Das soll wohl ein Witz sein? - 500 Beiträge pro Seite

[TSX-V]

Mal im Ernst... Diese Börsenspiele hier sind doch ein Witz!? - Orderdurchführung auf Eröffnungskursbasis??? - Ach Leute von Wkommt schon...

Das ist nicht euer Ernst oder?

Trommelt mal ein paar FÄHIGE Programmierer zusammen und zaubert mal etwas realitätsnahes...

Hier würde mir zum Beispiel www.ariva.de als Referenz einfallen

Das hier ist für mich ein Witz! - Real unnachvollziehbar, verbugt und ...langweilig! - Keine Pennystocks!

Man kann doch sicherlich Musterdepot-Orders so scripten, daß sie erst durchgeführt werden, wenn sie an der entsprechenden Börse auch REAL, mit entsprechenden Kurs und Volumen stattgefunden haben (ariva.de)...

Meine Meinung - hier fehlt noch der Feinschliff! - und zwar massiv!

[lyta [VIP]]

+ was hindert dich zu ARIVA zu gehen
+ was zwingt dich bei W:0 zu bleiben?????????????

[TSX-V]

Antwort auf Beitrag Nr.: 29.213.161 von lyta am 08.05.07 15:27:02

Ist das Deine Art, Verbesserungsvorschläge abzufertigen?

[lyta [VIP]]

nein wirklich nicht --war nur eine frage die sich mir stellte ---net sauer sein

[TSX-V]

Antwort auf Beitrag Nr.: 29.224.066 von lyta am 09.05.07 08:42:09

Ich bin halt der Ansicht, daß sich hier in Punkto Börsenspiele noch was tun sollte: Oder tradest Du auch auf Eröffnungskursbasis???

Hier fehlt genau das, was Börse so spannend macht!

Gerade Intraday bieten sich einem oft einmalige Chancen!

Ich finde es halt verwunderlich, daß man hier bis dato nicht im Stande war, etwas Vernünftiges auf die Beine zu stellen...

Wist ja quasi Referenz was Börse im deutschsprachigen Raum betrifft. Meiner Meinung könnte man im Sektor Börsenspiele noch einiges besser machen.

Ich hab vor kurzem ein Musterdepot eröffnet, in dem ich meine realen Trades nachbilden wollte... Seltsamerweise haben sie in real funktioniert aber hier nicht... Also hab ich das lächerliche Dingens kurzerhand wieder gelöscht...

[lyta [VIP]]

Ich muss gestehen , daß ich ei n börsenspiel leider echt nur als SPIEL betrachte Ich versteh absolut nix ( oder viel zu wenig !!) von aktien!!
Doch warum versuchst du nicht mal mit der BÖRSENSPEILHOSTESS in Thread: Monatsdepotspiele 2007 - Begleit-Thread in kontakt zu kommen??Die ist sehr nett + geht allen anregungen nach , oder versuchts zumindest!!
In dieseb thread schau immer wieder mal ein zuständiger W:0 mod rein!

[erti]

[TSX-V]

Antwort auf Beitrag Nr.: 30.448.154 von erti am 02.07.07 14:06:18

???

[TSX-V]

Thursday, June 14, 2007.
Dear Valued Shareholder,
As a valued shareholder you may be concerned regarding claims made in a recent article by Mark Turner about KAL Energy on an internet website.
We are referring the matter to our legal council and the SEC, and will aggressively protect our shareholders from what appears to be an attempt of share price manipulation. The "short position" the author declares at the end of the article places the author in a position of financial gain from any downward movement in the stock price. This declaration is available from the original article on the Yahoo! website, rather than the subsequently modified article on the publishing site.
The author of the article has not been in contact with the company and has not made any attempt to verify any of the claims made in the article with the company. It appears the author is based in Peru and his partners appear to be based in other Latin American countries.
While, KAL Energy does not see any merit in any of the claims made by the author, we expressly want to directly inform you, and reassure you on key material facts pertaining to KAL Energy.
Industry Compliant Asset Reporting
KAL Energy has released a fully JORC Code Compliant Resource Statement as of June 12th, 2007 for its coal concession in Kalimantan, Indonesia. This report declares that KAL has a JORC Code Compliant Inferred Resource of 204 Million tonnes of low Sulphur, low Ash thermal coal. This exceeded an initial geological estimate of 192 Million tonnes published by the Company and was a fantastic result. As per the JORC Code this was reviewed and signed off by three highly experienced world class western geologists. The company produced this report on time and on budget and is extremely happy with the outcome of the report.
KAL Energy has consistently stated in our filings and press releases that the Phase I Exploration Program was targeted to produce JORC Code Compliant Inferred Resource by mid 2007. The KAL Energy team has delivered, and exceeded our openly stated commitments.

[TSX-V]

No. 97-142



IN THE SUPREME COURT OF THE STATE OF MONTANA



1997









C. HAYDON LIMITED and DR. K. M. CLEWS,



Plaintiffs and Respondents,



v.



MONTANA MINING PROPERTIES, INC., a Montana corporation;

ORO FINO PLACER MINING CORPORATION, a Montana corporation;

BLUEBIRD MINING CO., a Montana corporation; WEST BUTTE

METALS, INC., a Montana corporation; GOLDBRICK MINING CO.,

a Montana corporation; EAST RIDGE MINING CO., a Montana

corporation; SILVER BOW CONSOLIDATED CORP., a Montana

corporation; BLACK ROCK MINING CO., a Montana corporation;

YANKEE MINING CO., a Montana corporation; WABASH MINING CO.,

a Montana corporation; EUREKA MINING CO., a Montana corporation;

ORIGINAL BUTTE MINING CO., a Montana corporation; MOUNTAIN

CON MINING CO., a Montana corporation; WESTERN AND PACIFIC

RESOURCES CORP., a British Columbia corporation; ALLAN FERGUSON;

S. DAVID ANFIELD; STEVEN A. SANDERS; RICHARD M. CAWOOD;

and JACOBS, PERSINGER & PARKER, a business association,



Defendants and Appellants.



v.



FRANK CROWLEY,



Plaintiff and Respondent.











APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.



COUNSEL OF RECORD:



For Appellants:



Joan E. Cook, Attorney at Law, Great Falls, Montana



For Respondents:



David M. McLean; Knight, Dahood, McLean & Everett;

Anaconda, Montana (for C. Haydon Ltd. and Dr. K. M. Clews)



Greg J. Skakles and Patrick T. Gallagher, Skakles & Gallagher,

Anaconda, Montana (for Frank Crowley)







Submitted on Briefs: November 20, 1997



Decided: December 16, 1997

Filed:





__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

K. Malcom Clews commenced this action in the District Court for the Second

Judicial District in Silver Bow County to recover damages from the defendant, Montana

Mining Properties Incorporated (MMPI), for breach of contract. MMPI filed a third-

party complaint against Frank Crowley and William Murray for common law fraud,

conspiracy, and breach of fiduciary duty. William Murray was dismissed by order of the

District Court and Crowley filed a counter claim against MMPI. Following a jury trial,

judgment was entered against MMPI on November 7, 1996. The jury verdict awarded

Clews $298,275.33 for breach of a written agreement for his consulting services, and

$8,268,851.78 for breach of MMPIþs promise to deliver stock. The jury verdict also

awarded Crowley $2,000,000 for breach of MMPIþs promise to deliver stock. On

November 18, 1996, MMPI filed a motion for new trial or in the alternative to alter or

amend judgment. On January 10, 1997, the District Court denied MMPI's motion.

MMPI filed its notice of appeal on February 7, 1997. We affirm the jury's verdict and

the judgment of the District Court.

The issues on appeal are:

1. Did the District court err when it excluded evidence related to Clews' and

Clive Smith's pending criminal charges of fraud and conspiracy?

2. Did the District Court err when it allowed testimony from another trial,

regarding the agency relationship between Clive Smith and MMPI, as admissions against

interest, and when it offered a jury instruction which characterized this testimony as a

judicial admission?

3. Did the District Court err when it failed to give MMPI's jury instruction

regarding subsequent contracts?

4. Was there sufficient evidence to support the jury's verdict?

5. Did the District Court err when it denied MMPI's motion for a new trial?

FACTUAL BACKGROUND

Historically, the Anaconda Company owned a large block of mineral interests in

Butte, Montana, which it sold to the Atlantic Richfield Company (ARCO). ARCO

subsequently disposed of all these mineral interests to Dennis Washington. An option to

acquire these mineral rights was given to two Australian men, Laith Reynolds and Kerry

Harmanis. Reynolds and Harmanis sought financial backing and entered into a joint

venture agreement with named Clive Smith, a citizen of England, who became the

financier of the joint venture. The members of the joint venture decided to form a series

of Montana corporations to provide ownership vehicles to which they could transfer

various mining claims, equipment, etc. One corporation, Montana Mining Properties,

Incorporated (MMPI), was formed to act as agent for the other corporations.

On January 27, 1987, the members of the joint venture, Smith, Reynolds, and

Harmanis, acting through MMPI, signed a contract with Dennis Washington to buy

mineral rights and properties, and to obtain certain other benefits. Over the next two

years, other Montana corporations were formed to provide ownership vehicles for various

mining claims or equipment. All of these corporations specifically authorized MMPI to

act as their agent and to provide management. That was the only reason for MMPI's

corporate existence.

The joint venture consisting of Smith, Reynolds, and Harmanis owned and

controlled all of the stock in the mining corporations through companies formed in the

Jersey Isles called the "Limiteds," in proportion to their ownership percentages in the

joint venture. Although the percentages of ownership in the joint venture were in a

constant state of flux between the three men and a new stock holder, Robertson Research

Limited, Smith eventually obtained the majority of the shares in the venture and absolute

control over it and MMPI.

In an earlier lawsuit filed against MMPI by Dennis Washington, Smith indicated

that he personally acted on behalf of MMPI on major matters; that he had procured all

of the funding for MMPI acquisitions; and that he had personally caused $25 million to

be expended in connection with the MMPI properties. He also testified on behalf of

MMPI that all assets of MMPI were beneficially owned by the members of the joint

venture. While on the witness stand, evidence was presented through Smith's testimony

and his attorney's statements to the court, that Smith owned 77.5 percent of MMPI, and

was the controlling person in that company.

In 1986, prior to the formation of the MMPI joint venture, Reynolds contacted

Frank Crowley to inquire about valuable mineral deposits in Butte. Crowley has intimate

knowledge about the mines on the Butte Hill and, at the time, had a lease arrangement

with ARCO. As part of this lease arrangement, Crowley obtained a wealth of valuable

geological and mining information which the Anaconda Company had accumulated over

a period of 100 years. He referred to these records as the "golden records." Crowley

informed Reynolds that the mineral deposit on the Butte Hill was extremely valuable and

very promising. Reynolds and Harmanis continued to solicit information from Crowley,

who shared his opinions on the mineral deposits and the wealth of geological information

found in the "golden records."

Soon after, Reynolds and Harmanis purchased the property as part of the joint

venture with Clive Smith. During the entire process of negotiation with Dennis

Washington, Crowley provided his advice and opinions at the request of Reynolds and

Harmanis. As a result of the purchase, MMPI owned, through the other twelve

corporations, several mining blocks on the Butte Hill, along with a considerable amount

of valuable mining equipment, including hoists, head frames, and compressors. Smith,

Reynolds, and Harmanis requested that Crowley assist them with the management and

development of the properties. They orally promised Crowley that they would pay his

fees, expenses, and give him a management position in the new company and a

substantial block of stock.

Sometime after the purchase of the mining interests on the Butte Hill, a dispute

arose between Reynolds, Harmanis, and Smith which eventually led Reynolds and

Harmanis to relinquish their interest in the joint venture. Smith then assumed the

management and sole right to control and direct the MMPI operations.

During this time period, in April 1988, Smith, on behalf of MMPI, approached

Malcom Clews and offered him employment with MMPI. At the time, Clews was

associated with Robertson Research, one of the four parties who held stock in MMPI.

Clews entered into an oral agreement to work for MMPI pursuant to Smith's request.

Initially he was to be paid a daily consulting fee, his out-of-pocket expenses, and was

promised an executive position in any public company formed upon MMPI's

þrealization,þ along with a block of stock in the public company. Clews sent monthly

invoices to MMPI in Butte, in accordance with the terms of this agreement.

In 1989, Clews and MMPI modified the oral agreement to require that Clews forgo

his daily fee in return for a larger block of stock in the public company. Clews gave a

credit against his monthly invoices for the daily fees charged from September 1988 to

January 1989. The remainder of the original agreement was unchanged.

In March 1990, Clews and MMPI made a second modification to the oral

consulting agreement. According to this modification, Smith, on behalf of MMPI,

promised Clews a monthly consulting fee of œ5000 (pounds sterling). The remainder of

the original oral agreement was unchanged.

In May 1990, a potential realization on the American Stock Exchange looked

promising for MMPI. During that time, an attorney who worked for the joint venture

reduced to writing the portions of Clews' and Crowley's oral consulting agreements

which dealt with fees and expenses. As a result, Crowley's general manager agreement,

which had previously been oral, was reduced to writing, as was Clews' consulting

agreement. The remaining portions of their oral agreements were unchanged. After

these agreements were reduced to writing, both Clews and Crowley were made officers

and directors of the various corporations constituting MMPI, and were listed on the

vendors' list as shareholders in the MMPI group of companies.

After several failed merger attempts, MMPI's realization finally occurred. In

1991, a new company called Newco No. 393497 was specifically created to hold the

assets and stock of the MMPI Butte mining corporations. Clews and Crowley were listed

on the schedule of stockholders of this numbered company. This company was then

merged with an existing British Columbian corporation called Nor Quest, which produced

Western and Pacific Resources Corporation (k/n/a/ Synergy). Western and Pacific

Resources Corporation owns 87.5 percent of MMPI stock and is publicly traded on the

Vancouver and NASDAQ stock exchanges. The remaining 12.5 percent of stock was,

and still is, held by Robertson Research Limited. Western and Pacific Resources

Corporation is, and has been since the time of the merger, a publicly held corporation

with an independent Board of Directors duly elected by the thousands of members of the

public who hold stock shares.

Clews and Crowley testified at trial that MMPI's oral promises of stock were not

premised on being made subject to any pooling agreement, and neither the vendors list

nor the subsequent schedule of stock holders in the numbered company indicated any

pooling agreement restrictions. Clews and Crowley testified that they performed their

services and remained with MMPI as consideration for the unrestricted stock promises,

fees, expenses, and positions as directors and executives of MMPI.

Following the execution of the written contracts with MMPI, Clews continued to

send monthly invoices for his services to MMPI. Many of the invoices were formally

approved by Crowley in his role as general manager of MMPI and officer and director

of the Montana corporations. However, Clews has yet to be paid for a large portion of

his services to MMPI. His last bill to MMPI shows a cumulative total owing of

œ107,275.04 for his consulting fees and expenses. Additionally, after the realization

occurred, Clews' and Crowley's requests for the stock they were promised were ignored,

as were those of others. To date, no stock has ever been delivered to Clews or Crowley.

ISSUE 1

Did the District court err when it excluded evidence related to Clews' and Clive

Smith's pending criminal charges for fraud and conspiracy?

We review discretionary trial court rulings to determine whether a district court

has abused its discretion. See May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont.

132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331,

337, 860 P.2d 121, 125, we held that "[t]he standard of abuse of discretion is applied to

discretionary rulings, such as trial administration issues, post-trial motions and similar

rulings." (Citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803

P.2d 601, 603-04.) The test for abuse of discretion is whether the trial court acted

arbitrarily without employment of conscientious judgment or exceeded the bounds of

reason resulting in substantial injustice. See Davis v. Davis (1996), 277 Mont. 188, 190,

921 P.2d 275, 277. We will not substitute our judgment for the District Court's unless

it clearly abused its discretion. See Gaustad v. City of Columbus (1995), 272 Mont. 486,

488, 901 P.2d 565, 567.

According to MMPI, as set forth in its motion in limine, on May 26, 1995, the

British Security Office in England arrested Clews and Smith and charged them with

conspiring to defraud in connection with the sale of stock in Butte Mining PLC, a United

Kingdom Company. MMPI claims that the charge alleged that the claimed value of the

stock of Butte Mining PLC far exceeded the value of the company's assets. According

to these facts, Clews and Smith currently await trial.

Prior to trial in this matter, the District Court granted Clews' motion in limine to

exclude evidence of any pending charges in England for the reason that they are irrelevant

to any issue in this case. MMPI maintains that these charges are relevant to Clews'

credibility, as well as to the relationship between Clews and Smith. MMPI's theory is

that any promises for shares of stock made by Smith to Clews were in his individual

capacity, and not as an agent of MMPI. Thus, the nature of Clews' and Smith's joint

venture and the fact they are facing criminal fraud charges together is relevant. MMPI

contends that the evidence would show that Clews is not an innocent victim who was

defrauded out of payment for services rendered, but rather that he is a savvy businessman

who knew exactly the type of arrangement into which he entered. MMPI cites a number

of criminal cases in support of its contention that, because Clews allegedly brought forth

his credibility as an issue at trial, MMPI should have the opportunity to rebut that

evidence with evidence of Clews' criminal activity.

Clews, on the other hand, contends, first, that his credibility and character were

never an issue at trial, and second, that the criminal charges in England were only

pending; there has been no conviction. Therefore, Clews argues that according to Article

II, Section 17, of the Montana Constitution, and õõ 26-1-602 and 26-16-204, MCA, he

should be presumed innocent until proven guilty. Clews maintains that an examination

of Rules 401, 402, 403, 404, and 609, M.R.Evid., mandate that this type of evidence be

excluded because the potential for prejudice far outweighs its probative value.

Clews also contends that MMPI did not give the notice required by Rule 404(b),

M.R.Evid., and State. v. Just (1979), 184 Mont. 262, 602 P.2d 957, that other crimes

or wrongful acts would be introduced for the purpose of proving motive, opportunity,

preparation, plan, knowledge, or identity.

The District Court granted Clews' motion in limine and excluded evidence of the

pending criminal charges on relevancy grounds pursuant to Rules 401 and 403,

M.R.Evid. We agree with the District Court and disagree with MMPI's contention that

it is necessary that these charges be admitted to demonstrate Clews' lack of character and

credibility.

We also disagree that this evidence is necessary to demonstrate the type of

relationship between Clews and Smith. The fact that they are both facing fraud charges

is not probative of the relationships between the two men. In fact, unproven charges do

not prove anything.

Moreover, even if this evidence was relevant pursuant to Rule 401, M.R.Evid.,

we agree with the District Court that pursuant to Rule 403, M.R.Evid., its probative

value is substantially outweighed by the danger of unfair prejudice. We therefore

conclude that the District Court did not abuse its discretion when it granted Clews'

motion in limine and excluded evidence of Clews' pending criminal charges.

ISSUE 2

Did the District Court err when it allowed testimony from another trial, regarding

the agency relationship between Clive Smith and MMPI, as admissions against interest,

and when it offered a jury instruction which characterized this testimony as a judicial

admission?

On appeal, MMPI contends that the District Court erroneously held that MMPI

was collaterally estopped from asserting that Smith did not bind MMPI with his promises

of stock to Clews and Crowley. It further contends that the District Court erred when

it offered as a jury instruction a statement made by the former attorney for MMPI which

establishes the agency relationship between MMPI and Smith, as a judicial admission

which concedes the truth of the attorney's statement.

We will first address MMPI's claim that the District Court collaterally estopped

it from rebutting the claim that Smith is an agent for MMPI. Our review of the record

gives no indication that the District Court ever made such a ruling. We conclude that

there was nothing done by the District Court to prevent MMPI from presenting evidence

that Smith did not bind MMPI with promises of stock to Clews and Crowley.

On September 9, 1996, the District Court held a pretrial hearing to determine what

exhibits could be used at the trial without objection. MMPI objected to a series of

exhibits that were offered by Clews and Crowley. These exhibits included previous

rulings and court orders in another lawsuit involving MMPI, as well as certain decisions

arising from an MMPI lawsuit in England. Clews and Crowley had marked as exhibits

portions of the transcript from those earlier hearings which described testimony given by

Clive Smith and statements made by the attorney for MMPI. Crowley moved that the

exhibits be admitted pursuant to the doctrines of collateral estoppel, judicial estoppel, or

judicial notice. Clews moved that the exhibits be admitted because the statements were

admissions by a party-opponent. At the conclusion of the arguments, the District Court

indicated that the statements made by Smith and his attorney, in the other proceeding,

were admissions by a party-opponent and, for this reason, certain portions of the

transcript could be read into evidence. The District Court made no ruling with regard

to Crowley's argument that the statements should be admitted based on collateral

estoppel, judicial estoppel, or judicial notice. The District Court indicated that the

transcript provisions were sufficient and that the decisions of the other courts could be

left out of the trial. The attorney for MMPI indicated that she would have no problem

with the limited introduction of that testimony. Nothing in the record suggests that the

ruling made by the District Court in any way prevented MMPI from introducing evidence

that Clive Smith did not bind MMPI with his promises to Clews and Crowley.

Rule 801(d)(2), M.R.Evid., governs admissions by a party-opponent. That rule

provides that a statement is an admission by a party-opponent and is not hearsay if:

[t]he statement is offered against a party and is (A) the party's own

statement, in either an individual or a representative capacity, or (B) a

statement of which the party has manifested an adoption or belief in its

truth, or (C) a statement by a person authorized by the party to make a

statement concerning the subject, or (D) a statement by the party's agent or

servant concerning a matter within the scope of the agency or employment,

made during the existence of that relationship, or (E) a statement by a

coconspirator of a party during the course and in furtherance of the

conspiracy.



We conclude that all of the elements contained within this rule of evidence are met

in this case and that the earlier testimony of Smith and the attorney for MMPI are not

hearsay. The statements were offered against MMPI, and the statements regarding

MMPI and Smith's agency relationship were made by MMPI's attorney and Smith

himself. Both Smith and his attorney, on the record, testified as to Smith's absolute

ownership and control over MMPI.

With regard to the jury instruction which MMPI appeals, we conclude that the

District Court did not commit reversible error by giving that instruction to the jury. The

instruction which MMPI appeals addresses the fact that the attorney for MMPI, in a prior

action, stated that Smith was the owner of 77.5 percent of the stock in MMPI and, as

such, was the person with ultimate control of the affairs of MMPI. Although the District

Court mischaracterized this statement as a judicial admission of fact, rather than as an

admission by a party-opponent, that characterization, by itself, had no significance to the

jury. The court correctly instructed the jury that the statement is binding on MMPI and

requires no further proof. We conclude that the effect and intent of the instruction was

the same as if the instruction characterized the statement as an admission by a party-

opponent, and that the mischaracterization of the statement was, at most, harmless error.



Accordingly, we conclude that the District Court did not collaterally estop MMPI

from asserting that Smith did not bind MMPI with his promises of stock to Clews and

Crowley; that the District Court did not preclude MMPI from calling witnesses or

presenting exhibits to prove that the promises of Smith did not bind it; and that the

statements made by Smith and MMPI's former attorney are admissible pursuant to Rule

801(d)(2), M.R.Evid., as admissions by a party-opponent. Moreover, we conclude it

was not reversible error for the District Court to mischaracterize these statements as

judicial admissions, rather than as admissions by a party-opponent.

ISSUE 3

Did the District Court err when it refused to give MMPI's jury instruction

regarding subsequent contracts?

We have held that "t is not reversible error for a district court to refuse an

offered instruction unless the refusal affects the substantial rights of the party who

proposed the instruction." Lacock v. 4Bþs Restaurants, Inc. (1996), 277 Mont. 17, 21,

919 P.2d 373, 375.

MMPI contends that the District Court committed reversible error when it refused

to give the following instruction regarding the statutory language of õ 28-2-904, MCA.

The execution of a contract in writing, whether the law requires it

to be written or not, supersedes all the oral negotiations or stipulations

concerning its matter which preceded or accompanied the execution of the

instrument.



The District Court indicated that MMPI could submit the instruction, but only of it was

in writing. MMPI did not do so prior to the completion of settling jury instructions.

It is unclear whether the instruction regarding the statutory language of õ 28-2-904,

MCA, was ever submitted by MMPI. However, had MMPI submitted that instruction

and the District Court refused to give it to the jury, the District Court's refusal would not

have been reversible error. According to the facts of this case, each of the contracts

between MMPI and Clews were fully performed successive contracts. In exchange for

his services, Clews was to receive stock in MMPI's public company, Western and Pacific

Resources Corporation, a position as the director and executive of the company, and fees

and reimbursement for his expenses. The fees and expenses portion of the contract was

later made into a written agreement, and the directors and officers of Western and Pacific

Resources Corporation listed Clews as the director and chief executive of the company.

Moreover, stock in Western and Pacific Resources Corporation was issued to Clews.



Because each successive contract varied from the previous contract, the contracts

may have appeared to be modifications of one another and, as MMPI contends, only

negotiations leading up to the final written contract. They were, however, separate

contracts that both parties executed and performed. The final written contract was not

intended to merge the previous contracts between the parties into one written agreement.

It related to only that portion of the parties' agreement which dealt with Clews' consulting

services and his fees and expenses.

In the case of Crowley, his written general manger contract incorporated entirely

the oral consulting agreement between the parties. The oral consulting agreement, as

referenced in the general manager contract, provided that in exchange for Crowley

providing management and knowledge of the Butte area claims, geology, and community,

as well as his assistance in bringing the MMPI project to fruition, Crowley was to receive

his fees, expenses, a substantial block of stock, and a director position. As such,

MMPI's appeal on this issue has no application to Crowley. Crowley's written general

manager contract fully incorporated any prior contracts between the parties.

Accordingly, we conclude that the District Court did not err by refusing to instruct

the jury regarding the statutory language of õ 28-2-904, MCA

ISSUE 4

Was there sufficient evidence to support the jury's verdict?

The standard of review of a jury's verdict is whether there is substantial credible

evidence in the record to support it. See Tanner v. Dream Island, Inc. (1996), 275

Mont. 414, 422, 913 P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485,

886 P.2d 971, 976. See also Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont.

320, 322-23, 820 P.2d 1285, 1287. In Baird v. Norwest Bank (1992), 255 Mont. 317,

323, 843 P.2d 327, 331, we held that

ubstantial evidence is that evidence that a reasonable mind might accept

as adequate to support a conclusion; it consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.

Although it may be based on weak and conflicting evidence, in order to rise

to the level of substantial evidence it must be greater than trifling or

frivolous.



(Citations omitted.) In Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051,

1053 we held that an attack upon a jury verdict as not supported by the evidence is proper

only when there is a complete absence of any credible evidence in support of the verdict.

All evidence and all inferences drawn therefrom must be considered in a light most

favorable to the adverse party.

MMPI contends that the jury verdict should be reversed for lack of substantial

evidence. It argues that there is not sufficient evidence for the jury to have found that

Smithþs promises of stock to Clews and Crowley, in exchange for their services, rose to

the level required to hold MMPI liable for these promises. Our review of the record,

however, indicates that there was substantial evidence to establish that MMPI, through

its agent Smith, did in fact promise and issue unencumbered stock to Clews and Crowley.



The facts of this case demonstrate that Clews and Crowley were both issued stock

in MMPI's public company, Western and Pacific Resources Corporation. The stock

which they held in that company was based upon stock that Clews and Crowley held in

Newco No. 393497. Clews and Crowley held stock in Newco No. 393497 because they

were stockholders in MMPI. They owned stock in MMPI because Smith divided up his

ownership interests in MMPI in the vendorþs lists prior to the formation of Newco No.

393497. All of these facts were presented to the jury and the jury agreed with Clews and

Crowley that Smith, on behalf of MMPI, promised them stock in the public company.

MMPI also appeals the jury's decision that the stock issued to Clews and Crowley

was not subject to a pooling agreement of which Clive Smith was the majority

shareholder. MMPI argues that the stock was issued to Clews and Crowley but that the

pooling agreement, which contractually combined and controlled the stock of several

shareholders of Western and Pacific Resources Corporation and prevented its members

from freely selling their stock, had nothing to do with MMPI or their parent company

Western and Pacific Resources Corporation. According to MMPI, Clews and Crowley

entered into the pooling agreement with Smith alone and, therefore, MMPI cannot be

held liable for the fact that Clews and Crowley cannot sell their pooled stock.

At trial, Clews and Crowley both maintained that they were not subject to the

pooling agreement because they had never given their consent. MMPI claims that Clews

and Crowley are bound by the pooling agreement because they acted as if they were

bound by it when they unsuccessfully attempted to acquire their stock pursuant to the

terms of the agreement. According to MMPI, because Clews and Crowley are bound by

the pooling agreement made with Smith, MMPI cannot be held liable for Clews and

Crowley's inability to sell their stock. We disagree.

Throughout the trial of this matter, Clews and Crowley exhaustively provided

evidence that Smith was in control of MMPI and that he acted on behalf of MMPI as its

agent. Through Smith, MMPI promised stock to Clews and Crowley which was not

subject to any pooling restrictions. It was only after the stock was issued that the pooling

agreement appeared. Based upon this evidence, the jury determined that MMPI's oral

promises of stock to Clews and Crowley were not subject to the pooling agreement. The

jury did not hold MMPI liable for the pooling agreement due to an agency relationship

between Smith and MMPI, but rather that Clews' and Crowley's stock was not subject

to the pooling agreement at all.

Accordingly, we conclude that there exists substantial credible evidence in the

record to support the jury's verdict that MMPI failed to deliver Clews' and Crowley's

stock as promised.

ISSUE 5

Did the District Court err when it denied MMPI's motion for a new trial?

The standard of review of a district court's denial of a motion for a new trial is

manifest abuse of discretion. See Baxter v. Archie Cochrane Motors, Inc. (1995), 271

Mont. 286, 287-88, 895 P.2d 631, 632 ("[t]he decision to grant or deny a new trial is

within the sound discretion of the trial judge and will not be disturbed absent a showing

of manifest abuse of that discretion"). See also Rasmussen v. State Comp. Mut. Ins.

Fund (1995), 270 Mont. 492, 496, 893 P.2d 337, 339; Jim's Excavating Serv., Inc. v.

HKM Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259.

MMPI contends that the District Court should have granted a new trial because the

jury awarded excessive damages to Clews. MMPI argues that the jury erroneously

awarded consulting fees to Clews beginning in October 1988, more than a year prior to

the effective date of the written consulting contract. MMPI further contends that the jury

verdict erroneously awarded damages to Clews for services that were to be paid for in

pounds sterling by converting those damages to United States' dollars on each monthly

"payday" throughout the term of Clews' consulting agreement. MMPI maintains that this

method of converting pounds sterling to dollars unfairly takes advantage of the

historically high conversion rates which were in excess of those in effect on the day the

verdict was rendered. According to MMPI, any damages awarded to Clews as a result

of a breach of his consulting agreement with MMPI should have been awarded in pounds

sterling and converted to dollars on the date the judgment was entered.

Clews, on the other hand, argues that the jury verdict was not in error and that the

damages were not excessive. According to Clews, the first month that Clews billed for

any consulting fees was the month of October 1990. The only charges for previous

months were charges for out-of-pocket expenses incurred by Clews which were

specifically authorized by his written agreement. The written contract required MMPI

to pay Clews a retainer of œ5,000 per month commencing February 1, 1990, until the

expiration of the contract. Clews contends that the undisputed facts at the trial

demonstrated that Clews had been providing services to MMPI since September 1988

and, therefore, a bill for expenses from September 1988 through January 1992 was

proper. With regard to the conversion of the pounds sterling to dollars, Clews argues

that he was entitled to the jury's award which was computed on a month-by-month basis

because this was a sum certain case.

We agree with Clews that the record demonstrates that he began providing services

to MMPI in September 1988 and, thus, the jury's award of expenses and fees from that

date through January 1992 was proper. With regard to MMPI's allegation that the jury

erroneously calculated the exchange rate from pounds sterling to U.S. dollars on a

monthly basis instead of on the day the judgment was entered, we conclude that MMPI

cannot raise this alleged error for the first time on appeal. The record in this case

indicates that MMPI failed to make a timely or specific objection to the manner in which

the jury calculated the conversion rate for Clews' damages. In State v. Huerta (Mont.

1997), St. Rep. 1139-40, 197 WL 687379, we held that where the appellant failed to

object at the time the court made the alleged error, the objection was not timely. See

also State v. Hofman (1996), 275 Mont. 455, 913 P.2d 1256; City of Forsyth v. Allison

(1995), 274 Mont. 246, 908 P.2d 205; State v. Walter (1994), 266 Mont. 429, 880 P.2d

1346; State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301; State v. Close (1981), 191

Mont. 229, 623 P.2d 940.

In addition to requiring a timely objection, we have held that the objection must

be specific in order to preserve the issue for appeal. In State v. Loh (1996), 275 Mont.

460, 479, 914 P.2d 592, 603-04, we held that a trial objection that is very general in

nature and which does not specify what authority, rule, statute, or constitutional provision

might be violated by the court's decision, is insufficient to preserve that issue on appeal.

In State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490-91, we further held that

an objector has an obligation to make the basis and grounds for his or her objection clear

to the court so that the district court is given an opportunity to correct itself and that

broad, general objections do not suffice.

MMPI's only objection to the manner of calculating damages was a general

objection to the foundation of several exhibits, one of which was the calculation sheet for

Clews' damages which included the conversion tables used by the jury. MMPI's claim

on appeal that the jury erroneously converted the exchange rate of Clews' damages each

month, rather than on the day the judgment or payment was made, is an argument which

it did not make to the District Court at the time the conversion tables were offered or

admitted. We conclude that because MMPI's objection was not timely or specific, it did

not preserve the issue for our consideration on appeal.

For these reasons, we affirm the jury's verdict and the judgment of the District

Court.









/S/ TERRY N. TRIEWEILER





We Concur:



/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ WILLIAM E. HUNT, SR.

[erti]