                      IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1482
                              Filed August 5, 2015


RONALD PECK,
    Plaintiff-Appellee,

vs.

FOUR ACES FARMS, INC.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Poweshiek County, Annette J.

Scieszinski, Judge.




      Four Aces Farms, Inc. appeals from the district court’s order granting a

declaratory ruling and judgment in favor of Ronald Peck.         AFFIRMED AS

MODIFIED.




      Catherine M. Lucas and Todd A. Strother of Bradshaw, Fowler, Proctor

& Fairgrave, P.C., Des Moines, for appellant.

      William J. Lorenz and Norma J. Meade of Moore, McKibben, Goodman

& Lorenz, L.L.P., Marshalltown, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                             2


DOYLE, J.

       Four Aces Farms, Inc. (“Four Aces”) appeals from the district court’s

declaratory ruling and final judgment order concluding an oral 50/50 crop share

agreement supplemented its written cash rent lease agreement with Ronald

Peck. We are not persuaded Peck established his case by the requisite degree

of proof and we therefore modify the district court’s declaratory ruling and

judgment.

I.     Background Facts and Proceedings

       Ronald Peck is a retired farmer and businessman who owns 690 acres of

farmland in Poweshiek County, Iowa. Peck farmed the 690 acres himself until

November 2006, when he decided to lease the property to Four Aces. Four

Aces, an Iowa Corporation, is operated by Douglas Helm, a former math teacher

who began farming full time in 2001. Mark Kennett, an agronomics consultant

and Peck’s then-partner in a chicken litter1 application venture, facilitated the

landlord-tenant relationship between Peck and Helm.

       Helm prepared a farm lease for the 2007 crop season which was signed

by the parties in November 2006. The lease provided that Four Aces would pay

Peck $195 per acre for 689.5 acres, with payment of $67,226.25 due on March 1,

2007, and $67,226.25 due on December 1, 2007. The lease contained only two

additional terms: that Four Aces would pay $0.10 per bushel for rent of storage

bins (and would be responsible for electricity and propane associated with the



1
  “Poultry litter” includes poultry feces and bedding. Farmers use the poultry litter “as
fertilizer on their fields, and often sell or barter it to others.” Att’y Gen. of Oklahoma v.
Tyson Foods, Inc., 565 F.3d 769, 774 (10th Cir. 2009).
                                           3


use of the bins), and that Peck would provide “3 ton of chicken litter at the rate of

$20 per ton” to be paid for by Four Aces.2

        Four Aces proceeded to farm the land. During the summer of 2007, when

it appeared it would be a very good crop year with rising prices, Kennett talked to

Helm.    Under the circumstances, it was thought Peck would “be expecting

more—more money.” The two discussed how to keep Peck satisfied so that

Four Aces could continue renting the farm.           They discussed paying Peck a

bonus—one that would satisfy Peck but still maintain a profit for Four Aces. Four

Aces paid the 2007 rent pursuant to the lease terms. Helm testified that at some

point he told Peck he would be paid some type of bonus. In September 2008,

after the 2007 harvest had been sold, Four Aces paid Peck a “bonus” of

$61,251.72, and Helm presented Peck with a detailed accounting showing how

he had calculated this extra payment. Specifically, Helm reached the amount by

taking half of the “Shared Income” (gross income minus “Shared Expenses”),

reduced by the rental payments Four Aces had already made to Peck. Helm

later testified he chose the method of calculation to be “fair to both of us” in an

effort to “help to continue things for ’09 and beyond to maintain good relations” so

that Peck would continue to lease the farm to Four Aces. Peck maintained the

payment and method of calculation were in accordance with their “50-50

agreement.”

        Four Aces continued renting Peck’s land. In November 2007, the parties

signed a written lease for the 2008 crop year, which was identical to the 2007


2
 The lease also contained a handwritten provision that “this contract is void as of March
1, 2008.”
                                         4


lease except for an increase in the rent amount to $200 per acre and omission of

the chicken litter provision. As it had done the previous year, after the 2008 crop

was marketed, Four Aces presented Peck with an additional payment than that

required by the written lease—this time in the amount of $27,497.05. Again,

Helm gave Peck a detailed accounting showing how he calculated the extra

payment, using the same method as he had for the 2007 payment. Helm later

testified he made the additional payment to Peck in order “to incentivize, to keep

continue renting the farm and maintain good relations.” In contrast, Peck testified

the parties continued to have an oral agreement that required Four Aces to share

profits with him.

       The 2009 crop year unfolded similarly. In December 2008, the parties

signed a written lease for the 2009 crop year, which was identical to the 2008

lease but for an increase in the bin rental rate to $0.16 per bushel. In the fall of

2010, Four Aces again presented a summary of the profitability of the 2009 crop

year. This time, however, the summary showed that the cash rent Four Aces

paid to Peck exceeded the profits from the farm, and Four Aces made no

additional payment for the 2009 crop year. Peck later testified the rent required

by the lease only represented a minimum and that the oral agreement for profit

sharing continued to exist.

       The parties did not enter into a new written lease for the 2010 and 2011

crop years. Four Aces continued to rent and farm Peck’s property. Peck later

testified that the 2009 lease was “carr[ied] over” and continued in effect through

the 2010 and 2011 crop years.
                                        5


      The parties’ relationship began to sour in 2011 after a disagreement arose

when a Four Aces employee loaded 2010 grain from Peck’s farm into a trailer

partially full with Four Aces’s grain. Peck felt Four Aces was “cheating” him by

commingling the grain.    Helm agreed the employee’s actions were improper.

The incident forced Four Aces to estimate the amount of grain in the load that

came from Peck’s farm.

      While wintering in Florida in early 2011, Peck fell ill, which prevented him

from farming 61.7 acres owned by his wife, Beverly, as he had in prior years.

Peck contacted Helm seeking Four Aces’s assistance with Beverly’s land, and

Helm “said he would help out.” Peck later testified he had no kind of agreement

with Helm about the rent, while Helm testified they agreed Four Aces “would just

cash rent it . . . under the same lease agreement” it had with Peck.

      In August 2011, Peck sent a “Notice” to Four Aces that the contract

regarding Peck’s land and Beverly’s land was “cancelled” for the 2012 crop year.

      In the fall of 2011, as in prior years, Four Aces prepared a summary for

Peck showing the profitability of the 2010 crop year. Based on the calculation,

Four Aces offered to pay $19,218.14 to Peck.         Peck refused to accept the

payment, later testifying that it was not “calculated proper, and it was not honest

per our agreement.” According to Helm, he later called Peck and offered him

more money in an effort to continue Four Aces’s status renting the farm, though

he could not recall the amount he offered.

      On November 1, 2011, Peck sent Four Aces a letter instructing Four Aces

not to market any of Peck’s grain and stating, “I will notify you when I desire for

the grain to be sold.” Peck filed a Uniform Commercial Code (UCC) Financing
                                           6


Statement covering “[a]ll crops grown upon” the property, establishing a landlord

lien.

        Helm later testified the grain was not Peck’s (“It was [Four Aces’s] grain”),

so Four Aces disregarded Peck’s letter and sold the grain from the farm. A

disagreement arose as Four Aces was removing the grain stored on Peck’s

property, eventually involving law enforcement and the parties’ attorneys. Helm

presented the sheriff with a written lease for the 2011 crop year; Helm had

signed Peck’s name on the lease, but later testified Peck had “directed” him to do

so.

        In a November 2011 letter to Peck, Four Aces (through its attorney)

detailed what it represented as “payment in full” for the outstanding amounts

Four Aces owed Peck under the written lease, and did not mention a crop share

agreement between the parties. The letter included four checks to Peck from

Four Aces: $68,950 for “2011 land rent/2nd half”; $9272 for “storage 2010”;

$10,817.60 for “2011 storage”; and $12,340 for “2011 cash rent” for Beverly’s

61.7 acres. In the letter, Four Aces alleged Peck violated the lease by chopping

and chiseling the corn stalks, thereby retaking possession of the properties early

and preventing Four Aces from harvesting the corn stover 3 when the lease

granted Four Aces possession of the properties until March 1, 2012. In closing,

the letter included a formal demand for release of the UCC Financing Statement




3
  Corn stover is defined as “corn stalks, leaves, and cobs remaining above ground on the
field after the harvest of corn kernels.” Jack W. Leverenz, Corn Flakes Aren’t Just for
Kellog’s, A Look at Corn Stover and Its Effect on Leasing in the Landlord Tenant
Relationship, 17 Drake J. Agric. L. 511 (2012).
                                           7


filed by Peck, asserting that Four Aces “has performed all obligations under the

Farm Lease between the parties.”

       Peck’s attorney returned the checks to Four Aces’s attorney with a letter

stating:

       For the years since 2007, the agreement has been that Four Aces
       Farms would lease Mr. Peck’s land on a 50/50 crop share basis
       with a minimum of $200 per acre. It is also our position that
       Beverly Peck leased her land to Four Aces Farms, Inc. for the 2011
       crop year on the same terms as the existing lease between Ron
       Peck and Four Aces Farms.[4]

       Knowing it would not be renting Peck’s farm any further, Four Aces did not

offer any additional or bonus payments for the 2011 crop year. At the request of

Peck’s attorney, Four Aces created a summary of profitability for the 2011 year,

which included calculations for Beverly’s 61.7 acres.

       In March 2012, Peck filed a petition for declaratory judgment and for

accounting against Four Aces.5 Peck alleged the parties’ lease agreement was

in fact a “50/50 crop share lease” that also required Four Aces to pay the

minimum amount stated on the written lease. Peck claimed the written leases

did not represent the full agreement between the parties. Peck further alleged

Four Aces’s year-end summaries incorrectly incorporated crop sales from other

Four Aces farms when calculating prices received for Peck’s crops. Finally, Peck

claimed Four Aces did not lease the additional 61.7 acres, rather Four Aces

merely performed the farm work for him.           Peck requested the district court

declare, among other things, that the leases “required that [Four Aces] pay a

4
  The letter further stated it was not the full statement of Peck’s position and that the
purpose of the letter was to return the checks.
5
  Peck also named Helm, personally, as a defendant, but Helm was dismissed as a
defendant on June 9, 2014, leaving Four Aces as the sole defendant.
                                        8


minimum rent based on cash and rent based on a 50/50 crop share”; a full

accounting in order to determine the proper net income for each year; a judgment

for the difference between that paid and owed based on this new accounting; a

declaration that Peck was entitled to receive the 2011 crop from Beverly’s 61.7

acres from Four Aces, and a declaration that Four Aces was entitled to

compensation for planting, spraying, and harvesting the crop on Beverly’s land at

ordinary and customary custom rates.

      Four Aces filed an answer and counterclaim, denying the existence of a

50/50 crop share agreement. Four Aces further claimed it leased Beverly’s 61.7

acres on terms identical to the written leases between Four Aces and Peck. In a

counterclaim, Four Aces alleged that in 2011, Peck prevented Four Aces from

harvesting corn stalks from the properties in violation of Iowa Code section

562.5A (2011), and sought an order requiring Peck to reimburse Four Aces for

the lost value of the unharvested corn stover. Other counterclaims and defenses

are not at issue on appeal.

      In August 2014, following a one-day bench trial, the district court entered a

declaratory ruling and judgment order in favor of Peck, concluding the parties

had an oral crop share agreement supplementing the written farm lease:

      The parties’ division of farm profits originated during their initial
      associations as landlord and tenant for the 2007 crop year, and
      was sustained throughout their lease relationship. The meeting of
      their minds on sharing the farm’s production potential arose in oral
      discussions Peck had with Helm with the aid of Kennett, as the
      2007 crop was growing. Both parties realized they had a written
      lease in place for Four Aces to pay Peck $195 per acre in two
      installments; nonetheless, with the March 1st installment already
      paid, Peck and Helm refined their deal. It was in the summer of
      2007 when the crop was looking very good, that they agreed to
      incorporate a sharing of profits into the agreement.
                                          9


In reaching this conclusion, the district court considered the testimony of Peck

and Helm, as well as Kennett.6 The court found the previous course of dealings

between the parties—especially the methodical nature with which the annual

additional payments and summaries were made from Four Aces to Peck—to be

significant in reaching its conclusion.

       The court determined Four Aces owed to Peck $19,218.14 for the 2010

crop share; $9,272.00 for 2010-11 bin rent; $68,950.00 for the December 2011

cash rent installment; $94,090.74 for 2011 crop share; $10,817.60 for 2011-12

bin rent; and $12,400.00 for 2011 cash rent for Beverly’s land—a total of

$214,748.48.

       The court found in Four Aces’s favor on its corn stover counterclaim,

stating that by prematurely chiseling the corn stalks Peck denied Four Aces its

leasehold right to recover the “full measure of the crop” pursuant to Iowa Code

section 562.5A. The parties stipulated the value of the corn stover Four Aces

was prevented from harvesting was $20,429.00. The court awarded Four Aces

half of this amount—$10,214.50—finding Peck was entitled to half of the value of

the stover. The court also credited Four Aces for $461.90, half the cost of a bin

repair made by Four Aces.

       After off-setting the award to Four Aces on its counterclaim, the district

court entered judgment in Peck’s favor in the amount of $204,072.08.               In




6
 It is noted the district court reached its conclusions based upon a preponderance of
evidence standard.
                                          10


addition, the court ordered Four Aces to pay interest at a rate of five percent7

from March 28, 2012, the date on which Peck filed the suit.8

       Four Aces appeals.

II.    Scope and Standards of Review

       The standard of review for a declaratory judgment varies by how the case

was tried. See Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000). The

parties agree the district court tried this case in equity. We conduct a de novo

review of cases tried in equity. Iowa R. App. P. 6.907; Owens, 610 N.W.2d at

865. We give weight to factual findings made by the district court, especially

regarding the credibility of witnesses, but we are not bound by them. Owens,

610 N.W.2d at 685.

III.   Parol Evidence

       Four Aces contends the district court “improperly considered parol

evidence to modify the terms of an existing written contract.” Four Aces claims

the parties’ written farm lease “set forth all terms needed to carry out

enforcement of the agreements” and parol evidence of “[t]he alleged oral

agreement” could not be used to vary or add to those terms.

       A. Error Preservation. Peck contends this issue was not preserved for

review. As Peck points out, Four Aces never objected at trial to the use of parol

evidence and the district court never ruled on the issue.




7
  The district court cited to Iowa Code section 535.2(1)(b) in imposing the five-percent
rate.
8
  The date set by the district court from which the interest runs is not challenged by
either party.
                                         11


       Four Aces counters that its submission of a pretrial brief—which included

a claim that the court was precluded from considering parol evidence—preserves

the issue for appellate review despite the absence of a ruling by the trial court on

the issue. Although the parol evidence rule is a substantive rule of law, standard

error preservation rules regarding the admission of evidence apply to parol

evidence issues. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454,

470 (Iowa 2000). “It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

       This case was tried in equity, and in such cases “‘the trial judge, while

noting objections, may not exclude offered testimony’” in order to “preserve a

complete record of the evidence for the trial and the appellate courts, leaving to

them the rejection of inadmissible testimony in deciding the issues.” See O’Dell

v. O’Dell, 26 N.W.2d 401, 416-17 (Iowa 1947) (quoting Rankin v. Schiereck, 147

N.W. 180, 182 (Iowa 1914)). Accordingly, at issue is not the admission of the

parol evidence challenged by Four Aces, but the court’s consideration of that

evidence.

       Throughout the one-day bench trial, Four Aces lodged no objections to

evidence that arguably implicated the parol evidence rule. The pretrial brief that

purports to raise the issue of parol evidence did not become a part of the record,

though its existence is acknowledged by the parties.

       Four Aces claims that by considering the parol evidence when deciding

the case, the district court implicitly ruled on the issue and that this, coupled with

its argument in its pretrial brief, satisfies the preservation requirements. The
                                          12


district court’s ruling refers to an oral agreement and Helm’s calculations and

summaries as being evidence of an oral contract between the parties.              The

inference could be drawn that the district court ruled against Four Aces by using

the evidence in reaching its ruling. But without the benefit of objections at trial

and Four Aces’s pretrial brief, this court cannot be sure which pieces of evidence

were contested by Four Aces. The two requirements for preservation, that the

issue be both raised and decided by the court, have not been convincingly

established. See Meier, 641 N.W.2d at 537.

         B. Consideration of Parol Evidence. Bypassing this error preservation

concern, see State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error

preservation problem and proceeding to the merits of the appeal), we do not

conclude the district court erred in considering extrinsic evidence. “When an

agreement is fully integrated, the parol-evidence rule forbids the use of extrinsic

evidence introduced solely to vary, add to, or subtract from the agreement.”

C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 85 (Iowa 2011).                  An

agreement is fully integrated “when the parties adopt a writing or writings as the

final and complete expression of their agreement.” Id. The presence of an

integration clause, while considered, is only one factor used in determining if the

contract is integrated. See id. Extrinsic evidence may be used to consider if the

written contract is in fact fully integrated “despite the absence of . . . ambiguity on

the face of the document.” In re Eickman Estate, 291 N.W.2d 308, 312 (Iowa

1980).

         Once it is established that an agreement is not fully expressed in writing,

extrinsic evidence may be used to find the entire contract. See Sol Popofsky Co.
                                            13

v. Wearmouth, 248 N.W. 358, 360 (Iowa 1933); see also Cargill, Inc. v.

Fickbohm, 252 N.W.2d 739, 741 (Iowa 1977) (allowing oral evidence to show the

delivery date term when that field on a form contract had been left blank). “A

contract may . . . be partially written and partially oral.” Cargill, Inc., 252 N.W.2d

at 741. As expressed in Sol Popofsky Co.:

         [W]here the entire agreement is not fully expressed in the writing,
         and where part of the agreement is oral and part in writing, parol
         evidence may be introduced to show the entire contract . . . . If the
         parol part concerns a matter not covered by the writing, then, the
         written and parol parts being harmonious, the parol part may be
         shown along with the written.

248 N.W. at 360. The caveat is that the “parol terms may not directly contradict a

clear term of the written agreement.” Id.

         Four Aces argues that the written lease captures the entire agreement

between the parties and thus prevents the consideration of parol evidence. The

language Four Aces relies on reads: “Tenant agrees to pay the owner $200 per

acre” and “[t]he land rent is . . . $137,900.”

         At the outset, we observe the lease lacks an integration clause, which is

one factor to consider, although it is not dispositive. See C & J Vantage, 795

N.W.2d at 85.        Describing the written lease as skeletal would be generous

considering the major bones it is missing. There is no legal description of the

leased parcels.9 The written lease does not describe the type of crops to be

grown and, in fact, did not even require Four Aces to farm the land. Nor did the

written lease preclude Four Aces from using the land for non-farming purposes.

9
  The    lease only indicates the 690 acres of leased parcels were located somewhere
within   four square miles of land. The parcels were located in four separate sections of
land.     A section is defined as “[a] piece of land containing 640 acres, or one square
mile.”   Black’s Law Dictionary 1473 (9th ed. 2009).
                                            14


Four Aces could have used the land to stage a Wadena-like rock festival, or it

could have operated a salvage yard on the property. Other terms typically found

in a farm lease are absent. The absence of these significant terms supports the

court’s finding that the lease was not the full extent of the parties’ agreement—

the parties obviously knew the location of the leased land and that it was to be

used for farming, but simply did not memorialize these terms in the written lease.

       The “totality of the evidence” is to be considered when determining if a

written agreement is fully integrated. See id. The surrounding circumstances

and vagueness of the lease persuasively point toward a non-fully integrated

agreement between the parties, which allows for the consideration of parol

evidence to show the unwritten portion of that agreement. See Sol Popofsky

Co., 248 N.W. at 360. The district court properly considered the parol evidence,

so we next turn to the question of whether or not Peck established that there was

a 50/50 oral crop share agreement.

IV.    Oral Agreement

       Peck argues that “[i]n order to give any real meaning to the written

contract entered into between the parties, it would be necessary for the parties to

also have an oral contract,” and “the course of conduct between the parties over

the 2007 through the 2011 farm years [evidenced] the parties’ oral agreement.”

       The parties’ written agreement,10 entitled “Farm Lease,” provides in full:

       This lease is made between Ron Peck, owner and Four Aces
       Farms, tenant. This lease will be from March 1, 2009 to March 1,
       2010. The parcels of land are approximately 689.5 acres. The

10
  Minor changes were made to the leases for the 2007, 2008, and 2009 crop years. For
our purposes, we have used the 2009/2010 lease because that was the lease renewed
due to lack of termination and in effect at the time the dispute between the parties arose.
                                       15


      parcels are located in Section 29 of Scott Township, Section 34 of
      Pleasant and Sections 5 & 6 of Jackson Township of Poweshiek
      County. Tenant agrees to pay the owner $200 per acre.

             The land rent is $200 x 689.5 acres = $137,900.
             The tenant will pay $68950 on March 1, 2009.
             The tenant will pay $68950 on December 1, 2009.
             The tenant will pay bin rent at 15 cents per bushel. The
      tenant will also pay electricity and propane used.

      The written agreement includes no reference to any agreement between

the parties to share crop profits or other revenues or expenses. But that does

not preclude an oral agreement co-existing with the written agreement. This type

of relationship has been acknowledged by the supreme court:

      An examination of our lease cases wherein oral evidence was
      offered to show a collateral agreement shows where the parol
      evidence is of an agreement which did not vary or affect any of the
      terms of the written lease, but was beyond and independent of it, it
      was admissible. In [Witthauer v. Wheeler, 150 N.W. 46, 47-48
      (Iowa 1914),] plaintiff leased from defendant, in writing, for two
      years a 2400 acre ranch only 200 acres of which was tillable, as a
      farm and stock ranch. The crop rent was fixed in the writing but no
      mention was made as to any agreement between the parties jointly
      conducting the business of stock raising, the parties to share
      equally in the increase of said stock.

Gordon v. Witthauer, 138 N.W.2d 918, 920 (Iowa 1965). And as we observed in

the preceding section, this is precisely the type of situation where extrinsic

evidence may be admitted to show the complete duties and obligations of the

parties. See Witthauer, 150 N.W. at 47-48 (affirming admission of evidence of

“conversations between the parties prior to the execution of the written lease [to

rent land to use as a farm and stock ranch], which as claimed resulted in an

agreement between them that appellant was to stock the ranch with cattle which

were to be cared for by the appellee, and the increase of the same was to be

divided between them”); see also Parriott v. Levis, 195 N.W. 578, 579 (Iowa
                                         16


1923) (“[T]here may be at the same time two contracts coexistent, one of which

is in writing and complete in itself, and the other of which is in parol and complete

in itself. . . . In such case the written contract is not altered, varied, or changed

by proof of the coexistent oral contract.       The writing embodies the written

contract, and the oral evidence established the parol contract. Even in such a

case, evidence of a contemporaneous parol or collateral agreement is only

available when it refers to a matter on which the writing is silent, and which is in

no manner inconsistent with the terms of the written instrument.”).

       That having been said, it is Peck’s burden to prove there was an oral

agreement for a 50/50 crop share. Hawkeye Land. Co. v. Iowa Power & Light

Co., 497 N.W.2d 480, 486 (Iowa 1993) (“A party who seeks recovery on a

contract has the burden to prove the existence of the contract.”). “[P]roof of a

claimed oral contract must be clear, satisfactory and convincing.           A mere

preponderance of the evidence is not enough.” Ehlinger v. Ehlinger, 111 N.W.2d

656, 659 (Iowa 1961). For evidence to be clear and convincing, it is necessary

“that there be no serious or substantial doubt about the correctness of the

conclusions drawn from it.” Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.

App. 1983). Although only a reasonable certainty an oral contract existed need

be shown, the terms must be sufficiently definite to determine with certainty the

duties and obligations of each party. Netteland v. Farm Bureau Life Ins. Co., 510

N.W.2d 162, 165 (Iowa Ct. App. 1993). “For a contract to be valid, the parties

must express mutual assent to the terms of the contract.” Royal Indem. Co. v.

Factory Mut. Ins. Co., 786 N.W.2d 839, 846 (Iowa 2010).
                                       17


      The written lease provides for cash rent only. To assure good relations

and the ability to continue to farm the land, in 2008 Four Acres paid a bonus to

Peck in connection with the 2007 crop year. The initial bonus was calculated by

Helm in a format reflecting shared income and shared expenses much akin to a

50/50 crop share less the cash rent previously paid. Before paying the 2008

bonus to Peck, Helm discussed the use of a bonus with farm consultant Kennett.

Bonus structures were familiar to Kennett, and he explained bonuses were paid

by tenants to landlords because the changing grain markets caused negotiated

cash rents to go “out of whack.” The use of bonuses that were not contractually

required also did not violate any rules of the governmental agency, Farm Service

Agency (FSA). Four Acres also similarly calculated and paid a bonus in 2009. In

2010, because of reduced profits, no bonus was paid.         The landlord-tenant

relationship then began to sour.

      Unfortunately, the calculation and payment of bonuses apparently left

Peck with the impression that he was somehow entitled to a 50/50 sharing of

profits—notwithstanding the unambiguous terms of the parties’ lease. It seems

highly improbable that Helm would have agreed to Peck’s version of the contract

terms because the contract would have run afoul of the FSA rules. Helm also

had a logical reason for paying the bonuses—retaining the ability to farm the land

for future years. Moreover, Peck presented no evidence of any conversations

with Helm suggesting the parties agreed to a crop share arrangement with or

without cash rent. At most, Peck testified, “It was a 50-50 agreement, which

we’ve always done.” He referenced no specific conversations with Helm. On the
                                           18


other hand, both Helm and Kennett testified about their conversation concerning

providing a discretionary bonus to Peck.

       Other evidence also supports the position of Four Acres.             The written

lease required full payment of bin rent and chicken litter by the tenant, which is

inconsistent with a crop share arrangement where expenses are shared. Four

Acres or Helm maintained the crop insurance on all the acres rented, and FSA

forms reflected that Four Acres was the sole producer/operator. Further, Peck

was not involved in any decision making, except to perhaps share his advice or

predictions of the grain markets.11

       Upon our de novo review of the record, we conclude Peck has not

established by clear, satisfactory and convincing proof that an oral 50/50 crop

share agreement was ever reached between these parties pertaining to Peck’s

land or Beverly’s land. There was no meeting of the minds concerning a crop

sharing arrangement.      Accordingly, the district court’s declaratory ruling and

judgment should be modified to strike the award to Peck of $19,218.14 for 2010

crop share and $94,090.74 for 2011 crop share. Thus, Peck is entitled to recover


11
   One commentator has acknowledged the existence of flexible cash rent arrangements
in stating, “Flexible or adjustable cash leases set the rent based on the crop yield, the
crop price, or a combination of these attributes.” Edward Cox, A Lease-Based Approach
to Sustainable Farming, Part II: Farm Tenancy Trends and the Outlook for Sustainability
on Rented Land, 16 Drake J. Agric. L. 5, 23 (Spring 2011). But in crop share
arrangements,
         [t]ypically landowners contribute a share of the farm inputs and are more
         involved in land use decision making. This added involvement and risk
         can affect social security payments, taxes, estate planning, and the
         distribution of farm program payments. Simply stated, landowners would
         be more likely to be viewed as self-employed and more likely to be
         eligible for a share of any farm program payments.
Id. Here the parties never committed to any formality of the bonus arrangement.
Rather, it was left to the discretion of Four Acres. Further the only sharing Peck wanted
to participate in was a share of the profits.
                                         19


$101,439.60 from Four Aces for 2020-11 bin rent ($9,272.00), 2011 cash rent

installment ($68,950), 2011-12 bin rent ($10,817.60), and 2011 cash rent for

Beverly’s land ($12,400).

V.     Corn Stover

       As the district court found, “Peck took over during the fall of 2011 and had

the corn stalks chiseled in for the 2012 crop preparations. That unilateral act

before the lease end, denied the 2011 tenant [Four Aces] opportunity to harvest

stover from 2011 corn production.” In view of the crop-share agreement it found,

the court awarded Four Aces one-half the value of the stover.            Four Aces

contends the district court “improperly awarded only one-half of the crop stover to

Four Aces,” contending that it had the right to collect “the full stipulated value of

the stover: $20,429.”

       As set forth above, the parties’ agreement did not include a 50/50 profit

sharing arrangement. Pursuant to Iowa Code section 562.5A, in the absence of

a written agreement to the contrary, “a farm tenant may take any part of the

aboveground part of a plant associated with a crop . . . until the farm tenancy

terminates.” This court recently interpreted this language as entitling a tenant to

damages for the value of the destroyed corn stover when the landlord entered

the property before the termination of the lease to perform fall tillage, preventing

harvest of the corn stover by the tenant. See Slach v. Heick, No. 14-0539, 2015

WL 1546445, at *4, 18 (Iowa Ct. App. Apr. 8, 2015). Section 562.5A applies to

leases that renew for lack of notice of termination after the provision’s effective

date of July 1, 2010. See id. at *12, 15. Accordingly, section 562.5A applies to

the parties’ lease for the 2011 crop year, as it was a renewal of the prior year’s
                                         20

lease due to lack of termination on September 1, 2010.              See Iowa Code

§§ 562.6, 562.7. Four Aces was therefore entitled to the full value of the stover,

not half as found by the district court. Accordingly, the district court’s declaratory

ruling should be modified to credit Four Aces in the amount of $20,429, the full

value of the crop stover from the 2011 crop.

VI.    Interest Awarded on Amounts Tendered

       Four Aces claims the district court “improperly awarded Peck interest on

amounts that Four Aces had previously tendered and Peck had rejected.” Four

Aces contends it is not obligated for interest beyond the date of tender.

       The district court ordered that the judgment of $204,072.08 “shall draw

interest at the annual rate of five percent, factored from March 28, 2012 [the day

Peck’s lawsuit was filed].” Four Aces contends its November 21, 2011 letter and

enclosed checks totaling $101,379.60 was an unconditional tender to Peck,

rendering the district court’s award of interest on these amounts improper. A

bona fide tender precludes the accrual of further interest on amounts due. See

In re Estate of Zach, 131 N.W.2d 484, 486-87 (Iowa 1964). But the tender must

be “absolute and unconditional” to be effective. Decorah State Bank v. Zidlicky,

426 N.W.2d 388, 391 (Iowa 1988).

       Peck counters that language of Four Aces’s letter indicating the offered

checks represented “payment in full” for the 2011 farm rent made the tender

conditional—acceptance of which would form an accord and satisfaction

discharging Peck’s claims against Four Aces.

              To constitute an accord and satisfaction . . . all that is
       necessary is that the money should be tendered in satisfaction of
       the claim; that the tender be accompanied with such acts and
                                         21


       declarations as amount to a condition that, if the money is taken, it
       is accepted in satisfaction. The conditions under which the tender
       is made, and the conduct of the party at the time of the tender,
       however, must be such that the party to whom it is tendered is
       given to understand that, if he takes it, he takes it in satisfaction of
       his claim, so far as the other party is concerned. He must either
       refuse or accept it. If he accepts it, he is bound. If he takes it, his
       claim is canceled.

Shahan v. Bayer Vehicle Co., 162 N.W. 221, 223 (Iowa 1917).

       For the acceptance of the tender to be considered an accord and

satisfaction, there must have been a genuine dispute concerning the amount

due.   See Olson v. Wilson & Co., 58 N.W.2d 381, 386 (Iowa 1953).                 The

November 2011 letter individually listed the amounts enclosed for the 2010-2011

and 2011-2012 bin rents. There was no dispute at the time as to the amount of

bin rent due to Peck. These amounts were provided on separate checks and

Peck was free to accept them without the risk of discharging his claim.

Therefore, the tender of $20,089.60 for bin rent was unconditional and the award

of interest on this amount was improper. See Zidlicky, 426 N.W.2d at 391.

       The parties did have a dispute, however, over the nature of their land

rental agreement. Peck had already rejected the 2010 “bonus” payment offered

by Four Aces on the basis that it was not properly calculated. Peck’s letter

instructing Four Aces not to market any of Peck’s grain was at direct odds with

Four Aces’s contention that the leases had no crop share component.

       The existence of an accord and satisfaction is generally a question for the

trier of fact. See Perin v. Cathcart, 89 N.W. 12, 13 (Iowa 1902). We conclude a

reasonable trier of fact could have found the letter and accompanying

payments—had they been accepted—constituted an accord between the parties
                                        22

discharging Peck’s claim against Four Aces. See Seidler v. Vaughn Oil Co., 468

N.W.2d 474, 478 (Iowa 1991) (remanding to determine if plaintiff “knew or should

have known” that accepting a check with “Full, Final Settlement for Damages”

written on it was intended as a release of claims against the defendant); Perin,

89 N.W. at 13 (stating an accord and satisfaction “need not be express, but may

be implied from the circumstances”).      The tender of payment for the rental

amounts, therefore, was conditional and did not preclude an award of interest

See Zidlicky, 426 N.W.2d at 391. We therefore affirm the district court on this

issue of awarding interest.

       We determined above that the rental amounts Four Aces owed to Peck

totaled $101,439.60 and that Four Aces was entitled to a set-off of $20,429 for

the stover. The parties do not challenge the district court’s set-off of $461.90 to

Four Aces for a bin motor repair. Reducing the $101,439.60 by the two set-offs,

Peck is entitled to $80,548.70.      The district court’s declaratory ruling and

judgment should therefore be modified to reduce the amount subject to the

interest award to $80,548.70.

VII.   Conclusion

       In accordance with the above opinion, we modify the district court’s

declaratory ruling and judgment as follows: (a) the awards to Peck of $19,218.14

for 2010 crop share and $94,090.74 for 2011 crop share are deleted, (b) the

amount of set-off to Four Aces for the crop stover from the 2011 crop is

increased to $20,429, and (c) the amount subject to interest is reduced to
                                       23


$80,548.70. We affirm the district court’s declaratory ruling and judgment in all

other respects. Costs of the appeal are taxed to Peck.

      AFFIRMED AS MODIFIED.
