Robertus v. Candee

                                           No.    81-319

                   I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                  1983




EDWARD ROBERTUS & TIM ROBERTUS,
d / b / a ROBERTUS BROTHERS, a p a r t n e r s h i p ,

                         P l a i n t i f f s and Respondents,

         -vs-

ROBERT CANDEE

                         Defendant and A p p e l l a n t .




      1 from       D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                   I n a n d f o r t h e County o f Rosebud,
                   The 1.Ionorable A. B. M a r t i n , J u d g e p r e s i d i n g .


Counsel of Record:

        For Appellant:

                   J o h n S . F o r s y t h e , F o r s y t h , Montana


        For Respondents:

                   Crowley, Haughey, Hanson,                  Toole & D i e t r i c h ,
                   B i l l i n g s , Montana




                                           S u b m i t t e d on B r i e f s :   June 30,       1983

                                                               Decided:         August 2 5 ,      1983




                                                          ---
                                           Clerk
       Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
       Defendant Candee appeals from judgment following trial
without jury in the Sixteenth Judicial Court, Rosebud County,
in this action arising from the lease of Candee's ranchland
by Robertus Brothers.
       In   February   of    1977, Robertuses        orally    agreed   with
Candee to lease 850 acres of broken land from Candee at $20
per acre     ($17,000), to be paid for in three installments.
They also agreed that Robertuses would                lease about 1,250
acres of unbroken prairie land from Candee, break it and farm
it at their own expense, with Candee receiving a one-quarter
share of the crop, and Robertuses retaining the right to
three or four crop years.
       The final lease payment of $8,000 on the 850-acre tract
was due August 1, 1977; Robertuses did not pay it.                      Their
crop had     not been       good    and    they   alleged that the oral
agreement allowed them to waive the $8,000 payment in the
event of crop failure.           Those crop proceeds properly went to
Robertuses.
       In fall of 1977, a dispute arose as to the rental to be
paid   on the 1,250-acre tract.              The parties attempted to
renegotiate the lease of this tract and a possible buyback by
Candee was discussed.            At that time 1,000 acres had been
broken, 680 acres disked, and 320 acres planted in wheat on
the 1,250-acre parcel, all at the expense of the Robertus
Brothers.      Because      of     the    renegotiations,     the   Robertus
Brothers stopped planting and by the time they learned the
buyback had fallen through, it was too late to plant any more
wheat.
       In March of 1978, Candee informed Robertuses that they
could no longer enter his land and terminated both lease
agreements.    Candee harvested and sold the wheat on the 1,250
acres, netting and keeping $26,180.59.
     Robertuses brought suit against Candee on the theory of
unjust enrichment and quantum meruit, alleging that Candee
benefited from their ground-breaking and farming due to his
wrongful eviction of them from the 1,250-acre tract.                Candee
counterclaimed as to the unpaid $8,000 on the 850-acre tract.
Evidence    taken     included      the    enhanced      value     of   the
newly-broken prairie land, the cost of production and the
value of the wheat.
     The District Court held there were two separate oral
leases, one on the 1,250-acre tract, and one on the 850-acre
tract.      The    court    held   that   though   the    lease    on   the
1,250-acre tract was unenforceable, Candee had been unjustly
enriched in the amount of $55,000.            This amount included the

increased land value, a three-quarter share of the wheat
crop, and/or the value of the work, seed and                     fertilizer
supplied by Robertuses.            Candee was to pay interest from
March 8, 1978, the day he notified Robertuses they were not
to enter his land.         The court also held that Robertuses owed
Candee the final $8,000 payment on the 850-acre tract.
     Candee       appeals    the    $55,000    award     to   Robertuses.
Robertuses do not cross-appeal, but ask for reversal of the
$8,000 award to Candee if this Court changes the District
Court's findings pursuant to Rule 14, M.R.App.Civ.P.
     We will modify the award.
     Defendant Candee raises four issues on appeal:
     1.    Whether plaintiffs are entitled to damages under the
theory of unjust enrichment.
     2.    Whether the District Court awarded a correct measure
of damages.
      3.    Whether plaintiffs are entitled to interest prior to
judgment    .
      4.    Whether there is substantial evidence in the record
to support the value of the ground-breaking work.
     Defendant first argues that unjust enrichment is not an
applicable theory.               The trial court found that in this case

the Statute of Frauds precluded plaintiffs from suing on the
lease.          Where     the    labor or money      of     a person has been
expended        in    a   permanent      improvement      which     enriches    the
property of another, under an oral agreement which cannot be
enforced under the Statute of Frauds, that person is entitled
to   an    award        for     the   amount   by   which    such    improvements
unjustly enriches the property.                 Smith v. Kober (Neb. 1922) ,
189 N.W.        377; Restatement of the Law, Contracts 2d 5375.
     However, it is not necessary to reach the question of
whether this agreement is within the Statute of Frauds.                        For,
where one party               repudiates a contract or breaches               it by
non-performance, the injured party may seek restitution of
the unjust enrichment whether the Statute of Frauds applies
or   not.            Gregory v. Peabody        (Wash.     1928),    270   P    825;
Restatement of the Law, Contracts 2d                      5373;      Epleveit v.
Solberg     (1946), 119 Mont. 45, 57, 169 P.2d                    722, 729.      By
defendant's own admission, the plaintiffs were not required
to farm the 1250-acre tract during any particular season.
Thus the trial court was correct in concluding that the
defendant breached and terminated the lease by his actions in
March of 1978.            There is no question that plaintiff may seek
restitution for the unjust enrichment conferred upon the
breaching and repudiating defendant in this case.
     The second issue raised by the defendant has merit.
Defendant argues that the trial court improperly awarded
guantum meruit damages for plaintiffs' investment in breaking
ground on the 1,250-acre tract, - damages for the v-alue of
                                and
the    improvement     to    the    property.          Both   measures    cannot
properly be awarded.
       It is not clear, from the District Court's findings of
fact and       conclusions of       law, how the          $55,000 award was
determined.      However, it is apparent that the Court awarded a
composite of enhanced land value, custom work, fixed costs
and/or crop value.
       The theory of unjust enrichment requires that a person

who has been unjustly enriched at the expense of another must
make   restitution to the other.                 Restatement of the Law,
Restitution 1         Tulalip Shores, Inc. v. Mortland                 (1973), 9
Wash. App. 271, 511 P.2d 1402; 66 Am.Jur.2d                   Restitution and
Implied Contracts (53 (1973).           The measure of this equitable

restitution interest is either the quantum meruit value of
plaintiff's      labor      and    materials      -
                                                  or    the    value     of   the
enhancement to the defendant's property.                  Restatement of the
Law, Contracts 2d S371; 12 Williston, Contracts 51480.                         To
award both would be to give double damages.
       In this case the quantum meruit measure of damages would
be the market rate for the custom work of ground breaking,
fertilizing and planting and the cost of fertilizer and seed.
Such measure was found by the trial court to be $29,479.61.
The    enhancement measure          would   be    the     net value      of   the
unharvested crop         ($26,180.59) together with the increased
value in the 1,000 acres attributable to the ground breaking.
       There    may    be   cases    where       the    enhancement      to   the
defendant's property will be far less than the quantum meruit
value of the plaintiff's efforts.                 For example, where the
improvement did not enhance the value of the property but did
result    in    a     pecuniary      saving      to    the    defendant,      the
enhancement measure would not reflect the unjust enrichment.
Conversely, there         may    be   cases where     the value         of    the
enhancement greatly exceeds the cost of the improvement, as
in this case.

      Thus the rule has evolved that the proper measure of
damages in unjust enrichment should be the greater of the two
measures.     Restatement of Law, Contracts 2d 5371 comment b;
12 Williston, Contracts 51480.
     We adopt this rule.           But this rule must be tempered with
the idea that it is only so much of the enrichment which is
unjust that may be awarded the plaintiff.                  Madrid v. Spears
(10th Cir. 1957), 250 F.2d 51, 54.             For example, the cost of
surveying a tract of land into lots may be $5,000, while the

total value of the subdivided lots may be $50,000 greater
than the undivided tract.             The landowner is justly entitled
to the majority of the increase in value for his risk, idea,
decision    making     and      development   activity.          He   is     only
unjustly enriched to the extent that the unpaid surveyor
contributed to or caused the increase.
      In    this    case     the      1,000   acres   of    broken      ground
experienced    an    increase      in market     value     of    as much       as
$168,000, while the cost of all labor and materials used in
the ground breaking was no more than $29,479.61.                  Part of the
increase in value of the property is attributable to the
property owner's risk and decision making in a real estate
investment, part is attributable to other improvements to the
property    and    part    is attributable       to   plaintiffs'       ground
breaking.     But it is only the latter part that the defendant
is not entitled to, for which he has been unjustly enriched.
      It would be very difficult to determine exactly how much
of   the    $168,000   increase       is   attributable     to    the   ground

breaking.     However, in an activity such as ground breaking
where all of the cost of the activity directly results in the
improvement, the reasonable cost of the activity will give a
court of equity a fair indication of the enhancement value
attributable to such activity.           Acc. Madrid v. Spears (10th
Cir. 1957), 250 F.2d 51, 54.
        In    this   calculation   we    will   use   the   figures     in
plaintiffs' exhibit 11, which were found by the trial court
to be the cost of plaintiffs' activities.             Since all of the
disking and tooling with the exception of the fertilizing and
seeding directly resulted in improvement to the property, the
cost of the gound breaking appears to be as follows:
    Disking 680 ac. 3 times         2,040 ac.
            320 ac. 1 time            320
                                    2,360 ac. @ 6.23        =   $14,702.80
    Tool bar 320 ac 3 times            960 ac. @ 3.91       = $   3,753.60


     Based on this calculation we will assume that the value
of the enhancement to the defendant's property attributable
to the ground breaking activity is also $18,456.40.                     In
addition, the plaintiffs improved defendant's property to the
extent of the value of the unharvested wheat crop, which the
trial court found to be $26,180.59.             We conclude that the
total unjust enrichment as measured by the enhancement to
defendant's property is equitably valued at $44,636.99.                 As
this amount is greater than the $29,479.61 quantum meruit
measure of unjust enrichment, it is the proper award in this
case.
    Defendant        next   challenges    the   prejudgment       interest
award.       The applicable statute is section 27-1-211, MCA, which
provides for recovery of interest where a person is "entitled
to recover damages certain or capable of being made certain
by calculation."        In this case there was no ascertained or
ascertainable amount where the plaintiff sought, in a court
of equity, restitution for an unquantified measure of unjust
enrichment.           The trial court erred in awarding prejudgment
interest    .
       Finally defendant argues there is insufficient evidence
to support the value of the ground breaking work found by the
trial   court.           Only    insofar as           the value of           the ground
breaking work was used to approximate the enhancement in
property value attributable to such work does this question
remain an issue.
       The trial court found plaintiffs' work to be fairly
valued by the plaintiffs' expert using a computer calculation
based on the type of equipment used, the number of acres
involved and the number of applications of the equipment to
the    acreage, all         of     which    were       testified     to       at   trial.
Defendant        challenges        the     finding,       contending          that        the
foundation for the data and method was insufficient, the
assumptions used in the calculation were based on conflicting
evidence, and the calculation improperly includes a measure
of prof it.
       Defendant's arguments are unpersuasive.                     This Court will
not    overturn         findings    of     fact       supported    by        substantial
evidence.        Toeckes v. Baker (1980),                         Mont   .           ,    611
P.2d 609, 37 St.Rep. 948; Morgen                  &    Oswood Const. Co. v. Big
Sky of Montana           (1976), 171 Mont. 268, 275, 557 P.2d 1017,
1021.
      Where       a      trial     court's        findings     are        based          upon
substantial though conflicting evidence they will not be
disturbed on appeal unless there is a clear preponderance of
evidence against such findings.                   Cameron v. Cameron (1978),
179 Mont. 219, 587 P.2d 939.
      The       trial    court properly           considered      the        plaintiffs'
expert testimony and exhibits which were based on assumptions
in    evidence.          The     profit    margin       incorporated           into      the
calculation is also proper since the cost of services for
purposes       of    unjust       enrichment        is    the    market      value    of
replacement services including the profit earned by those
rendering the service.              In this case, the actual cost of the
labor     to       the     plaintiff       is     irrelevant          except    as    it
demonstrates the               replacement      cost     of   such     labor on      the
market.
     Pursuant to Rule 14 of the Montana Rules of Appellate
Civil Procedure, plaintiffs ask this Court to review the
trial     court's        award     of   $8,000.00        plus    interest       to   the
Defendant       on       the    850-acre     lease.           Plaintiffs       did   not
cross-appeal this ruling and therefore the judgment cannot be

reviewed.            Although       Rule     14     provides          for   review   by
cross-assignment of               error,     this      does     not    eliminate     the
necessity for cross-appeal by a respondent who seeks review
of rulings on matters separate and distinct from those sought
to be reviewed by appellants.                     Johnson v. Tindall (1981),

        Mont   .           ,   635 P.2d 266, 38 St.Rep. 1763; Francisco
v. Francisco (1948), 120 Mont. 468, 470, 191 P.2d 317, 319.
     The       trial      court    found     that      the    850-acre lease was
separate from the 1,250-acre lease.                      Therefore, a challenge
to the amount owing on the separate lease raises an issue
which is clearly separate and distinct from the issues raised
on appeal by defendant.
     The judgment and award in this cause is vacated and this
case is remanded to the District Court with instruction to
enter judgment in accordance with this opinion.
W e concur:



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Chief JusYick