Alexander v. Hardy

• Court: Montana Supreme Court
• Decided: February 6, 1973
• Docket: 12279
• Status: Published

Opinion

No. 12279

I N THE SUPREME COURT OF THE STATE OF M N A A OTN

DEE ALEXANDER, WILLIAM ALEXANDER, and PAUL ALEXANDER,

P l a i n t i f f s and Respondents,

-VS - NED HARDY and T W S N L M E COMPANY, O NE D U B R

Defendants and A p p e l l a n t s .

Appeal from: District Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable Frank E. B l a i r , Judge p r e s i d i n g .

Counsel o f Record:

For Appellants :

K e l l e r , Reynolds and Drake, Helena, Montana Argument submitted on b r i e f s .

For Respondents:

A l l e n LeMieux, Boulder, Montana Argument submitted on b r i e f s .

Submitted : January 24, 1973

~ e c i d e :FEB d 6 - 1973 Filed: FEE 6 - 1972 M r . J u s t i c e Haswell d e l i v e r e d t h e Opinion of t h e Court.

T h i s a p p e a l i s from a judgment o f t h e d i s t r i c t c o u r t of J e f f e r s o n County, s i t t i n g w i t h o u t a j u r y , f i n d i n g an indebted- n e s s owed t o p l a i n t i f f s by defendants i n t h e amount of $1,105.87; f o r e c l o s u r e of a l o g g e r ' s l i e n t h e r e f o r ; and c o s t s and a t t o r n e y fees. The c a s e involved payments due under a c o n t r a c t f o r t h e f a l l i n g of timber. Defendant, Ned Hardy, was an independent c o n t r a c t o r who had c o n t r a c t e d w i t h Townsend Lumber Company t o f a l l , s k i d and deck t h e l o g s . Codefendant, Townsend Lumber Company, purchased t h e l o g s from t h e United S t a t e s Government, By s t i p u l a t i o n Town- send Lumber Company agreed t o pay any amount u n s a t i s f i e d , i f p l a i n t i f f s recovered judgment a g a i n s t defendant Ned Hardy. In c o n s i d e r a t i o n of t h i s agreement p l a i n t i f f s agreed t o d i s m i s s Townsend Lumber Company from t h i s a c t i o n . H e r e i n a f t e r , i n speaking of defendant, we r e f e r t o Ned Hardy a l o n e . The f a c t s of t h e c a s e a r e : J u s t p r i o r t o February 11, 1971 an o r a l c o n t r a c t f o r employment was n e g o t i a t e d between defendant and p l a i n t i f f s Dee, W i l l and Paul Alexander. P l a i n t i f f s were em- ployed by defendant t o go upon a t r a c t d e s i g n a t e d Block ! ! 4 , approxi- mately s i x miles outh of C a t a r a c t Creek i n J e f f e r s o n County, Montana, and c u t down c e r t a i n t r e e s f o r saw logs. Defendant agreed t o pay p l a i n t i f f s t h e sum of $5 p e r thousand board f e e t f o r t r e e s c u t down by them, payment t o be made a f t e r t k e e s had been hauled and scaled. P l a i n t i f f s commenced work f o r defendant on February 11, 1971. A f t e r t h e f i r s t seven o r e i g h t days of c u t t i n g t h e c o n t r a c t was modified by providing f o r bimonthly payments of f i f t y c e n t s p e r t r e e c u t a s an advance a g a i n s t t h e pay s c a l e of $5 p e r thousand board f e e t , u n t i l such time a s a c t u a l h a u l i n g and s c a l i n g could take place. Sample s c a l e s were t o be taken by defendant t o provide a comparison of t h e advance payment w i t h t h e s c a l e r a t e . De-

fendant paid t h e advances r e q u e s t e d by p l a i n t i f f s on February 19 and March 1 0 , 1971.

According t o p l a i n t i f f s they sawed, limbed and c u t 6,570 trees a s of March 25, 1971. Evidence of t h e number of t r e e s c u t was from a r e c o r d kept by p l a i n t i f f s on a day by day b a s i s , which was i n t r o d u c e d . Thus p l a i n t i f f s contend they a r e e n t i t l e d ( a t t h e r a t e of f i f t y c e n t s p e r t r e e ) t o $3,285 l e s s payments of $2,179.13, l e a v i n g a b a l a n c e of $1,105.87 unpaid and due from defendant. O t h e o t h e r hand, defendant contends t h a t $825 was paid n

by him t o p l a i n t i f f s on February 19, 1971, And a g a i n on March 1 0 ,

1971, $1,050 was p a i d t o p l a i n t i f f s . I n a d d i t i o n , testimony i n d i c a t e s t h a t 287,276 board f e e t of lumber was d e l i v e r e d t o Tolamsend Lumber Company from Block # 4 . This amount was a t t e s t e d t o by Gerald Delin, a f o r e s t e r and wood boss f o r Townsend Lumber Company, whose duty i t was t o s c a l e l o g s and keep a r e c o r d of what was a c t u a l l y d e l i v e r e d t o t h e sawmill. Based on t h i s accounting, Delin i n d i c a t e d t o defendant Hardy t h a t he was o v e r e s t i m a t i n g t h e board footage. As i t became c l e a r t o defendant t h a t t h e advances were exceeding t h e $5 per thousand compensation, h e denied f u r t h e r advances on March 25, 1971, Delin a l s o t e s t i f i e d t h a t he went o u t t o t h e c u t t i n g a r e a i n e a r l y summer and a g a i n i n October a f t e r p l a i n t i f f s had q u i t c u t t i n g , f o r t h e purpose of e s t i m a t i n g t h e board f o o t a g e l e f t ; which had n o t been d e l i v e r e d . He e s t i m a t e d t h e r e were 50,000 board f e e t of decked l o g s and a n o t h e r 2,000 board f e e t of mer- c h a n t a b l e l o g s o r t r e e s down which had n o t been decked. His testi- mony was c o r r o b o r a t e d by Doyne L. Tank, a timber a s s i s t a n t f o r the United S t a t e s F o r e s t Service.

Thus, a t t h e r a t e of $5 per thousand, defendant owed p l a i n t i f f s a t o t a l of $1,696.38 f o r 339,276 board f e e t . Plain- t i f f s admitted payment i n t h e amount of $2,179.13. Based on t h e s e f i g u r e s , d e f e n d a n t ' s advances were exceeding t h e $5 p e r thousand compensation. When defendant r e f u s e d t o make payment on March 25, 1971, p l a i n t i f f s f i l e d a l o g g e r ' s l i e n t h e following day, pursuant t o s e c t i o n 45-407, R.C.M. 1947. On March 29, 1971, t h i s a c t i o n was filed. T r i a l was had on November 8 , 1971, t h e c o u r t s i t t i n g w i t h o u t a jury. Judgment was rendered on February 24, 1972, i n f a v o r of p l a i n t i f f s i n t h e amount of $1,105.87 based on payment of f i f t y c e n t s per t r e e ; t h e l o g g e r ' s l i e n was ordered f o r e c l o s e d and s a l e of t h e timber was ordered t o be made a c c o r d i n g l y . The i s s u e involved i n t h i s l i t i g a t i o n i s what were t h e terms of t h e c o n t r a c t between t h e p a r t i e s and whether o r n o t de- fendant completely compensated p l a i n t i f f s f o r t h e i r s e r v i c e s under that contract. The d i s t r i c t c o u r t concluded t h a t defendant had breached t h e c o n t r a c t by h i s f a i l u r e t o submit timber f o r s c a l i n g , t h e r e f o r e g i v i n g p l a i n t i f f s t h e r i g h t t o e l e c t t h e a l t e r n a t i v e method of payment, i . e . f i f t y c e n t s per t r e e , c i t i n g Thomas v . Cloyd, 110 Mont. 343, 100 P.2d 938. This i s e r r o r . The f i f t y c e n t s p e r t r e e was n o t an a l t e r n a t i v e means of compensation b u t r a t h e r an advancement u n t i l s c a l i n g and board f o o t a g e was e s t i m a t e d . P l a i n t i f f s c i t e 95 ALR2d 504, a s a u t h o r i t y f o r l i a b i l i t y of an employer f o r agreed advances which exceed t h e s h a r e of pro- f i t s o r commissions earned. However, t h e a n n o t a t i o n a l s o d i s c l o s e s t h a t t h e employer's l i a b i l i t y depends upon t h e language of t h e con- tract. The r e s u l t depends on whether t h e p a r t i c u l a r c o n t r a c t pro- v i s i o n s involved a r e considered a s g u a r a n t e e i n g t o t h e employee a minimum amount r e p r e s e n t e d by t h e advances t o which he i s en- t i t l e d , o r whether t h e amount of t h e compensation depends e n t i r e l y on t h e amount of h i s commissions, i . e , board footage. Here, t h e f a c t s a r e c l e a r . The p a r t i e s intended t h e f i f t y c e n t s per t r e e a s only an advancement, n o t a guarantee. The u l t i m a t e compensation was t o be based on $5 per thousand board f e e t and n o t on f i f t y c e n t s per t r e e c u t . There i s s u b s t a n t i a l c r e d i b l e evidence i n t h e record by p l a i n t i f f Paul Alexander t h a t p l a i n t i f f s were t o be paid a t t h e r a t e of $5 per thousand board f e e t f o r t h e i r labors. I n answer

t o questions by defendant's a t t o r n e y concerning any change made i n t h e o r i g i n a l agreement, Paul Alexander t e s t i f i e d : "A. Yes, a f t e r we had sawed t h e r e about a week t o a week and a h a l f ** 9: we could s e e t h a t he wasn't going t o move t h e timber a s f a s t a s we was c u t t i n g ; t h e r e f o r e , we c o u l d n ' t g e t paid r i g h t . I f w e had two o r t h r e e weeks timber laying on t h e ground we wouldn't g e t paid f o r i t unless they were moving i t and s c a l i n g i t , s o he come up with t h e idea i n t h e presence of me, m b r o t h e r , and m dad t h a t he would y y pay us a s an advance 5044 per t r e e . N w t h a t was o u n t i l they got t h i s timber hauled down t o t h e m i l l and scaled and we would take e i t h e r a c u t o r a g a i n , depending on how i t scaled. "Q. And d i d you accept t h a t agreement then? A. We accepted t h a t . I I

II Q. And now you were sawing by t h e t r e e f o r an advance purpose only, i s n ' t t h a t c o r r e c t ? A, hat's c o r r e c t , yes. "0. There seems t o be a l i t t l e confusion. and I w&t t o be s u r e we a r e i n agreement on t h i s . You

correct. "Q. But on t h a t , you were t o r e c e i v e advances under your testimony a t t h e r a t e of 50d per t r e e ? A. Per t r e e every two weeks without f a i l . ' (Emphasis s u p p l i e d ) . William and Dee Alexander t e s t i f i e d t h a t they agreed with t h e testimony of Paul and t h a t u l t i m a t e l y they were t o be paid a t t h e r a t e of $5 per thousand and t h e f i f t y c e n t s per t r e e was an advance only. Regardless of when o r how t h e advances were t o be made t h e u l t i m a t e compensation was t o be $5 per thousand board f e e t , B applying simple mathematics, i t i s thus e s t a b l i s h e d t h a t t h e y p l a i n t i f f s earned $1,725 f o r the c u t t i n g of 345,076 board f e e t of timber, t h e h i g h e s t f i g u r e appearing anywhere i n t h e record. To t h i s , we add t h e $75 cleanup allowance agreed upon by t h e parties. It i s admitted t h a t p l a i n t i f f s have been paid $2,179.13. Thus, p l a i n t i f f s have been overpaid i n t h e amount of $379.13. For these reasons, the judgment of the district court is vacated and the cause dismissed.

Associate Justice

Justice

.............................. Associate Justices.