No. 85-342 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CRYSTAL SPRINGS TROUT COMPANY, 

a Montana corporation; THOPAS 

NYQUIST and VIRGINIA NYQUIST, 

husband and wife; KENNETH NYQUIST 

and KATHLEEN NYQUIST, husband and 

wife; RONALD PRESTON; ROBERT MOORE 

and PEGGY MOORE, husband a.nd wife; 

and EARL BRADFORD and ALICE BRADFORD, 

husband and wife, 

Plaintiffs and Respondents, 

FIRST STATE BANK OF FFOID, a banking 

corporation, and JERRY R. WALLANDER, 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broad.water, 

The Honorable Gordon Rennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Goetz, Madden & Dunn; James H. Goetz argued, Bozeman, 

Montana 

For Respondent: 

Gough, Shanahan, Johnson & Wa-terman; Ronald Waterman 

argued, Helena, Montana 

Garrity, Keegan & Brown; Donald Garrity, Helena., 

Montana 

Submitted: October 21, 1986 

Decided: January 15, 1987 

I 

i2kz *0- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The First State Ba~k of Froid (Bank) appeals the 

judgment of the District Court, First Judicial District, 

County of Broadwater, awa.rding compensatory and punitive 

damages to plaintiffs Crystal Springs Trout Company (CSTC) 

and its shareholders for breach of an oral contract to loan 

money and for negligent misrepresentation. Plaintiffs have 

cross-appealed on two issues concerning the terms of the 

final judgment. We affirm in part and. reverse in part. 

The Bank raises eight issues: 

1. Whether the District Court erred. when it found Froid 

Bank liable for the tortious acts of its agent, Jerry B. 

Wallander, but concluded that Wallander had. no personal 

liability? r 

2. Whether the District Court's damage award was 

erroneous because the District Court failed to determine that 

plaintiffs' damages were proximately caused by any of Froid 

Bank's acts? 

3. Whether the District Court applied an incorrect 

measure of damages when it awarded the individual 

shareholders their entire initial investment plus interest 

for Froid Bank's breach of commitment to provide financing to 

CSTC? 

4. Whether the District Court erred when it awarded 

damages to the individual shareholders for losses suffered by 

the corporation? 

5. Whether the District Court. erred in refusing to 

permit comparison of Jerry Wallander's misconduct with that 

of the CSTC principals? 
6. Whether Jerry F7alland.er's conduct was sufficiently 

culpable to support punitive damages? 

7. Whether the District Court erred in awarding 

defendant Froid Bank all of plaintiffs' assets and 

concomitant liabilities as an offset to damages awarded 

against both CSTC and the individual plaintiffs where CSTC's 

liabilities exceeded the value of its assets? 

8. Whether the District Court erred in awarding the 

individual shareholders interest on their loss of investment 

at the rate of ten percent for periods prior to July 1, 1979? 

The plaintiffs raise two issues on cross-appeal: 

1. Whether Jerry B. Wallander is jointly liable for the 

judgment against the Bank? 

2. Whether the damage award received by CSTC and its 

shareholders was inadequate? 

FACTUAL BACKGROUND 

Plaintiff CSTC is a Montana corporation, incorporated in 

1977 for the purpose of raising trout for commercial sale. 

It was initially capitalized through the sale of common stock 

to Ron Preston, Tom Nyquist, and other members of the Nyquist 

family . 

The other plaintiffs in this case are the shareholders 

of CSTC: 1) Tom and Virginia Nyquist; 2) Ken and Kathleen 

Nyquist, Tom's father and mother; 3) Robert and Peggy 

Moore, Tom's sister and brother-in-law; 4) Earl and Alice 

Bradford, Tom's wife's parents; 5) Ron Preston, Tom's 

business school friend and associate. 

Defendants are the First State Bank of Froid and Jerry 

Wallander, former Bank president. Wallander succeeded his 

father as Rank president in 1969, and held that position 

until 1982 when he was asked to resign by the family. The 
Froid Bank is essentially a family-owned Bank, with the 

Wallanders owning over 90% of the stock in the Bank 

corporation. Jerry Wallander and Ken Nyquist grew up 

together in Froid, and Wallander was also Ken's lawyer and 

business advisor. 

CSTC was incorporated in May, 1977, and was the brain 

child of Tom Nyquist and Ron Preston, two 1973 University of 

Montana business school graduates. Its operations were 

located at Big Springs, a series of natural springs 

downstream from the dam at Toston, Montana. In the summer of 

1977, Tom Nyquist began acquiring water and land leases for 

the trout farm. By the fall of 1977, construction was 

underway. Plaintiffs built a hatchery building and several 

dirt raceways. They continued to expand through the winter 

months, and by spring of 1978 had approximately 825,000 young 

fish in the raceways and 200,000 fingerlings in the hatchery. 

On May 20, 1978, an earthen ditch which carried water to 

the project area breached. Approximately 700,000 fish in the 

raceways were destroyed. Prior to this washout, plaintiffs 

had planned to line the ditch with gunnite to strengthen it. 

Rs there had been no previous record of a washout on this 

ditch, they had planned to line the ditch after the upcoming 

1978 season, financing the project with money from sales made 

during 1978. 

CSTC was initially capitalized at $167,283. In 

February, 1978, Ken Nyquist bought $100,002 worth of stock 

bringing total shareholders' equity to $267,285. In 

addition, Tom Nyquist sought a Small Business Administration 

(SBA) loan from the Montana Bank of Missoula in the fall of 

1977. A loan guaranty of $260,000 was issued in March, 1978. 

The loan package was then transferred to the Montana Rank of 
Helena, but was never drawn upon due to the circumstances 

surrounding the washout. The loan guaranty was then allowed 

to lapse. 

After the washout, the shareholders regrouped to 

determine a course of action. They ultimately decided to 

sell the project and simultaneously refinance it on a larger 

scale. Refinancing was sought through the Farmers Home 

Administration (FmHA) which had higher lending limits than 

the SBA. The attempted sale of CSTC was abandoned after an 

FmHA official reprimanded the principals for placing CSTC on 

the market and representing that a $950,000 loan commitment 

had been made by FmHA. (FmHA loans are contingent on the 

applicant's ongoing commitment to the proposed business.) 

CSTC sought a $900,000 loan from FmHA for long term 

financing. Interim financing for construction and operating 

capital had to be raised by the borrower. However, in order 

to obtain interim financing, the borrower must obtain a 

"conditional Commitment for Guarantee" from the FmHA, which 

is issued only if certain FmHA requirements are met. Thus, 

until the permanent loan guaranty is issued, the borrower and 

his banker are liable for the entire investment. This means 

the borrower's bank must. he willing and able to provide 

interim money, risking that all will go well until the 

conditional and finally the permanent loan guaranties issue. 

Both plaintiffs and defendants were aware of these 

requirements. By August, 1978, Froid Bank was identified as 

the prospective lender for CSTC. Wallander, in his capacity 

as Ken Nyquist's lawyer, had first been contacted by Ken in 

February, 1978, when Ken asked his advice on buying stock in 

CSTC. In May, 1978, Ron Preston wrote to Wallander urging 

him to become involved with CSTC, saying the Bank's 
i-nvolvement would be mutually beneficial to them both. In 

August, 1978, Wallander became involved by reviewing the FmHA 

application papers and indicating the Bank would act as the 

interim financier. 

The FmHA application was partially completed by the CSTC 

principals and delivered to Wallander for completion and 

signing on October 19, 1978. The application was kept by him 

until after January 5, 1979, despite Wallander's claim to 

CSTC that he had filed the application with the FmHA office 

in Bozeman. On January 5, Wallander and the CSTC principals 

met to discuss interim financing and the 1979 construction 

season. At the meeting, Wallander stated that there would be 

"no problem" in getting financing from another overlining 

bank. The first cash advance was issued, secured by a 

promissory note signed by CSTC, and co-signed by Ken, Tom and 

Ron. 

From January 5 through the summer of 1979, Wallander 

continued to assure CSTC principals that there was "no 

problem" with the interim financing. The Bank's customer 

lending limit was $160,000. A total of $260,000 was advanced 

by the Bank to CSTC between January 5 and June 23, 1979. 

Plaintiffs repeatedly questioned Wallander on the financing 

arrangements and he repeatedly answered that financing was 

"no problem. " On June 2, when the $160,000 limit was 

reached, Wallander finally contacted First Bank Minneapolis, 

the bank he had represented as the overlining bank. First 

Kinneapolis contacted Ron Preston in mid-June for "pre-loan" 

information, which confused Ron since he thought the 

participation of First Minneapolis had already been arranged. 

On June 25, E.on received a letter from First Minneapolis 

rejecting the offer to participate as an overlining bank. 
In response to this letter, Wallander assured the CSTC 

principals he could line up several small banks to 

participate in the financing. This never came to pass and on 

August 3, 1979, Wallander indicated to Ron Preston that CSTC 

would have to cease operations. 

Throughout the next few months, Ron Preston and Tom 

Nyquist tried to find other financiers for the project. 

Wallander never followed up on the leads which they gave him. 

CSTC's creditors began demanding payment and threatening 

repossession of equipment. Wallander proposed that Ken 

Nyquist borrow money on Ken's personal account to pay off the 

debts on a Peterbilt truck and a mobile home. Wallander 

would then transfer the titles of these items from CSTC to 

Ken, and the items would be pledged as security for Ken's 

loan. Ken signed a $8,000 note for the truck February 21, 

1980, and a $9,640.11 note May 1, 1980 for the mobile home. 

Wallander never transferred title, and the truck was seized 

and so1.d by a CSTC creditor. 

Wallander, Ken, Tom and Ron met one final time in the 

winter of 1980 to review the potential for refinancing. They 

agreed the situation was hopeless. Wallander assured them 

the Bank would take no action on notes owed either by Ken or 

CSTC. Communications between the parties ceased at this 

point. CSTC filed its original complaint. against the Bank 

and Kallander in April, 1981. 

PERSONAL LIABILITY OF AN AGENT 

The first issue raised by both the Bank and CSTC is 

whether Jerry Wallander should be held liable on the judgment 

assessed against the Bank. The District Court held, in its 

conclusion of law no. I: 
The conduct of defendant Jerry R. Wallander, acting 

at all times as agent of the First State Bank of 

Froid and with the acquiescence and tacit approval 

of the directors of the bank, constituted willful 

and wanton misconduct consisting of conscious 

breach of trust and fiduciary duty, intentional 

deception, flagrant breach of the ethical cannons 

[sicl of both the legal and banking profession, a 

studied and extended course of fraudulent 

misrepresentation and knowing betrayal of a 

lifetime friendship, all with reckless disregard 

for the rights and interest of the plaintiffs 

herein, unjustified by any circumstance and 

"malicious" and "oppressive" within the meaning of 

those terms as applied in the law of torts. 

However, in its conclusion of law no. 11, the court held, 

"Plaintiffs are not entitled to recover damages from 

defendant Jerry B. Wallander." 

By statute in Montana., an agent is jointly 'nd severally 

liable with his principal to third parties for wrongful acts 

committed in the course of his agency. Section 28-10-702(3), 

MCA; -- See also Greening v. Mutual Life Ins. of New York (D. 

Mont. 1983), 558 F.Supp. 988, 991. In order to hold a 

corporate agent personally liable, the court must find that 

the agent was personally negligent or that the agent's 

actions were tortious in nature. The personal nature of the 

agent's actions forms the narrow exception to the general 

policy th.at officers and agents of a corporation must be 

shielded from personal liability for acts taken on behalf of 

the corporation. Little v. Grizzly Mfg. (Mont. 1981), 636 

The strong language of the District Court's conclusion 

of law no. 1 indicates Wallander's breach of fiduciary duty 

and fraudulent misrepresentation was intentional and very 

personal, given his longstanding relationship with the 

Nyquist family. In light of this finding, we hold the 

District Court's failure to hold Jerry Wallander jointly and 

severally liable with the Bank was clearly erroneous, and we 
reverse the court's decision on this point. - See S 

28-10-?02 (3) , MCA. 

PROXIMATE CAUSE, CORRECT MEASURE OF DAMAGES & INDIVIDUAL 

SHAREHOLDER RECOVERY 

The next issues raised by the Rank concern whether the 

District Court's award to the CSTC shareholders of their 

capital investments plus interest was erroneous. The Bank 

argues that the loss of initial shareholder investment was 

not proximately caused by the Bank's breach of commitment to 

provide interim financing. The Bank claims the initial 

shareholder equity capital was wiped out by the May, 1978, 

washout and the expenditures of the 1978 summer construction 

season. The Eank also claims its commitment to financing did 

not occur until January 5, 1979, when the first cash advance 

was issued from the Bank to CSTC and therefore the individual 

shareholders are not entitled to recovery apart from the 

corporation. 

The District Court found actions of the Bank in failing 

to provide interim financing proximately caused damage to 

CSTC and its shareholders. The court also found that while 

CSTC was in serious financial straits after the 1978 washout, 

the company had been infused. with an additional $260,000, a 

great deal of work and planning, and was a 'Vifferent" 

business which collapsed for failure of credit one year 

later. From the evidence here, CSTC's failure in the fall of 

1979 was directly caused by the lack of the promised 

financing. 

There is sufficient evidence to support a finding that 

the plaintiff shareholders would not have refinanced CSTC 

unless they ha.d guaranteed financial backing. The CTSC 

principals repeatedly sought assurances from Wallander as to 
whether the interim financing arrangements were in place. 

Wallander repeatedly assured them that financing was "no 

problem," and CSTC continued to receive cash advances upon 

request. The CSTC shareholders entered into the rebuilding 

and refinancing of the corporation in reliance on the Rank's 

misrepresentations that financing was available, and these 

misrepresentations were the direct and proximate cause of the 

failure of CSTC in August, 1979, and the loss of investment 

of the shareholders. The District Court properly found that 

a causal connection existed between the Bank ' s 

misrepresentations and the shareholders' reliance on those 

misrepresentations in embarking on a plan of refinancing. 

It is clear that the District Court found, beyond 

breaching a contract, that the Bank had committed a tort. 

That the Bank's tort had proximately caused d-amages to the 

plaintiffs is inescapable. The District Court wrestled 

mightily with the problems of damages here. 

The District Court assessed the "battle of the experts" 

in connection with the trout industry. 

The Bank had produced a trout industry expert ("a 

captain of the trout industry," said the District Court) who 

appraised the project at CSTC and gave his opinion that it 

had no chance of success. The plaintiffs produced another 

expert, though less formidable on the subject than the Rank's 

expert, who prognosticated a modest chance of success. The 

District Court also heard from experts in accounting, and it 

weighed the business experience of the plaintiffs, the market 

research that had been done, and the technical expertise that 

was necessary. The District Court concluded that it could 

not determine that the enterprise would undoubtedly succeed, 

nor that it would certainly fail. 
When the fact of damages is established in the evidence, 

leeway is given to the trier of fact to determine the amount 

of the damages. 

Courts indicate that there is a distinction between 

the quality of proof necessary to establish the 

fact that the plaintiff has sustained some damage 

and the measure of proof necessary to enable the 

jury to fix the amount. Although formerly the 

tendency was to restrict the recovery to such 

matters as were susceptible of having attached to 

them an exact pecuniary value, it is now generally 

held that the uncertainty which prevents a recovery 

is uncertainty as to the fact of the damage and not 

as to its amount and that where it is reasonably 

certain that damage has resulted, mere uncertainty 

as to the amount will not preclude the right of 

recovery or prevent a jury decision awarding 

damages. This view has been sustained where, from 

the nature of the case, the extent of the injury 

and the amount of damage are not capable of exact 

and accurate proof. Under such circumstances, all 

that can be required is that the evidence-with such 

certainty as the nature of the particular case may 

permit-lay a foundation which wil.1 enable the trier 

of facts to make a fair and reasonable estimate of 

the amount of damage. The plaintiff will not be 

denied a substantial recovery if he has produced 

the best evidence available and it is sufficient to 

afford a reasonable basis for estimating his loss. 

22 Am.Jur.2d Damages, 

The statutory limitations which circumscribe the tri.er 

of fact in determining damages are that they must in all 

cases be reasonable, S 27-1.-302, MCA, and in cases of breach 

of contract, be no greater than the other party could. have 

gained by full performance unless a greater recovery is 

specified by statute. Section 27-1-303, MCA. The measure of 

damages for the commission of a tort is the amount which will 

compensate the other party for all the detriment proximately 

caused thereby, whether it could have been anticipated or 

not. Section 27-1-317, MCA. 

The statute on the measure of damages for breach of 

contract, 27-1-311, MCA, includes the limitation that such 

damages "which are not clearly ascertainable in both their 
nature and origin cannot be recovered." No such limitation 

appears in the statute on the measure of damages for tort. 

Section 27-I--317, MCA. Tort damages specifically are 

allowable for proximately caused damages, "whether they could 

be anticipated. or not. I' This Court, nevertheless, has 

recognized and adopted the proposition that in a contract 

action once a plaintiff establishes a right to damages, the 

defendant is liable for damages calculated in a reasonable 

way. We said in Laas v. Montana Highway Comm'n (1971) , 157 

Mont. 130-131, 483 P.2d 699, 704: 

5 Corbin on Contracts, 1029, provides as an 

alternative measure of damages where the profits 

presented are too uncertain: 

"Where it is clear that the defendant's breach of 

contract has prevented the plaintiff from making 

profits the amount of which cannot be proved with 

reasonable certainty, it should be remembered that 

this situation has been brought about by the 

wrongful conduct of the defendant. Fe should not 

he allowed to escape by merely paying nominal 

damages if there is any reasonable way in which the 

amount that he should pay as damages can be 

determined. There are a few alternative rules for 

determining this amount. Their purpose is to make 

compensation for the profits prevented and losses 

caused, measuring the amount by a method that is 

reasonably definite, and that is not likely to give 

compensation in excess of the profits that would 

have been made, and the losses that have been 

suffered. Thus, where the breach by the defendant 

has prevented the use and operation of property by 

the plaintiff from which use profits would probably 

have been made, the damages to be recovered may be 

measured by the rental value of the property, or by 

interest on the reasonable value of the property as 

an investment." 

There appears no reason why the liberal view as to 

damages for contract breach expressed in Laas, should not 

also apply to tort actions. We a.re not, as Laas suggests, in 

tort actions required to turn to the reasonable rental value 

of the property, nor to the interest it would have gained as 

an investment, because the action of the Bank's agent here 

d.estroyed those values. 
As we indicated in the foregoing statement of facts, 

before the plaintiffs got involved with the Bank in this 

case, but after the ditch washout of May 20, 1978, the 

shareholders nevertheless had a project of value which they 

could sell. In fact they had placed the project on the 

market a.t the same time as they were seeking refinancing 

through the FmHA and were required to desist from attempting 

to sell the project because of FmHA regulations. 

Irrespective of the washout, it was the investment of the 

sha.reholders in the corporation that have brought about 

whatever value the project had after the wa-shout. Any 

attempt by the District Court to fix a value on the project 

after the washout would have of course been speculation. The 

District Court therefore, recognizing that d-amages had 

occurred, and that the plaintiffs were entitled to damages, 

resorted to the known figures that the evidence presented, 

that is the investment that had been made by the original 

shareholders. In the situation that presented itself to the 

District Court--the lack of any other certain way to fix the 

plaintiffs' damages--the District Court in this case acted 

properly and reasonably in determining that the damages 

suffered by the plaintiffs was the amount of their 

investments in the project at the time the Bank entered the 

picture. Through its subsequent tortious acts the Bank 

brought about the demise of the project as a financial 

venture. We find that the District Court acted properly in 

this rega.rd. 

COMPARATIVE FAULT 

The Bank argues that the District Court erred in failing 

to compare Wallander's conduct with that of the CSTC 

principals. It contends the depiction of the trout farm's 
commercial success as represented to Wallander in the 

feasibility study prepared by Tom Nyquist and Ron Preston was 

an equally misleading attempt to deceive Wallander and the 

Bank into financing the enterprise. 

However, the District Court found FJallander's conduct 

"malici-ous" and "oppressive," such that it precluded any 

comparative negligence on the plaintiffs1 part. The court 

noted plaintiffs' inexperience in the business of trout 

farming, but did not find this inexperience rose to the level 

of Wallander's fraudulent misrepresentations. 

blontanals comparative negligence statute does not 

contemplate a comparison between ordinary negligence and 

willful or wanton misconduct. Derenberger v. Lutey (Mont. 

1983), 674 P.2d 485, 487, 40 St.Rep. 902, 904. In this case, 

there was no finding of negligence on the plaintiffs1 part a-t 

all. The District Court noted in detail the CSTC principal's 

1-ack of sophisticated technical and business expertise, but 

also noted that despite the b1ea.k testimony of the Bank's 

trout farm expert, the potential of establishing a successful 

trout farm was not beyond their reach. The principals of 

CSTC did hire an accountant, an appraiser and. an engineer to 

assist them in making their business decisions. While taking 

on the responsibility of a new high-risk business such as 

trout farming by inexperienced entrepreneurs may have been 

imprudent, such an action did not rise to the level of 

negligence. On the other hand, the actions of Jerry 

Wallander added up to much more than ordinary negligence: 

1. Misrepresenting to a borrower a bank's lending 

ability as that ability may be enhanced by the 

overlining of another bank. 
2. Representing there would be "no problem" in 

obtaining overline support from another bank without 

having inquired of that bank. 

3. Failing to advise a prospective overline bank of the 

existence of a FmHA conditional commitment for permanent 

financing when seeking construction or interim funds for 

a borrower in excess of the lender's lending limit. 

4. Lying to a borrower about negotiations or 

commitments for interim financing, or about securing 

those commitments. 

5. Withdrawing an assured line of credit without cause 

on the part of the borrower. 

We find no legal error in the District Court's precluding 

consideration of comparative negligence on the part of the 

pla.intiffs, where there is insufficient evidence in the 

record to indicate any negligent action on the part of the 

plaintiffs. 

PUNITIVE DAMAGES 

In this case, Wallander and the Bank not only owed CSTC 

and its shareholders the duty to fulfill its obligation to 

advance interim financing money, but also the d.uty to 

truthfully apprise the investors of the status of the 

financing. Investors have a right to rely on a lending 

institution's representations as to the availability of 

funds. F?here in addition the institution fraudulently or 

maliciously represents that funds are available and will be 

advanced, and begins a series of cash advancements to finance 

a project, investors may recover punitive damages for their 

good faith reliance on the fraudulent misrepresenta.tion.s. 

The District Court found that Wallander, as the Bank's 

agent, engaged in "a studied and extended course of 
fraudulent misrepresentation . . . unjustified by any 

circumstance and 'malicious' and 'oppressive' within the 

meaning of those terms as applied in the law of torts." 

Punitive damages are properly awarded where there is a 

sufficient showing of fraud and misrepresentation. Castillo 

v. Franks (Mont. 19841, 690 P.2d 425, 430, 41 St.Rep. 2071, 

2077. We uphold the District Court's award of punitive 

damages. 

AWAR.D OF CSTC'S LIAEILITIES 

After awarding damages to CSTC and its shareholders, the 

District Court awarded to the Bank all of CSTC1s property 

except for a mobile home, as an offset to the damages awarded 

to the plaintiffs. The property included equipment, 

buildings, ditches, and leases to water and state land. The 

leases were subject to lease payments, reclamation costs and 

property taxes. The Bank contends this award of assets not 

listed as collateral in the Eank's security agreement 

violates its secured creditor rights under the Uniform 

Commercial Code. The Bank argues that under SS 30-9-501 

through -511, MCA, it is entitled to a variety of options in 

enforcing its security interest, and it may not be forced to 

satisfy its claim by taking possession of the property. 

In its final judgment of June 18, 1985, the District 

Court cancelled a.11 of the promissory notes from CSTC to the 

Bank. These six notes were ones which were given by CSTC and 

co-signed by the CSTC principals in reliance on Wallander's 

misrepresentations as to the availability of interim 

financing. By cancelling the promissory notes, the court 

erased the Bank's specific security interests. 

Under S 30-1-103, MCA, the Uniform Commercial Code may 

be suppl-emented by principles of law and equity, including 
the law relative to fraud and misrepresentation. Rased on 

Wallander's misrepresentations and the plaintiffs' reliance 

thereon, we find the court did not abuse its discretion in 

cancelling the promissory notes. 

Having cancelled the notes, the court, sitting in 

equity, had a great deal of leeway in fashioning a remedy. 

Link v. State, Dept. of Fish and Game (1979), 180 Mont. 469, 

483, 591 P.2d 214, 222. The District Court properly selected 

a damage award which gave the Bank certain benefits and 

options which would otherwise have been unavailable if the 

award against the Bank merely had been for money damages, 

without allowing for an offset. The remedy chosen by the 

court allowed the Bank to mitigate its losses. We find no 

error in the court's choice of remedy. 

THE AWARD OF INTEREST 

The Bank argues that the District Court awarded interest 

on the CSTC shareholders' investments from the date of thej r 

initial investments. This is a misstatement of the District 

Court's final judgment. While the District Court first 

awarded interest to shareholders from the date of their 

initial investments, this award was modified in the final 

judgment of June 18, 1985. 

The District Court has awarded interest on each 

shareholders' investment from January 28, 1985--the date the 

findings of fact and conclusions of law were entered. This 

is the date the court fixed the amount of damages, and 

interest is recoverable when the amount of damages is made 

certain by the trial court. Section 27-1-211, MCA; Castillo 

v. Franks (Mont. 1984), 690 P.2d 425, 431, 41 St.Rep. 2071, 

2078; Carriger v. Ballenger (Mont. 1981), 628 P.2d 1106, 

1110, - St.Rep. - . Therefore, arguments by the Bank and 
plaintiffs as to the propriety of prejudgment interest are 

moot. 

ADEQUACY OF THE AWARD TO CSTC 

On cross-appeal, plaintiffs argue the District Court's 

judgment should be increased to include three more elements 

of damages. They are: 

1. Damages done to CSTC, destroying its economic 

life and solvency; 

2. Salaries earned and owing to Ron Preston and 

Ken Nyquist from August, 1979, to April, 1981; 

3. General damages for the disruption of cred.it, 

loss of job opportunities, general humiliation and 

embarrassment, and the overall mental pain and 

anguish suffered by Ken Nyquist, Tom Nyquist and 

Ron Preston. 

Plaintiffs argue the District Court failed to add.ress 

the value of the corporation, despite Ken Nyquist's and Ron 

Preston's testimony that CSTC had a value of $3,000,000 to 

$6,000,000. They argue that an owner may properly express 

his opinion as to the value of his property. They also 

contend loss of salaries and the general damages listed above 

were foreseeable results of the Bank's failure to provide 

funding for CSTC, and as such, the District Court should have 

awarded these damages to plaintiffs. 

In order to recover consequential damages for breach of 

contract, the nature and origin of the damages must be 

est.ablished with reasonable certainty. Ehly v. Cady (Mont. 

19841, 687 P.2d 687, 695, 41 St.Rep. 1611, 1619; Stensvad v. 

Miners & Merchants Bank (1982), 196 Mont. 193, 206, 640 P.2d 

1303, 1310. The District Court found that an estimation of 

CSTC's future financial success or failure called for "an 

impermissibly large measure of pure speculation." The court 

heard testimony from expert witnesses on both sides, and was 

presented with "a veritable blizzard of facts, figures and 
exhibits" intended to demonstrate the nonviability of the 

trout farming enterprise. Neither side succeeded in 

convincing the court that CSTC was either doomed to faj-lure 

or bound for unqualified success. Under these facts, the 

court properly rejected the plaintiffs' request for damages 

to CSTC's economic life, where evidence of CSTC's future 

success was tenuous at best. 

For similar reasons, the court's rejection of 

plaintiffs' claim for lost salaries for the period of August, 

1979, to April, 1981, was also proper. Since the plaintiffs 

failed to establish the future profitability of CSTC, an 

award of future salaries would also be overly speculative. 

We also find insufficient evidence on which to reverse the 

District Court's denial of general damages to Ken Nyquist, 

Ron Preston and Tom Nyquist. Plaintiffs have not established 

to the satisfaction of the Court a clearly ascertainable 

standard by which to measure these alleged losses. 

The judgment of the District Court is reversed and 

remanded for the District Court to enter the same judgment 

against Jerry B. Wallander, and is affirmed as to the award 

of damages. 

We Concur: 

Chief Justice 

h 

Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

I respectfully dissent from the majority opinion on the 

damage issue. 

The trial court was faced with a difficult decision 

respecting an award of dams-ges in this case. The proper 

measure of damages required the District Court to evaluate 

the value of this business after the "wash out" and compare 

that value to a value for the business had the funds been 

advanced. The difference in values should be the measure of 

damage. The investment of the individual plainti-ffs is not 

the correct measure of damages. 

The trial court faced the difficult task of determining 

damages in the absence of proof relating to the proper 

measure. Since the plaintiffs were represented by able and 

experienced trial counsel I can only assume that it was 

virtually impossible to establish the appropriate values with 

expert testimony. Nevertheless, the burden of proof on 

damages resides with the plaintiff and if there is a failure 

the plaintiff's case must fall. 

I would reverse and remand this case for a new trial on 

damages requiring the plaintiff to go forward with proof 

relating to the change in value caused by the bank's failure 

to advance funds. 

Mr. Justice Fred J. Weber and Mr. Justice L. C. Gulbrandson: 

We concur in the foregoing dissent of Mr. Justice Morrison.