No. 87-218 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

WILLIAM ALBERS, 

Plaintiff and Respondent, 

-vsBAR ZF RANCH, INC., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Chouteau, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver; K. Dale 

Schwanke, Great Falls, Montana 

For Respondent : 

Luxan & Murfitt; Jack M. McLean, Helena, Montana 

Submitted on Briefs: Sept. 17, 1987 

Decided: December 17, 1987 

Clerk 
Mr. 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. 

The District Court awarded Albers $18,671.04 for loss of farm 

program deficiency payments, storage payments, and loss in 

sales price of grain. The District Court also awarded Albers 

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 remand with instructions to 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 and Audie Lohr, entered into an oral lease 

agreement with William Albers whereby Albers would farm 

approximately 1,800 acres on the Bar ZF in exchange for 

two-thirds of each crop. Albers resides near Fort Benton 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 not Albers' responsibility. 

Ray Lohr and Albers worked closely together in the operation 

of the farm, but farm practices were generally left t.o 

Albersl discretion. In addition, Albers was to furnish all 

necessary seed, fuel, fertilizer, machinery, and weed killer. 

Ray Lohr died in 1979 and left Mrs. Lohr as the 

presiding officer of the Bar ZF Ranch corporation. Albers 
continued to farm the Bar ZF after Ray Lohrls death with 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. On March 24, 1982, Mrs. Lohr applied to participate 

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 farm program. 

To be eligible for farm subsidy benefits for wheat, the 

Bar ZF was required to limit wheat planting to 712.5 acres. 

At the time of the ASCS 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 loan program. 

During the winter of 1981, Mrs. Lohr decided to retain 

a permanent tenant for the Bar ZF so she could move to Fort 

Benton for health reasons. Thereafter, Mrs. Lohr entered into 

an oral farm lease with 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 

because Albers had his own farm near Fort Benton. Albers was 

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. Lohrls April 5th letter also 

expressed her satisfaction with the general working 
relationship 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 that he discussed his intentions with Mrs. 

Lohr and they agreed that Albers could withdraw 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 she probably 

told him to discuss the matter 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 on May 1, 1982. Albers also cleaned seed grain, 

bought fertilizer, and moved machinery in preparation 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 recropping at that time because she believed that. 

recropping would hurt the subsequent tenant, Bronec, and 

because she believed there was insufficient reserve moisture 

in the soil. Albers testified that Mrs. 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 of 
Lands to request permi.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 do with the farm. They 

agreed that Albers would be excused from leaving summerfallow 

on the Bar ZF in exchange for his assurance that he would 

attempt no further recropping. The parties exchanged written 

agreements to that effect. Albers testified at trial that he 

also told Mrs. Lohr that he would again be participating in 

the farm subsidy program for wheat on the Bar ZF if she wou1.d 

not allow him to recrop. Mrs. Lohr testified that she was 

not told that Albers was back in the farm program. 

A few days later, Albers observed Bronec planting on 

the burned acreage. Mrs. Lohr had given Bronec permission to 

seed the burned acreage to prevent erosion. Albers did not 

talk to Bronec and assumed that Bronec was planting 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 that he 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 additional wheat so as not to 
damage Bronec. As a consequence, the Bar ZF was not able to 

participate in that year's farm subsidy program. 

Albers brought suit against the Bar ZF on November 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 counterclaimed with allegations that Albers failed 

to summerfallow and failed to control weeds on the Bar ZF. 

The case was tried before the District Court sitting without 

a jury on November 17 and 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 District Court err in determining that the 

Bar ZF had a legal duty to William Albers? 

(2) Was there sufficient evidence to support the 

District Court's award of damages to Albers? 

(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 that Albers was in compliance 

with the farm subsidy program requirements. The District 

Court made the following findings and conclusions relevant to 

thi-s issue. 

6. The court concludes that the oral, 

year-to-year agreement between the Bar ZF 

and Albers was 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 

allow Albers to operate and farm his 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 

the May 4-5 agreement, the highest 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 the highest return could 

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. [Additions ours.] 

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 District Court unless we determine that the 

District Court's findings were clearly erroneous and result 

in an abuse of discretion. Rule 52(a), M.R.Civ.P.; Walker v. 

Larson (Mont. 1986), 727 P.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 

evidence will be reviewed in a light most favorable to Albers 

as the prevailing party. Cameron & Jenkins v. Cameron 

(1978), 179 Mont. 219, 587 P.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 the parties agreed that, under the 

terms of the oral farm lease, Albers had an obligation to 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 the death of Ray Lohr. Mrs. Lohr, 

on the other hand, professed little knowledge of either 

specific farming practices or the farm subsidy program. She 

can, however, be charged with knowledge that Albers intended 

to either participate in the farm subsidy program 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 once he 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 farm program. 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. It was the Bar ZF's actions 

that caused noncompliance and it was the Bar ZF's obligation 

then to remedy the situation to assure compliance. Albers' 

position in this regard is fully supported by 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 

and without 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 

to do 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 District Court'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 to believe Albers and we will 

not disturb that decision. There is substantial credible 

evidence to support the District Court's finding that the Bar 

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-gation 
under 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 loan programs or 

that he would place all of his grain in the programs. In 

essence, the Bar ZF's argument in this regard is that Albersl 

damages are too speculative to 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, 

refer more to an uncertainty or speculation as to whether the 

loss of profits is a result of the breach of contract in this 

case than it does to an uncertainty as to the amount of the 

damages. Bolz v. Meyers (1982), 200 Mont. 286, 300, 651 P.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 the District Court's award of 

damages in this case. Albers will not be denied recovery in 

this case simply because he had the option to participate in 

the farm subsidy program. It is evident from the record that 

participation in the farm subsidy program would have been 

advantageous to the Bar ZF. Albers also chose to both recrop 

and participate in the farm program on other operations he 

farmed. He participated in both 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 to by Mrs. Lohr. 

The District Court made the following findings with 

regard to Albers' damages: 

24. Compliance date for the 1982 program 

was July 15, 1982, meaning that the Bar 

ZF had until that date to comply with the 

maximum allowable wheat acreage. Bronec 

testified that if he 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 

three parcels of land had he known it was 

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 (80 miles 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. The 
assigned yield for the Bar ZF was 24 

bushels per acre in 1982. Albers seeded 

705.1 acres of wheat on the Bar ZF on Mav 

5, 1982. Total deficiency payment for 

the wheat program in 1982 would 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 storage program with his share of 

the crops from the Bar 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 storage payment 

for the Bar ZF would have been $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 

to participate for a three yearst period. 

Storage payments were made November 4, 

1982. Albers' total loss of storage 

payments was $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 a particular farm and the 

actual seeded wheat acres. Usually 
participants in the program "turnover" 

their wheat to the Commodity Credit 

Corporation after three years, and 

effectively sell their grain for the loan 

rate. If grain is turned over to the 

Commodity Credit Corporation, all 

interest on the loan is forgiven. 

33. Albers redeemed part of the 1982 

grain which he had in the reserve program 

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 

acreage was 705.1. 

35. All wheat stored on the Bar 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. The per bushel sales price for wheat 

for the Bar ZF was $.36 per bushel less 

than it would 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 loan V Program in 1982 (36 times 

24 bushels of yield times 705.1 seeded 

acres = $6,092.06). Albersl share of 

those proceeds would have been $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. 

[Additions ours.] 

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 farm program: 

(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 shall have 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 calculation with a reasonable 

degree of certainty. This Court recognizes that "[alny award 

of damages 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 to merit 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 cents per 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 grain was negligible in 

this case because (1) Albers used his own grain truck to 

haul the grain at his own expense, and (2) the distance 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 1982 wheat 

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 loan program 

price per bushel to determine loss of selling price of grain. 

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-on of loss of 

selling price of grain. 

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 first qualify for the reserve loan program 

on June 1, 1983. Albers points out that his inability to 
participate in the farm program, 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 average price at which 

he was forced to sell his grain. We agree with Albers. 

Albers was in no position to wait 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 selling price between August 19, 1982 and 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 "capable of being made certain by 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 the debt. 

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 capable of being made certain by 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 on 
the 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 awarding Albers prejudgment interest. 

The Bar ZF next argues that prejudgment "interest 

awarded on the reserve loan program rate differential payment 

can only be awarded from June 1, 1983, which is the date the 

loan rate would first have been payable, and then only at 6% 

per annum until October 1, 1985, when § 31-1-106 was 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 on which the right to recover vested. In this case, 

Albers would not have received the reserve loan program rate 

differential payment until June 1, 1983. Any award of 

interest must, therefore, be calculated from that date. 

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 

statute was amended on that date to allow interest at 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 the District 

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 erroneous and 

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 is undisputed that Mrs. Lohr, acting for the Bar ZF, 

released Albers from any obligation to leave summerfallow in 

a written agreement on May 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 that Mrs. Lohr had retained a new tenant. We find 

that Albers gave up his right to recrop as consideration for 

Mrs. Lohr's summerfallow release. 

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 about his efforts to control weeds 

as did the subsequent tenant, Rronec. Albers produced 

receipts for costs of weed control and a witness who applied 

herbicides on the Bar ZF in 1981 at Albers' direction. 

Bronec guessed that he spent around $30,000 to control weeds 

in the three years after Albers left. The Bar ZF did not 

produce receipts as to exact costs of weed control nor did it 

attempt to prove how much of Bronec's approximations could be 

attributed to normal weed control on the Bar 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 to be controlled by the Bar ZF during Albers 

tenancy. In contrast, Bronec was responsible for controlling 

weeds on these grasslands for at least two of the three years 
included in his cost approximations. Finally, the District 

Court heard evidence that the weeds on the 2,000 acres of Bar 

ZF grasslands were 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 

counterclaim with 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 in part, reversed in part, and remanded 

with instructions to recalculate prejudgment intp5Zest. /' 

Affirmed in part, reversed in part. ' ' " 

We concur: ,,'7