INTHE SUPREME COIJRT OF THE STATE OF MONTANA 1989

MONTE D. LORENZ, Plaintiff and Appel!ant.,-VSTHE ESTATE OF LESLIE SCHILLING, Deceased, Defendantand Respondent.

APPEAL FROM: DistrictCourtof the SeventhJudicialDistrict, Inand forthe Countyof Richland, TheHonorable H.R. Obert, Judge presiding. COUNSEL OF RECORD: For Appellant: KathleenM. Fritsch, Glendive, Montana For Respond.ent: Peter0. Maltese, Sidney, ?lantana

Submittedon Briefs: Dec. 16, 1988 Decided: February 7, 1989 G L' 'jl (i FibdG LJ, I - -) =r -, L L)

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### - ClerkMr. Justice F. C. Mcnonough delivered the 0pini.onof the Court.

This appeal involves a dispute over the condition of farm land ownedby the defendantand leasedby theplaintiff. Plaintiff Monte D. Lorenz appeals from the judgment of the District Court of the Seventh Judicial District, Richland County, entered after trial of the case to the court. The court ruled that Lorenz take nothing by his compl-aint, which the court then dismissed with prejudice. We affirm. Lorenz frames four issueson appeal: 1. Whether Mr. Schillinghad a duty to disclose his use of Tordon on the fields. 2. Whether Mr. Lorenz proved by a preponderance of the evidence that there was a breach of the duty to disclose by Mr. Schilling. 3. Whether the court's decisionwas a result of passion rather than law. 4. Whether the court erred by finding Mr. Lorenz negligent for failing to test the soil for Tordon. In November of 1983, Lorenz contacted Leslie and Terry Schilling about leasing certain farm land owned 

### by the Schillings. The partiesmet to negotiate the lease,but the content of those negotiationswas disputed at trial. Both sides agree that Lorenz indicated he wished to raise sugar beets on the land during the coming year. According to the depositions of both Leslie and Terry Schilling, and Terry Schilling's testimony at trial, Leslie Schilling indicated to Lorenz during these initial negotiations that the herbicide Tordon had been applied to some of the land in question. According to the Schillings, it was suggested to Lorenz that he inquire as to the suitability of the Tordon-treated land for raising sugarbeets. Lorenz allegedly replied that he could raise sugar beets on the land as long as "Cleanv--anotherparticular brand ofherbicide--had notbeen applied. Lorenz denies that the Schillings ever told him about the Tordon application. After these negotiations had taken place, Lorenz obtained a Farmers' Home Administration land lease form. In January of 1984, the parties againmet, filled in the blanks of the lease form to reflect the terms they had reached earlier, and executed the lease. No mention wasmade of the subjectof this controversy. In the spring, Lorenzhad the soil on the leased acreage tested to determinewhat fertilizers should be used. He then planted sugar beets in three of the fields he had leased, including two fields that had been treated with Tordon. Rv May, the beets in the two treated fields showed severe damage, and were replanted. In late June, the replanted fields again showed damage. Lorenz consulted with a field representative from Holly Sugar, who told him that the condition of the fields was consistent with Tordon damage. No production was had from the treated fields for that crop year. The lease was later terminated by agreement of the parties. Lorenz filed this action in September of 1984, alleging fraudulent misrepresentation on the Schillings' part in failing to disclose the Tordon application. After discovery and trial, the District Court issued its ruling denying any relief to Lorenz. This appeal followed. While counsel for Lorenz frames four issues inher brief
on appeal, it is not necessary for us to examine each issue separately. Both sides agree that Leslie Schilling had a duty to disclose his application of Tordon to the fields in question. The next two issues, whether Lorenz proved his
caseby apreponderanceof the evidence andwhether the courtwasmotivatedby passion rather than law, canbe rephrased as
a single question. Did the District Court err in finding that Schilling disclosed the Tordon application during the lease negotiations? When reviewing a civil case tried to a court sitting without a jury, this Court will not substitute its judgment for that of the DistrictCourt functioningas trier of fact. Evenwhen there is a conflict in the evidence,wewill uphold the court's decision where there is substantial credible evidence to support its findings of fact and conclusions of


### a.Eliasonv. Wallace (1984),203Mont. 358, 680P.2d 573. The record shows that Lorenz,Leslie Schillingand Terry Schilling were presentwhen the leasewas negotiated. Leslie Schilling is now deceased,but testified in depositionprior to his death that he disclosed his use of Tordon to Lorenz, and suggested that Lorenz investigate the herbicide's possj-bleeffects on sugar beets. Terry Schilling testified in deposition and at trial that her husband had indeed made that disclosure and suggestion. Over against this evidence
was testimony by Lorenz that no such dj-sclosurehad been made.The deposition testimony 

### of Leslie Schilling, corroborated by his wife at trial, is "substantial" in that it would convince a reasonable person that the disclosure took place. See, Eliason, 680 P.2d at 575. Counsel for Lorenz has questioned the credibility of this testimonv by seeking to point out inconsistencies or lack of memory on the Schillings'part. However, there is also evidence of a lack ofmotivation for the Schillingsto lie to Lorenz. The terms of the lease called forpayment to the Schillingsbased on a share of the crop harvested from their land. As Leslie Schilling pointed out in his deposition, failure of Lorenz's crop wouldmean that the Schillingswould not be paid.We conclude that there is substantial,credible evidence in the record to support the District Court's finding that Leslie Schilling disclosed his use of Tordon to Lorenz. Lorenz's claim of fraudulent misrepresentat!-on therefore fails. The fourth issue presented, that the court erred in finding Lorenz negligent in failing to have necessary soil tests performed, is at best an instance of harmless error. Counsel is correct in that the issue of Lorenz's negligence
was not properly before the court. However, the court's statement was made in the context of its holding that the damage to the beet cropdid not result frommisrepresentation
on the Schillings' part. No damages were awarded nor other penalty imposed. Affirmed

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Justice

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