Albers v. Bar ZF Ranch, Inc.

No. 87-218
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

WILLIAM ALBERS,
Plaintiff and Respondent,
-vs-
BAR ZF RANCH, INC.,
Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Chouteau,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; K. Dale
Schwanke, Great Falls, Montana
For Respondent :
Luxan & Murfitt; Jack M. McLean, Helena, Montana

Submitted on Briefs: Sept. 17, 1987
Decided: December 17, 1987

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

The Bar ZF Ranch appeals a Chouteau County District
Court judgment awarding William Albers (Albers) damages and
costs of suit for breach of an oral contract. The District
Court, sitting without a jury, found that the Bar ZF Ranch
(Bar ZF) breached its obligation to allow Albers to
participate in the 1982 federally sponsored farm subsidy
program on farm land owned by Bar ZF and leased by Albers.
The District Court awarded Albers $18,671.04 for loss of farm
program deficiency payments, storage payments, and loss in
sales price of grain. The District Court also awarded Albers
prejudgment interest pursuant to S 27-1-211 and S 30-1-106,
MCA. Defendant Bar ZF Ranch appeals. We affirm in part,
reverse in part, and remand with instructions to recalculate
prejudgment interest.
The Bar ZF Ranch is a 3,700-acre farm located in
Chouteau County, near Carter, Montana. In 1967, the owners
of the Bar ZF, Ray and Audie Lohr, entered into an oral lease
agreement with William Albers whereby Albers would farm
approximately 1,800 acres on the Bar ZF in exchange for
two-thirds of each crop. Albers resides near Fort Benton and
farms various farmlands with his brother. The 1,800 acres
included approximately 640 acres leased by the Bar ZF from
the State of Montana. There are also 2,000 acres of
grassland on the Bar ZF that were not Albers' responsibility.
Ray Lohr and Albers worked closely together in the operation
of the farm, but farm practices were generally left t o .
Albersl discretion. In addition, Albers was to furnish all
necessary seed, fuel, fertilizer, machinery, and weed killer.
Ray Lohr died in 1979 and left Mrs. Lohr as the
presiding officer of the Bar ZF Ranch corporation. Albers
continued to farm the Bar ZF after Ray Lohrls death with very
little participation from Mrs. Lohr in day-to-day farming
operations. Albers decided what crops to plant on what
acreage and whether to participate in the federal farm
program. On March 24, 1982, Mrs. Lohr applied to participate
in the farm subsidy program with the Agricultural
Stabilization and Conservation Service (ASCS), United States
Department of Agriculture. Mrs. Lohr signed and filed the
ASCS papers at Albers' request, hut she later professed
ignorance as to the general requirements and procedures of
the farm program.
To be eligible for farm subsidy benefits for wheat, the
Bar ZF was required to limit wheat planting to 712.5 acres.
At the time of the ASCS application, Albers had approximately
705 acres of winter wheat seeded on the Bar ZF. Under the
wheat subsidy program as it then existed, the Bar ZF would
have qualified for deficiency payments and annual storage
payments for 1982 wheat stored in the federal government
reserve loan program.
During the winter of 1981, Mrs. Lohr decided to retain
a permanent tenant for the Bar ZF so she could move to Fort
Benton for health reasons. Thereafter, Mrs. Lohr entered into
an oral farm lease with Robert Bronec (Bronec) whereby Bronec
would farm and live on the Bar ZF after the 1982 harvest.
This agreement was later reduced to writing in the fall of
1982. Mrs. Lohr did not ask Albers to live on the Bar ZF
because Albers had his own farm near Fort Benton. Albers was
not informed of the Bronec lease until the end of March,
1982. Mrs. Lohr gave Albers written notice of the
termination of his lease in a letter dated April 5, 1982.
The letter required Albers to summerfallow the Bar ZF before
quitting the property. Mrs. Lohrls April 5th letter also
expressed her satisfaction with the general working
relationship between the Lohrs and Albers since Albers began
farming the Bar ZF in 1967.
Upon learning that his lease with the Bar ZF was to
end, Albers decided not to participate in the farm subsidv
program. Instead, Albers determined that the heavy stubble
and reserve moisture on the Bar ZF acreage would provide
ideal conditions for burning and recropping. Albers
testified at trial that he discussed his intentions with Mrs.
Lohr and they agreed that Albers could withdraw from the farm
subsidy program and recrop one-half of the Bar ZF stubble
acreage. The Bar ZF apparently had never been recropped in
this manner and Mrs. Lohr was reluctant to agree to Albers'
request. Mrs. Lohr testified that she was "unclear" as to
whether she told Albers he could recrop and that she probably
told him to discuss the matter with Bronec.
Albers prepared for the reseeding by burning a 184.6
acre field and by preparing a fire guard around another 94.5
acre field on May 1, 1982. Albers also cleaned seed grain,
bought fertilizer, and moved machinery in preparation for the
recropping. Mrs. Lohr noticed the smoke from the May 1st
burning and personally delivered a note to Albers that
afternoon to demand that he quit burning stubble. Mrs. Lohr
objected to recropping at that time because she believed that.
recropping would hurt the subsequent tenant, Bronec, and
because she believed there was insufficient reserve moisture
in the soil. Albers testified that Mrs. Lohr appeared very
upset and that he acquiesced to her demands in concern for
her health.
Sometime after May 1, 1982, Mrs. Lohr had Bronec probe
the soil on the Bar ZF to determine if there was sufficient.
moisture to recrop. The probes revealed marginal to
sufficient moisture on the fields in question. On May 3,
1982, Mrs. 1,ohr contacted the Montana State Department of
Lands to request permi.ssion to recrop the 640 acres of State
land leased to the Bar ZF.
Albers returned to the Bar ZF on May 5, 1 9 8 2 , and
talked with Mrs. Lohr- about what to do with the farm. They
agreed that Albers would be excused from leaving summerfallow
on the Bar ZF in exchange for his assurance that he would
attempt no further recropping. The parties exchanged written
agreements to that effect. Albers testified at trial that he
also told Mrs. Lohr that he would again be participating in
the farm subsidy program for wheat on the Bar ZF if she wou1.d
not allow him to recrop. Mrs. Lohr testified that she was
not told that Albers was back in the farm program.
A few days later, Albers observed Bronec planting on
the burned acreage. Mrs. Lohr had given Bronec permission to
seed the burned acreage to prevent erosion. Albers did not
talk to Bronec and assumed that Bronec was planting barley or
some other crop which would not effect the Bar ZF's
compliance with the farm program. Bronec seeded two fields
to wheat and one to barley by about May 1 2 , 1 9 8 2 . Albers
testified that he returned to the Bar ZF around May 1 9 , 1 9 8 2 ,
to discover that Bronec had planted wheat in an amount
sufficient to disqualify the Bar ZF from the farm subsidy
program.
On June 2 2 , 1 9 8 2 , Albers had his attorney write Mrs.
Lohr to inform her that "the present operator of the Bar ZF
Ranch has exceeded the allowable wheat acreage" for
compliance with the farm subsidy program and that
noncompliance with the program would cause Albers financial
damage. Mrs. Lohr returned to the Bar ZF from an
out-of-state trip to find the letter on July 1, 1 9 8 2 .
Thereafter, Mrs. Lohr had two weeks to bring the Bar ZF in
compliance before the July 15, 1 9 8 2 , ASCS deadline. Mrs.
Lohr elected not to destroy the additional wheat so as not to
damage Bronec. As a consequence, the Bar ZF was not able to
participate in that year's farm subsidy program.
Albers brought suit against the Bar ZF on November 14,
1984. In his amended complaint, filed on July 29, 1986,
Albers alleged breach of contract, estoppel, bad faith,
constructive fraud, unjust enrichment, constructive
evictment, and breach of the covenant of quiet enjoyment.
The Bar ZF counterclaimed with allegations that Albers failed
to summerfallow and failed to control weeds on the Bar ZF.
The case was tried before the District Court sitting without
a jury on November 17 and 18, 1986. On February 6, 1987, the
District Court issued its findings, conclusions, and decree
awarding Albers contract damages, prejudgment interest and
costs. The Bar ZF appeals and raises the following issues:
(1) Did the District Court err in determining that the
Bar ZF had a legal duty to William Albers?
(2) Was there sufficient evidence to support the
District Court's award of damages to Albers?
(3) Did the District Court err in awarding Albers
prejudgment interest?
(4) Did the District Court err in denying Bar ZF's
counterclaims?
In its first issue, the Bar ZF argues that it owed no
obligation, or duty, to assure that Albers was in compliance
with the farm subsidy program requirements. The District
Court made the following findings and conclusions relevant to
thi-s issue.
6. The court concludes that the oral,
year-to-year agreement between the Bar ZF
and Albers was a lease.
7. Lohr and Albers appeared to farm
within the customary practices applying
to oral leases in the area.
 8. The lessee was obligated to follow
the better customary farm practices in
the community.

11. The Bar ZF had the obligation to
allow Albers to operate and farm his 1982
winter wheat crop in a way which would
bring him land Bar ZF) the highest
return. Mrs. Lohr had an obligation
under the oral lease to cooperate with
Albers' staying in the [farm subsidy]
program.

14. When Mrs. Lohr and Albers signed
the May 4-5 agreement, the highest return
then was for Albers and the Bar ZF to
bring their wheat within the [farm
subsidy] program. Mrs. Lohr had an
obligation under the oral lease to
cooperate with Albers in staying in the
program, so that the highest return could
be achieved.
Mrs. Lohr 's failure and refusal to
achieve compliance and inclusion in the
wheat program, when she was able to do
so, was a breach of the oral contract.
15. The Bar ZF, through Mrs. Lohr,
prevented Albers from participating in
the wheat program, and he suffered
damages. [Additions ours.]
The Bar ZF contends that the District Court erred in finding
that it owed an obligation to Albers. We will not reverse
the order of the District Court unless we determine that the
District Court's findings were clearly erroneous and result
in an abuse of discretion. Rule 52(a), M.R.Civ.P.; Walker v.
Larson (Mont. 1986), 727 P.2d 1321, 1322-23, 43 St.Rep. 1765,
1767. We will not disturb those findings that are supported
by substantial credible evidence. In re the Matter of B.T.
(Mont. 1986), 725 P.2d 230, 232, 43 St.Rep. 1728, 1730. The
evidence will be reviewed in a light most favorable to Albers
as the prevailing party. Cameron & Jenkins v. Cameron
(1978), 179 Mont. 219, 587 P.2d 939.
The Bar ZF incorrectly construes S 27-1-105, MCA, to
characterize its obligation as arising by operation of law
rather than by contract. An obligation is defined as "a
legal duty by which a person is bound to do or not to do a
certain thing." Section 28-1-101, MCA. An obligation can
arise by either contract or operation of law. Sections
27-1-105 and 28-1-102, MCA. We find, as did the District
Court, that the oral lease in question served as a contract
through which each party acquired their respective
obligations.
In the instant case the parties agreed that, under the
terms of the oral farm lease, Albers had an obligation to the
Bar ZF to utilize the better farming practices in the
community. Albers was given wide discretion in choosing
those practices during his lease of the Bar ZF. That
discretion increased with the death of Ray Lohr. Mrs. Lohr,
on the other hand, professed little knowledge of either
specific farming practices or the farm subsidy program. She
can, however, be charged with knowledge that Albers intended
to either participate in the farm subsidy program or recrop.
Mrs. Lohr would not allow Albers to recrop so it was
reasonable for her to assume that the only other alternative
was for the Bar ZF to remain in the farm subsidy program.
The Bar ZF claims that it was Albers' obligation to
assure compliance in the farm program once he discovered that
the Bar ZF had been overseeded by Bronec. We disagree. It
was Bronec, acting at Mrs. Lohr's direction, who overseeded
and disqualified the Bar ZF from the farm program. Albers,
through his attorney, requested that the Bar ZF correct the
situation to assure compliance with the farm subsidy program
by the July 15, 1982, deadline. It was the Bar ZF's actions
that caused noncompliance and it was the Bar ZF's obligation
then to remedy the situation to assure compliance. Albers'
position in this regard is fully supported by the Restatement
(Second) of Property § 5.4 (1977), which states:
There is a breach of the landlord's
obligations if, after a tenant's entry
and without fault of the tenant, a change
in the condition of the leased property
caused by the landlord's conduct or
failure to fulfill an obligation to
repair, ... makes the leased property
unsuitable for the use contemplated by
the parties and the landlord does not
correct the situation within a reasonable
time after being requested by the tenant
to do so.
The Bar ZF also calls into question the District
Court's interpretation of numerous other facts. These
arguments are not persuasive because there is substantial
evidence to support the District Court's findings.
Though Mrs. Lohr denied that Albers told her that he
intended to participate in the farm program, it is the
function of the trial court in a nonjury trial to determine
the credibility of the witnesses and the weight to be
accorded their testimony. In re the Matter of the Estate of
Murnion (Mont. 1984), 686 P.2d 893, 896, 41 St.Rep. 1627,
1630. The District Court chose to believe Albers and we will
not disturb that decision. There is substantial credible
evidence to support the District Court's finding that the Bar
ZF owed Albers an obligation to allow him "to operate and
farm his 1982 winter wheat crop in a way which would bring
him (and the Bar ZF) the hiahest return" and an "obli-gation
under the oral lease to cooperate with Albers' staying in the
[farm subsidy] program."
The Bar ZF next questions the sufficiency of the
evidence to support an award of damages in this action. The
Bar ZF argues that there was no guarantee that Albers would
participate in the 1982 regular and reserve loan programs or
that he would place all of his grain in the programs. In
essence, the Bar ZF's argument in this regard is that Albersl
damages are too speculative to be recoverable.
Again, we ware charged with reviewing the record to
determine if there is substantial credible evidence to
support the District Court's findings in this regard. In re
the Matter of B.T., supra. Speculative damages not clearly
ascertainable are not recoverable. Cremer v. Cremer Rodeo
Land and Livestock Go. (Mont. 1981), 627 P.2d 1199, 1202, 38
St.Rep. 574, 578. The terms "speculative damages," however,
refer more to an uncertainty or speculation as to whether the
loss of profits is a result of the breach of contract in this
case than it does to an uncertainty as to the amount of the
damages. Bolz v. Meyers (1982), 200 Mont. 286, 300, 651 P.2d
606, 613.
As discussed previously, there is substantial evidence
that the Bar ZF breached the oral lease by causing
noncompliance with the farm program. There is also
substantial evidence to support the District Court's award of
damages in this case. Albers will not be denied recovery in
this case simply because he had the option to participate in
the farm subsidy program. It is evident from the record that
participation in the farm subsidy program would have been
advantageous to the Bar ZF. Albers also chose to both recrop
and participate in the farm program on other operations he
farmed. He participated in both the regular and reserve loan
programs on two other operations that were so qualified.
Albers' decision on the Bar ZF was to participate in the
program due to his inability to recrop as planned and as
previously agreed to by Mrs. Lohr.
The District Court made the following findings with
regard to Albers' damages:
24. Compliance date for the 1982 program
was July 15, 1982, meaning that the Bar
ZF had until that date to comply with the
maximum allowable wheat acreage. Bronec
testified that if he had been informed of
the problem, he was sure that "something
could have been worked out." He also
said he could have seeded barley on all
three parcels of land had he known it was
necessary, or could have cut and baled
young wheat for hay for his cattle.
Compliance could have been accomplished
by July 15, 1982.
25. Mrs. Lohr made no effort to achieve
compliance and inclusion in the wheat
program. Albers lost all the benefits
accruing from compliance.
26. Albers, up to July 15, 1982, was
eligible for participation in the farm
program, the farm storage grain reserve
program, and the Commodity Credit
Corporation loan program on the Bar ZF in
1982.
27. Albers was unable to use spring
wheat which he had cleaned at a cost of
$116.75, and he had not return
fertilizer. He received credit on the
fertilizer, but incurred 80 miles of
needless driving to return it, at a cost
of $40.00 (80 miles times $.50).
28. Deficiency payment for the 1982
program was $.50 per bushel paid in
December, 1982. The total amount of the
deficiency payment for a farm is
calculated by multiplying the $.50 per
bushel by the assigned yield for the Bar
ZF and again by the seeded acreage. The
assigned yield for the Bar ZF was 24
bushels per acre in 1982. Albers seeded
705.1 acres of wheat on the Bar ZF on Mav
5, 1982. Total deficiency payment for
the wheat program in 1982 would have been
$8,461.20. Alberst share of that
deficiency would have been $5,640.80.
29. Albers had sufficient storage
capacity on his own place in 1982 and
afterwards, and would have participated
in the storage program with his share of
the crops from the Bar ZF.
30. Annual storage payments are
calculated by multiplying the per bushel
annual storage payments by the assigned
wheat yield for the Bar ZF by the seeded
acreage.
31. The annual storage payment for the
three-year reserve program in 1982 was
$.265 per bushel, the assigned wheat
yeild for the Bar ZF was 24 bushels per
acre. Albers had seeded 705.1 acres of
wheat. The total annual storage payment
for the Bar ZF would have been $4,484.44.
Albers would have received two-thirds of
this amount, or $2,989.62. Storage
payments are made in advance on an annual
basis and participants would be eligible
to participate for a three yearst period.
Storage payments were made November 4,
1982. Albers' total loss of storage
payments was $8,968.86.
32. Albers would have also participated
in both the regular loan program and
reserve loan program. Of 700-800
Chouteau County farmers, 641 used the
loan program in 1982. Under the regular
loan program, participants could have
qualified for a loan immediately in this
amount of $3.49 per bushel. After nine
months, participants would qualify for
the reserve loan of $3.94 per bushel.
These loans are based on the assigned
wheat yield for a particular farm and the
actual seeded wheat acres. Usually
 participants in the program "turnover"
their wheat to the Commodity Credit
Corporation after three years, and
effectively sell their grain for the loan
rate. If grain is turned over to the
Commodity Credit Corporation, all
interest on the loan is forgiven.
33. Albers redeemed part of the 1982
grain which he had in the reserve program
in 1983. However, he redeemed his
maximum amount allowable under the 1983
PIK program and would have left the Bar
ZF grain in storage.
34. The reserve loan V rate [sic] the
1982 farm program was $3.94. The
assigned wheat yield for the Bar ZF was
24 bushels per acre. The actual wheat
acreage was 705.1.
35. All wheat stored on the Bar ZF Ranch
was sold prior to the 1983 harvest. A
recap of the sold wheat, based on
EXHIBITS 19-A through 19-P ...
[shows
40,291.39 bushels sold for $144,388.701.
$144,388.70 divided by 40,291.39
bushels = $3.58 bushel average selling
price.
36. The per bushel sales price for wheat
for the Bar ZF was $.36 per bushel less
than it would have been under the reserve
loan V Program ($3.94 - $3.58 = .36).
The Bar ZF would have earned $6,092.06
more if it had participated in the
reserve loan V Program in 1982 (36 times
24 bushels of yield times 705.1 seeded
acres = $6,092.06). Albersl share of
those proceeds would have been $4,061.38.
37. Mrs. Lohr Lohr received two-thirds
of the proceeds of the crop which Bronec
seeded in May, 1982, or $4,817.66.
[Additions ours.]
From these findings the District Court concluded the
following:
 15. The Bar ZF, through Mrs. Lohr,
prevented Albers from participating in
the farm program, and he suffered
damages.
16. Albers incurred the following losses
by being precluded from participating in
the farm program:
(a) Loss of farm program deficiency
payments, received 12/83 - $5,640.80.
(b) Loss of storage payments received,
one-third received on 11/4/82, 11/4/83,
and 11/4/84 - $8,968.86.
(c) Loss in sales price of grain,
received 9/82 - $4,061.38.

Accordingly, the District Court entered judgment in favor of
Albers and against the Bar ZF as follows:
1. For the sum of $5,640.80, with
interest of 10% since December 1, 1982.
2. For the sum of $2,989.62, with
interest of 10% from November 4, 1982.
3. For the sum of $2,989.62 with
interest of 10% from November 4, 1983.

4. For the sum of $2,989.62 with
interest of 10% from November 4, 1984.
5. For the sum of $4,061.38, with
interest of 10% from September 1, 1982.
6. Plaintiff shall have his costs.
7. The counterclaims are dismissed.
There is substantial evidence in the record to support the
District Court's assessment of damages in this case and
Albers' damages are subject to calculation with a reasonable
degree of certainty. This Court recognizes that "[alny award
of damages is grounded to a certain degree upon speculation."
Sack v. A.V. Design, Inc. (Mont. 1984), 683 P.2d 1311, 1315,
41 St.Rep. 1272, 1276. Damages are not sufficiently
speculative in this case to merit reversal.
The Bar ZF argues that the District Court erred in
calculating damages by not subtracting the cost of
transporting grain to storage. At trial, Albers testified
that, before he purchased his own tandem truck, it cost
approximately ten cents per bushel to transport his grain the
four miles from the Bar ZF to his storage bins in Fort
Benton. This Court has long recognized that only the net
value of lost crops can be recovered. Agrilease, Inc. v.
Gray (1977), 173 Mont. 151, 159, 566 P.2d 1114, 1117.
However, any alleged cost of hauling grain was negligible in
this case because (1) Albers used his own grain truck to
haul the grain at his own expense, and (2) the distance from
the Bar ZF farmlands to Albers' grain storage facilities is
nominal.
The Bar ZF also contends that the District Court erred
when it failed to differentiate between sales of 1982 wheat
and sales of wheat harvested in other years to compute loss
of sales price of grain. The District Court calculated the
average selling price of Bar ZF wheat from August 19, 1982,
to May 9, 1983, and compared that to the reserve loan program
price per bushel to determine loss of selling price of grain.
We believe that this method of using average selling prices
was reasonable under the circumstances. Accordingly, the
District Court did not err in its calculati-on of loss of
selling price of grain.
Finally, and again with regard to Albers' loss of sales
price of grain, the Bar ZF asserts that the District Court
erred by relying on market prices for grain sold before the
date Albers could first qualify for the reserve loan program
on June 1, 1983. Albers points out that his inability to
participate in the farm program, caused by Mrs. Lohr, forced
him to sell his grain to meet expenses before June 1, 1983.
He aruues that it is only equitable to calculate loss of
sales price of his grain based on the average price at which
he was forced to sell his grain. We agree with Albers.
Albers was in no position to wait until June 1, 1983, to sell
his grain. The June 1, 1983 market price is, therefore,
immaterial and the District Court did not err in using
Albers' average selling price between August 19, 1982 and May
9, 1983.
The Bar ZF's third issue relates to the District
Court's alleged errors in the calculation and award of
interest. The Bar ZF first argues that Albers' damages are
not "capable of being made certain by calculation." The Bar
ZF relies on § 27-1-211, MCA, which provides as follows:
Every person who is entitled to recover
damages certain or capable of being made
certain by calculation and the right to
recover which is vested in him upon a
particular day is entitled also to
recover interest thereon from that day
except during such time as the debtor is
prevented by law or by act of the
creditor from paying the debt.
To be entitled to prejudgment interest, Albers must meet
three criteria previously recognized by this Court.
Agrilease, 566 P.2d at 1118-1119. The criteria are: (1) an
underlying monetary obligation; (2) the amount of recovery
is capable of being made certain by calculation; and (3) the
right to recover the obligation vests on a particular day.
The Bar ZF argues that the recovery in this case was
not capable of being made certain by calculation and the
right to recover did not vest on a particular day. Albers'
damages, as evidenced by the District Court's calculations,
were clearly calculable given historical average yields on
the Bar ZF and per bushel loan rates set under the farm
program. Albers' right to recover these damages vested on
the particular ASCS dates for deficiency payments, storage
payments, and sale. Accordingly, the District Court did not
err in awarding Albers prejudgment interest.
The Bar ZF next argues that prejudgment "interest
awarded on the reserve loan program rate differential payment
can only be awarded from June 1, 1983, which is the date the
loan rate would first have been payable, and then only at 6%
per annum until October 1, 1985, when § 31-1-106 was amended
to 10% rather than the 10% awarded by the trial court
straight through." We agree. Section 27-1-211, MCA, as
previously set forth, only allows an award of interest from
the date on which the right to recover vested. In this case,
Albers would not have received the reserve loan program rate
differential payment until June 1, 1983. Any award of
interest must, therefore, be calculated from that date.
Prejudgment interest should be awarded in compliance
with § 31-1-106, MCA. Byrne v. Terry (Mont. 1987), 741 P.2d
1341, 1344, 44 St.Rep. 1620, 1624. Prior to October 6, 1985,
§ 31-1-106, MCA, only allowed interest at 6% per annum. The
statute was amended on that date to allow interest at 10% per
annum. We find that Albers is entitled to prejudgment
interest at 6% per annum until October 1, 1985, and at 10%
per annum thereafter.
In its final issue, the Bar ZF argues that the District
Court erred when it denied the Bar ZF's counterclaims. The
Bar ZF sought damages for Albers' alleged failure to have
good summerfallow and for his alleged failure to control
noxious weeds. The District Court found that the
counterclaims failed for lack of evidence. The District
Court's findings in this regard must be clearly erroneous and
must constitute an abuse of discretion to merit reversal.
Rule 52 (a), M. R.Civ. P. ; Walker v. Larson, supra. Our review
of the record leads us to agree with the District Court.
It is undisputed that Mrs. Lohr, acting for the Bar ZF,
released Albers from any obligation to leave summerfallow in
a written agreement on May 5, 1982. Mrs. Lohr's summerfallow
agreement was in exchange for Albers' promise not to recrop
the Bar ZF. The Bar ZF contends that Albers gave Mrs. Lohr
no consideration for the summerfallow agreement because
Albers had no right to recrop. We disagree. Under the oral
farm lease, Albers was charged with choosing the farming
methods to be used on the Bar ZF. He chose to recrop after
learning that Mrs. Lohr had retained a new tenant. We find
that Albers gave up his right to recrop as consideration for
Mrs. Lohr's summerfallow release.
The Bar ZF also alleges that Albers failed to control
noxious weeds during his tenancy on the farm. The District
Court heard testimony that tended to show a weed problem on
the Bar ZF at all times before, during and after Albers'
tenancy. Albers testified about his efforts to control weeds
as did the subsequent tenant, Rronec. Albers produced
receipts for costs of weed control and a witness who applied
herbicides on the Bar ZF in 1981 at Albers' direction.
Bronec guessed that he spent around $30,000 to control weeds
in the three years after Albers left. The Bar ZF did not
produce receipts as to exact costs of weed control nor did it
attempt to prove how much of Bronec's approximations could be
attributed to normal weed control on the Bar ZF.
The District Court also heard evidence to the effect
that Albers was not responsible for controlling those weeds
that grow on Bar ZF grasslands, coulees, and reservoirs.
These weeds were to be controlled by the Bar ZF during Albers
tenancy. In contrast, Bronec was responsible for controlling
weeds on these grasslands for at least two of the three years
included in his cost approximations. Finally, the District
Court heard evidence that the weeds on the 2,000 acres of Bar
ZF grasslands were upwind of the Bar ZF farmlands and were a
substantial factor in the spread of noxious weeds on the
farmland. Given all of the above referenced facts, the
District Court did not err in denying the Bar ZF's
counterclaim with respect to noxious weed control.
The Bar ZF also counterclaimed for the alleged damage
it contends Albers caused by not assuring compliance in the
farm program. Given the disposition of the Bar ZF's first
issue in this appeal, we cannot give this last contention
serious consideration. Accordingly, the District Court
judgment is affirmed in part, reversed in part, and remanded
with instructions to recalculate prejudgment intp5Zest.
/'

Affirmed in part, reversed in part. ' '"

We concur:7' , ,