No. 89-191
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
GLENN HEITZ,
Plaintiff and Respondent,
-v-
JOHN HEITZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Garfield,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jock B. West, Billings, Montana
For Respondent:
Nickolas C. Murnion, Jordan, Montana
Submitted on Briefs: May 31, 1990
Decided: July 19, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This action concerns an oral agreement between two brothers.
The District Court of the Sixteenth Judicial District, Garfield
County, entered judgment for plaintiff Glenn Heitz in the amount
of $12,982.86. John Heitz appeals. We affirm except as to the
award of prejudgment interest on the grazing fee for horses.
The issues are:
1. Did the District Court err in determining that the oral
agreement was altered only for the month of December and in
assessing a rental rate of $10 per head per month?
2. Did the court err in assessing a rental rate for the
pasturing of horses?
3. Did the court err in assessing prejudgment interest?
Between October 1983 and April 1985 John Heitz (John) rented
pasture from his brother Glenn Heitz (Glenn) under an oral
agreement. Up until November 1984, John paid Glenn $10 per head
of cattle, at the beginning of each month, as rental for the
pasture for the previous month. John also grazed six horses on
Glenn's land. He did not pay anything for the horses.
In January, February, and March, 1985, John's rental payments
to Glenn were for only $4.50 to $5 per head of cattle per month.
According to John, rent was reduced because there was no grass on
the land during this time. John did not make any rental payments
to Glenn for grazing his cattle during March and April. Also in
April 1985, John used but did not pay for nine tons of Glenn's hay.
Glenn brought this suit in November 1987 to recover for pasturing
the cattle during January, February, March, and April; for
pasturing the horses; and for the hay.
The brothers were the only witnesses at trial. Based on their
testimony, the court concluded that they had entered a month-to-
month lease of pasture and that except for the month of December
1984 (paid in January 1985), the monthly fee for grazing remained
as originally set at $10 per head. The court concluded that Glenn
was entitled to prejudgment interest on the grazing fees due from
John. It also concluded that Glenn was entitled to recover $405
for nine tons of hay and $240 for pasturing three of the horses,
plus prejudgment interest on both of those. John appeals.
I
Did the District Court err in determining that the oral
agreement was altered only for the month of December and in
assessing a rental rate of $10 per head per month?
John argues that Glenn did not meet his burden of proving by
a preponderance of the evidence what the rental rate was to be for
the months of January, February, March, and April of 1985. He
contends that the evidence supports his position that they had
agreed to a reduction of rent to $4.50 per head. He mentions
Glenn's acceptance of his checks in January, February, and March.
He also alludes to an April 5, 1985, letter he received from
Glenn's attorney stating that there had been a rent reduction for
the months of January and February 1985.
Glenn's testimony conflicted with John's. Glenn testified
that he agreed to reduce the grazing fee for the month of December
1984 only. He further testified that he accepted John's checks in
February and March as partial payments. He explained the April
1985 letter from his attorney as an offer of settlement.
If substantial credible evidence supports the facts found by
a district court, this Court will not substitute its judgment for
that of the lower court. Cameron v. Cameron (1978), 179 Mont. 219,
227, 587 P.2d 939, 944. The lower court is entitled to resolve any
conflicts in the evidence. Cameron, 587 P.2d at 944.
The District Court accepted Glenn's testimony that the
original agreement was altered for the month of December only. We
conclude that the District Court was within its discretion in
weighing the credibility of the evidence and in concluding that
Glenn's testimony was more credible than John's. Substantial
evidence supports the findings of the District Court as to this
issue. Those findings are therefore affirmed.
I1
Did the court err in assessing a rental rate for the pasturing
of horses?
John contends that there was never any agreement that rent
would be charged for the horses kept with the cattle. He argues
that therefore no charges can be made.
Glenn testified that in June 1984 he told John that he would
need to pay for grazing the horses. Glenn took no further action
on his claim for payment for the horses, however. He conceded that
pasturage for three of the six horses kept with the cattle might
reasonably be included in the cattle rental rate, because it would
be reasonable to have three horses to work the cattle.
Though it did not set forth the theory under which it did so,
the court found that Glenn was entitled to rent for three horses
beginning in January 1985 when John unilaterally reduced his
payments for the cattle. The law of implied contract, 5 28-2-103,
MCA, supports a finding that John should be required to pay Glenn
for the pasturing of horses after Glenn told John to either pay for
their grazing or remove them.
The rent the court allowed was at a rate which Glenn testified
was the norm and was for only those horses not necessary to care
for and work the cattle. John was ordered to pay rent for the
horses only for the period in which the cattle grazing contract was
in dispute, after Glenn had told John he would have to pay for the
horses. We conclude that substantial evidence supports the finding
that Glenn is entitled to compensation for pasturage of three
horses for the months of January, February, March, and April 1985.
Did the court err in assessing prejudgment interest?
John points out that under 27-1-211, MCA, prejudgment
interest is assessed only on damages "certain or capable of being
made certain by calculation and the right to recover which is
vested in him upon a particular day." John argues that Glenn's
damages were not certain or capable of being calculated until after
trial.
The amount of rent due for the cattle was certain under the
oral contract, which the court found continued in effect except for
the month of December 1984. The amount owed for the hay was stipu-
lated. But the amount owed for the horses was only determined
after trial. John and Glenn had not agreed to a rate for the
horses. Nor was it certain, until the court entered its order,
for which months Glenn was entitled to grazing fees for the horses.
We conclude that the grazing fees for the horses are not subject
to prejudgment interest.
We agree with and repeat the statements of the District Court
that this type of case should be settled between the two parties
and that neither party may be satisfied with what the courts say.
Affirmed except as to the prejudgment interest on the grazing
fees for horses.
I C
chief Justice
We Concur:
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Justices