Sometime prior to June 29, Mr. Keil called Weissman and Sons in Great Falls to determine the prevailing rental rate for equipment and services similar to those he was providing for Glacier.

On June 29, Mr. Keil and Stan Hould, a business associate of Mr. Keil, met with Mr. Hummel at Glacier Park Lodge. Mr. Keil presented Mr. Hummel with a proposed agreement for the use of the pump. The agreement called for a rental rate of $15.00 per hour and payment for 50 hours of moving time. Mr. Hummel objected to the terms of the contract and refused to sign the agreement.

The parties disagree as to what happened next. Glacier contends Mr. Keil threatened to remove the pump if Mr. Hummel did not sign the agreement. Glacier contends that because of this threat and the town's dependence on the pump, Mr. Hummel finally agreed to sign an amended agreement. In doing so, according to Glacier, Mr. Hummel expressed his objections to the tactics used in obtaining his signature and pointed out the existence of what he considered to be a previous valid agreement providing for a rental payment of $100.00 per day. The Keils deny that Mr. Keil ever threatened to remove the pump. They assert the parties negotiated the rental payment schedule and came to an agreement as to the rental rate, maintenance of the pump while in service and the term of the rental period.

Mr. Keil and Mr. Hummel signed a written agreement on June 29. The agreement called for a $10.00 per hour rental payment for the time the pump was operating, provided for payment for 48 hours moving time, provided that the Keils would service the pump and purchase the fuel for the pump and set the term of the rental at 30 days. A clause added to the agreement for clarification of the 30-day term of the lease stated Glacier agreed to pay for the use of the pump for 30 days unless the Keils removed the pump from service before that time. The clause required the Keils to give Glacier one week notice before removing the pump. The agreement was signed and dated by both parties below the initial terms of the agreement and signed again below the clarifying clause.

On July 2, 1975, Federal Flood Disaster Program personnel installed another pump on the East Glacier waterline and disconnected the Keils' pump. Mr. Hummel notified Mr. Keil of the action by letter dated July 2, 1975. The letter also indicated Glacier had no further use for the pump and that Mr. Keil could pick the pump up.

Mr. Keil responded to Mr. Hummel's letter in a letter dated July 7, 1975. Mr. Keil stated that he considered the June 29 contract to be in full force and effect and would have the pump available for use by Glacier for the remainder of the contract period. The letter indicated the pump would be moved to a storage yard as a security measure. Mr. Keil did remove the pump to a storage yard, and it remained there for the duration of the 30-day contract period.

The Keils demanded payment under the terms of the June 29 contract. Glacier refused to pay, asserting the contract was void.

Donald and Jacqueline Keil then filed this action in District Court, Glacier County. The Keils sought to recover damages from Glacier for breach of contract. A trial was held before the Honorable Nat Allen, sitting without a jury. Following the trial, Judge Allen awarded judgment to the Keils in the amount of $6,380.00 plus interest in the amount of $831.91. Judge Allen also awarded the Keils costs and disbursements. Glacier filed a motion for either a new trial or a reconsideration of the court's findings and conclusions. The District Court denied the motion. This appeal followed.

Glacier raises the following issues on appeal:

1. Was there a valid oral contract entered into between Mr. Keil and Glacier prior to the execution of the June 29 written contract?

2. Was there consideration for the June 29 written contract signed by Mr. Keil and Mr. Hummel?

3. Was the June 29 written contract signed by Mr. Keil and Mr. Hummel invalid due to duress, menace or undue influence?

Looking to Glacier's first issue, the essential elements of a contract are: parties capable of contracting; consent; a lawful objective; and, consideration. Section 28-2-102, MCA. A contract may be oral unless specially required to be in writing by statute. Section 28-2-901, MCA. Glacier contends that all the elements of a valid oral contract are present here and that a contract for the use of the pump existed between it and the Keils before the execution of the June 29 written contract.

Where the existence of an oral contract is contested and the evidence is conflicting, the existence of the contract is a question for the trier of fact. Coble v. Scherer (1979), 3 Kan.App.2d 572, 598 P.2d 561, 564; Curran v. Hastreiter (Alaska 1978), 579 P.2d 524, 526. Here the finder of fact was the District Court since the case was tried without a jury. The District Court found that Mr. Sammons and Mr. Keil did not agree as to the capacity of the pump needed by Glacier, the pump accessories to be provided by the Keils, who was to provide fuel for the pump, who was to maintain the pump, or the rental rate of the pump other than a reasonable rate. The District Court also found there was no mention of the rate Mr. Keil would be paid for the use of the pump when Mr. Keil and Mr. Hummel first met in the Glacier Park Lodge on June 22 prior to the installation of the pump. Based on these findings, the District Court concluded Mr. Keil delivered the pump to East Glacier, ". . . on only the assurance that he would be paid the prevailing rate therefor."

This Court will not disturb a judgment on appeal where substantial evidence to support the judgment appears on the record. Knight and Co. v. Manaras (1979), Mont., 603 P.2d 675, 676-677, 36 St.Rep. 2148, 2150-2151; McGuire v. American Honda Co. (1977), 173 Mont. 171, 177, 566 P.2d 1124, 1127. This is especially true when the District Court has upheld the sufficiency of the evidence on a motion for a new trial. McGuire, supra, 173 Mont. at 177-178, 566 P.2d at 1127. Further, on appeal the evidence must be viewed in the light most favorable to the prevailing party at the trial level. Knight, supra, ...

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