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No. 85-73
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985
INTERSTATE BRANDS CORPORATION a/k/a
EDDY'S BAKERY,

Plaintiff and Respondent,

MAX E. CANNON d/b/a STATE SECURITY
AP&ORED CAR SERVICE,

Eefendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley, Missoula, Montana
For Respondent:

Garnaas, Hall, Riley & Pinsoneault; H. 11. Garnaas, Missoula, Montana
Submitted on briefs: Aug. 22, 1985
Decided: November 6, 1985
NOV 6 -1985
Filed:

Clerk

Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Max E. Cannon, d/b/a/ State Security Armored Car Service
appeals from the judgment of the District Court, Fourth
Judicial District, County of Missoula, awarding Interstate
Brands Corporation, a/k/a Eddy's Bakery, hereinafter
Interstate, contract damages in the sum of $6,385.39. We
affirm.

During 1978, Cannon provided armored car service in and
around the City of Missoula, Montana. Interstate was one of
Cannon's customers. Cannon provided his services to
Interstate pursuant to a written agreement which provided a
description of the services to be rendered, the compensation
to be paid and other matters including the rights, privileges
and obligations of the parties. Neither party presented a
copy of the written agreement into evidence. Milton L.
Hanson, manager at Eddy's Bakery at the time, testified that
he looked for the written agreement but could not find it.
Cannon, however, did not express any reason for not having
presented the agreement.

On October 20, 1978, and October 21, 1978, Interstate
delivered 5 bags securely sealed to one of Cannon's drivers
to he held and returned to Interstate on October 23, 1978.
Neither the bags nor their contents were ever returned to
Interstate. The bags disappeared under circumstances unknown
to either party.

Interstate alleged the bags contained cash and checks.
Hanson testified he did not put the cash and checks into the
bags nor did he see anyone else put the cash and checks in
the bags. Although Hanson was unable to testify as to the

contents of the bags from his own personal knowledge, he was
able to determine their contents by having his staff review
their records.

Interstate offered in evidence a d.ocument called a
contract receipt which set forth the terms under which
Interstate offered items to Cannon's care and the terms by
which Cannon would receive goods and merchandise from
Interstate. The contract receipt further provided that
"State Security Armored Car Service i.n no event shall be
liable for more than the value hereinbelow stated." The
value stated was to be endorsed upon the contract receipt
under the "said to contain" column.

The contract receipt showed that on October 20, 1978,
and October 21, 1978, Cannon received 5 bags from Interstate
and that Cannon's driver receipted for the 5 hags. There was
no value stated under the "said to contain" columns endorsed
upon the face of the document, nor did the document indicate
directly or indirectly the contents, inventory or value of
the items within the bags.

In its findings of fact and conclusions of law, the
District Court made the following finding of fact:
That the contract receipt sets forth the terms and
conditions under which Defendant was to receive
items for safe keeping and the liability for those
items was agreed to be only to the amount declared
or "stated.'' No value was declared or stated by
Plaintiff when the Plaintiff presented the contract
receipt to the Defendant's driver for his
signature. The Defendant's driver did not point
out to the Plaintiff that he was required to fill
out the "Said to Contain" portion of the receipt
and signed it without that having been properly
filled out. That Defendant did. not bring this
requirement to the attention of his customers nor
did he himself realize the importance of this
provision until he found out he was not covered by
insurance without this portion having been filled
out.

Cannon raises only one issue on appeal: whether the

District Court's conclusion that Cannon was liable to
Interstate for damages for breach of contract is inconsistent
with the court's finding that Cannon's liability was limited
by the language of the contract receipt.

Cannon contends that since the District Court found that
the contract receipt between the parties limited Cannon's
liability to the amount stated in the receipt and no amount
was stated therein, the court's judgment that Cannon was
liable for damages to Interstate was in error. Interstate
contends that the District Court impliedly found that since
both Interstate and Cannon believed that filling out the
"said to contain" column of the contract receipt was not
required and not insisted upon, it was therefore waived.

Although the matter was never raised by the District Court or the parties, we find that the relationship between Interstate and Cannon constituted a bailment and that

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Montana Law