No. 84-561 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

BILL HILL, 

Plaintiff and Appellant, 

TURLA TURLEY and DELIA TURLEY, 

husband and wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Mussel shell, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Whalen & Whalen; Michael J. Whalen, Billings, 

Montana 

For Respondent: 

Ask & Pratt; Thomas M. Ask, Roundup, Montana 

Filed: 

Submitted on Briefs: May 23, 1985 

Decided: December 5, 1985 

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

Court. 

Appeal by Bill Hill from a judgment based on jury 

verdict against him entered in the District Court, Fourteenth 

Judicial District, Musselshell County. 

The principal issues in this case are whether an oral 

grazing lease for a term longer than one year is invalid 

under S 28-2-903, MCA, and whether Bill Hill was entitled to 

a directed verdict for conversion of his cattle by Turleys 

under a purported agister's lien. The judgment was against 

Bill Hill on both of these issues and we affirm the judgment. 

Turla and Delia Turley own a ranch in Musselshell County 

consisting of approximately 4 1/2 sections of timber and 

grasslands with a small acreage of dry hay land. In March 

1982, Hill and the Turleys met to discuss a proposed grazing 

lease of the Turley ranch by Hill. They entered into an oral 

lease agreement, the terms of which are controverted. 

Hill testified that he wanted a three year lease but the 

Turleys would agree only to a two year lease. He said he 

left a copy of a lease form with the Turleys to fill in and 

sign. Neither that form nor any other writing was executed 

by the parties. 

The Turleys contended that Hill agreed to pay $12,000 

annually for a three year lease but that they would accept 

the rental in monthly payments so long as the entire first 

year's balance was paid before the second year of the lease 

commenced. Turleys also contended that Bill Hill agreed to 

care for all the livestock, pay for the electricity to run 

the pumps on the well, and the fences. 
Hill moved his livestock onto the Turley ranch on or 

about May 1, 1982. During the 1982-1983 season, Hill ran 

approximatel-y 200 head on the ranch. Most of the stock 

belonged to third parties, including 50 head that belong to 

Turleys. The Turleys, after agreeing to the lease, had 

answered an advertisement for grazing for their own cattle, 

and discovered the advertiser to be Hill. The Turleys paid 

Hill. $13 per month per head to graze their stock on their 

ranch during the summer of 1982. 

Hill paid the total rental payments due during the year 

beginning May l., 1982 and ending May 1, 1983, though the 

payments were not made promptly at the beginning of each 

month. 

Hill ran cattle on the ranch during the summer and fall 

of 1983, and on October I-, 1983 terminated the lease. He 

paid Turleys $5,000 to cover the period from May 1, 1983 to 

September 30, 1983. On termination, Turleys allowed Hill to 

remove the cattle belonging to third parties from the ranch 

when Hill terminated the lease, but would not allow Hill to 

remove his own cattle. Turl-eys asserted an agister's lien on 

Hill's cattle. 

Hill did not live on the Turley ranch during the time he 

Leased it. His residence was near Acton, Montana, and he 

would drive to the ranch once or twice a week to look in on 

the stock. Turleys' testimony was that Delia Turley and her 

daughter, Rita, looked after Hill's stock while he was gone, 

rounding up strays, and feeding and watering the stock. 

Delia Turley also testified that Rill Hill agreed that if she 

would attend to the calving of Hill's 12 cows and wean the 

calves during the winter of 1982 and 1983, Hill would care 

for Turley's ranch while they went to horse shows during the 
following summer and that he would clean the corrals and 

fertilize section 12 of the ranch. The Turleys performed 

their part of the further agreement, but Hill did not perform 

his part of the alleged bargain. 

Hill filed suit against the Turleys, claiming conversion 

of his cattle after the termination of the lease. The 

Turleys answered the complaint, denying the conversion, and 

counterclaiming for 7 months rental for the second year of 

the lease, $4,050 for the care of plaintiff's livestock for 

which they asserted an agister's lien, and $5,000 d-amages for 

overgrazing. 

The contentions of the parties were summarized in the 

pretrial order. Hill contended that the oral lease was a 

month-to-month lease and not a yearly lease and that he had 

fully paid the monthly rental. He also contended that his 

livestock had been converted and he claimed both compensatory 

and punitive damages. Hill further contended that the three 

year oral lease contended for by the Turleys was barred under 

S 28-2-903, MCA, the statute of frauds. 

The Turleys contended that the lease was an oral lease 

for a period of three years with a cash rental of $12,000 per 

year, that the second year of the oral lease was in full 

force and effect and that Hill still owed $7,000 for the 

remaining 7 months of the second year. They further 

contended that they were entitled to $4,050 for calving, 

doctoring, checking wells, and otherwise looking after the 

cattle of Hill. 

The jury returned two verdicts in the cause. In one 

verdict, they found in favor of the Turleys and against Hill 

upon the complaint. In the second verdict, they found in 

favor of the Turleys and against Hill and assessed Turleys 
damages in the sum of "$7,000 only and direct that Mr. Hill's 

cattle be returned to him." The court entered judgment for 

the sum of $7,000 and. costs at $78.95 in favor of the 

Turleys. 

After the judgment, Hill filed a motion to alter or 

amend the judgment and his attorneys claimed an attorneys 

lien upon Hill's cattle which were then subject to execution 

upon the judgment. The District Court denied the motion to 

alter or amend the judgment, interpreting the verdicts to 

mean that the plaintiff got nothing on his claims and that 

the defendants were entitled to $7,000 and no more and that 

defendants were not entitled to keep the cattle in addition. 

The court denied the attorneys lien on Hill's cattle, saying 

that the lien of the plaintiff's attorneys could not attach 

where there is no verdict or judgment in favor of Hill. 

TIEASE CONSTRUCTION 

The fact dispute as to the lease is whether it was a 

month-to-month lease as contended by Hill, or an oral lease 

partially performed for one year as contended by the Turleys. 

The District Court instructed the jury, in its instruction 

no. 9 in the language of section 70-26-201, MCA, that "[a] 

hiring of real property, other than lodgings and dwelling 

houses, in places where there is no usage on the subject, is 

presumed to be for one year from the commencement unless 

otherwise expressed in the hiring." It appears the jury 

found in favor of the yearly lease. 

We held in Rosneau Foods v. Coleman (1962), 1.40 Mont. 

572, 374 P.2d 87, that depending on the circumstances, an 

invalid oral lease may create a month-to-month or a 

year-to-year tenancy. In Rosneau, we quoted what is now 5 

70-26-201, MCA, and concluded that the fact that the rent was 
paid on a monthly basis was not in and of itself sufficient 

t.o overcome the presumption created in § 70-26-201, MCA, in 

favor of a yearly lease. 

In Kettlekamp, et al. v. Watkins (1924), 70 Mont. 391, 

225 P. 1003, we covered the point of partial performance. 

There the renters attempted to avoid paying for the balance 

of the term of the lease, which was not in writing. This 

Court held that there was a difference between a parole lease 

entirely executory and one which had been partially 

performed. The partial performance of a parole lease for a 

term beyond that allowed by the statute of frauds will take 

it out of the operation of the statute. The Court stated: 

. . . While there is some diversity of opinion as 

to the act which will. constitute part performance 

sufficient to remove the lease from the operation 

of statute, the overwhelming weight of authority 

sustains the view that taking possession and making 

alterations of the property and paying the rent 

agreed upon for a considerable period of time-as in 

the case before us-constitutes part performance, 

within the general rules stated above. 

70 Mont. at 399-40, 225 P.2d 1006. 

And see Dyksterhouse v. Doornbos (1977) , 1-72 Mont. 461, 

The object of the statute of frauds is to prevent fraud, 

and not to accomplish fraudulent purposes. Hayes v. 

Hartelius (Mont. 1985), 697 P.2d 1349, 42 St.Rep. 457. 

At the trial, the Turleys' neighbor, Robert Tully 

testified that the standard practice and usage in the area 

was to lease grazing land by the year. Under the law and the 

jury verdict, we hold that Hill's lease of the grazing land, 

though oral, was on a year-to-year basis; that Hill was in 

the second year of his tenancy; and that he owed the balance 

of the yearly rental when he terminated the Lease midterm on 

October 1, 1383. 
AGISTER'S LIEN 

The District Court submitted this issue to the jury 

under the instruction that if there were an express or 

implied contract for keeping, feeding, herding, pasturing or 

ra-nching stock, the farmer to whom the stock was entrusted 

had a lien upon such stock for the amount d.ue for keeping, 

feeding, herding, pasturing or ranching of said stock and 

could retain possession thereof until the sum due was paid. 

See 5 71-3-1201(1) , MCA. 

Hill claimed that the Turleys were not entitled to an 

a.gister1 s lien in this case, and that because they kept his 

cattle, he was entitled to damages for conversion and for 

punitive damages as well. The jury found against Hill. on 

those issues in one verdict but directed in the second 

verdict that the cattle be returned to Hill. 

The District Court refused to alter and amend the 

judgment with respect to the agister's lien, saying: 

This Court interprets the verdicts to mean that: 

(1) Plaintiff gets nothing; and 

(2) Defendants are awarded $7,000 and only that 

amount and no more, and that defendants will not be 

entitled to keep the cattle in addition. The jury 

verdict was against the plaintiff and in favor of 

the defendants. To interpret otherwise would 

frustrate the jury verdict. 

We agree. The plaintiff's claim for damages for 

wrongful conversion of his cattle was decided adversely to 

Hill by the jury verdict. 

Hill contends on appeal that since he was entitled to 

the peaceful possession of the ranch premises for the 

purposes of running cattle thereon under his grazing lien, 

the possession of cattle was with Hill and not with the 

Turleys. He further contends that an agister's lien arises 
only when the possession of livestock is delivered into the 

care, custody and control of another under a contract of 

bailn~ent and such lien is not given to an employee or a 

herder. He cites Engle v. Pfister (1953), 127 Mont. 65, 257 

p.2d 561; Noel v. Cowan (1927), 80 Mont. 258, 260 P. 116; 

Love v. Hecer (1923), 67 Mont. 497, 215 P. 1099. Moreover, 

Hill contends that the Turleys did nothing to enforce their 

asserted lien under the mandatory procedures to be followed 

in 5 71-3-1203, MCA, respecting enforcement. 

The effect of the jury verdict was to order that Hill's 

cattle be returned to him, and that he recover no damages for 

the alleged conversion of his cattle. The request of Hill on 

appeal is that the case be sent back to the District Court 

for the "limited purpose of determining the amount of damages 

due Hill for conversion of his cattle including a reasonable 

allowance for attorney's fees, both in the lower court and 

upon appeal. " We would indeed frustrate the purpose of the 

jury, if, after the jury had decided that Hill was not 

entitled to damages, we were now to return the cause for 

another jury trial upon the same issue of damages. Whether 

or not the Turleys claim of agister's lien was valid, the 

jury has already determined that Hill is entitled to no 

damages by virtue of the same. 

OTHER ISSUES 

Hill contends that the District Court committed error in 

allowing Robert Tully to testify that prior to the Hill 

lease, Tully had negotiated with the Turleys on a. proposal 

for Tully to lease the ranch for $12,000 for the entire unit 

for the period of one year. Tully also testified, as we have 

said, to the usage with respect to yearly tenancies. 
The testimony relating to Tully's negotiations for a 

lease with the Turleys was indeed hearsay, but we deem it 

harmless. His testimony with respect to usage, however, was 

based upon the fact that he was a neighbor of the Turleys, 

and had over 20 years of ranching experience in the area. 

The District Court determined that his testimony as to usage 

would be useful, and usage was an issue in light of the 

language of 5 70-26-201, MCA. We find no error here. 

Hill claims error in the refusal by the District Court 

of the following instructions: 

No. 11: YOU are instructed. that a tenant holding 

premises by verbal letting for an indefinite term 

at a monthly rental becomes a tenant from 

month-to-month. 

No. 12: You are instructed that if you find from 

the evidence that the parties attempted to 

negotiate a lease for a period other than 

month-to-month, but that no agreement was ever 

concluded between the parties, except that monthly 

rental of $1,000 would be paid, then the tenancy is 

one of month-to-month. 

Proposed no. 11 would be an improper mandatory 

instruction and against the presumption provided by statute 

in S 70-26-201, MCA. We find no statutory or case support 

for proposed instruction no. 12 and again it would set aside 

the presumption of S 70-26-201, MCA, and usurp the 

fact-finding province of the jury. 

The court instructed the jury the language 

70-26-201, MCA, as follows: 

A hiring of real property, other than lodgings and 

dwelling houses, in places where there is no usage 

on the subject, is presumed to be for one year from 

its commencement unless otherwise expressed in the 

hiring. 

Hill contends that the i-nstruction should not have been 

given because Turleys on the one hand were claiming that they 

had entered into a three-year oral lease while Hill was 
contending that it was leased from month-to-month. Thus, 

Hill contends that the term of the lease was "otherwise 

expressed! i.n the hiring," and the instructions should not 

have been given. 

In Geovanetti v. Schab (1910), 41 Mont. 297, 109 P. 141, 

this Court applied the presumption provided in 5 70-26-201, 

KCA (formerly 5 5228, R.C.M. 1907) where the tenant claimed 

that he had a lease from year-to-year at $40 per month, and 

the landlord claimed the lease to be one from month-to-month. 

In applying the statute, this Court found under the testimony 

of the tenant, that the lease did run from year-to-year, that 

the third year of the lease had not expired when the landlord 

attempted to increase the amount of rental, and that the 

year-to-year lease was in its third year. 

The jury in this case, as the trier of fact, could 

accept or reject Hill's contention that the lease was from 

month-to-month; it could also reject Turley's contention that 

the lease was for a term of three years. Since this case 

involved a hiring of agricultural property, and not lodgings 

and dwelling houses, a.nd since Hill offered no usage 

contrary, the presumption provided in 5 70-26-201, MCA 

applied, and the jury was entitled to be instructed with 

respect to the presumption to determine the question of fact. 

The presumption provided by 5 70-26-201, KCA is a disputable 

presumption, which could be overcome by a preponderance of 

evidence contrary to the presumption. When the presumption 

is not overcome, the trier of fact must find the assumed fact 

in accordance with the presumption. Rule 301 (b) (21, 

M.R.Evid. 

Moreover, a finding in accordance with the presumption 

of S 70-26-201, MCA, is not inconsistent with Turley's 
contention that there was an oral lease for three years, and 

that the lease, when it was terminated by Hill, was in the 

second year of its term. We find no error in the giving of 

the instruction based on the presumption. 

Hill also objected to the instruction given to the jury 

relating to an agister's lien. Whether the instruction was 

proper or not under the facts of this case, the jury did not 

find an agister's lien existed, and so Hill was not 

prejudiced by the instruction. Instructions which were not 

prejudicial do not constitute reversible error. Gaither v. 

Richardson Construction Co. (19691, 152 Mont. 504, 452 P.2d 

428. 

Another point of error claimed by Hill is that the court 

improperly permitted Turley's counsel during voir dire of the 

jury to intimate to prospective jurors what the instructions 

of the court on the law of the case might be. Hil-1's counsel 

objected to the questions, and the court, upon ascertaining 

that the form of the question was addressed hypothetically 

(that if the court gave such an instruction, the prospective 

juror would follow the instruction in deciding the case) the 

court overruled the objection and granted Hill's counsel a 

continuing objection to the questions. 

Hill's specific objection is that under Rule 51, 

M.R.Civ.P., instructions are to be settled by the court, out 

of the presence of the jury, and with the participation of 

all counsel. When counsel suggests to prospective jurors 

during voir dire what the law of the case is or may be, the 

intent and purpose of Rule 51 is circumvented. 

We do not agree with Hill's contention that such 

questions during voir dire circumvent the court's duty 

eventual1.y to settle instructions with the participation of 
counsel under Rule 51, M.R.Civ.P. We do not find prejudice 

to Hill from the questions that were put here. The scope of 

questioning on voir dire is largely a matter of discretion 

for the trial judge who may set reasonable limits on the 

examination but should permit liberal and probing examination 

calculated to discover possible bias or prejudice, with due 

regard to the interests of fairness to both parties. 

Borkoski v. Yost !1979), 182 Mont. 28, 594 P.2d 688. It is 

not improper to pose to prospective jurors hypothetical 

questions about possible instructions from the court to 

ascertain if the prospective juror would follow the law as 

given to the jury by the court. It is improper to pose 

hypothetical questions which have the effect of requiring a 

pledge or commitment from the juror that he would decide a 

certain way upon particular instruction as that would have 

the effect of prejudging the case. See 47 Am.Jur.2d Jury S 

203 (1969). The trial judge, in exercising his discretion, 

should liberally allow questions on voir dire which seek to 

determine bias and prejudice if any, of the jurors, but not 

questions which seek to obligate a future course of action by 

the juror from hypothetical facts or law. F7e find no error 

on this point in this case. 

On another point, Hill's counsel contends that Turley's 

counsel committed "plain error" in his argument to the jury 

at the summation. The District Court submitted four forms of 

possible verdicts to be used by the jurors in their findings. 

During oral argument Turley's counsel took the two forms that 

favored Turley, and demonstrated to the jury how they should 

be signed. He also told them that if they found for Hill 

they wou1.d have to sign the other two verdicts. Hill's 

counsel now claims that the argument was misleading, 
contending that since the jury ordered the cattle to be 

returned to Hill, as a matter of law, the conversion was 

unlawful and Hill was entitled to damages. Hill"s counsel 

contends that the plain error doctrine of Halldorson v. 

Halldorson (1977), 175 Mont. 170, 573 P.2d 169, should be 

applied by us, since no objection was made to the oral 

argument by Hill's counsel. 

There is no weight to this issue. Turley's counsel 

merely explained to the jury how they should use the verdict 

form if they found for his clients and incidentally explained 

that they should use the other two verdict forms if they 

should find for Hill. The plain error rule does not apply in 

this case. 

Again, Hill contends that the judgment entered by the 

court did not conform to the jury's verdict. In the verdict 

in favor of Turley for $7,000 in damages, there was added in 

hand-writing "$7,000 only, and direct that Mr. Hill's cattle 

be returned to him." During deliberations, the jury had sent 

a question out to the court as to whether signing the "top" 

verdict would give the cattle back to Hill. The court 

answered in writing, "Please use verdict forms you have and 

you may add to same if you wish." The court in entering 

judgment on the verdict, ordered $7,000 against ill on the 

Turley's counterclaim, and against Hill on all issues in 

regard. to Hill's complaint. The judgment itself did not 

direct the Turleys to return Hill's cattle to him. 

Hill contends that the judgment followed must conform to 

the verdict or findings. Morse v. Morse (1945), 116 Mont. 

504, 508-09, 154 P.2d 982. 

Following the entry of the judgment, Hill filed a motion 

to alter or amend the judgment and for a writ of assistance 
directing the sheriff to return the cattle to Hill if they 

were not returned voluntarily by the Turleys. Hill's counsel 

also claimed an attorneys lien under S 37-61-420, PICA, as 

attaching to the cattle. 

The District Court denied the motion to alter or amend 

the judgment interpreting the two verdicts to mean (1) the 

plaintiff gets nothing and (2) the defendants were awarded 

$7,000 only, and that the defendants would not be entitled to 

keep in the cattle in addition. The District Court said the 

jury verdict was against the plaintiff in favor of the 

defendants and to interpret the verdict otherwise would 

frustrate the jury verdicts. The court further denied the 

claim of attorneys lien on the ground that such a lien does 

not attach to the verdict or judgment granted in the case 

because the judgment was not rendered in Hill's favor. The 

District Court further allowed the Turleys to proceed to 

execute upon the cattle in their possession to satisfy the 

judgment. The cattle were eventually sold at sheriff's sale 

and the proceeds applied to the judgment. 

At the same time as he filed the motion to alter or 

amend the judgment, on August 13, 1984, Hill also filed a 

written notice of attorneys lien and an equitable assignment. 

In that notice he stated that on October 21, 1983, he had 

made an equitable assignment of all his right, title, and 

interest in and to the livestock held by the Turleys. He 

stated when he retained his lawyer to represent him in the 

action, he advised the lawyer that the lawyer would have a 

lien on al-1 the cattle belonging to him held by the Turleys 

for services to be rendered and costs to be incurred in 

connection with the upcoming lawsuit against the Turleys. 
Upon that agreement, his counsel embarked upon the services 

which he rendered in connection with the suit. 

Under $j 37-61-420(2), MCA, an attorney who appears for a 

party has a lien upon his client's cause of action which 

attaches to a verdict or judgment in his client's favor and 

the proceeds thereof in whose hands they may come. The 

District Court was correct in determining that the jury in 

this case has not decided in favor of Hill. The handwritten 

portion of the verdict favoring Turleys was merely a 

1-imitation upon their damages, the jury intending that 

Turleys should not collect $7,000 and keep the cattle also. 

There was no verdict or judgment in this case in favor of 

Hill. The attorneys claimed lien was properly denied. 

Accordingly, we affirm the judgment in the District 

Court. 

Justice 

We Concur: 
Justices