Fallon County v. Brindley ( 1984 )


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  •                                No. 83-24
    IN THE SUPREPIE: COURT OF THE STATE OF MONTANA
    1984
    FALLON COUNTY, a political
    subdivision of Montana,
    Plaintiff and Respondent,
    -vs-
    HUGH BRINDLEY,
    Defendant and Appellant.
    APPEAL FROM:    District Court of the Sixteenth Judicial District,
    In and for the County of Fallon,
    The Honorable Alfred B. Coate, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Robert L. Johnson, Lewistown, Montana
    For Respondent :
    Denzil R. Young, Baker, Montana
    Submitted on Briefs:   February 9, 1984
    Decided: SepteElber 6, 1384
    Filed :>       5d4
    Clerk
    Mr. Justice Fred J. Weber delivered the Opinion of the Court.
    This is an appeal from a judgment of the District Court
    of the Sixteenth Judicial District of Fallon County, awarding
    $500 per month     rental from November       17, 1979 until the
    County's scraper is returned.        We vacate the judgment and
    remand the cause for further proceedings.
    The issues presented on appeal- are:
    1.   Did lessee's obligation to pay rent terminate when
    the scraper was rendered useless?
    2.   Did lessee's attempt to return the scraper terminate
    his rental obligation?
    3.   Did the District Court err         in holding that the
    lessee was responsible for monthly rental payments until the
    scraper was returned to the County storage yard?
    4.   Was the lessor obligated to mitigate damages?
    Hugh Brindley, an earth-moving contractor from Winnett,
    Montana, rented a Caterpillar Model 435 pull-type scraper
    from Fallon County on October 15, 1979.       He signed a contract
    presented to him by the County and paid one month's rent of
    $500 in advance.      The County's shop foreman watched Brindley
    load the scraper onto his truck to transport it from the
    County storage yard.       Brindley winched the scraper's front
    wheels up and safety chained the scraper to his truck.            He
    transported the scraper in this manner without incident to a
    worksite outside of Fallon County.
    Brindley testified that he attempted to transport the
    scraper hack to the Fallon County storage yard in Baker at
    the end of the prepaid, one-month period.           He secured the
    scraper to his truck in the same manner in which he had left
    the storage yard.       Approximately 24 miles from Raker, the
    scraper   separated     from   the   truck   and   sustained   major
    structural damage.       Separated parts of the scraper came to
    rest in a pasture owned by Richard Reiger.
    Unequipped to transport the separated scraper, Brindley
    helped Reiger repair the fence, returned to Winnett, and
    telephoned    County    Commissioner Gary    Lang    to   report   the
    accident.     Commissioner Lang viewed the accident scene two
    days later.       Neither Brindley nor the County made any effort
    to tow the scraper parts to Baker after the accident.
    During months of negotiation following the accident, the
    County made no demand that Brindley pay additional rental or
    that he return the scraper to the County storage yard.             The
    County refused Brindley's offer to buy and transport to Baker
    a used scraper of the same age and model, which he had
    discovered for sale in Idaho.
    The October 15, 1979 rental agreement between Brindley
    a.nd Fallon County provides in pertinent part:
    "Lessee shall pick up the scraper and upon
    termination of this contract, shall return it to
    Fal-lon County. Lessee shall not be responsible for
    major structural damage to the scraper unless it
    can be shown that this damage was occasioned by his
    abuse    ...I1
    The agreement is silent as to duty to repair, fitness for use
    or destruction of the thing hired.
    On     October    17,   1980, approximately one      year   after
    renting     the   scraper to    Brindley, the County      filed suit
    against Brindley claiming that "the scraper was wrecked and
    virtually destroyed, and has never been             returned."     The
    complaint     further alleged     that   "the scraper, before      its
    destruction, had a value in excess of $10,000. "          The County
    asked "for the value of the scraper and for the value of its
    use at $500.00 per month from and after November 15, 1979
    The case wa.s tried before the court on April 21, 1982.
    The    record contains no explanation as to why               trial was
    scheduled more than a year after the last pleading was filed
    with    the District Court.              In the meantime, the scraper
    remained in Reiger's pasture.
    The District Court found that Brindley paid $500 to the
    County before taking possession of the scraper on October 17,
    1979; that the accident occurred in January, 1980; and that,
    a.s   a result of the accident, the scraper sustained serious
    structural damage.      The court concluded that the County had
    failed to prove       the scraper was being tra-nsported in a
    negligent    manner    or        that     the   defendant's   method   of
    transporting the scraper caused the accident.             Having failed
    to prove that the damage to the scraper was "occasioned by
    his [the lessee's] abuse," the County was not entitled under
    its contract to recover for the damage to the scraper.
    The court further concluded that defendant's obligation
    to pay a monthly rental of $500 continued until defendant
    returned the scraper to Fallon County's possession.                    The
    court awarded the County $500 per month rental from November
    17, 1979 until the scraper is returned.             The record contains
    no evidence that the scraper has ever been returned to the
    Fallon County storage yard.             Appellant's counsel alleges that
    the County sold the scraper "as is" from Reiger's pasture
    after judgment was entered against Brindley.
    The record includes testimony by Commissioner Lang that
    the estimated value         of    the     scraper at the time of the
    accident was $8,000.        We note the amount of past due rental
    awarded to the County at the time of the August 16, 1982
    judgment was more than twice the estimated value of the
    scraper.
    Hon-. Fred J. Weber                          CORRECTION. In preparing this opinion for pub-
    Justice, Supreme Court                       lication, we noted in our verification of titles and
    Room 414 Justice Building                    citations the matters listed below. Corrections have
    215 North Sanders                            been made on our copy of the opinion.
    Helena, Montana 59620
    October 4, 1984
    Fallon County v. Brindley, No. 83-24, Sept. 6, 1984
    Page 5, line 12 from bottom   ---   150 Mont. at 261-62 should read 150
    Mont. at 361-62.
    -.                            WEST PUBLISHING COMPANY
    Box 43526
    St. Paul, MN 55164
    While the parties have raised several issues on appeal,
    we consolidate the first three issues into one question:                 Did
    the lease terminate on the date of the accident?                    We find
    this issue to be determinative.              We need not address the
    issue of mitigation at this time.
    Section    70-1-607 (4),    MCA    provides:        "When     hiring
    terminates.       The hiring of a thing terminates          . .   .   by the
    destruction of          the thing hired. "        This section and       its
    predecessor apply to all things hired.              In American Ma-chine
    Company v. Johnson (1971), 
    157 Mont. 226
    , 
    483 P.2d 921
    , we
    held that section 42-109, R.C.M.           1947 controlled termination
    of the lease of a "skidder" machine.                 In Solich v. Hale
    (1967), 
    150 Mont. 358
    , 
    435 P.2d 883
    , the statute controlled
    termination of a lease of premises in a building.
    Absent a contractual provision to the contrary, the
    lease terminates by law upon the destruction of the thing
    hired.        Only express agreement to the contrary can preclude
    operation of the sta-tute. Kosena v. Eck (1981.), 
    195 Mont. 12
    , 18, 
    635 P.2d 1287
    , 1290-91, citing Solich, 150 Mont. at
    341
    -2-63-62, 435 P.2d at 885.         No such agreement exists in this
    case.
    In Solich, supra, the only           factual issue presented,
    other than damages, was whether a building that had been
    partially gutted by fire was repairable or destroyed.                 Lessor
    argued that the building was destroyed and plaintiff's lease
    terminated by operation of law.              This Court set forth two
    tests for determining whether section 42-109, R.C.M.                    1947
    (the predecessor to section 70-1-607, MCA) applied.
    The     first     test,    which    the     Court    labeled      an
    "untenability" test, is essentially a test for fitness for
    use :
    "Under this test the thing hired is considered
    destroyed:     'When destruction of the demised
    premises is of such a nature that it cannot be used
    for the purposes for which it was rented and cannot
    he restored to a fit condition by ordinary repairs,
    made without unreasonable interruption of the
    lessee's use.'   Presbyterian Distribution Services
    v. Chicago National Bank, 28 Ill.App.2d 147, 
    171 N.E.2d 86
    , 90." Solich, 150 Mont. at 362, 435 P.2d
    at 885.
    Under    the    second    test,       the   Court   considered      the   thing
    destroyed      "if the cost of restoration             . . .        as it was
    immediately before the fire is more than one-half of the
    value of the property at the time of the fire."                  Solich, 150
    Mont. at 362, 435 P.2d at 885.
    The Court held that under both tests the evidence lead
    to the conclusion that the building was destroyed.                   The Court
    observed that "parts of respondent's business were located in
    both buildings.      A destruction of even the 'so-called' north
    building would be sufficient to terminate the lease under the
    statute involved."            Solich, 150 Mont. at 364, 435 P.2d at
    886.     Under both the fitness-for-use and cost-of-repairs
    tests,      "destruction"         can       mean    less    than      complete
    obliteration.
    The record here indicates that the scraper's fitness for
    use    ceased when       it    separated      from Brindley's       truck   and
    "sustained      serious        structural     d.amage."       The    County's
    complaint alleged that the "scraper was wrecked and virtually
    destroyed" by the accident.             Commissioner Lang testified that
    the    scraper was       not    fit    for use, but        that he had      not
    investigated the cost of repairs.              The record is silent as to
    the salvage value of the scraper, the cost of repairs, or how
    long it might take to return the scraper to fitness for use.
    The District Court failed to issue findings of fact on
    the fair market value of the scraper before the accident and
    the cost, time and feasibility of repairs to restore the
    scraper to fitness for use after the accident.       Absent such
    findings, this Court cannot rule on whether the scraper was
    destroyed on the date of the accident and whether the lease
    terminated by operation of law.
    We vacate the judgment of the District Court and remand
    for   appropriate   findings   and   such   proceedings   as   are
    necessary.
    We concur:
    4 . d d.   @ I
    Chief Justice
    LbPD-Q
    

Document Info

Docket Number: 83-024

Judges: Weber, Haswell, Harrison, Sheehy, Shea

Filed Date: 9/6/1984

Precedential Status: Precedential

Modified Date: 3/2/2024