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' , ,