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No. 91-203

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

DANA SCHUMACHER, d/b/a DCS AUTOMOTIVE,

Plaintiff and Respondent,

-vs-


SHAWN CALDWELL,
Defendant and Appellant.

SHAWN CALDWELL,
Third Party Plaintiff,

-vs-


AL
KIRKWOOD,
Third Party Defendant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.

COUNSEL OF RECORD:
For Appellant:
Brett C. Asselstine, Great Falls, Montana

For Respondent:
Terry L. Seiffert, Billings, Montana

Submitted on Briefs: October 3, 1991


I

Clerk

Justice John Conway
Harrison delivered the Opinion of the Court.

Defendant appeals from a judgment
of the Thirteenth Judicial District Court, Yellowstone County, Montana. In a proceeding without a jury the court ruled for the plaintiff holding that the defendant breached his contract awarding damages in
the amount of $5,799. We affirm.
The only issue we address is
whether the court erred in
finding a contractual agreement between the parties when
considering the circumstances.

In December of 1986, A1
Kirkwood agreed to repair a 1978 El
Camino owned by Shawn Caldwell (appellant). Kirkwood, who owned a
body shop, agreed to repair the body and do minor mechanical work
to satisfy a pre-existing debt Kirkwood owed to Caldwell. Kirkwood
was to make all necessary repairs during 1987 but later became
injured and was unable to complete the repairs on the vehicle.
Subsequently, he went out of business. Schumacher, the respondent
and owner of DCS Automotive, began discussing arrangements for
repairing Caldwell's vehicle. Although there is disagreement over
the exact arrangements, the evidence indicates that Schumacher
agreed to completely restore the vehicle in exchange for a
nonfunctional but repairable boat owned by Caldwell.

Schumacher initiated repair of the vehicle and began to incur
various expenses. During this time, Schumacher also obtained
possession of the boat, began to renovate it, and later stored it
in White Sulphur Springs. By August of 1988 Schumacher completed

2

almost all work on the vehicle. On or about August 31, 1988, at
approximately 11:OO
p.m.
Caldwell traveled to Schumacher's auto
shop and took the vehicle without contacting Schumacher. Caldwell
also took the boat from While Sulphur Springs after cutting the
lock that secured the boat. Schumacher learned of the missing
vehicle and reported it stolen to the Billings police before
discovering that Caldwell took the vehicle and the boat. Caldwell
later agreed to return the boat to Schumacher but failed to do so.

The District Court's findings may not be set aside absent a
showing that they are clearly erroneous. Morin
v. Mapston
(1985),

217 Mont. 403, 407, 705 P.2d
118, 120. ttParticularly
where
credibility of witnesses is
involved, we give great weight to fact-
findings of a district court."
Morin
, 217 Mont. at 407, 705 P.2d

at 120. In the case at bar, we find that the court could conclude
that there was a contract between the parties which Caldwell
breached. The District Court is in the best position to observe
the witnesses and assess their credibility. Here the District
Court determined that Caldwell's testimony was not credible when it
stated in
its findings of fact and conclusions of law that:

At trial the Defendant [Caldwell] claimed that the work
done on the automobile was not done properly since the
automobile did not run. He further claimed that the
engine and other work done on the boat were not done
properly and the boat was a danger to operate. He
claimed that the boat had no value. This evidence is not
credible. When asked why, if the boat had no value, he
did not allow Plaintiff to have the boat for the repair
bill the Defendant claimed it was a matter of
"principle".


The District Court's findings were not clearly erroneous.
Appellant also presents three other issues for this Court's


consideration which are without merit.

Pursuant to Section I, Paragraph 3(c),
Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.

Let remittitur issue forthwith.


4


October 29, 1991

CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following named:
Brett C. Asselstine Attorney at Law
P.O.
Box 1567 Great Falls, MT 59403

Terry L. Seiffert Attorney at Law

P.O.
Box 31181 Billings, MT 59107


ED SMITH CLERK OF THE SUPREME COURT

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