No. 87-218

INTHE SUPREME COURTOF THE STATEOF MONTANA
1987

WILLIAMALBERS, Plaintiffand Respondent,-vsBAR ZF RANCH, INC., Defendantand Appellant.

APPEAL FROM: District Court of the TwelfthJudicialDistrict, Inand for theCounty of Chouteau, TheHonorableChanEttien, Judgepresiding.
COUNSELOF RECORD:

ForAppellant: Jardine, Stephenson,Blewett & Weaver; K. Dale Schwanke, GreatFalls,Montana
For Respondent:
Luxan & Murfitt; JackM. McLean,Helena,Montana

Submittedon Briefs: Sept. 17, 1987 Decided: December 17, 1987

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

The Bar ZF Ranch appeals a Chouteau County District Court judgment awarding William Albers (Albers)damages and costs of suit for breach of an oral contract. The District Court, sitting without a jury, found that the Bar ZF Ranch

(Bar ZF) breached its obligation to allow Albers to participate in the 1982 federally sponsored farm subsidy program on farm land owned by Bar ZF and leased by Albers. TheDistrictCourt awarded Albers $18,671.04 for loss of farm program deficiency payments, storage payments, and loss in salesprice of grain. The District Court also awardedAlbers prejudgment interest pursuant to S 27-1-211 and S 30-1-106, MCA. Defendant Bar ZF Ranch appeals. We affirm in part, reverse in part, and remandwith instructionsto recalculate prejudgment interest. The Bar ZF Ranch is a 3,700-acre farm located in Chouteau County, near Carter,Montana. In 1967, the owners of the Bar ZF,Ray andAudie Lohr,entered intoan oral lease agreement with William Albers whereby Albers would farm approximately 1,800 acres on the Bar ZF in exchange for two-thirdsof each crop. Albers residesnear FortBenton and farms various farmlands with his brother. The 1,800 acres included approximately 640 acres leased by the Bar ZF from the State of Montana. There are also 2,000 acres of grassland on the Bar ZF that were notAlbers' responsibility. Ray Lohr and Albers worked closely together in the operation of the farm, but farm practices were generally left t.o Albersldiscretion. In addition, Albers was to furnish all necessary seed, fuel, fertilizer, machinery, andweed killer. Ray Lohr died in 1979 and left Mrs. Lohr as the presiding officer of the Bar ZF Ranch corporation. Alberscontinued to farm the Bar ZF afterRay Lohrlsdeathwith very little participation from Mrs. Lohr in day-to-day farming operations. Albers decided what crops to plant on what acreage and whether to participate in the federal farm program. OnMarch 24, 1982,Mrs. Lohr applied toparticipate in the farm subsidy program with the Agricultural Stabilization and Conservation Service (ASCS)

## ,United States Department of Agriculture. Mrs. Lohr signed and filed the ASCS papers at Albers' request, hut she later professed ignorance as to the general requirements and procedures of the farmprogram. Tobe eligible for farm subsidybenefits forwheat, the Bar ZF was required to limitwheat planting to 712.5 acres. At the time of theASCS application, Albers had approximately 705 acres of winter wheat seeded on the Bar ZF. Under the wheat subsidy program as it then existed, the Bar ZF would have qualified for deficiency payments and annual storage payments for 1982 wheat stored in the federal government reserve loanprogram. During the winter of 1981,Mrs. Lohr decided to retain

a permanent tenant for the Bar ZF so she could move to Fort Benton forhealth reasons. Thereafter,Mrs. Lohr entered into

an oral farm leasewith Robert Bronec (Bronec) whereby Bronec would farm and live on the Bar ZF after the 1982 harvest. This agreement was later reduced to writing in the fall of 1982. Mrs. Lohr did not ask Albers to live on the Bar ZF becauseAlbers had his own farmnear FortBenton. Alberswas not informed of the Bronec lease until the end of March, 1982. Mrs. Lohr gave Albers written notice of the termination of his lease in a letter dated April 5, 1982. The letter required Albers to summerfallow the Bar ZF before quitting the property. Mrs. LohrlsApril 5th letter also expressed her satisfaction with the general workingrelationship between the Lohrs and Albers since Albers began farming the Bar ZF in 1967. Upon learning that his lease with the Bar ZF was to end, Albers decided not to participate in the farm subsidv program. Instead, Albers determined that the heavy stubble and reserve moisture on the Bar ZF acreage would provide ideal conditions for burning and recropping. Albers testified at trial thathediscussed his intentionswithMrs. Lohr and they agreed thatAlbers couldwithdraw from the farm subsidy program and recrop one-half of the Bar ZF stubble acreage. The Bar ZF apparently had never been recropped in this manner and Mrs. Lohr was reluctant to agree to Albers' request. Mrs. Lohr testified that she was "unclear" as to whether she told Albers he could recrop and that sheprobably told him to discuss thematter with Bronec. Albers prepared for the reseeding by burning a 184.6

acre field and by preparing a fire guard around another 94.5

acre field onMay 1, 1982. Albers also cleaned seed grain, bought fertilizer,andmoved machinery inpreparation for the recropping. Mrs. Lohr noticed the smoke from the May 1st burning and personally delivered a note to Albers that afternoon to demand that he quit burning stubble. Mrs. Lohr objected to recroppingat that time because shebelieved that. recropping would hurt the subsequent tenant, Bronec, and because she believed there was insufficient reservemoisture in the soil. Albers testified thatMrs. Lohr appeared very upset and that he acquiesced to her demands in concern for her health. Sometime after May 1, 1982,Mrs. Lohr had Bronec probe the soil on the Bar ZF to determine if there was sufficient. moisture to recrop. The probes revealed marginal to sufficient moisture on the fields in question. On May 3, 1982, Mrs. 1,ohr contacted the Montana State Department ofLands to requestpermi.ssion to recrop the 640 acres of State land leased to the Bar ZF. Albers returned to the Bar ZF on May 5, 1982, and talked with Mrs. Lohr-about what to dowith the farm. They agreed thatAlberswould be excused from leaving summerfallow on the Bar ZF in exchange for his assurance that he would attemptno further recropping. The parties exchangedwritten agreements to that effect. Albers testified at trial thathe also told Mrs. Lohr that he would again be participating in the farm subsidy program forwheat on the Bar ZF if shewou1.d not allow him to recrop. Mrs. Lohr testified that she was not told that Alberswasback in the farmprogram. A few days later, Albers observed Bronec planting on theburned acreage. Mrs. Lohr had given Bronecpermission to seed the burned acreage to prevent erosion. Albers did not talk to Bronec and assumed thatBronecwasplanting barley or some other crop which would not effect the Bar ZF's compliance with the farm program. Bronec seeded two fields to wheat and one to barley by about May 12, 1982. Albers testified thathe returned to the Bar ZF around May 19, 1982, to discover that Bronec had planted wheat in an amount sufficient to disqualify the Bar ZF from the farm subsidy program. On June 22, 1982, Albers had his attorney write Mrs. Lohr to inform her that "the present operator of the Bar ZF Ranch has exceeded the allowable wheat acreage" for compliance with the farm subsidy program and that noncompliance with the program would cause Albers financial damage. Mrs. Lohr returned to the Bar ZF from an out-of-state trip to find the letter on July 1, 1982. Thereafter, Mrs. Lohr had two weeks to bring the Bar ZF in compliance before the July 15, 1982, ASCS deadline. Mrs. Lohr elected not to destroy the additionalwheat so as not todamage Bronec. As a consequence, the Bar ZF was not able to participate in thatyear's farm subsidyprogram. Albers brought suit against the Bar ZF onNovember 14, 1984. In his amended complaint, filed on July 29, 1986, Albers alleged breach of contract, estoppel, bad faith, constructive fraud, unjust enrichment, constructive evictment, and breach of the covenant of quiet enjoyment. The Bar ZF counterclaimedwith allegations that Albers failed to summerfallow and failed to control weeds on the Bar ZF. The case was tried before the District Court sittingwithout

a jury onNovember 17and 18, 1986. On February 6,1987,the District Court issued its findings, conclusions, and decree awarding Albers contract damages, prejudgment interest and costs. The Bar ZF appeals and raises the following issues: 

### (1) Did the DistrictCourt err indetermining that the Bar ZF had a legal duty toWilliam Albers? (2) Was there sufficient evidence to support the DistrictCourt's award ofdamages toAlbers? (3) Did the District Court err in awarding Albers prejudgment interest? (4) Did the District Court err in denying Bar ZF's counterclaims? In its first issue, the Bar ZF argues that it owed no obligation, or duty, to assure thatAlbers was in compliance with the farm subsidy program requirements. The District Courtmade the following findingsand conclusionsrelevantto thi-sissue.

### 6. The court concludes that the oral, year-to-year agreement between the Bar ZF andAlberswas a lease.
7. Lohr and Albers appeared to farm within the customary practices applying to oral leases in the area.

### 8. 

### The lessee was obligated to follow the better customary farm practices in the community.

11. The Bar ZF 

### had the obligation to allowAlbers to operateand farmhis 1982 winter wheat crop in a way which would bring him land Bar ZF) the highest return. Mrs. Lohr had an obligation under the oral lease to cooperate with Albers' staying in the [farm subsidy] program.

14. When Mrs. Lohr and Albers signed theMay 4-5 agreement,thehighest return then was for Albers and the Bar ZF to bring their wheat within the [farm subsidy] program. Mrs. Lohr had an obligation under the oral lease to cooperate with Albers in staying in the program, so that thehighest returncould be achieved.

Mrs. Lohr 's failure and refusal to achieve compliance and inclusion in the wheat program, when she was able to do so, was a breach of the oral contract. 15. The Bar 

### ZF, through Mrs. Lohr, prevented Albers from participating in the wheat program, and he suffered damages. [Additionsours.]
The Bar ZF contends that the District Court erred in finding that it owed an obligation to Albers. We will not reverse the order of the DistrictCourt unlesswe determine that the District Court's findings were clearly erroneous and result inan abuse ofdiscretion. Rule 52(a), M.R.Civ.P.; Walkerv. Larson (Mont. 1986), 727P.2d 1321, 1322-23, 43 

### St.Rep. 1765, 1767. We will not disturb those findings that are supported

### by substantial credible evidence. In re the Matter of B.T. (Mont. 1986), 725 P.2d 230, 232, 43 St.Rep. 1728, 1730. The evidencewillbe reviewed in a light most favorable to Albers

as the prevailing party. Cameron & 

### Jenkins v. Cameron

(1978),179Mont. 219, 587P.2d 939. The Bar ZF incorrectly construes S 

### 27-1-105, MCA, 

### to characterize its obligation as arising by operation of law rather than by contract. An obligation is defined as "a legal duty by which a person is bound to do or not to do a 

### certain thing." Section 28-1-101, MCA. An obligation can arise by either contract or operation of law. Sections 27-1-105 and 28-1-102, MCA. We find, as did the District Court, that the oral lease in question served as a contract through which each party acquired their respective obligations. In the instant case theparties agreed that,under the terms of theoral farm lease,Albers had an obligationto the Bar ZF to utilize the better farming practices in the community. Albers was given wide discretion in choosing those practices during his lease of the Bar ZF. That discretion increased with thedeath of Ray Lohr. Mrs. Lohr,

on the other hand, professed little knowledge of either specific farming practices or the farm subsidyprogram. She can,however,be charged with knowledge thatAlbers intended to either participate in the farm subsidyprogram or recrop. Mrs. Lohr would not allow Albers to recrop so it was reasonable for her to assume that the only other alternative

was for the Bar ZF to remain in the farm subsidy program. The Bar ZF claims that it was Albers' obligation to assure compliance in the farm program oncehe discovered that the Bar ZF had been overseeded by Bronec. We disagree. It

was Bronec, acting at Mrs. Lohr's direction, who overseeded and disqualified the Bar ZF from the farmprogram. Albers,

### through his attorney, requested that the Bar ZF correct the situation to assure compliance with the farm subsidy program by the July 15, 1982,deadline. Itwas the Bar ZF's actions that caused noncompliance and itwas the Bar ZF's obligation then to remedy the situation to assure compliance. Albers' position in this regard is fully supportedby the Restatement

(Second)of Property § 

### 5.4 (1977),which states: There is a breach of the landlord's obligations if, after a tenant's entry andwithout fault of the tenant,a change in the condition of the leased property caused by the landlord's conduct or failure to fulfill an obligation to repair, 

# . . .makes the leased property unsuitable for the use contemplated by the parties and the landlord does not correct the situation within a reasonable time after being requested by the tenant todo so. The Bar ZF 

### also calls into question the District Court's interpretation of numerous other facts. These arguments are not persuasive because there is substantial evidence to support the DistrictCourt's findings. Though Mrs. Lohr denied that Albers told her that he intended to participate in the farm program, it is the function of the trial court in a nonjury trial to determine the credibility of the witnesses and the weight to be accorded their testimony. In re the Matter of the Estate of Murnion (Mont. 1984), 686 P.2d 893, 896, 

### 41 St.Rep. 1627, 1630. The District Court chose tobelieveAlbers andwewill not disturb that decision. There is substantial credible evidence to support the DistrictCourt's finding that theBar ZF 

### owed Albers an obligation to allow him "to operate and farm his 1982 winter wheat crop in a way which would bring him (and the Bar ZF) 

### the hiahest return" and an "obli-gationunder the oral lease to cooperate with Albers' staying in the [farm subsidy]program." The Bar ZF next questions the sufficiency of the evidence to support an award of damages in this action. The Bar ZF argues that there was no guarantee that Albers would participate in the 1982 regular and reserve loanprograms or that he would place all of his grain in the programs. In essence,the Bar ZF's argument in this regard is thatAlbersl damages are too speculativeto be recoverable. Again, we ware charged with reviewing the record to determine if there is substantial credible evidence to support the District Court's findings in this regard. In re the Matter of B.T., supra. Speculative damages not clearly ascertainable are not recoverable. Cremer 

### v. Cremer Rodeo Land and Livestock Go. (Mont. 1981), 627 P.2d 1199, 1202, 38 St.Rep. 574, 578. The terms "speculative damages," however, refermore toan uncertainty or speculationas towhether the loss ofprofits is a result of thebreach of contract in this

case than it does to an uncertainty as to the amount of the damages. Bolz v. Meyers (1982),200Mont. 286, 300, 651P.2d 606, 613. As discussed previously, there is substantial evidence that the Bar ZF breached the oral lease by causing noncompliance with the farm program. There is also substantial evidence to support theDistrictCourt's award of damages in this case. Albers will not be denied recovery in this case simplybecause he had the option toparticipate in the farm subsidyprogram. It isevident from the record that participation in the farm subsidy program would have been advantageous to the Bar ZF. Albers also chose toboth recrop and participate in the farm program on other operations he farmed. 

### Heparticipated inboth the regular and reserve loan programs 

### on two other operations that were so qualified.

### Albers' decision on the Bar ZF 

### was to participate in the program due to his inability to recrop as planned and as previously agreed toby Mrs. Lohr. The District Court made the following findings with regard toAlbers' damages: 24. Compliance date for the 1982program was July 15, 1982,meaning that the Bar ZF

### had until that date to complywith the maximum allowable wheat acreage. Bronec testified that ifhe had been informed of the problem, he was sure that "something could have been worked out." He also said he could have seeded barley on all threeparcels of land had he known itwas necessary, or could have cut and baled young wheat for hay for his cattle. Compliance could have been accomplished by July 15, 1982. 25. Mrs. Lohr made no effort to achieve compliance and inclusion in the wheat program. Albers lost all the benefits accruing from compliance.
26. Albers, up to July 15, 1982, was eligible for participation in the farm program, the farm storage grain reserve program, and the Commodity Credit Corporation loan program on the Bar ZF 

### in 1982.
27. Albers was unable to use spring wheat which he had cleaned at a cost of $116.75, and he had not return fertilizer. He received credit on the fertilizer, but incurred 80 miles of needless driving to return it, at a cost of $40.00 (80miles times $.50).
28. Deficiency payment for the 1982 program was $.50 per bushel paid in December, 1982. The total amount of the deficiency payment for a farm is calculated by multiplying the $.50 per bushel by the assigned yield for the Bar ZF 

### and again by the seeded acreage. Theassigned yield for the Bar ZF was 24 bushels per acre in 1982. Albers seeded 705.1 acres ofwheat on theBar ZF onMav 5, 1982. Total deficiency payment for thewheat program in 1982would have been $8,461.20. Alberst share of that deficiency would have been $5,640.80.
29. Albers had sufficient storage capacity on his own place in 1982 and afterwards, and would have participated in the storageprogram with his share of the crops from theBar ZF.
30. Annual storage payments are calculated by multiplying the per bushel annual storage payments by the assigned wheat yield for the Bar ZF by the seeded acreage. 31. The annual storage payment for the three-year reserve program in 1982 was $.265 per bushel, the assigned wheat yeild for the Bar ZF was 24 bushels per acre. Albers had seeded 705.1 acres of wheat. The total annual storagepayment for the Bar ZFwould havebeen $4,484.44. Albers would have received two-thirds of this amount, or $2,989.62. Storage payments are made in advance on an annual basis and participants would be eligible toparticipate for a threeyearstperiod. Storage payments were made November 4, 1982. Albers' total loss of storage paymentswas $8,968.86.
32. Albers would have also participated in both the regular loan program and reserve loan program. Of 700-800 Chouteau County farmers, 641 used the loan program in 1982. Under the regular loan program, participants could have qualified for a loan immediately in this amount of $3.49 per bushel. After nine months, participants would qualify for the reserve loan of $3.94 per bushel. These loans are based on the assigned wheat yield for aparticular farm and the actual seeded wheat acres. Usuallyparticipants in the program "turnover" their wheat to the Commodity Credit Corporation after three years, and effectively selltheir grain for the loan rate. 

### If grain is turned over to the Commodity Credit Corporation, all intereston the loan is forgiven.
33. Albers redeemed part of the 1982 grainwhich he had in the reserveprogram in 1983. However, he redeemed his maximum amount allowable under the 1983 PIK program and would have left the Bar ZF grain in storage.
34. The reserve loan V rate [sic] the 1982 farm program was $3.94. The assigned wheat yield for the Bar ZF was 24 bushels per acre. The actual wheat acreagewas 705.1.
35. All wheat stored on theBar ZF Ranch was sold prior to the 1983 harvest. A recap of the sold wheat, based on EXHIBITS 19-A through 19-P 

# . .

# . [shows 40,291.39 bushels sold

## for$144,388.701. $144,388.70 divided by 40,291.39 bushels = $3.58 bushel average selling price.
36. Theper bushel sales price forwheat for the Bar ZF was $.36 per bushel less than itwould have been under the reserve loan 

### V Program ($3.94

## - $3.58 = .36). The Bar ZF would have earned $6,092.06 more if it had participated in the reserve loanV Program in 1982 (36times 24 bushels of yield times 705.1 seeded acres = $6,092.06). Albersl share of those proceeds would havebeen $4,061.38.
37. Mrs. Lohr Lohr received two-thirds of the proceeds of the crop which Bronec seeded in May, 1982, or $4,817.66. [Additionsours.]

From these findings the District Court concluded the following:15. The Bar ZF, through Mrs. Lohr, prevented Albers from participating in the farm program, and he suffered damages.
16. Albers incurred the following losses by being precluded from participating in the farmprogram:

(a) Loss of farm program deficiency payments, received 12/83

## - $5,640.80.

(b) Loss of storage payments received, one-third received on 11/4/82, 11/4/83, and 11/4/84

## - $8,968.86.

(c) Loss in sales price of grain, received 9/82

## - $4,061.38.

Accordingly, the District Court entered judgment in favor of Albers and against the Bar ZF as follows: 1. For the sum of $5,640.80, with interest of 10% since December 1, 1982.
2. For the sum of $2,989.62, with interest of 10% from November 4, 1982.
3. For the sum of $2,989.62 with interest of 10% from November 4, 1983.
4. For the sum of $2,989.62 with interest of 10% from November 4, 1984.
5. For the sum of $4,061.38, with interest of 10% from September 1, 1982.
6. Plaintiff shallhave his costs.


### 7. The counterclaims are dismissed.
There is substantial evidence in the record to support the District Court's assessment of damages in this case and Albers' damages are subject to calculationwith a reasonable degree of certainty. This Court recognizes that "[alny award ofdamages is grounded to a certain degree upon speculation."Sack v. A.V. Design, Inc. (Mont. 1984), 683 P.2d 1311, 1315, 41 St.Rep. 1272, 1276. Damages are not sufficiently speculative in this case tomerit reversal. The Bar ZF argues that the District Court erred in calculating damages by not subtracting the cost of transporting grain to storage. At trial, Albers testified that, before he purchased his own tandem truck, it cost approximately ten centsper bushel to transport his grain the four miles from the Bar ZF to his storage bins in Fort Benton. This Court has long recognized that only the net value of lost crops can be recovered. Agrilease, Inc. v. Gray (1977), 173 Mont. 151, 159, 566 P.2d 1114, 1117. However, any alleged cost of hauling grainwas negligible in this case because (1) Albers used his own grain truck to haul the grain at his own expense,and (2) thedistance from the Bar ZF farmlands to Albers' grain storage facilities is nominal. The Bar ZF also contends that the District Court erred when it failed to differentiate between sales of 1982wheat and sales of wheat harvested in other years to compute loss of sales price of grain. The District Court calculated the average selling price of Bar ZF wheat from August 19, 1982, to May 9,1983,and compared that to the reserve loanprogram price per bushel todetermine loss of selling price ofgrain. We believe that this method of using average selling prices

was reasonable under the circumstances. Accordingly, the District Court did not err in its calculati-onof loss of sellingprice ofgrain. Finally,and again with regard to Albers' loss of sales price of grain, the Bar ZF asserts that the District Court erred by relying on market prices for grain sold before the date Albers could firstqualify for the reserve loanprogram
on June 1, 1983. Albers points out that his inability toparticipate in the farmprogram, caused by Mrs. Lohr, forced him to sell his grain to meet expenses before June 1, 1983. He aruues that it is only equitable to calculate loss of sales price of his grain based on the averageprice atwhich he was forced to sell his grain. We agree with Albers. Alberswas in no position towait until June 1, 1983,to sell his grain. The June 1, 1983 market price is, therefore, immaterial and the District Court did not err in using Albers' average sellingpricebetween August 19, 1982and May 9, 1983. The Bar ZF's third issue relates to the District Court's alleged errors in the calculation and award of interest. The Bar ZF first argues that Albers' damages are not "capableofbeing made certainby calculation." The Bar ZF relies on § 27-1-211, MCA, which provides as follows: Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by act of the creditor from paying thedebt.
To be entitled to prejudgment interest, Albers must meet three criteria previously recognized by this Court. Agrilease, 566 P.2d at 1118-1119. The criteria are: (1) an underlying monetary obligation; (2) the amount of recovery is capableofbeingmade certainby calculation;and (3) the right to recover the obligation vests on a particular day. The Bar ZF argues that the recovery in this case was not capable of being made certain by calculation and the right to recover did not vest on a particular day. Albers' damages, as evidenced by the District Court's calculations,

were clearly calculable given historical average yields onthe Bar ZF and per bushel loan rates set under the farm program. Albers' right to recover these damages vested on the particular ASCS dates for deficiency payments, storage payments, and sale. Accordingly, the District Court did not

err in awardingAlbers prejudgment interest. The Bar ZF next argues that prejudgment "interest awarded on the reserve loanprogram rate differentialpayment

can only be awarded from June 1, 1983,which is the date the loan rate would firsthave been payable, and then only at 6% per annum until October 1, 1985,when § 31-1-106was amended to 10% rather than the 10% awarded by the trial court straight through." We agree. Section 27-1-211, MCA, as previously set forth, only allows an award of interest from the date onwhich the right to recovervested. In this case, Albers would not have received the reserve loan program rate differential payment until June 1, 1983. Any award of interestmust, therefore,be calculated from thatdate. Prejudgment interest should be awarded in compliance with § 31-1-106,MCA. Byrne v. Terry (Mont. 1987), 741 P.2d 1341, 1344, 44 St.Rep. 1620, 1624. Prior to October 6,1985, § 31-1-106, MCA, only allowed interest at 6%per annum. The statutewas amended on that date to allow interestat 10%per
annum. We find that Albers is entitled to prejudgment interest at 

### 6% per annum until October 1, 1985, and at 10% per annum thereafter. In its final issue,the Bar ZF argues that theDistrict Court erred when it denied the Bar ZF's counterclaims. The Bar ZF sought damages for Albers' alleged failure to have good summerfallow and for his alleged failure to control noxious weeds. The District Court found that the counterclaims failed for lack of evidence. The District Court's findings in this regard must be clearly erroneousand must constitute an abuse of discretion to merit reversal.

### Rule 52(a)

## ,M.R.Civ.

### P.;

### Walker v. Larson, supra. Our review of the record leads us to agree with the District Court. It isundisputed thatMrs. Lohr,acting for the Bar ZF, releasedAlbers from any obligation to leave summerfallowin

awritten agreementonMay 5, 1982. 

### Mrs. Lohr's summerfallow agreement was in exchange for Albers' promise not to recrop the Bar ZF. The Bar ZF contends that Albers gave Mrs. Lohr

no consideration for the summerfallow agreement because Albers had no right to recrop. We disagree. Under the oral farm lease, Albers was charged with choosing the farming methods to be used on the Bar ZF. He chose to recrop after learning thatMrs. Lohr had retained a new tenant. We find that Albers gave up his right to recrop as consideration for Mrs. Lohr's summerfallowrelease. The Bar ZF also alleges that Albers failed to control noxious weeds during his tenancy on the farm. The District Court heard testimony that tended to show a weed problem on the Bar ZF at all times before, during and after Albers' tenancy. Albers testified abouthis efforts to controlweeds

as did the subsequent tenant, Rronec. Albers produced receipts for costs ofweed control and awitnesswho applied herbicides on the Bar ZF in 1981 

### at Albers' direction. Bronec guessed that he spent around $30,000 to controlweeds in the three years after Albers left. The Bar ZF did not produce receiptsas to exact costsofweed control nor did it attempt toprove howmuch ofBronec's approximationscouldbe attributed tonormalweed controlon theBar ZF. The District Court also heard evidence to the effect that Albers was not responsible for controlling those weeds that grow on Bar ZF 

### grasslands, coulees, and reservoirs. These weeds were tobe controlledby theBar ZF

### during Albers tenancy. Incontrast,Bronecwas responsible for controlling weeds on these grasslands for at least two of the three years

### included in his cost approximations. Finally, the District Courtheard evidence that the weeds on the 2,000acres ofBar ZF 

### grasslandswere upwind of the Bar ZF farmlands and were a substantial factor in the spread of noxious weeds on the farmland. Given all of the above referenced facts, the District Court did not err in denying the Bar ZF's counterclaimwith respect to noxious weed control. The Bar ZF also counterclaimed for the alleged damage it contends Albers caused by not assuring compliance in the farm program. Given the disposition of the Bar ZF's first issue in this appeal, we cannot give this last contention serious consideration. Accordingly, the District Court judgment is affirmed inpart, reversed in part, and remanded with instructionsto recalculate prejudgment intp5Zest.
/' 

### Affirmed inpart,reversed inpart. ' ' "



### We concur: ,,'7