No. 86-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

EUGENE MOORE and JEANNINE MOORE, 

Plaintiffs and Respondents, 

-vsBERNARD E. HARDY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Chouteau, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald A. Ranstrom, Chinook, Montana 

For Respondent: 

Jardine, Stephenson, Blewett & Weaver; K Dale Schwanke, 

Great Falls, Montana 

Submitted on Briefs: September 30, 1987 

Decided : January 19, 1988 

Filed: 9AN 1 9 1988 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Defendant Hardy appeals the Twelfth Judicial District 

Court's ruling in favor of plaintiffs. We affirm. 

On April 1, 1976, appellant Bernard E. Hardy entered 

into an agreement with Jack Lang to purchase a farm, crops 

and a lease known as the McKee lease. Hardy also received 

the right to harvest the 1976 winterwheat crop planted by 

Lang. Hardy later obtained a renewal of the McKee lease 

until 1983. 

In the spring of 1978 Hardy entered into two agreements 

with Paul Jackson where Hardy traded his equity in the Lang 

farm and some Florida property for other property in Florida. 

Under this exchange, Jackson was entitled to all of Hardy's 

rights, including the right to the McKee lease. The then 

growing crop and its expenses were Jackson's. Hardy was to 

continue to farm for Jackson. 

In September 1978, Paul Jackson negotiated an exchange 

of the Lang farm with Dr. Eugene and Mrs. Jeannine Moore. 

The Moores understood that the McKee lease would be assigned 

if they bought the farm. They were to receive a growing crop 

when they bought the farm. Several agreements were executed 

to facilitate the exchange of properties. One of the 

agreements provided that the farm would be leased back by 

Jackson under a five-year lease. Jackson was to pay a yearly 

cash rental each February of $107,000. The lease provided 

that Hardy was to farm and operate the farm in a good and 

farmerlike manner and consistent with custom and practice 

prevailing in the area. All parties understood that Hardy 

was to continue farming the place. The lease was silent as 

to entitlement to crops in the event of default or 

termination of the lease. 
Hardy and Jackson entered into an agreement and cash 

lease of which the Moores were not advised. Under this 

arrangement Hardy was to custom farm the Lang farm for 

Jackson through December 31, 1979. Jackson was to pay Hardy 

and Hardy had a lien on the 1979 crop that the Moores bought. 

On February 1, 1979, Jackson paid the Lang farm payment 

to Moores. After harvesting the 1979 crop Hardy made the 

1980 payment directly to the escrow. Hardy again made the 

1981 payment directly to the escrow after harvesting the 1980 

crop. In 1981 he harvested the crop but did not make the 

1982 payment to anyone. Jackson did not make the Moore 

payment either and filed for bankruptcy on February 26, 1982. 

The Moore's gave notice in April 1982 to both Jackson and 

Hardy of default and that the lease was terminated. 

The Moores then retained a person to farm the farm for 

them. In August 1982 Hardy attempted to harvest the 1982 

winterwheat crop planted in Fall 1981. The Moores secured an 

order restraining Hardy from any further harvesting. The 

restraining order was set aside and Hardy was allowed to 

harvest the crop as long as he accounted for it. Hardy 

delivered the grain to an elevator for storage rather than 

store the grain on the farm. The crop proceeds were put into 

a trust held by his attorney. 

The Moore's initiated suit claiming they were entitled 

to the crop proceeds, compensation for the value of the McKee 

lease, storage costs and punitive damages. A bench trial was 

held and the District Court found in favor of the Moores. 

After judgment was entered, Hardy voluntarily paid over to 

the Moores the share of the 1982 crop proceeds his attorney 

held. 

Hardy is now appealing the District Court's judgment and 

raises these issues on appeal. 
1) Whether the District Court erred in adopting plaintiff Moores' proposed findings and conclusions virtually 

verbatim? 

2) (By Respondents) Whether issues #3 and #4 are moot? 

3) Whether the District Court erred in failing to 

consider the doctrine of waygoing crops? 

4) Whether the District Court improperly permitted 

introduction of evidence as to custom and usage to determine 

entitlement to crop proceeds? 

5) Whether damages were properly assessed? 

6) Whether punitive damages were proper? 

7) Whether storage charges were properly assessed? 

ISSUE I 

Appellant contends that the District Court's Findings of 

Fact and Conclusions of Law are an identical reproduction of 

the proposed findings and conclusions submitted by respondents. Appellants in particular point to findings number 13, 

14 and 23 as erroneous and unsupported by evidence. 

The standard by which findings of fact and conclusions 

of law are measured was enunciated by this Court in In Re 

Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38 

St.Rep. 1109, 1113. "Our ultimate test for adequacy of 

findings of fact is whether they are sufficiently 

comprehensive and pertinent to the issues to provide a basis 

for decision, and whether they are supported by the evidence 

presented." The District Court's reliance on counsel's 

proposed findings of fact and conclusions of law does not 

automatically result in reversal. In In Re the Marriage of 

Alt (Mont. 1985), 708 P.2d 258, 260, 42 St.Rep. 1621, 1623, 

this Court held "where, as here, findings and conclusions are 

sufficiently comprehensive and pertinent to the issues to 

provide a basis for decision, and are supported by the 

evidence, they will not be overturned simply because the 

court relied upon proposed findings and conclusions submitted 
by counsel." Quoting Kowis v. Kowis (1983), 202 Mont. 371, 

379, 658 P.2d 1084, 1088. The record contains sufficient 

evidence upon which the District Court could base its 

findings. We uphold the District Court. 

ISSUE I1 

Respondent contends that appellant's issues 3 and 4 are 

moot. These issues concern the ownership of the 1982 crop. 

Issue 3 is whether the District Court erred in failing to 

consider the doctrine of waygoing crops? Issue 4 is whether 

the District Court improperly permitted introduction of 

evidence as to custom and usage to determine entitlement to 

crop proceeds. 

After judgement Hardy voluntarily paid to the Moores the 

share of the 1982 crop proceeds and interest that his 

attorney was holding. This was a partial satisfaction of the 

judgment. Hardy did not place any restrictions on the use of 

the funds or stay execution of the lower court's judgment. 

The Moores used the proceeds to pay the balance of the Lang 

farm contract and pay income tax on the proceeds. 

The unsuccessful party must seek to stay execution 

pending appeal. In Gallatin Trust and Savings Bank v. Henke 

(1969), 154 Mont. 170, 177, 461 P.2d 448, 451, this Court 

held that failure to preserve rights may result in mootness 

"the rule is well established that a supersedeas bond to 

preserve the rights of the unsuccessful party may be required 

and failure to post it makes the rights of the parties 

subject to execution, subsequent satisfaction of the judgment 

and possible mootness so far as appeals are concerned." 

Voluntary payment of a money judgment does not 

automatically render a cause moot. Montana National Bank of 

Roundup v. State Department of Revenue (1975), 167 Mont. 429, 

432-33, 539 P.2d 722, 724, sets the standard "A defeated 

party's compliance with the judgment renders his appeal moot 

only where the compliance makes the granting of effective 
relief by the appellate court impossible." This is not the 

case here, partial payment of the money judgment does not 

render effective relief impossible. Issues 3 and 4 are not 

moot and we will address them. 

ISSUE 111 

The District Court's conclusion of law that the 1982 

crop reverted to the Moores and they became entitled to all 

proceeds upon termination of the Jackson-Moore lease rests on 

two pivotal facts. The Jackson-Hardy lease which was subject 

to the fixed term Jackson-Moore lease was for a fixed term 

and Hardy did not pay rent in 1982. 

The District Court was correct in not applying the 

doctrine of wayward crops. Section 70-26-206, MCA, provides 

statutory guidance concerning entitlement to crops. The 

statute provides ". . . a tenant at will or for an indefinite 

term may cultivate and harvest the crops growing at the end 

of his tenancy." Hardy was neither a tenant at will or for 

an indefinite term. 

Hardy's tenancy came to an end due to a default before 

the lease was up. In 1982 neither Hardy nor Jackson paid 

rent. Both the fact that the tenancy ended because of a 

default and the fact that Hardy did not pay rent prevent 

Hardy from claiming the 1982 crop. "Thus, where a tenant 

before the expiration of his term surrenders to the landlord, 

or through some default forfeits his lease and the landlord 

re-enters, the latter is entitled to the growing crops upon 

the land and no right or title therein remains in the 

tenant." 51 C.J.S. Landlord and Tenant 5 349 at 886. 

ISSUE IV 

In determining who was entitled to crop proceeds the 

District Court considered evidence of custom and usage and on 

the basis of custom and usage held that the Moores were 

entitled to the crop proceeds. Appellant contends this was 

error because no contract existed between the Moores and 
Hardy and thus evidence of custom and usage is inappropriate. 

Hardy, however, did not object to the introduction of this 

evidence at trial. By failing to object to admission of this 

evidence at trial, Hardy has waived his right to claim error 

on appeal. In re Schueren's Estate (1973), 162 Mont. 417, 

512 P.2d 1283. 

ISSUE V 

Hardy also claims that the District Court erred in 

assessing damages for the failure to assign the McKee lease 

to the Moores. He asserts that findings of fact 6 and 11 are 

not supported by evidence and that the court failed to apply 

5 27-1-314, MCA, the proper statutory measure of damages. 

Rule 52(a), M.R.Civ.P., provides "Findings of fact shall 

not be set aside unless clearly erroneous, and due regard 

shall be given to the opportunity of the trial court to judge 

of the credibility of the witnesses." Substantial evidence 

is needed to support the lower court's findings. Miller v. 

Watkins (1982), 200 Mont. 455, 461, 653 P.2d 126, 129. 

Testimony was presented, especially the testimony of Hardy 

himself, that supports the lower court's findings that Hardy 

had an obligation to assign the McKee lease to the Moores. 

There certainly was enough "'relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.'" Bushnell v. Cook (Mont. 1986), 718 P.2d 665, 

668, 43 St.Rep. 825, 828 (quoting State v. Plouffe (1982), 

198 Mont. 379, 389, 646 P.2d 533, 539.) 

Hardy's assertion that the District Court failed to 

apply 5 27-1-314, MCA, the proper measure of damages is 

incorrect. Section 27-1-314, MCA, provides: 

Breach of agreement to convey real property. 

The detriment caused by the breach of an agreement 

to convey an estate in real property is considered 

to be the price paid and the expenses properly 

incurred in examining the title and preparing the 

necessary papers, with interest thereon. If the 
breach was in bad faith and the agreed price was 

less than the value of the estate, the detriment is 

also considered to include the difference between 

the agreed price and the value of the estate at the 

time of the breach and the expenses properly 

incurred in preparing to enter upon the land. 

The statute applies, a lease is an estate in real property 

and the amount of damages arrived at by the District Court is 

in accordance with 5 27-1-314, MCA. The assignments between 

Hardy, Jackson and the Moores effected an assignment of the 

McKee leasehold to the Moores. Hardy had an obligation to 

transfer the lease to the Moores. The lease was never 

transferred to the Moores. Fred Schafer testified that the 

value of the McKee lease was $100 an acre. It was within the 

District Court's discretion to adopt the value of the lease 

as the amount of damages. The McKee lease was included in 

the assignment of the Lang farm and its value equals its 

portion of the total purchase price. 

ISSUE VI 

Hardy argues that punitive damages were improperly 

assessed against him for the failure to assign the McKee 

lease. There is substantial evidence in the record to 

support the District Court's imposition of punitive damages. 

Section 27-1-221, MCA, governs the imposition of punitive 

damages. In this case the District Court found that "In 

failing to make the assignment over of the McKee Lease, Hardy 

breached the duty he had to do so and his actions in this 

regard were motivated purely by his desire to save the lease 

for himself after the Jackson bankruptcy, no matter what 

damage was done to the Moores by doing so. Hardy further 

attempted to avoid the duty to assign he had by interposing 

in bad faith and without justifiable cause, various defenses 

to the assignment of the lease." (Conclusion of Law No. 4) 

The court's conclusion which is based upon its findings of 
fact, is supported by evidence in the record and is in 

accordance with the requirements of 5 27-1-221, MCA. 

ISSUE VII 

Included in the damage award to the Moores was the sum 

of $4,645.69 for storage costs incurred at grain elevators 

because Hardy did not store the grain at the farm. Hardy 

claims that he was ordered by Judge Coder to take the crops 

to an elevator. Judge Coder's order does not include a 

requirement to store the grain in an elevator. The storage 

costs constitute an allowable item of compensatory damages. 

Section 27-1-202, MCA. The record reveals substantial 

evidence in support of the damage award. Testimony was 

presented that ample storage existed on the farm and there 

was testimony on the storage charges incurred by Hardy. 

Affirmed. 

We Concur: , -4