NO. 14452 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

CARL B. CHAMBERLAIN and HERTHA A. 

CHAMBERLAIN, husband and wife, 

Plaintiffs and Appellants, 

L. E. EVANS et al., 

Defendants and Respondents. 

Appeal from: ~istrict Cburt of the Eighth ~udicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants: 

Stacey and Nye, Billings, Montana 

Jerrold L. Nye argued, Billings, Montana 

For Respondents: 

Swanberg, Koby, Swanberg and Matteucci, Great Falls, 

Montana 

Raymond F. Koby, Jr. argued, Great Falls, Montana 

Submitted: February 6, 1979 

; - 1~33 Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This action concerns a farm lease filed in the District 

Court of the Eighth Judicial District, County of Cascade. 

Motions and briefs were submitted by both parties for summary judgment, and on June 23, 1978, summary judgment was 

granted to the defendants. Plaintiffs appeal. 

In April 1971, plaintiff Chamberlain leased from 

defendants L.E. and Josephine Evans (Evans) 230 acres of 

wheat land near Great Falls. The pertinent parts of the 

lease in this action provided that it ran to November 1, 

1971, and unless notice of termination was given by either 

party, it would be automatically renewed for each succeeding 

year. 

Termination could be made in two ways. In the event 

Evans sold all or part of the land, the lease would terminate immediately as to the part sold and Chamberlain would 

become entitled to certain payments. The lease could also 

be terminated by nonrenewal, if notice of nonrenewal was 

given by either party at least 60 days prior to the renewal 

date of the lease. 

The lease continued until April 1974 through automatic 

renewal. On or about April 1, 1974, however, Chamberlain 

received from Evans a notice of termination of the lease. 

The notice stated that the reason for termination was due to 

sale of part of the leased premises making further farming 

inconvenient. The notice also directed Chamberlain to do no 

summerfallow or to plant any of the land. 

Evans thereafter entered into a contract with illi ionMoore, Inc., to come onto the land in the spring and summer 

of 1974 to work the leased premises and to plant it to 
wheat. The land under lease was not sold. Because of 

Killion-Moore's operations, however, Chamberlain ceased 

farming the leased land. 

The issue(s) on appeal are disputed by the parties. 

Because the District Court granted Evans summary judgment, 

the issue as defined by him is probably more correctly 

stated: 

Whether there was an issue of material fact, the 

existence of which would preclude summary judgment, and if 

not, whether the movant should prevail as a matter of law? 

Chamberlain more circuituously states the issues as: 

1. Whether an admitted interference by Evans with 

Chamberlain's rights to the exclusive possession and quiet 

enjoyment of the leasehold during the term of the lease gave 

rise to factual and legal questions of damages? 

2. Whether the notice of termination which stated an 

untrue reason for termination of the lease in an attempt to 

deprive Chamberlain of his termination rights was fraud on 

the plaintiffs? 

Both parties moved for summary judgment in the court 

below. The order of the District Court reads in pertinent 

part: 

. . . it appearing to the Court that, as to 

laintiffs' motion there remain genuine issues 

f material fact on questions of liability, but 

that as to defendants' motion, there is no genuine issue of any material fact and that defendants are entitled to judgment as a matter of 

law, 

"It is, therefore, hereby ORDERED that plaintiffs' 

motion for partial summary judgment be and it is 

hereby denied, and that defendants' motion for 

summary judgment in their favor be and it is 

hereby granted." 

Chamberlain can bring no challenge to that part of the 

District Court order denying him partial summary judgment. 
A large part of his original complaint and brief on appeal 

is devoted to a discussion of how Evans allegedly fraudulently terminated the lease. By statute, fraud is always a 

question of fact. Section 13-310, R.C.M. 1947, now section 

28-2-404 MCA. Therefore, Chamberlain himself was not 

entitled to summary judgment. 

The District Court did grant Evans' motion for summary 

judgment, however. On review, this Court must merely determine whether there exists a genuine issue of material fact 

and whether the moving party is entitled to a judgment as a 

matter of law. Rule 56(c), M.R.Civ.P. 

The termination provision of the lease reads: 

"2. TERM OF LEASE: This agreement shall be for 

a term commencing on the date hereof and terminating on November 1, 1971, PROVIDED HOWEVER, 

that this agreement shall be renewed automatically 

from year to year for one year terms commencing 

November 1st of each year and terminating on 

November 1st of the next year, unless one party 

give to the other party notice of termination of 

the same at least sixty (60) days prior to the 

termination date in any given year, in which event 

this agreement shall terminate November 1st following the giving of notice of termination." 

The notice of termination sent to Chamberlain by Evans 

stated: 

"NOTICE of TERMINATION of FARM LEASE CONTRACT 

between L. E. Evans and Josephine Evans (Owners) 

and Carl V. Chamberlain and Hertha A. Chamberlain 

(Operators). 

"Due to the sale of acreage on this farm and selling of acreage in various parts of this farm makes 

it very inconvenient to farm. Therefore, as of 

April 1, 1974, the Operators are to do no spring 

planting or summerfallowing except for reseeding 

in spots on winter wheat. 

"The Operators will harvest the winter wheat crop 

now in, as specified in the Contract." 

It is clear from the termination provision that neither 

party was required to state any reason for the termination 

as long as notice of the termination was given sixty days 
prior to the November 1 termination date in any year. Evans 

gave (and Chamberlain received) this notice on or about 

April 1, a full seven months before the specified termination date. This notice complied fully with the letter and 

spirit of the lease. Chamberlain apparently recognized this 

fact and did not attempt to talk to Evans about the matter 

after April 1. In such circumstances, any claim by Chamberlain that Evans fraudulently stated the reasons for terminating the lease are groundless for the simple reason that 

Evans was not required to state any reason at all for terminating the lease. See Shanahan v. Universal Tavern Corp. 

(1978) 1 - Mont. , 585 P.2d 1314, 1317, 35 St-Rep. 1585, 

1589. Evans followed the terms of the lease in terminating 

it and is now entitled to summary judgment as a matter of 

law. 

Chamberlain's claim in his original complaint that he 

is entitled to a share of the 1975 crop is also groundless. 

Sections 67-702, -703, R.C.M. 1947, now section 70-26-206, 

MCA. He neither planted, cultivated, nor harvested these 

crops. In any event, we have stated under very similar 

circumstances: 

"The record is clear that plaintiff knew when he 

accepted the terms of October 2, 1961, that his 

term ended November 1, 1962. As a matter of fact 

he brought this action on May 15, 1962, even before the time for summer-fallow. Treating the 

matter in the light most favorable to plaintiff, 

that a lease for one year existed because of the 

letter of September 27, and the addendum of October 2, the terms are plain, and under such 

conditions there is no basis for any theory of 

'away going' crop. 

"In Hall v. Hilling, supra, the rule is announced 

that when a lease, expressly or by implication, 

recognizes the right of a tenant to sow in the 

last year of his term, the tenant has a right to 

harvest the away-going crop at the expiration of 

his lease, where the lease is silent as to who is 
entitled to the crop. This general proposition 

does not aid appellant, since as we have previously discussed, under the circumstances here, 

the very basis for his lease right, whether it 

was a lease at will or for one-year period, was 

to the contrary. The other authorities are either 

not in point or support our holding here. 

"Summarizing the circumstances here, the appellant 

--- knew when he accepted the terms of --- the last lease 

--- that his term ended November -- 1, 1962. He --- knew it 

would -- not be extended. The lease did not require 

him to do any summer-fallowing in 1962, and if 

he chose to do any that he would be paid. 

"Under these circumstances, the district court was 

correct . . ." Johnson v. Anderson Ranch Co. 

(1963), 142 Mont. 251, 254-55, 384 P.2d 271, 272- 

73. (Emphasis added. ) 

In fact, to accept Chamberlain's theory of the case 

would be to require in effect a one year and sixty day 

notice of termination period because the tenant would always 

be entitled to the crops harvested the year following his 

receipt of notice of termination. This clearly contravenes 

the lease provisions. 

Finally, for the first time on appeal, Chamberlain 

asserts that his claim all along has been for breach of his 

right to quiet enjoyment of the leased premises. The record 

does not support this assertion. In the main paragraph and 

prayer of his complaint, Chamberlain stated: 

"2. That, on or about March 27, 1974, Defendants 

gave notice of termination of lease alleging sale 

and use as an industrial park, made it inconvenient 

to farm. That Plaintiffs relied upon Defendants 

representations and ceased to farm, although under 

said lease, they were entitled to summerfallow and 

farm the agricultural ground for 1975. That the 

representations of Defendants were false and fraudulent and made for the purpose of deceiving Plaintiffs, with the intent that Plaintiffs rely thereon 

to their detriment. Plaintiffs relied thereon and 

suffered detriment in the loss of their 1975 crop 

share. That the reasonable value of Plaintiffs' 

share of the 1975 crop is the sum of TWENTY SEVEN 

THOUSAND SIX HUNDRED AND N0/100 DOLLARS ($27,600.00). 

"WHEREFORE, Plaintiffs pray judgment as follows: 

"1. For TWENTY SEVEN THOUSAND SIX HUNDRED AND 

N0/100 DOLLARS ($27,600.00) . " 
That this states theories of recovery based on fraud or 

on entitlement to an "away-going" crop share is supportable; 

that it states a theory of breach of quiet enjoyment is not. 

It has long been the rule that a party may not change 

his theory on appeal to this Court from that advanced in the 

trial court: 

"Under the well-known rule counsel ought not now 

to present a different theory from that upon 

which he tried the case in the court below. 'The 

rule is settled in this jurisdiction that when a 

party has adopted one theory upon the trial of his 

case he may not change the theory on appeal. (Gay 

v. Lavina State Bank, 61 Mont. 449, 18 A.L.R. 1204, 

202 Pac. 753.)' (O'Hanlon v. Ruby Gulch M. Co., 

64 Mont. 318, 209 Pac. 1062; Patterson v. Law, 

78 Mont. 221, 254 Pac. 412.)" United States Building & Loan Ass'n v. Burns (1931), 90 Mont. 402, 

420, 4 P.2d 703, 707. 

Accord, Williard v. Campbell (1932), 91 Mont. 493, 503, 11 

Even if we assume that Chamberlain's claim all along 

has been for breach of quiet enjoyment, he would still have 

no claim for relief as there was no breach. Chamberlain 

would be entitled to a share of the 1974 crop harvested 

before the end of the lease. As indicated by the termination notice and the record, this is exactly what he did 

receive. Nothing Evans or Killion-Moore did in 1974 interfered with Chamberlain's right to harvest this crop. Chamberlain's flat assertion that he is entitled to some broader 

degree of possession of this farm land when he would not be 

entitled to any of the fruits of the land harvested after 

the termination of the lease is insufficient grounds on 

which to deny Evans' motion for summary judgment. 

The judgment of the District Court is affirmed. 

,' Justice 

/' 
We concur: