IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1989 

MONTE D. LORENZ, 

Plaintiff and Appel! ant., 

-VSTHE ESTATE OF LESLIE SCHILLING, 

Deceased, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable H.R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kathleen M. Fritsch, Glendive, Montana 

For Respond.ent : 

Peter 0. Maltese, Sidney, ?lantana 

Submitted on Briefs: Dec. 16, 1988 

Decided: February 7, 1989 

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0" LAIC- - U- A - Clerk 
Mr. Justice F. C. Mcnonough delivered the 0pini.on of the 

Court. 

This appeal involves a dispute over the condition of 

farm land owned by the defendant and leased by the plaintiff. 

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 issues on appeal: 

1. Whether Mr. Schilling had 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 decision was 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 parties met to negotiate the lease, but the 

content of those negotiations was 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 sugar 
beets. Lorenz allegedly replied that he could raise sugar 

beets on the land as long as "Cleanv--another particular 

brand of herbicide--had not been 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 again met, filled in the blanks 

of the lease form to reflect the terms they had reached 

earlier, and executed the lease. No mention was made of the 

subject of this controversy. 

In the spring, Lorenz had the soil on the leased acreage 

tested to determine what 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 in her 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 

case by a preponderance of the evidence and whether the court 
was motivated by passion rather than law, can be 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 District Court functioning as trier of fact. 

Even when there is a conflict in the evidence, we will uphold 

the court's decision where there is substantial credible 

evidence to support its findings of fact and conclusions of 

a. Eliason v. Wallace (1984), 203 Mont. 358, 680 P.2d 573. 

The record shows that Lorenz, Leslie Schilling and Terry 

Schilling were present when the lease was negotiated. Leslie 

Schilling is now deceased, but testified in deposition prior 

to his death that he disclosed his use of Tordon to Lorenz, 

and suggested that Lorenz investigate the herbicide's 

possj-ble effects 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-sclosure had 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 

of motivation for the Schillings to lie to Lorenz. The terms 

of the lease called for payment to the Schillings based on a 

share of the crop harvested from their land. As Leslie 

Schilling pointed out in his deposition, failure of Lorenz's 

crop would mean that the Schillings would 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 crop did not result from misrepresentation 

on the Schillings' part. No damages were awarded nor other 

penalty imposed. 

Affirmed . 

Justice - /,'