No. 92-139 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

ROBERT VAN RIPER, JEAN VAN RIPER 

and VAN'S TRACTOR, INC., 

Plaintiffs and Respondents, 

FORD NEW HOLLAND, INC., and 

FORD MOTOR CREDIT COMPANY, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keith Strong (argued) and Creighton Magid, Dorsey & 

Whitney, Great Falls, Montana 

For Respondent: 

Turner C. Graybill (argued) and Gregory H. Warner, 

Graybill, Ostrem, Warner & Crotty, Great Falls, 

Montana 

Submitted: January 21, 1993 

OCT 2 1 1993 Decided: October 21, 1993 

SZd'4 

UPfiSia~: COURT 

STATE OF MONTANA 
Justice R. C. McDonough delivered the Opinion of the Court. 

Ford New Holland, Inc. (Ford New Holland), appeals from a 

judgment entered by the District Court for the Eighth Judicial 

District, Cascade County. The court assessed damages, costs, and 

attorney fees against Ford New Holland for violations of §§ 30-11- 

802 and -803, MCA, and breach of the covenant of good faith and 

fair dealing. Ford New Holland appeals. We affirm. 

The issues are: 

1. Did the District Court err by applying 55 30-11-802 and - 

803, MCA, to the Versatile Agreement? 

2. Did the District Court err in concluding that Ford New 

Holland violated 55 30-11-802 and -803, MCA? 

3. Did Ford New Holland breach the implied covenant of good 

faith and fair dealing? 

4. Did the District Court err in awarding damages? 

5. Did the District Court err in awarding attorney fees? 

Robert and Jean Van Riper (the Van Ripers) , owned and operated 

Vant s Tractor, Inc. (Vant s Tractor) , in Havre, Montana. Van's 

Tractor sold new and used tractors and other farm equipment. Van's 

Tractor entered a dealership agreement with Versatile Farm 

Equipment (Versatile) on November 2, 1983. 

In 1987, Versatile, then in bankruptcy, sold certain of its 

assets, including the Van's Tractor Versatile franchise, to Ford 

New Holland, a subsidiary of Ford Motor Company. Versatile sold 

other of its assets, including a Noble plow line, to Vicon Farm 
~quipment, Inc., a corporation unrelated to Ford New Holland. 

Van's Tractor decided not to continue selling Noble products and 

returned its supply of Noble parts to Vicon. 

Corporate mergers resulted in Ford New Holland then having 

two outlets in Havre, Van's Tractor and an existing "company 

store." The goal of Ford New Holland was to have one dealer in 

Havre. It sought a dealer who would buy out its interest in the 

company store. Van's Tractor was a prospective purchaser. 

However, Ford New Holland determined that Van's Tractor would not 

be its full-line dealer in Havre. Ford New Holland did not notify 

Van's Tractor of this decision. 

In the fall of 1987, Ford New Holland designated Van's Tractor 

for attrition as a Versatile dealer. The designation meant Van's 

Tractor could not transfer its Ford New Holland dealership and had 

no future as a Ford New Holland dealer. Ford New Holland did not 

notify Van's Tractor of this designation. 

From 1987 to 1988, the net worth of Van's Tractor declined. 

In the year ending April 1988, Van's Tractor sold only one piece of 

Versatile equipment. The Van Ripers attempted to sell Van's 

Tractor and received an offer in April of 1988, but Ford New 

Holland refused to approve transfer of the dealership. Ford New 

Holland then asked that Van's Tractor resign its dealership because 

it had attempted to sell the franchise. Van's Tractor refused. 

In April 1988, Ford New Holland decided to terminate the Van's 

Tractor dealership based on the refusal by Van's Tractor to pay an 
$11,000 disputed bill. The position of Van's Tractor as to this 

bill was that it would not pay the bill until it was credited for 

Noble parts it originally had obtained from Versatile and had 

returned to Vicon. The position of Ford New Holland was that 

although it had the right to collect the accounts of Versatile, it 

had no responsibility to fulfill the obligations of Versatile which 

had been assumed by Vicon. 

Subsequently, Ford New Holland placed Van's Tractor on "stop 

ship1' status and withdrew its credit line. On May 20, 1988, Ford 

New Holland drafted a letter demanding that Van's Tractor pay the 

bill within ten days or be terminated as a dealer. Termination 

proceedings began on May 27, 1988. Van's Tractor did not receive 

Ford New Holland's demand letter until June 6, 1988, but it paid 

the disputed amount within ten days of that date. 

Despite payment, Ford New Holland did not remove Van's Tractor 

from "stop ship1' status. As a result, Ford New Holland shipped a 

four-wheel drive tractor and a Versatile swather ordered by Van's 

Tractor to the competing dealer in Havre. Van's Tractor was unable 

to obtain any parts until August 23, 1988. Van's Tractor resigned 

its dealership in September of 1988, and then brought this lawsuit. 

The case was tried to the court sitting without a jury. The 

court dismissed all individual claims of Robert and Jean Van Riper 

and all claims against Ford Motor Credit. The court found in favor 

of Van's Tractor on its claims against Ford New Holland and awarded 
$443,000 in damages, attorney fees of $162,000, and $12,393 in 

costs, Ford New Holland appeals. 

I 

Did the District Court err by applying IiL 30-11-802 and -803, 

MCA, to the Versatile Agreement? 

The District Court found that Ford New Holland violated both 

9 30-11-802, MCA, and 5 30-11-803, MCA* Ford New Holland contends 

that application of these statutes in this case is a prohibited 

retroactive application because the statutes were enacted in 1985, 

two years after the contract was entered between Versatile and 

Van's Tractor. 

The record demonstrates that in the spring of 1987, Versatile 

was insolvent and in receivership. It had ceased manufacturing, 

was negotiating liquidation of its assets, and was in bankruptcy, 

Ford New Holland assumed and undertook the duties and 

responsibilities of Versatile with respect to certain dealerships, 

including Van's Tractor. Versatile had no intention of being 

responsible any longer under its dealership agreements; it was out 

of business. Beginning in the fall of 1987, Ford New Holland 

supplied Vanls Tractor with goods and financing. Van's Tractor 

consented to this relationship and believed it was a Ford New 

Holland dealer. 

Furthermore, the assignment was more than just a product 

change, which is what Ford New Holland would have us believe. As 

the District Court found: 
Ford New Holland's position that it was entitled to the 

assets but not the liabilities of the Versatile Agreement 

is itself sufficient evidence of a change in the duties 

and obligations under the Versatile Agreement to create 

a new agreement to which the requirements of MCA 5 30-11- 

801 et. sea. otherwise apply. 

This refers to Ford New Holland's refusal to be bound by any 

obligations of Versatile in relation to the Noble plow line. 

In support of its ruling the District Court cited Kealey 

Pharmacy & Home Care Sen. v. Walgreen Co. (W.D. Wi. 1982), 539 

F.Supp. 1357, modified, 761 F.2d 345, damages set, 607 F.Supp 155. 

That case supports the view that a non-retroactive statute applies 

to contracts originally entered before the statute was enacted and 

which have been significantly altered after the effective date of 

the statute. 

As stated by the District Court, one result of the 1987 sale 

of Versatile to Ford New Holland and others was that Vicon was 

responsible for crediting Vans s Tractor for returns of Noble parts 

for which Ford New Holland was, at the same time, attempting to 

collect payment. As Robert Van Riper testified, during the months 

of delay before Van's Tractor received payment from Vicon for the 

$11,000 in returned Noble parts, Van's Tractor was placed, without 

notice, on C.O.D. status for parts shipped by Ford New Holland. 

Another result of the sale of Versatile was that Ford New 

Holland required Van's Tractor to submit a completely new 

application for a dealership. Requiring this application exceeded 

the scope of periodic financial reporting allowed under the 

Versatile agreement. It was, in fact, akin to making a fresh 
decision whether to continue the contractual relationship between 

Ford New Holland and Van's Tractor. (Ford New Holland, however, 

never approved the new dealership application.) 

We conclude that the 1987 sale of assets by Versatile to Ford 

New Holland and others significantly altered the dealership 

relationship and contract, We hold that the District Court did not 

err in applying SS 30-11-802 and -803, MCA, to the Versatile 

Agreement between Van's Tractor and Ford New Holland. 

Did the District Court err in concluding that Ford New Holland 

violated 35 30-11-802 and -803, MCA? 

The District Court concluded that actions taken by Ford New 

Holland violated 55 30-11-802 and -803, MCA. The argument of Ford 

New Holland that these violations did not occur depends on its 

position that the terms of the Versatile dealership contract can 

negate statutory requirements. Such is not the case, Contracts 

which are in violation of the policy of an express law are 

unlawful. Section 28-2-701, MCA. 

section 30-11-802, MCA, provides: 

No grantor may, directly or indirectly, terminate, 

cancel, fail to renew, or substantially change the 

competitive circumstances of a dealership agreement 

without good cause. The burden of proving good cause is 

on the grantor. 

The District Court concluded that Ford New Holland changed the 

competitive circumstances of its dealership agreement with Van's 
Tractor without good cause and in violation of 5 30-11-802, MCA, in 

seven separate ways: 

unilaterally placing Van's Tractor in attrition status 

without reasonable notice or the opportunity to avoid 

further investment; 

without prior notice, depriving Van's Tractor of the 

possibility of transferring the Versatile dealership to 

a qualified buyer; 

requesting the resignation of Van's Tractor and 

threatening termination of the franchise on the erroneous 

pretext that the Van Ripers had sold the business and 

then, upon being advised of the true facts, maintaining 

its erroneous position that Van's Tractor had breached 

its dealership agreement by attempting to sell the 

franchise; 

establishing a second Versatile franchise in the Havre 

area when it was aware that two such dealers could not 

survive ; 

refusing to remove Van's Tractor from stop ship status 

after receiving the payment it had demanded; 

diverting the orders of Van's Tractor for goods without 

notice and transferring such products to the competing 

store without notice; and 

continuing adverse credit terms against Van's Tractor 

(requiring that all purchases be C.O.D.). 

The court also concluded that ''the conduct of Ford New Holland 

indirectly terminated Van's Tractor, Inc. as a Ford New Holland 

dealer without good cause." The record supports the conclusions of 

the District Court as to the violations by Ford New Holland of 5 

30-11-802, MCA. 

Section 30-11-803, MCA, provides in relevent part: 

(1) Except as provided in subsections (2) and (3), a 

grantor shall provide a dealer at least 90 days' prior 

written notice by certified mail of termination, 

cancellation, nonrenewal, or substantial change in 
competitive circumstances. The notice must state all the 

reasons for termination, cancellation, nonrenewal, or 

substantial change in competitive circumstances and must 

provide that the dealer has 60 days from receipt of the 

notice in which to rectify any claimed deficiency. If 

the deficiency - is rectified within 60 days, - the notice is 

void. 

(2) If the reason for termination, cancellation, 

nonrenewal, or substantial change in competitive 

circumstances is nonpayment of sums due under the 

dealership, the dealer is entitled to 10 days' prior 

written notice by certified mail. If the dealer does not 

remedy such default within 10 days after receipt of the 

notice, the notice is effective according to its terms. 

The court concluded that Ford New Holland violated 30-11-803, 

MCA, by terminating Van Tractor's franchise without notice, failing 

to notify Van's Tractor of its original attrition plan, and leaving 

Van's Tractor on "stop shipv' status after Van's Tractor paid the 

disputed parts account. The record supports these conclusions. 

We hold that the District Court did not err in concluding that 

Ford New Holland violated §§ 30-11-802 and -803, MCA. 

I11 

Did Ford New Holland breach the implied covenant of good faith 

and fair dealing? 

The parties agree that damages are the same under this theory 

and the theory of statutory violations discussed in Issue 11. 

Because we have ruled that the District Court did not err in 

finding that the statutory violations occurred, we need not address 

whether Ford New Holland also breached the implied covenant of good 

faith and fair dealing. 

IV 
Did the District Court err in awarding damages? 

Ford New Holland argues that the District Court erred in 

awarding damages for lost profits for a period of ten years into 

the future because the evidence supporting that award was admitted 

erroneously. It asserts that the expert for Van's Tractor, Mr. 

Stuart, did not independently evaluate the relevant Havre market 

and that he based his figures on a five year evaluation done by 

Ford in connection with a different store. Ford New Holland 

asserts that the damages awarded for ten years into the future were 

purely speculative. 

When injury caused by a breach of a contract is certain, 

damages for lost profits may be awarded even though the amount of 

damage is uncertain. Hostetter v. Donlan (1986), 221 Mont. 380, 

382-83, 719 P.2d 1243, 1245. Van's Tractor points out that the 

damages it was awarded were half of Mr. Stuart's projection, and 

that a five-year profit projection based solely on the Ford New 

Holland projections suggested lost profits with a present value of 

$698,040. Ford New Holland's own expert projected lost profit with 

an upper range of $501,885. 

We hold that the damage award of $443,000 was not error. 

v 

Did the District Court err in awarding attorney fees? 

The first argument of Ford New Holland on this issue, that 

Van's Tractor was not entitled to attorney fees under contract or 

statute, is negated by our holdings under Issues I and 11. Section 
30-11-811, MCA, provides that reasonable attorney fees may be 

awarded for violation of 55 30-11-801 through -811, MCA. 

Ford New Holland also argues that the District Court 

miscalculated attorney fees. It points out that the claims of the 

individual plaintiffs, Robert and Jean Van Riper, and several 

theories of recovery were abandoned prior to trial and states that 

the attorney fees awarded exceed those called for in the contingent 

fee agreement between Van's Tractor and its attorneys. 

The District Court cited and applied the eight-part standard 

set forth in Stimac v. State (1991), 248 Mont. 412, 417, 812 P.2d 

1246, 1249, for determining the appropriate amount of attorney 

fees. The court pointed out that this case involved a novel and 

difficult question of interpretation of statutes which had not been 

previously construed. It acknowledged that the case involved a 

series of complicated factual issues. It noted the substantial 

commitment of time made by the lawyers for Van's Tractor and their 

support staff and that this case required over three and one-half 

years to complete. The court reasoned that this case was an 

important one, that the result obtained was favorable to Van's 

Tractor, and that counsel for Van's Tractor are experienced and 

skilled in the litigation of this type of business case. The court 

further pointed out that Van's Tractor entered an agreement with 

its attorneys to pay them a contingent fee of one-third of any 

recovery obtained, or forty percent of recovery in the event of any 

appeal, and that, under that agreement, counsel risked the 
possibility of no recovery. The court also stated its intent to do 

as little harm as possible to the completeness of the damages 

awarded to Van's Tractor as a result of the attorney fees it must 

pay its counsel. 

We conclude that the District Court acted properly in applying 

the statute allowing an award of attorney fees and in setting those 

fees according to the criteria set forth in Stimac. We hold that 

the District Court did not err in awarding attorney fees of 

$162,000. 

Af f inned. 

We Concur: 

Chief Justice 

Justice /7 

Justices 
Justice Fred J. Weber dissents as follows: 

I dissent from the majority opinion which awards damages, 

costs and fees against Ford New Holland for violations of 55 30-11- 

802 and 803, MCA. 

I will set forth the essential terms of the two contracts 

which are pivotal to the decision. The first is the Dealer Sales 

and services Agreement (herein called Dealer Agreement) dated 

November 2, 1983 between Versatile Farm Equipment Corporation 

(herein Versatile) and Van's Tractor, Inc. (herein Van's Tractor). 

The non-exclusive right to sell products of Versatile granted to 

Van's Tractor is contained in the following paragraph: 

1.1 The Company hereby grants to the Dealer the 

non-exclusive right to sell the products of the Company 

as hereinafter defined. . . . All transactions between 

the Company and the Dealer shall be governed by this 

Agreement unless the parties specifically agree otherwise 

in writing. 

I emphasize that Van's Tractor was given a non-exclusive right to 

sell Versatile products and that all transactions between Van's 

Tractor and versatile were to be governed by the Dealer Agreement. 

While the Dealer Agreement did provide that the parties could 

otherwise agree in writins, there is no such agreement in the 

record. As a result, the transactions between Van's Tractor and 

Versatile were governed by the Dealer Agreement. 

The products covered by the Dealer Agreement are as follows: 

2.1 Products covered by this Agreement are all 

those items of agricultural tractors, machines, and 

equipment . . . listed in a current price list . . . issued by the Company fversatile] from time to time 
together with all attachments and accessories thereto . . . Each successive Machinery Price List and Parts Price 

List when issued is deemed to be a part of this 

Agreement. . . . 

Under this paragraph the products covered by the Dealer Agreement 

were determined by Versatile from time to time as it issued current 

price lists. Under the agreement Versatile was given the right to 

eliminate any portion of its equipment lines without the right to 

object on the part of Van's Tractor. As a result Versatile had the 

power to eliminate the Noble line of equipment if it chose. Such 

elimination is a factor relied upon in the majority opinion without 

a consideration of the power to eliminate the Noble line of 

equipment which Van's Tractor granted to Versatile. 

Versatile was given the right to refuse to sell and deliver 

products under certain conditions in the following Dealer 

Agreement provision: 

6.3 The Company [Versatile] may refuse to sell or 

deliver Products to the Dealer [Van's Tractor] at any 

time under the terms of payment, herein set forth, or in 

any purchase order of the Dealer, whether or not 

previously accepted or approved, when in its opinion the 

conditions of the current account or financial standing 

of the Dealer do not warrant further sales or deliveries 

upon such terms. 

Versatile was given the right to refuse to sell products to Van's 

Tractor when in its opinion the condition of the current account or 

financial standing of Van's Tractor did not warrant further sales. 

In addition the Dealer Agreement contains extensive 

termination provisions in part 21, which in pertinent part provide: 

21.1 This Agreement shall continue in effect until 

terminated as hereinafter provided. This Agreement may 
be terminated immediately, at the Company's [Versatile] 

option, by giving notice by hand, verified telex or 

telecopier or by registered mail, postage prepaid to the 

last known address of the Dealer [Van's Tractor] at any 

time after the occurrence of any of the following events: . . . (d) default of any indebtedness of the Dealer to 

the Company . . . ... 

(g) if the Company, in good faith, believes that 

the prospect of payment or performance 

hereunder is impaired or that the Products or 

any part thereof are in danger of being lost, 

damaged or confiscated. 

Substantial rights in the Dealer Agreement were transferred by 

Versatile to Ford New Holland under the Assignment and Assumption 

Agreement dated July 10, 1987 (herein called ~ssignment), which in 

pertinent part provided: 

2. Assianment. 

(a) VFEC [Versatile] hereby irrevocably assigns, 

transfers, sells and conveys to NH [Ford New Holland] all 

of VFEC's right, title and interest in and to the U.S. 

Dealer Agreements [specifically including the VersatileVan's Tractor Agreement] to the extent the same relates 

to the Business [all business carried on by Versatile in 

the distribution and sale of equipment but excluding the 

Noble Business], including all right of action and all 

other rights accruing to VFEC thereunder. 

(b) For greater clarity and certainty, it is hereby 

agreed that VFEC shall retain unto itself all of its 

right, title and interest in the U.S. Dealer Agreements 

to the extent same relate to the Noble Business. . . . 3. Assumption. NH [Ford New Holland] hereby 

accepts the assignment of VFECVs [Versatile's] right, 

title and interest in and to the U.S. Dealer Agreements 

as above provided, and agrees to observe, perform and 

discharge the covenants and obligations of VFEC related 

to the Business under the U.S. Dealer Agreements in 

accordance with their respective terms to the extent that 

the same shall arise or accrue at any time after the date 

hereof and relate to periods commencing after the date 

hereof. 
The ~ssignment irrevocably transferred from Versatile to Ford New 

Holland all of Versatile's right, title and interest in the Dealer 

Agreement with Van's Tractor as it related to Versatile equipment, 

but specifically excluded all Noble Business which was defined as 

the business carried on by Versatile Noble Cultivators Company. 

Under the Assumption portion of the Assignment, Ford New Holland 

accepted the assignment from versatile and agreed to observe, 

perform and discharge all of the obligations under the Assignment 

in accordance with its terms. I emphasize that no consent on the 

part of Van's Tractor or any other dealer was required under the 

terms of the Assignment. It is critical to note that there are no 

terms of the Dealer Agreement or of the ~ssignment, or of any other 

instrument in writing which requires consent by Vants Tractor to 

the assignment by Versatile to Ford New Holland. Nothing in the 

written record supports a conclusion that the Assignment from 

Versatile to Ford New Holland modified the contract relationship 

under the Dealer Agreement with Van's Tractor so far as all 

Versatile equipment was concerned. 

The majority points out that Ford New Holland contended that 

the application of 59 30-11-802 and 803, MCA, is a prohibited 

retroactive application because the statutes were enacted in 1985, 

two years after the contract between Versatile and Van's Tractor 

was executed. These code provisions in pertinent part provide: 

30-11-802, Cancellation and alteration of 

clealerships. No grantor may, directly or indirectly, 

terminate, cancel, fail to renew, or substantially change 

the competitive circumstances of a dealership agreement 
without good cause. The burden of proving good cause is 

on the grantor. 

30-11-803. Notice of termination or change in 

dealership. (1) . . . a grantor shall provide a dealer at 

least 90 days1 prior written notice by certified mail of 

termination, cancellation, nonrenewal, or substantial 

change in competitive circumstances. The notice must 

state all the reasons for termination, cancellation, 

nonrenewal, or substantial change in competitive 

circumstances and must provide that the dealer has 60 

days from the receipt of the notice in which to rectify 

any claimed deficiency. If the deficiency is rectified 

within 60 days, the notice is void, 

Section 802 is construed by the majority opinion as limiting the 

power of Ford New Holland to terminate, cancel or substantially 

change the competitive circumstances of the Dealer Agreement 

without good cause and, placed the burden of proving such good 

cause on Ford New Holland. In a similar manner, the majority 

opinion concludes that under S 803, notice of termination or change 

in dealership is required, and if a deficiency specified in a 

notice is corrected in accordance with the statute, then the notice 

is void. 1 emphasize the clear contradiction between these code 

section provisions and the rights given to the parties under the 

terns of the Dealer Agreement itself. The majority opinion has 

concluded that the Dealer Agreement provisions may be totally 

disregarded because of the controlling effect of the subsequently 

enacted statutes. Clearly these code sections directly contradict 

the rights given to the parties under the Dealer Agreement. 

In Part I of the majority opinion, the key conclusion is 

stated as follows: 
We conclude that the 1987 sale of assets by 

Versatile to Ford New Holland and others significantly 

altered the dealership relationship and contract. 

I disagree with the foregoing conclusions. The Assignment of the 

Dealer Agreement is not prohibited or restricted under such Dealer 

Agreement and by its terms does not in any way result in a new 

dealership relationship or contract. 

In Part I of the majority opinion, the statement is made that 

the Assignment was more than just a product change as Ford New 

Holland would have us believe. The majority refers to the District 

Court finding and then states: "This refers to Ford New Holland's 

refusal to be bound by any obligations of Versatile in relation to 

the Noble plow line." The record does not support that statement. 

As previously quoted, the Assignment from Versatile to Ford New 

Holland transferred all title and interest in U.S. dealer 

agreements, including the Versatile-Van's Tractor Agreement, to the 

extent that the contract related to the business carried on by 

Versatile in the distribution and sale of equipment "but excludinq 

the Noble business." It is not appropriate to suggest that Ford 

New Holland in some manner refused to be bound by the obligations 

of Versatile in relation to the Noble plow line. The record 

clearly establishes that Versatile transferred all of its interest 

in the Dealer Agreements regarding the Noble plow line to a 

different entity. Again, I find that such division by Versatile of 

its interest in the Versatile-Van's Tractor Agreement so that it 

transferred one portion to Ford New Holland and the other portion 
to another party is not prohibited under the Dealer Agreement. 

The majority concluded that the 1987 sale of assets to Ford 

New Holland significantly altered the dealership relationship and 

contract. As authority for that conclusion, the majority relies on 

Kealey Pharmacy & Home Care Serv. v. Walareen Co., a decision of a 

federal court in the western district of Wisconsin, which concluded 

that a non-retroactive statute applies to contracts which have been 

significantly altered after the effective date of the statute. 

That is very limited case authority for the guidance of this Court. 

As previously pointed out, the record contains nothing which 

demonstrates that Van's Tractor was required to execute an 

agreement of any kind as a result of the Assignment by Versatile to 

Ford New Holland. Apparently the majority concludes that something 

in the nature of a #'new contractff was executed between Ford New 

Holland and Van's Tractor so that subsequently enacted statutes 

apply. No Ifnew contractff of any type was executed between Ford New 

Holland and Van's Tractor. The record contains nothing which 

establishes something in the nature of a ''new contract." As a 

result I do not know of a proper legal basis for the conclusion of 

the majority. 

I conclude there was not a significant alteration of the 

rights and responsibilities of Van's Tractor as a result of the 

Assignment. So far as the questions raised by Van's Tractor 

regarding credit for returned Noble parts, that is an issue which 

required determination under the existing contract. There is 
nothing in that transaction which requires a conclusion that a Ifnew 

contractg1 was executed, T can find no legal basis upon which to 

conclude that 59 30-11-802 and 803, MCA, should be applied to the 

Dealer Agreement and Assignment to Ford New Holland. I would 

reverse on that issue. 

The majority opinion refers to the application for a 

dealership submitted by Van's Tractor to Ford New Holland. Again 

I believe this to be irrelevant as in fact no new agreement was 

executed. 

Issue 11 addresses whether the ~istrict Court erred in 

concluding that Ford New Holland violated §S 30-11-802 and 803, 

MCA. When enacted in 1985, these code sections were made 

retroactive. Article 11, Section 31 of the Montana Constitution 

provides : 

Ex post facto, obligation of contracts, and 

irrevocable privileges. No ex post facto law nor any law 

impairing the obligation of contracts, or making any 

irrevocable grant of special privileges, franchises, or 

immunities, shall be passed by the legislature. 

The Constitution prohibits the enactment by the legislature of a 

law impairing the obligation of contracts. I conclude the 

majority's interpretation has impaired the obligation of contracts 

under the Assignment and the Dealer Agreement. I would reverse on 

Issue 11. 

In Issue I11 the majority opinion concludes that it is not 

necessary to determine if Ford New Holland breached the implied 
covenant of good faith and fair dealing. I would conclude that 

this is the only issue which should be considered on retrial. 

I would reverse and remand for new trial on the issue of the 

breach of the implied covenant of good faith and fair deal' 

we 

Chief Justice J.A. Turnage and Justice Karla M. Gray concur in the 

foregoing dissent.