Sikorski v. Olin, 13378

• Decision Date: 27 September 1977
• Docket Number: No. 13378,13378
• Citation: 174 Mont. 107,568 P.2d 571,34 St.Rep. 1042
• Parties: Edward R. SIKORSKI, Plaintiff and Respondent, v. Ray OLIN and Rolin Mfg., Inc., Defendants and Appellants.
• Court: Montana Supreme Court

Page 571

568 P.2d 571

174 Mont. 107

Edward R. SIKORSKI, Plaintiff and Respondent, v. Ray OLIN and Rolin Mfg., Inc., Defendants and Appellants.

No. 13378.

Supreme Court of Montana.

Submitted May 6, 1977.

Decided Sept. 8, 1977.

Rehearing Denied Sept. 27, 1977.

Denzil R. Young argued, Baker, for defendants and appellants.

Gene Huntley argued, Baker, for plaintiff and respondent.

SHEA, Justice.

Defendants Ray Olin and Rolin Mfg., Inc. appeal from a Fallon County jury verdict and judgment in favor of plaintiff Edward R. Sikorski, in the amount of $10,000 for breach of a sales representative contract.

Edward Sikorski filed suit against Ray Olin as the manager of Rolin Mfg., Inc. alleging a breach of contract. Defendants answered by admitting the existence of a contractual relationship but denying any liability for a breach. Discovery consisted of Sikorski's deposition of Olin and interrogatories answered by Sikorski. On the day of trial, the trial court allowed Sikorski to amend one answer to the interrogatories to reflect the full extent of the asserted agreement. Following trial, the jury returned a verdict for $10,000 in favor of Sikorski and against Olin and Rolin Mfg., Inc. (hereinafter referred to as Olin and Rolin or Olin). Olin and Rolin appeal.

This Court on appeal is asked to consider numerous questions regarding the trial of this matter. In substance, these questions constitute but two arguable issues:

(1) Whether the district court erred in permitting Sikorski to amend the previously answered interrogatories, and

(2) Whether the evidence offered by Sikorski was sufficient to support the jury's award of $10,000 damages.

The facts are: Sikorski alleged in his complaint and provided evidence at trial that in January 1971, Olin and Rolin agreed Sikorski would become a sales representative for Rolin in the sale of machinery and equipment produced by Rolin. Sikorski maintained the contract was to extend for one year and he was to receive as compensation therefor 7% of dealer costs for all sales up to $60,000 and 8% for all sales exceeding that amount. At trial, Sikorski testified he was to receive a 5% commission on improvements he might make, based on wholesale prices of the improved equipment.

Sikorski alleged full performance on his part, consisting of numerous demonstrations of the machinery and arrangements for dealer distribution. He testified that over a period of four months, he spent approximately 75% of his time in performing under the agreement. Sikorski's testimony at trial that he should have received $3,750 for his efforts in this regard was received without objection. Also, received without objection, was proof that Sikorski had devised improvements for certain functions of the machinery and he should have realized therefrom a $2,000 commission. He testified had he been allowed to perform, he would have realized an estimated $4,800 in commissions by the end of the first year. This, too, was received without objection.

In support of the estimate, Sikorski offered uncontroverted testimony he arranged for the sale of a large amount of equipment, which Rolin refused to deliver. Sikorski argued he was never in fact "terminated" as sales representative by Rolin but rather that he himself ceased performance in June 1971, when Rolin refused to deliver requested machinery and delegated his sales territory to another agent.

Rolin, on the other hand, contended the terms of the contract were those embodied in a letter sent by Olin to Sikorski, received by Sikorski in March 1971. The letter purported to limit the length of the contract to three months, subject to extension to one year. Under its terms, Sikorski was to receive a 7% commission on sales up to $60,000 and 8% for amounts in excess of $60,000.

It was Olin and Rolin's position in their answer to Sikorski's complaint that Sikorski had made no sales and earned no commissions and therefore was not damaged because he failed to perform. However, Olin, in his testimony in his deposition and as an adverse witness at trial, recanted and admitted a sale.

Olin and Rolin's first contention is that they were surprised and prejudiced when the trial court permitted Sikorski to amend an answer to his own interrogatories on the day of trial. They claim Sikorski was allowed to interject what, in effect, constituted a "new contract" by comparison to the contract as pled and as disclosed by prior discovery. It is maintained the "new contract" created new issues, and therefore Sikorski's proof at trial should have been limited to those damages, if any, occasioned by breach of the originally disclosed contract.

However, the record consisting of the pleadings, answers to interrogatories and Olin's testimony through deposition and at trial, establish that Olin and Rolin were well aware of the broader contractual terms upon which Sikorski intended to rely at trial. Moreover, it is noteworthy Rolin did not request a continuance, on the ground of such alleged surprise or undue advantage.

Rule 33, M.R.Civ.P. authorizes use of interrogatories for the purpose of pretrial discovery from an adverse party. This rule is liberally construed to make all relevant facts available to parties in advance of trial, and to reduce the possibilities of surprise and unfair advantage. Wolfe v. Northern Pacific Ry. Co., 147 Mont. 29, 409 P.2d 528 (1966).

However, failure to properly answer certain interrogatories will not be deemed in every case to effect censure of material which should rightfully be developed in a trial on the merits. A detailed statement of the applicable rule and corresponding reasoning appears in Wolfe v. Northern Pacific Ry. Co., supra:

" * * * Even though under Rule 37 sanctions may be imposed upon a party who fails to comply with the discovery requirements of the rules, and specifically upon a party who fails to properly answer his interrogatories, necessarily it must lie within the authority of the...