No. 84-561
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
BILL HILL,
Plaintiff and Appellant,
TURLA TURLEY and DELIA TURLEY,
husband and wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Mussel shell,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Whalen & Whalen; Michael J. Whalen, Billings,
Montana
For Respondent:
Ask & Pratt; Thomas M. Ask, Roundup, Montana
Submitted on Briefs: May 23, 1985
Decided: December 5, 1985
Filed:
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by Bill Hill from a judgment based on jury
verdict against him entered in the District Court, Fourteenth
Judicial District, Musselshell County.
The principal issues in this case are whether an oral
grazing lease for a term longer than one year is invalid
under S 28-2-903, MCA, and whether Bill Hill was entitled to
a directed verdict for conversion of his cattle by Turleys
under a purported agister's lien. The judgment was against
Bill Hill on both of these issues and we affirm the judgment.
Turla and Delia Turley own a ranch in Musselshell County
consisting of approximately 4 1/2 sections of timber and
grasslands with a small acreage of dry hay land. In March
1982, Hill and the Turleys met to discuss a proposed grazing
lease of the Turley ranch by Hill. They entered into an oral
lease agreement, the terms of which are controverted.
Hill testified that he wanted a three year lease but the
Turleys would agree only to a two year lease. He said he
left a copy of a lease form with the Turleys to fill in and
sign. Neither that form nor any other writing was executed
by the parties.
The Turleys contended that Hill agreed to pay $12,000
annually for a three year lease but that they would accept
the rental in monthly payments so long as the entire first
year's balance was paid before the second year of the lease
commenced. Turleys also contended that Bill Hill agreed to
care for all the livestock, pay for the electricity to run
the pumps on the well, and the fences.
Hill moved his livestock onto the Turley ranch on or
about May 1, 1982. During the 1982-1983 season, Hill ran
approximatel-y 200 head on the ranch. Most of the stock
belonged to third parties, including 50 head that belong to
Turleys. The Turleys, after agreeing to the lease, had
answered an advertisement for grazing for their own cattle,
and discovered the advertiser to be Hill. The Turleys paid
Hill. $13 per month per head to graze their stock on their
ranch during the summer of 1982.
Hill paid the total rental payments due during the year
beginning May l., 1982 and ending May 1, 1983, though the
payments were not made promptly at the beginning of each
month.
Hill ran cattle on the ranch during the summer and fall
of 1983, and on October I-, 1983 terminated the lease. He
paid Turleys $5,000 to cover the period from May 1, 1983 to
September 30, 1983. On termination, Turleys allowed Hill to
remove the cattle belonging to third parties from the ranch
when Hill terminated the lease, but would not allow Hill to
remove his own cattle. Turl-eysasserted an agister's lien on
Hill's cattle.
Hill did not live on the Turley ranch during the time he
Leased it. His residence was near Acton, Montana, and he
would drive to the ranch once or twice a week to look in on
the stock. Turleys' testimony was that Delia Turley and her
daughter, Rita, looked after Hill's stock while he was gone,
rounding up strays, and feeding and watering the stock.
Delia Turley also testified that Rill Hill agreed that if she
would attend to the calving of Hill's 12 cows and wean the
calves during the winter of 1982 and 1983, Hill would care
for Turley's ranch while they went to horse shows during the
following summer and that he would clean the corrals and
fertilize section 12 of the ranch. The Turleys performed
their part of the further agreement, but Hill did not perform
his part of the alleged bargain.
Hill filed suit against the Turleys, claiming conversion
of his cattle after the termination of the lease. The
Turleys answered the complaint, denying the conversion, and
counterclaiming for 7 months rental for the second year of
the lease, $4,050 for the care of plaintiff's livestock for
which they asserted an agister's lien, and $5,000 d-amages for
overgrazing.
The contentions of the parties were summarized in the
pretrial order. Hill contended that the oral lease was a
month-to-month lease and not a yearly lease and that he had
fully paid the monthly rental. He also contended that his
livestock had been converted and he claimed both compensatory
and punitive damages. Hill further contended that the three
year oral lease contended for by the Turleys was barred under
S 28-2-903, MCA, the statute of frauds.
The Turleys contended that the lease was an oral lease
for a period of three years with a cash rental of $12,000 per
year, that the second year of the oral lease was in full
force and effect and that Hill still owed $7,000 for the
remaining 7 months of the second year. They further
contended that they were entitled to $4,050 for calving,
doctoring, checking wells, and otherwise looking after the
cattle of Hill.
The jury returned two verdicts in the cause. In one
verdict, they found in favor of the Turleys and against Hill
upon the complaint. In the second verdict, they found in
favor of the Turleys and against Hill and assessed Turleys
damages in the sum of "$7,000 only and direct that Mr. Hill's
cattle be returned to him." The court entered judgment for
the sum of $7,000 and. costs at $78.95 in favor of the
Turleys.
After the judgment, Hill filed a motion to alter or
amend the judgment and his attorneys claimed an attorneys
lien upon Hill's cattle which were then subject to execution
upon the judgment. The District Court denied the motion to
alter or amend the judgment, interpreting the verdicts to
mean that the plaintiff got nothing on his claims and that
the defendants were entitled to $7,000 and no more and that
defendants were not entitled to keep the cattle in addition.
The court denied the attorneys lien on Hill's cattle, saying
that the lien of the plaintiff's attorneys could not attach
where there is no verdict or judgment in favor of Hill.
TIEASE CONSTRUCTION
The fact dispute as to the lease is whether it was a
month-to-month lease as contended by Hill, or an oral lease
partially performed for one year as contended by the Turleys.
The District Court instructed the jury, in its instruction
no. 9 in the language of section 70-26-201, MCA, that "[a]
hiring of real property, other than lodgings and dwelling
houses, in places where there is no usage on the subject, is
presumed to be for one year from the commencement unless
otherwise expressed in the hiring." It appears the jury
found in favor of the yearly lease.
We held in Rosneau Foods v. Coleman (1962), 1.40 Mont.
572, 374 P.2d 87, that depending on the circumstances, an
invalid oral lease may create a month-to-month or a
year-to-year tenancy. In Rosneau, we quoted what is now 5
70-26-201, MCA, and concluded that the fact that the rent was
paid on a monthly basis was not in and of itself sufficient
t.o overcome the presumption created in § 70-26-201, MCA, in
favor of a yearly lease.
In Kettlekamp, et al. v. Watkins (1924), 70 Mont. 391,
225 P. 1003, we covered the point of partial performance.
There the renters attempted to avoid paying for the balance
of the term of the lease, which was not in writing. This
Court held that there was a difference between a parole lease
entirely executory and one which had been partially
performed. The partial performance of a parole lease for a
term beyond that allowed by the statute of frauds will take
it out of the operation of the statute. The Court stated:
... While there is some diversity of opinion as
to the act which will. constitute part performance
sufficient to remove the lease from the operation
of statute, the overwhelming weight of authority
sustains the view that taking possession and making
alterations of the property and paying the rent
agreed upon for a considerable period of time-as in
the case before us-constitutes part performance,
within the general rules stated above.
70 Mont. at 399-40, 225 P.2d 1006.
And see Dyksterhouse v. Doornbos (1977), 1-72 Mont. 461,
The object of the statute of frauds is to prevent fraud,
and not to accomplish fraudulent purposes. Hayes v.
Hartelius (Mont. 1985), 697 P.2d 1349, 42 St.Rep. 457.
At the trial, the Turleys' neighbor, Robert Tully
testified that the standard practice and usage in the area
was to lease grazing land by the year. Under the law and the
jury verdict, we hold that Hill's lease of the grazing land,
though oral, was on a year-to-year basis; that Hill was in
the second year of his tenancy; and that he owed the balance
of the yearly rental when he terminated the Lease midterm on
October 1, 1383.
AGISTER'S LIEN
The District Court submitted this issue to the jury
under the instruction that if there were an express or
implied contract for keeping, feeding, herding, pasturing or
ra-nching stock, the farmer to whom the stock was entrusted
had a lien upon such stock for the amount d.ue for keeping,
feeding, herding, pasturing or ranching of said stock and
could retain possession thereof until the sum due was paid.
See 5 71-3-1201(1) , MCA.
Hill claimed that the Turleys were not entitled to an
a.gister1 lien in this case, and that because they kept his
s
cattle, he was entitled to damages for conversion and for
punitive damages as well. The jury found against Hill. on
those issues in one verdict but directed in the second
verdict that the cattle be returned to Hill.
The District Court refused to alter and amend the
judgment with respect to the agister's lien, saying:
This Court interprets the verdicts to mean that:
(1) Plaintiff gets nothing; and
(2) Defendants are awarded $7,000 and only that
amount and no more, and that defendants will not be
entitled to keep the cattle in addition. The jury
verdict was against the plaintiff and in favor of
the defendants. To interpret otherwise would
frustrate the jury verdict.
We agree. The plaintiff's claim for damages for
wrongful conversion of his cattle was decided adversely to
Hill by the jury verdict.
Hill contends on appeal that since he was entitled to
the peaceful possession of the ranch premises for the
purposes of running cattle thereon under his grazing lien,
the possession of cattle was with Hill and not with the
Turleys. He further contends that an agister's lien arises
only when the possession of livestock is delivered into the
care, custody and control of another under a contract of
bailn~ent and such lien is not given to an employee or a
herder. He cites Engle v. Pfister (1953), 127 Mont. 65, 257
p.2d 561; Noel v. Cowan (1927), 80 Mont. 258, 260 P. 116;
Love v. Hecer (1923), 67 Mont. 497, 215 P. 1099. Moreover,
Hill contends that the Turleys did nothing to enforce their
asserted lien under the mandatory procedures to be followed
in 5 71-3-1203, MCA, respecting enforcement.
The effect of the jury verdict was to order that Hill's
cattle be returned to him, and that he recover no damages for
the alleged conversion of his cattle. The request of Hill on
appeal is that the case be sent back to the District Court
for the "limited purpose of determining the amount of damages
due Hill for conversion of his cattle including a reasonable
allowance for attorney's fees, both in the lower court and
upon appeal. " We would indeed frustrate the purpose of the
jury, if, after the jury had decided that Hill was not
entitled to damages, we were now to return the cause for
another jury trial upon the same issue of damages. Whether
or not the Turleys claim of agister's lien was valid, the
jury has already determined that Hill is entitled to no
damages by virtue of the same.
OTHER ISSUES
Hill contends that the District Court committed error in
allowing Robert Tully to testify that prior to the Hill
lease, Tully had negotiated with the Turleys on a. proposal
for Tully to lease the ranch for $12,000 for the entire unit
for the period of one year. Tully also testified, as we have
said, to the usage with respect to yearly tenancies.
The testimony relating to Tully's negotiations for a
lease with the Turleys was indeed hearsay, but we deem it
harmless. His testimony with respect to usage, however, was
based upon the fact that he was a neighbor of the Turleys,
and had over 20 years of ranching experience in the area.
The District Court determined that his testimony as to usage
would be useful, and usage was an issue in light of the
language of 5 70-26-201, MCA. We find no error here.
Hill claims error in the refusal by the District Court
of the following instructions:
No. 11: YOU are instructed. that a tenant holding
premises by verbal letting for an indefinite term
at a monthly rental becomes a tenant from
month-to-month.
No. 12: You are instructed that if you find from
the evidence that the parties attempted to
negotiate a lease for a period other than
month-to-month, but that no agreement was ever
concluded between the parties, except that monthly
rental of $1,000 would be paid, then the tenancy is
one of month-to-month.
Proposed no. 11 would be an improper mandatory
instruction and against the presumption provided by statute
in S 70-26-201, MCA. We find no statutory or case support
for proposed instruction no. 12 and again it would set aside
the presumption of S 70-26-201, MCA, and usurp the
fact-finding province of the jury.
The court instructed the jury the language
70-26-201, MCA, as follows:
A hiring of real property, other than lodgings and
dwelling houses, in places where there is no usage
on the subject, is presumed to be for one year from
its commencement unless otherwise expressed in the
hiring.
Hill contends that the i-nstruction should not have been
given because Turleys on the one hand were claiming that they
had entered into a three-year oral lease while Hill was
contending that it was leased from month-to-month. Thus,
Hill contends that the term of the lease was "otherwise
expressed! i n the hiring," and the instructions should not
.
have been given.
In Geovanetti v. Schab (1910), 4 1 Mont. 297, 109 P. 141,
this Court applied the presumption provided in 5 70-26-201,
KCA (formerly 5 5228, R.C.M. 1907) where the tenant claimed
that he had a lease from year-to-year at $40 per month, and
the landlord claimed the lease to be one from month-to-month.
In applying the statute, this Court found under the testimony
of the tenant, that the lease did run from year-to-year, that
the third year of the lease had not expired when the landlord
attempted to increase the amount of rental, and that the
year-to-year lease was in its third year.
The jury in this case, as the trier of fact, could
accept or reject Hill's contention that the lease was from
month-to-month; it could also reject Turley's contention that
the lease was for a term of three years. Since this case
involved a hiring of agricultural property, and not lodgings
and dwelling houses, a.nd since Hill offered no usage
contrary, the presumption provided in 5 70-26-201, MCA
applied, and the jury was entitled to be instructed with
respect to the presumption to determine the question of fact.
The presumption provided by 5 70-26-201, KCA is a disputable
presumption, which could be overcome by a preponderance of
evidence contrary to the presumption. When the presumption
is not overcome, the trier of fact must find the assumed fact
in accordance with the presumption. Rule 301 (b)( 2 1 ,
M.R.Evid.
Moreover, a finding in accordance with the presumption
of S 70-26-201, MCA, is not inconsistent with Turley's
contention that there was an oral lease for three years, and
that the lease, when it was terminated by Hill, was in the
second year of its term. We find no error in the giving of
the instruction based on the presumption.
Hill also objected to the instruction given to the jury
relating to an agister's lien. Whether the instruction was
proper or not under the facts of this case, the jury did not
find an agister's lien existed, and so Hill was not
prejudiced by the instruction. Instructions which were not
prejudicial do not constitute reversible error. Gaither v.
Richardson Construction Co. ( 1 9 6 9 1 , 152 Mont. 504, 452 P.2d
428.
Another point of error claimed by Hill is that the court
improperly permitted Turley's counsel during voir dire of the
jury to intimate to prospective jurors what the instructions
of the court on the law of the case might be. Hil-1's counsel
objected to the questions, and the court, upon ascertaining
that the form of the question was addressed hypothetically
(that if the court gave such an instruction, the prospective
juror would follow the instruction in deciding the case) the
court overruled the objection and granted Hill's counsel a
continuing objection to the questions.
Hill's specific objection is that under Rule 51,
M.R.Civ.P., instructions are to be settled by the court, out
of the presence of the jury, and with the participation of
all counsel. When counsel suggests to prospective jurors
during voir dire what the law of the case is or may be, the
intent and purpose of Rule 51 is circumvented.
We do not agree with Hill's contention that such
questions during voir dire circumvent the court's duty
eventual1.y to settle instructions with the participation of
counsel under Rule 51, M.R.Civ.P. We do not find prejudice
to Hill from the questions that were put here. The scope of
questioning on voir dire is largely a matter of discretion
for the trial judge who may set reasonable limits on the
examination but should permit liberal and probing examination
calculated to discover possible bias or prejudice, with due
regard to the interests of fairness to both parties.
Borkoski v. Yost !1979), 182 Mont. 28, 594 P.2d 688. It is
not improper to pose to prospective jurors hypothetical
questions about possible instructions from the court to
ascertain if the prospective juror would follow the law as
given to the jury by the court. It is improper to pose
hypothetical questions which have the effect of requiring a
pledge or commitment from the juror that he would decide a
certain way upon particular instruction as that would have
the effect of prejudging the case. See 47 Am.Jur.2d Jury S
203 (1969). The trial judge, in exercising his discretion,
should liberally allow questions on voir dire which seek to
determine bias and prejudice if any, of the jurors, but not
questions which seek to obligate a future course of action by
the juror from hypothetical facts or law. F e find no error
7
on this point in this case.
On another point, Hill's counsel contends that Turley's
counsel committed "plain error" in his argument to the jury
at the summation. The District Court submitted four forms of
possible verdicts to be used by the jurors in their findings.
During oral argument Turley's counsel took the two forms that
favored Turley, and demonstrated to the jury how they should
be signed. He also told them that if they found for Hill
they wou1.d have to sign the other two verdicts. Hill's
counsel now claims that the argument was misleading,
contending that since the jury ordered the cattle to be
returned to Hill, as a matter of law, the conversion was
unlawful and Hill was entitled to damages. Hill"s counsel
contends that the plain error doctrine of Halldorson v.
Halldorson (1977), 175 Mont. 170, 573 P.2d 169, should be
applied by us, since no objection was made to the oral
argument by Hill's counsel.
There is no weight to this issue. Turley's counsel
merely explained to the jury how they should use the verdict
form if they found for his clients and incidentally explained
that they should use the other two verdict forms if they
should find for Hill. The plain error rule does not apply in
this case.
Again, Hill contends that the judgment entered by the
court did not conform to the jury's verdict. In the verdict
in favor of Turley for $7,000 in damages, there was added in
hand-writing "$7,000 only, and direct that Mr. Hill's cattle
be returned to him." During deliberations, the jury had sent
a question out to the court as to whether signing the "top"
verdict would give the cattle back to Hill. The court
answered in writing, "Please use verdict forms you have and
you may add to same if you wish." The court in entering
judgment on the verdict, ordered $7,000 against ill on the
Turley's counterclaim, and against Hill on all issues in
regard. to Hill's complaint. The judgment itself did not
direct the Turleys to return Hill's cattle to him.
Hill contends that the judgment followed must conform to
the verdict or findings. Morse v. Morse (1945), 116 Mont.
504, 508-09, 154 P.2d 982.
Following the entry of the judgment, Hill filed a motion
to alter or amend the judgment and for a writ of assistance
directing the sheriff to return the cattle to Hill if they
were not returned voluntarily by the Turleys. Hill's counsel
also claimed an attorneys lien under S 37-61-420, PICA, as
attaching to the cattle.
The District Court denied the motion to alter or amend
the judgment interpreting the two verdicts to mean (1) the
plaintiff gets nothing and (2) the defendants were awarded
$7,000 only, and that the defendants would not be entitled to
keep in the cattle in addition. The District Court said the
jury verdict was against the plaintiff in favor of the
defendants and to interpret the verdict otherwise would
frustrate the jury verdicts. The court further denied the
claim of attorneys lien on the ground that such a lien does
not attach to the verdict or judgment granted in the case
because the judgment was not rendered in Hill's favor. The
District Court further allowed the Turleys to proceed to
execute upon the cattle in their possession to satisfy the
judgment. The cattle were eventually sold at sheriff's sale
and the proceeds applied to the judgment.
At the same time as he filed the motion to alter or
amend the judgment, on August 13, 1984, Hill also filed a
written notice of attorneys lien and an equitable assignment.
In that notice he stated that on October 21, 1983, he had
made an equitable assignment of all his right, title, and
interest in and to the livestock held by the Turleys. He
stated when he retained his lawyer to represent him in the
action, he advised the lawyer that the lawyer would have a
lien on al-1 the cattle belonging to him held by the Turleys
for services to be rendered and costs to be incurred in
connection with the upcoming lawsuit against the Turleys.
Upon that agreement, his counsel embarked upon the services
which he rendered in connection with the suit.
Under $j 37-61-420(2), MCA, an attorney who appears for a
party has a lien upon his client's cause of action which
attaches to a verdict or judgment in his client's favor and
the proceeds thereof in whose hands they may come. The
District Court was correct in determining that the jury in
this case has not decided in favor of Hill. The handwritten
portion of the verdict favoring Turleys was merely a
1-imitation upon their damages, the jury intending that
Turleys should not collect $7,000 and keep the cattle also.
There was no verdict or judgment in this case in favor of
Hill. The attorneys claimed lien was properly denied.
Accordingly, we affirm the judgment in the District
Court.
Justice
We Concur:
Justices