Martel Const., Inc. v. Gleason Equipment, Inc.

• Decision Date: 28 April 1975
• Docket Number: No. 12886,12886
• Citation: 534 P.2d 883,32 St.Rep. 402,166 Mont. 479
• Parties: , 16 UCC Rep.Serv. 1228 MARTEL CONSTRUCTION, INC., a Montana Corporation, Plaintiff and Respondent, v. GLEASON EQUIPMENT, INC., an Illinois Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 883

534 P.2d 883

166 Mont. 479, 16 UCC Rep.Serv. 1228

MARTEL CONSTRUCTION, INC., a Montana Corporation, Plaintiff and Respondent, v. GLEASON EQUIPMENT, INC., an Illinois Corporation, Defendant

and Appellant.

No. 12886.

Supreme Court of Montana.

Submitted April 8, 1975.

Decided April 28, 1975.

Berg, Angel, Andriolo & Morgan, Gregory O. Morgan (argued), Bozeman, for defendant-appellant.

Drysdale, McLean & Scully, James A. McLean (argued), Bozeman, for plaintiff-respondent.

CASTLES, Justice.

This is an appeal by the defendant, Gleason Equipment, Inc., hereinafter referred to as seller, from a judgment entered in the district court, Gallatin County, in favor of plaintiff, Martel Construction, Inc., hereinafter referred to as buyer, in the amount of $2,101.39.

On April 19, 1973, buyer entered into negotiations for the purpose of a P & H Model 440 TC-40 ton truck crane by writing a letter of inquiry to the seller. Seller replied by letter dated April 24, 1973. On May 15, 1973, buyer agreed to purchase and seller agreed to sell the crane as described in seller's quotation 7173 for the sum of $93,328.40, plus the cost of freight in the amount of $3,186.48.

The contract consisted of several items of correspondence which taken together constituted the substance of the agreement between buyer and seller. Although there was no statement in the writings specifically stating that time was of the essence to the contract or naming a delivery date. there were statements that seller was to supply the crane 'promptly' and 'to suit your convenience'. Over objection, the district court permitted Walter Martel, secretary-treasurer of the buyer, to testify that buyer advised seller the crane was needed during the latter part of May 1973; that seller represented the crane desired was available and would be shipped promptly to suit buyer's convenience and needs; and, that a material part of the contact inducing buyer to purchase the crane was seller's assurances that the crane would be delivered to buyer the last week in May or the first part of June 1973.

The crane arrived by railroad in Bozeman on June 3, 1973. Seller's service engineer, Joe Ashley, arrived in Bozeman on June 7, 1973, and buyer was able to unload the crane the following day. In unloading the crane, the following parts were discovered to be missing which rendered the crane inoperable: a 350 foot cable; hook, block and ball; and two drive wedges. Buyer immediately gave notice to seller of the missing parts. Following joint efforts by buyer and seller, the missing parts were received on June 26, 1973. On September 26, 1973, buyer filed its complaint alleging damages resulting from 'failure to deliver to the plaintiff the crane in operable condition.'

The district court judgment awarded these damages: $40, demurrage to the railway company; $62.18, freight on the hook and block; $351.61 cost of cable and freight; $191.87, overcharge for freight of crane; $77.50, the net sum expended by buyer for the rental of a crane in Billings; and, $1,378.23, the reasonable rental value of the crane from June 5, 1973, (the date the court found the crane first coudl have been unloaded) to June 26, 1973.

While a number of issues were raised by the parties, we find the resolution of two to be determinative of this appeal: (1) Whether parol evidence was admissible in support of a finding that time was of the essence in this contract? (2) Whether there is substantial credible evidence to support the district court's finding of fact No. IV?

The first issue is whether parol evidence was admissible in support of a finding that time of delivery was of the essence in this contract. We hold it was error to admit such parol evidence. Section 13-724, R.C.M.1947, provides:

'Time is never considered as of the essence of a contract, unless by its terms expressly so provided.'

In interpreting that section, this Court Stated in Curtis v. Parham, 49 Mont. 140, 144, 140 P. 511, 512:

'Under this section, but one subject is open to discussion, and that is not what the parties may have intended to say, but what they did say in their contract. It is true, of course, that no set form or arrangement of words is necessary, but the contract must, upon its face, convey the meaning that time shall be of the essence. Our statute will not permit an oral extrinsic showing that such was the intention of the parties to a written contract, the terms of which are expressed in clear and explicit language.'

Buyer relies on statements in the correspondence between the parties which, it contends, create an ambiguity as to whether time was of the essence and that parol evidence was admissible for the resolution of that ambiguity. We find no ambiguity. In his...