                                    NO.     95-217
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                           1996




              Defendant,  Third Party Plaintiff,
                  Respondent and Cross-Appellant,
         v.
MARTHA BANDEROB,
              Third    Party   Defendant    and Appellant.



APPEAL FROM:          District  Court of the Thirteenth Judicial District,
                      In and for the County of Yellowstone,
                      The Honorable Russell K. Fillner,   Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                      Terry L. Seiffert,        Attorney   at Law, Billings,
                      Montana
              For Respondent:
                      Mark E. Noennig; Hendrickson,             Everson,   Noennig   &
                      Woodward, Billings, Montana


                                    Submitted     on Briefs:       September   7, 1995
                                                     Decided:      February    6, 1996
Filed:
Justice         Karla         M. Gray delivered           the Opinion              of the Court.

         Pursuant             to Section     I,     Paragraph         3(c),        Montana Supreme Court
1995 Internal             Operating        Rules,       the following              decision        shall        not be
cited      as precedent            and shall        be published            by its      filing      as a       public

document with             the Clerk        of the Supreme Court                    and by a report              of its
result         to     Montana       Law Week, State                 Reporter        and West Publishing
Company.
         All        parties      appeal    from the judgment                  entered       in this            case by
the      Thirteenth             Judicial     District           Court,        Yellowstone               County,          on
findings            of fact       and conclusions             of law.          Neil     Banderob           appeals,
and the Estate                 of Frank Banderob              (Estate)        cross-appeals,               from         the
award to Neil             of limited        damages in his                action      against       the Estate.
Neil     and Martha            Banderob appeal            the award of damages to the Estate
on its         breach         of lease     claim.         We affirm           in part         and reverse                in
part.
         We address             the following        dispositive              issues:
         1.   Did the District   Court err    in                                   concluding   that              Neil
         Banderob consented to the compensation                                    he received?
         2.          Did the District Court err in concluding                               that        Neil     could
         not        recover under quantum meruit?
         3.    Did the District                   Court       err    in    concluding            that     no joint
         venture existed?
         4.          Did the District    Court err in awarding Neil compensation
         for        his services    and improvements to the property?
         5.    Did the District Court err in concluding  that                                             Neil      and
         Martha Banderob owed rent payments to the Estate?
         6.     Did the District    Court err in concluding  that Neil is not
         entitled    to a set-off    against rent owed, under the theory of
         unjust    enrichment,    for the Estate's     tax savings  from the
         special use valuation       agreement?
                                                          2
                                FACTUAL AND PROCEDURAL
                                                     BACKGROUND
         Neil     Banderob                (Neil)      is one of four                 children         of the decedent,
Frank      Banderob         (Frank).                 All     of the Banderob                      children       grew up on
Frank's         ranch      near           Pryor,      Montana.                Neil     was the only              one of the
children         to live         and work on the ranch                          for     most of his             life.        Over
the years,         Neil         purchased            equipment             and supplies              for     the ranch         and
paid     for     repairs         on ranch equipment.                           No express            agreement,           either
oral     or written,             existed             between           Neil     and Frank pursuant                      to which
Neil     was paid          specific                wages or reimbursed                      for     the purchases              and
repairs         he made.                  For his          participation               on the         ranch          from    1955
until     Frank's        death            in 1982, Neil             received           room and board,                  spending
money,         a share          of        veterinary              bills,        and a contribution                        toward
insurance         and licensing.                       Frank           also     provided            Neil      with       cattle,
grain      and pigs,            and the use of ranch pasture                                 and equipment.                  Neil
did custom ranch work for                            others        in addition              to his work on Frank's
ranch.
         In     1981,      Neil           and his           attorney           met with            Frank       and Frank's
attorney         in an effort                to obtain            "justice"           for    Neil's          contributions
on the ranch.               Neil            hoped that             Frank        would        "make it          right,"         but
acknowledged             that        it     was Frank's              decision.              Frank never              agreed        to
any change and Neil                        continued          on at the ranch                     as before.
         Frank      died         in        1982,       leaving             a 1978 will               that      devised         his

estate         equally          among his                  four        children          and       designated             Neil's
brothers         Joe and Norman as co-personal                                       representatives.                   On June

18,      1982,      Neil         filed             a creditor's                claim        with       the      Estate         for
approximately             $175,000 for labor,                        equipment,             supplies,         and repairs.
                                                                   3
The Estate             rejected           his        claim.            Neil     filed         this        action      based       on
agreement          or quantum meruit                        soon thereafter,                      seeking         compensation
for       labor,           equipment,                 supplies                and      repairs,               and      for      the
appreciation                in      value            of      the        property             which          resulted           from
improvements              he made.
         Effective           January           1, 1984, Neil                  and his wife            Martha        leased      the
ranch      from the Estate                     for        one year.            The lease             was automatically
renewable          each year            unless            terminated            in writing             six     months prior
to the end of the year.                              Annual rent              was $11,001.25,                 to be paid         in
equal      installments                of $5,500.63                on January               1 and September             15 each
year.         Prior        to any termination                       of the lease                  based on default               by
Neil     and Martha,              the Estate              was required               to serve          a written             go-day
notice        of default.
         In     October           of      1984,           the      heirs,           including             Neil,      signed           a
special         use       valuation              agreement              under         Section             2032(a)        of     the
Internal        Revenue Code.                   Such an agreement                      reduces         the valuation             of
property        for        estate         tax        purposes,           provided             that     a family          member
materially            participates              in its            operation           for     10 years.             The Estate
saved approximately                     $110,000            in federal              estate        taxes       as a result        of
the agreement.                   Neil     did         not       renegotiate             any lease             provisions         in
exchange        for       signing         the special               use valuation                   agreement.
         Beginning           in     September               1986,       and excluding                 the January              1993

payment,           Neil          and    Martha              did     not        pay      the          semi-annual              lease
payments.             In September               of 1987,              the Estate            sent      a letter         to Neil
and Martha            stating          that,         because they               had failed             to pay the rent,
it     appeared           that      the        lease        was no longer                    in     effect.          Neil       and

                                                                   4
Martha's          attorney      responded            that        the lease          was still             in effect.
          On September          28, 1990,            the Estate             gave Neil             and Martha             a 90-
day      notice       of     default            relating         to      their       failure             to     make rent
payments.           After      Neil        and Martha            failed          to cure          the     default,         the
Estate      filed         a counterclaim             in this           action        alleging           breach          of the
lease      and failure          to cure default,                      and seeking            accrued            and unpaid
rent.        Neil          asserted         affirmative               defenses         to         the     counterclaim
seeking       set-offs         for        expenses         he incurred              in undertaking                  unusual
maintenance           and      improvements                on     the       property              and     for      the     tax
savings       realized          by        the     Estate         from       the      special            use      valuation
agreement.            He also             sought      to     modify          the     lease          as a result              of
alleged      Agricultural             Stabilization               and Conservation                  Service         payment
modifications.
          The Estate          mailed        Neil     and Martha             a second notice                     of default
on May 8, 1992, when it                     discovered            that      Neil     was asserting                a defect
regarding           the     earlier         notice.              Thereafter,                the     District             Court
allowed       the     Estate          to file        an amended pleading                          reciting         the     new
default      notice         and requesting                 declaratory             relief         in the event             the
default      was not timely                cured.          Alternatively,               and in the event                   the
court       determined,              as     Neil      asserted,              that      the         lease         had      been
terminated,           the     Estate            sought      the       reasonable             value        of      Neil     and
Martha's       use and occupation                   of the ranch beginning                         January         1, 1986.
Martha      was added as a third                     party        defendant.
          The District          Court held a bench trial                           and, thereafter,                 entered
extensive          findings      of fact           and conclusions                  of law.             With regard          to
Neil's       claims         against        the      Estate,           the    court          concluded            that     Neil

                                                             5
consented           to the compensation                      he received             as full            payment         for         his

services           and supplies           contributed                to the ranch,               that     Neil        could not
recover           under       quantum         meruit         and that              no joint             venture         existed
between           Neil      and Frank.               In addition,             however,             the     court        awarded
Neil       $19,283,          representing                $1,640        in    compensation                and $17,643                  in
simple        interest            at   6%, for           services           to the ranch                and $10,000                 for
the enhanced value                     of the         ranch       resulting           from         improvements                    Neil
made.
           With regard             to the Estate's               counterclaim,                  the court        determined
that     Neil       and Martha had breached                          the lease by failing                    to pay rent.
It     entered           judgment       for     the Estate             in the amount of $114,277.45                                   in
delinquent               lease     payments          and interest,                 as well         as lease           payments
accruing           until         the   lease        is    terminated           and the property                       vacated.
The total            amount of Neil's                    judgment,           $29,283,             was to be set                     off
against           the      accrued        interest              portion        of         the     Estate's            judgment
against           Neil     and Martha.
           Neil     and Martha           appeal           and the Estate                  cross-appeals.
                                               STANDARDOF REVIEW
           We review             a district          court's          findings            of fact        under        a three-
part       test     to determine              whether           they are clearly                  erroneous.             Daines
v.      Knight            (1995),       269         Mont.        320,       324-25,              888     P.2d         904,          906
(citations               omitted).        A finding              of fact       is clearly                erroneous            if      it
is not        supported            by substantial                evidence           or,     if     so supported,                    the
district           court         misapprehended                 the evidence              or this          Court        is         left
with       the      definite           and firm             conviction             that          a mistake            has been
committed.                  Daines,           888        P.2d     at        906.           We review              a     court's

                                                                 6
conclusions            of law to determine             whether       they        are correct.             Dairies,
888 P.2d at 906.


                                                 DISCUSSION
        1.   Did          the District   Court                 err  in concluding                      that      Neil
        consented          to the compensation                he received?

        With regard          to Neil's         claim    for   compensation               for    his labor         and
other      contributions             to the ranch         operation             before         Frank's        death,
the District            Court     found       that    the benefits             Neil     received         were all
that       Frank       agreed     to     pay     and that        Neil       remained            on the          ranch
despite        Frank's      refusal       to change his compensation                       practices.             The
court      also       found that,       although       Neil      hoped to negotiate                 a purchase
of the       ranch,       no agreement           was reached         and Frank            did     not promise
Neil    that      he would receive             the ranch when Frank died.                        The District
Court      determined        that      Neil    was bound by his admission                       that     the only
agreement          between      Neil     and Frank was that               Frank would pay what he
felt    like       paying       and concluded,          under      § 28-2-503,                 MCA, that         Neil
accepted          and consented           to    the    compensation             he received              as being
full    payment.
        Neil       does not       specifically          contend         that     the court's             findings
relating          to the extent          of the agreement            between            himself        and Frank
are clearly            erroneous.         He argues       that     the District                Court     erred      as
a matter          of law in failing             to conclude,         under            § 28-2-503(2),             MCA,
that    his lack         of knowledge          of certain        facts     invalidated             his    consent
to the compensation                 and benefits        received         as full         payment.             He also
asserts        that     the cases relied              on by the court                 are distinguishable
on their          facts.
          Section              28-2-503(2),                    MCA,       provides                that       the       "voluntary
acceptance               of     the        benefit         of       a transaction                   is      equivalent          to      a
consent         to all          the obligations                   arising        from it,            so far        as the facts
are      known or ought                    to be known to the person                                accepting."               Neil's
first        contention                   is      that         he     accepted--and                      consented        to--the
compensation                  and benefits               Frank provided                 based on an "impression"
or      "anticipation"                    that     the ranch              ultimately              would be his.                Thus,
according           to Neil,              he did not know of the "fact"                                   that     he would not
inherit         the ranch                 and,    as a result,                 his    acceptance              and consent            do
not preclude              recovery               for     his    labor       and other              contributions              to the
ranch.
          The problem                with Neil's               contention            is that         it     is not supported
by either           the stipulated                     facts        or the evidence                  presented          at trial.
Neil      stipulated                to the fact            that      no specific              agreement            entitled       him
to      wages or reimbursement                            for       ranch-related                  purchases.             He also
stipulated            that,          when his mother died                        in 1975, he signed                    papers          at
his      father's             request          transferring               property            from his           mother's       name
to his       father's               name.        He further           agreed that                 he tried         to negotiate
with      his       father           through           attorneys            in       1981 for             "justice,"          hoping
that      his     father             would        "make it           right."            Finally,             he acknowledged
that      such decisions                       were entirely               up to his                father         and that       his
father       never            did        "make it        right."
          In addition,                   as found by the court                       and not challenged                  by Neil,
Neil's          effort              to     negotiate              a purchase                 of     the       ranch      was      not
successful.               Nor did Frank ever promise                                  Neil        that     he would receive

                                                                      8
the ranch when Frank died.                                Simply           stated,            and as the court                      found,
the benefits              Neil        received            were all              that        Frank        agreed         to pay and
Neil       stayed       on, despite               Frank's             refusal             to pay increased                  benefits.
           The      stipulated                    facts           and         evidence                  are       clear                 that,
notwithstanding                  Neil's       efforts            to acquire                the ranch while                   Frank was
alive       or ensure             that       he would            receive             it     after        Frank's            death,          no
agreement          was reached.                   The evidence               also          is clear           that,      while           Neil
could       have left                the    ranch         at      any time,                 he chose            not         to     do so;
indeed,          Neil     stayed           on at the ranch accepting                                the compensation                       and
benefits          Frank provided                  with         full        knowledge              of the circumstances.
These facts,              as found             by the District                         Court        and unchallenged                        by
Neil,       are     the       pertinent             "facts"               under        § 28-2-503(2),                   MCA, which
were       known         by      Neil        in      continuing                 to         accept         the         compensation
provided          by Frank.
          Against         this       backdrop,            Neil         argues          that       his    parents             "gave him
the        impression"                the         ranch          would            be        his         some          day         and       he
"anticipated"                 that      the ranch would be his                              someday if                he "stuck             it
out. "       This argument                  essentially                requests             us to determine                      that     the
District          Court          erred       in     failing               to make additional                          findings--in
Neil's       favor--and,                based on such additional                                  findings,            to conclude
that      he did         not consent               to the compensation                            he received.
          With      the       exception             of    his          own testimony                    in     these             regards,
however,          Neil        did     not provide                evidentiary                  support           for     either             the
"impression"              or the           "anticipation."                           Neil      was required                      to prove
these       matters           in order         to negate                  the Estate's              consent            defense;             he
did      not establish                them to the District                           Court's            satisfaction.

                                                                      9
           It        is      the     sole      province       of     the     trier       of     fact--here,              the
District              Court--to         weigh evidence             and determine             the credibility              of
witnesses,                 and we will         not substitute              our judgment          for     that     of the

factfinder.                   Magone v.         Froehlich          (1995),      270 Mont.          381,      387,        892
P.2d 540,                 544 (citation          omitted).           We cannot          conclude        as a matter
of law that,                  for     purposes       of 5 28-Z-503(2),                MCA, Neil         established
his     lack          of knowledge            of material          facts     regarding          the compensation
and benefits                  he accepted           and to which he consented.
         Neil's              second contention              is that        the District           Court         erred     in
relying              on Stone-Ordean-Wells                  Co. v. Anderson             (19231,         66 Mont.         64,
212 P. 853, and Cook-Reynolds                             v. Beyer         (1938),       107 Mont.        1, 79 P.2d
658,       because             those        cases    involved        written          agreements.           We agree
that            the         facts       on      which        those         cases        were       decided           were
distinguishable                      from those      in the present             case;        in addition,           it    is
not     clear              that      those      cases       are    applicable           here      in     any      event.
          Even assuming                 that     the cases relied              on by the District                  Court
were        inapplicable,                   however,        Neil      presents          no      authority          which
supports              his     position,         and we have located                  none.       On the basis             of
the     record              before     us, we cannot              conclude      that         the District          Court
erred           in    determining            that    Neil     consented         to the compensation                      and
benefits              he received.


          2. Did the District  Court err in concluding                                           that    Neil      could
          not recover under quantum meruit?
         Neil             asserted        a right       to recover          the value          of his       services,
expenditures                  and use of his equipment                 in the ranch operations                     under
the theory                of quantum meruit.                The District             Court     concluded         that     no
                                                              10
quantum meruit              recovery          was available                 to Neil.
          "Quantum Meruit"   as an amount of recovery   simply means
          "as much as deserved, " and measures the recovery under an
          implied  contract  to pay compensation as the reasonable
          value of services   rendered.
Lutey       Construction-The                 Craftsman             v.     State      (19931,           257 Mont.            387,
391-92,          851 P.2d          1037,       1039         (citing         Kintz         v.        Read      (Wash. App.
1981),       626 P.2d             52,   55).           An implied                contract            arises         not     from
consent       of the parties,                 but from principles                    of natural               justice           and

equity,          based      on the       doctrine             of        unjust      enrichment.                   St.      James
Community Hospital                  v. Dep't           of Social            and Rehabilitation                         Services
(19791,       182 Mont.           80, 85, 595 P.2d 379, 382 (citation                                      omitted).             To
establish           an implied               contract         based          on unjust               enrichment,                the
plaintiff         must demonstrate                   misconduct            or fault            of some kind               by the
defendant           or     that     he was taken                   advantage             of     by     the       defendant.
Brown v.          Thornton          (1967),          150 Mont.             150,     156,        432 P.2d            386,        390
(citations          omitted).
          Based on its             determinations                  that      the benefits               Neil           received
were all         Frank      agreed       to pay and that,                    by staying              on at the ranch
under       those        circumstances               Neil     consented             to        the    compensation                he
received,         the District             Court determined                  that     no implied                 contract        to
pay additional              compensation              existed.             The court           relied        on St. James
Communitv HosDital                  in concluding              that        an implied           promise           to pay for
services          cannot          coexist            with      a        specific          agreement               to      pay      a
particular               amount,        or      in      a     particular             manner,               for         services
rendered.
          Neil       contends            that           St.        James           Community               Hospital               is
distinguishable               from       the present                case because                that       decision             was
                                                              11
premised           on the        existence              of a specific              contract           to pay,       and he is
correct           that      a written               contract           existed           in     St.      James Community
Hospital.            &          St.          James Communitv Hosoital,                         595 P.2d at 381.                  On
the other           hand,         our          conclusion        in     St.     James Communitv Hosnital--
that        no promise             to pay the value                    of services               will      be implied            if
there        is     a special                  agreement          to     pay       for        those       services         in         a
particular           amount or manner--is                        not expressly                 limited         to situations
involving           written           agreements           to pay.         St. James Communitv Hospital,
595 P.2d at 382.                        Neil      offers        no analysis              based on either                law or
logic       in     support           of such a limitation.
        We concluded                     above      that        the     District              Court      did     not    err      in
determining              that         Neil       consented        to the           compensation                he received.
That consent               created             an agreement            between Neil              and Frank that               Neil
would accept               the amount of money and other                                 benefits         Frank provided
as payment           for        his          services      and other           contributions               to the ranch.
On that           basis,        and pursuant                to St.        James Communitv                      Hospital,        we
conclude           that         no       implied          promise         to     pay          the     value        of   Neil's
contributions               exists             here as a matter                of law.
        Neil        argues         that         the evidence            shows that             Frank took          advantage
of     him and,           therefore,               that     he met the              Brown requirement                   that          a
plaintiff           demonstrate                 misconduct        or fault          by the defendant,                   or that
the defendant               took advantage                 of the plaintiff.                     See Brown, 432 P.2d
at 390.            Where,         as here,              the law will           not       imply        a promise         to pay
because an agreement                           to pay a particular                 amount or in a particular
manner exists,                  we need go no further                         in our analysis                  of a party's
entitlement                to     recovery              under     quantum            meruit.              Therefore,             we

                                                                 12
decline         to     address        Neil's         argument          that      he satisfied              the    Brown
requirement.
         We hold        that     the District            Court did not err                in concluding             that
Neil     could        not recover           under      quantum meruit.


         3.    Did the District                      Court       err    in     concluding           that     no joint
         venture   existed?
         As an alternative                  theory      of recovery             against        the Estate,         Neil
asserted        the existence              of a joint         venture          between himself              and Frank
for     the operation            of the ranch                from 1955 to 1982.                     The definition
of a joint           venture        has remained unchanged in Montana for                                  over fifty
years.       A joint           venture         is an:
         "enterprise     undertaken   by several persons jointly,                                           and
         more particularly,        as an association    of two or                                          more
         persons to carry       on a single    business   enterprise                                        for
         profit.     It has also been defined,    somewhat variantly,                                         as
         a special combination of persons undertaking        jointly                                       some
         specific     adventure for profit."
Wiesner      v.       BBD Partnership                 (1993),          256 Mont.         158,       162,     845 P.2d
120,     123 (quoting               Sunbird       Aviation,            Inc.     v.     Anderson         (1982),      200
Mont.     438,        444,     651 P.2d 622,             625 (quoting                Rae v.        Cameron (1941),
112 Mont.            159,    167,     114 P.2d 1060,               1064-65)).
         Four        elements        must be satisfied                    in     order        to    establish        the
existence         of a joint              venture:
         1) an express or implied                        agreement             or contract           creating
         the joint  venture;
         2) a common purpose                    among the parties;
         3) a community               of interest;            and
         4) an equal            right       of control.
Wiesner,          845 P.2d           at     123      (citation          omitted).              A joint          venture
                                                             13
arises          only      when         the          intention             of         the      parties        to       associate
themselves             in this        manner is clearly                        manifested.                Bender v. Bender
(1965),         144 Mont.         470, 480, 397 P.2d 957, 962 (citations                                              omitted).
          The     District             Court          entered              findings              with      regard           to      the
elements         which must be satisfied                            by a party              asserting        the existence
of      a joint         venture.                  Those        findings--taken                     singly         and       in      the
aggregate--reflect                     the        court's           determination                  that      Neil         did       not
satisfy         any of the required                     elements               for     a joint          venture,        and form
the basis         for     the court's                conclusion                that        no joint       venture         existed
as a matter            of law.             Neil     purports             to rely           on the Wiesner             principle
that      the agreement               to create               a joint          venture           may be inferred                  from
the parties'             conduct            or the surrounding                        circumstances             and, on that
basis,      argues            legal        error       by the             court.            His    position,            however,
essentially             requests             this      Court          to make findings                     different              from
those      made by the                District             Court          on each required                   element              of      a
joint      venture.
           With        regard         to     the      first         element,               the    court     found         that          no
agreement          existed            under          which         Neil        and Frank              created         the        joint
venture         and that          nothing             of      record           evidenced            a clear           intent             to
establish              such     a venture.                     Neil         does           not    contend          that          these
findings          are      unsupported                 by       substantial                   evidence       or       otherwise
clearly         erroneous             and,          based          on the            record       before        us,       no such
contention             could     be successful.                     There is no question                        but that               the
District           Court's             findings               in      this           regard         are      supported                  by
substantial             evidence;            moreover,              the court              did not misapprehend                        the
evidence          in     this     regard            and we are not                     left       with     a definite                  and

                                                                    14
firm       conviction              that     a mistake               has been committed.                      See Daines,                888
P.2d at 906.
           Neil      asserts         that         he satisfied                 the first--and,               indeed,          every--
element           required           to      establish                the       existence           of    a joint         venture.
His     arguments                consist           of     conclusory                  statements           that        "the      facts
clearly           reflect          that          [he]     in fact             did    meet     all        of the elements                 of
a joint           venture"          and that             "the        conduct          of the parties                from 1955 to
1982 clearly                reflected             they were acting                     in unison          to keep the ranch
in operation."                     Such assertions                       ignore       our standard               in reviewing             a
district            court's          findings                 of     fact.           We will         not         substitute             our
judgment            for     that      of the finder                      of fact       by reweighing                evidence            and
redetermining                    the credibility                    of witnesses.                   See Maqone,           892 P.2d
at 544.
           We conclude                    that          the        District            Court's           findings         of       fact
relating            to      the     nonexistence                    of        an express         or implied             agreement
creating           the joint          venture             are not clearly                    erroneous.             Because each
of      the       four       Wiesner              elements               must        be     satisfied             by    the      party
claiming           the existence                  of a joint              venture           (see Wiesner,              845 P.2d at

1231,         these        findings              provide           a sufficient               basis        for      the District
Court's           conclusion                that         no joint               venture        was established                    as a
matter         of         law.       Therefore,                    we need not               address         Neil's           similar

arguments                regarding           the         remaining                  three     elements             necessary             to
establish            the existence                  of a joint                  venture.
           We conclude              that         the District                  Court        did not err            in concluding
that       no joint              venture          existed.



                                                                         15
          4.      Did the District  Court err in awarding Neil                                             compensation
          for     services and improvements to the property?
          The District                 Court       awarded Neil             $1,640          as full        compensation
for       his      services,                 including           contributions                of      equipment                and
supplies,          together            with       6% simple          interest,        for     a total           of $19,283.
The court              also     awarded            Neil     $10,000,            as a set-off               against            rent
owed, for          the contributory                   value        of improvements                made to the ranch
during          the lease            which unjustly              enriched          the Estate.
         Neil          contends            that     the      District             Court      erred         by     summarily
relying           on     the         calculations              and      information            submitted               by      the
Estate's          expert          in       awarding         only       $19,283        on his          quantum           meruit
claim      for     services            as a ranch hand.                  The Estate            cross-appeals                  from
both      monetary            awards to Neil.                   Regarding           the award for                 services,
the Estate             argues        that     no basis         for     any award for              services            remained
after      the court            properly            rejected          Neil's       quantum meruit                 and joint
venture          theories.                 Regarding           the     award on Neil's                claim           for      the
contributory              value        of repairs           and improvements                 he made on the ranch
during         the lease,            the Estate           contends        that      no award is available                       as
a matter          of law where the property                            did not        increase          in value              as a
result          of the improvements.                        We address            the Estate's             cross-appeal
first,          looking        at each of these                  awards in turn.
         We concluded                  above that              the     District           Court      did        not     err     in
determining              that        Neil      consented           to the         compensation             and benefits
Frank provided                 for     his     services.             We also        concluded         that        the court
did not err             in determining               that      Neil      could not recover                 compensation
for      his      services            to     the    ranch       based          on either           a quantum            meruit
recovery           or     the         existence           of     a joint            venture.               We note,             in
                                                                16
addition,           that        the District              Court      entered           a finding           of fact           that
"[blenefits           paid         to Neil          for     his     work         on the         ranch     from         1955 to
1982 were equal                  to the reasonable                 value         of his        services."              Because
no legal          basis         remained          upon which         an award for               Neil's         services           on
the ranch properly                   could be premised,                    we conclude            that        the District
Court       erred          in      awarding          Neil         $1,640          as     compensation                 for     his
services          as a ranch             hand,      including            his     contributions             of equipment
and supplies.
          The parties             also dispute              the nature            and legal        propriety             of the
court's           award of           $17,643         as "6% simple                  interest"            on the          $1,640
award to Neil               for      his     services.            Neil         contends         that      this        award is
a conversion              of the $1,640              award into                current     dollars            or,     in other
words,       an adjustment                  for     inflation.                 The Estate          argues             that    the
court       erred     as        a matter          of law in awarding                   either      "legal            interest"
under § 31-l-106,                   MCA, interest             pursuant            to an agreement                   in writing
under       § 31-l-107,              MCA, or prejudgment                        interest         under         § 27-1-211,
MCA.        We need not resolve                      this      dispute.                Our conclusion                 that       the
District          Court          erred      in     awarding         Neil         the     $1,640         onto        which        the
"interest"           was added--or,                   under        Neil's          approach,            the      conversion
into        current             dollars            was      applied--necessitates                          our          further
conclusion           that,         however         denominated,                 the court         erred        in awarding
Neil      the additional                 $17,643.         Moreover,             based on our conclusions                          on
this       cross-appeal              issue        that      the District               Court      erred        in awarding
Neil       both     the $1,640              for     services        and the $17,643                    as interest,               we
need not address                  Neil's          argument        that     the court            erred     in relying              on
the Estate's               expert          to minimize            the amount of his                    award.

                                                               17
         The Estate              also        cross-appeals                 the District               Court's             award to
Neil     of $10,000,                 for     improvements                he made to the ranch                        during        the
lease,         as a set-off                against         rent     owed.          The court          entered             findings
that      the       value       of         the    ranch          was enhanced             by $10,000                 because         of
Neil's         improvements                 and that           the Estate           was unjustly                    enriched         in
that     amount.             Thereafter,                relying          on Overcast             v. Akra            (1982),        197
Mont.      276, 642 P.2d 1058, the court                                   concluded        that        tenants            could be
reimbursed            only       for         improvements                which      were permanent                    and which
enhanced            the value              of the property.                      Further         concluding               that     the
ranch      decreased             in        value        over       the      relevant            period         of     time,        the
court      ultimately                concluded             that     the Estate             had not          been unjustly
enriched.             Notwithstanding                      these        latter       conclusions,                   the    court's
judgment            included          the $10,000                set-off         against         the judgment                in the
Estate's            favor      for         improvements            Neil       made to the ranch.
         In Overcast,                the lessee             made improvements                    to the land in hopes
of eventually                purchasing              it.          When the lease                 expired,            the     lessor
offered          to     sell          the        land       to     the        lessee,           but      the        terms         were
unacceptable                to the lessee.                   Ultimately,                the lessee          filed          suit      to
recover         his    costs         in making permanent                         improvements.              Overcast,              642
P.2d      at     1060.           The "improvements                         clause"         in     the      lease           did     not
encompass             nonremovable                 improvements                  and,      at     trial,            the      lessee
failed         to     present              evidence         that        his       improvements              increased              the
value      of       the land.               Overcast,             642 P.2d at              1062.           We held          that         a
lessee     may not recover                       for making permanent                    improvements                unless        the
improvements                enhance the property's                         value;        stated       differently,                 "if
the tenant            has not made the premises                                  more valuable              to the owner,

                                                                   18
the owner has no obligation                        to make compensation,                               however great             the
expenditures          may have been."                   Overcast,               642 P.2d at 1062 (citations
omitted).
         Here,      the parties            stipulated              that,             over     the period              from      1982
to    1991 during             which       Neil        made the                improvements                   at     issue,       the
appraised          value      of the ranch decreased                            from $432,600                     to $210,000.
Such a decrease               in    value        is     not        determinative                   of       whether         Neil's
permanent           improvements                increased               the          value        of        the      ranch       for
Overcast         purposes,          however,            since           it      is     possible              that      a larger
decrease         in value       would have occurred                           absent         Neil's           improvements.
         Whatever          the "contributory                  value"           or costs            incurred           in making
the improvements              may have been,                  the record                   supports           only     a $1,900
enhancement           in     the value           of     the        ranch            from     Neil's           improvements.
Thus,      the     District           Court's         finding                that      the        ranch           increased          in
value       by     $10,000          as    a      result         of           Neil's          improvements                  is    not
supported         by substantial                evidence.                The Estate               "has no obligation
to make compensation,                    however great               the expenditures                        may have been"
for     improvements           that       did     not     increase                  the value           of the ranch                 or
for     repairs       that      were       the        tenant's               duty      under           the        lease.         &
Overcast,          642 P.2d at 1061-62.
         Neil      asserts      that       the Estate              conceded the $10,000                             amount via
the testimony              of its        expert.          The record                   reflects,             however,           that
the     expert's       report         states          only     that           the      value           of    the     ranch       may
have been enhanced by as much as $10,000.                                                  This     figure          included           a
specific         increased         value        of $1,900,               but also            included              $5,025       Neil
spent      for     repairs;         no testimony                   or        other          evidence          related           this

                                                              19
dollar          amount        for      repairs       to     any increase                    in     the        value      of     the
ranch.           Furthermore,               the District           Court            correctly             concluded            that
Neil     and Martha            are not entitled               to compensation                      for        repairs         which
were their             duty     under       the lease.
         Additionally,               the expert           rounded his maximum increase                                  in value
of     the ranch         up to         $10,000       by noting               that        there      'I [mlay       have been
some       other         contributions               out        thereE.1            'I        This         testimony               is
insufficient             to serve            as substantial                  evidentiary             support            for     the
difference             between         the established               $1,900              increased         value        and the
$10,000         award.
          We conclude               that      the    District            Court's             finding            that      Neil's
improvements             increased           the value        of the ranch by $10,000                              is clearly
erroneous             and that       substantial           evidence            supports            a $1,900            increase
in      value     to     the        ranch     as a result               of     permanent             improvements                  by
Neil.           We further             conclude       that        the        court         correctly             determined,
pursuant          to Overcast,               that    Neil       was not              entitled            to      recover        for
repairs          or    improvements              which      did      not       increase            the value             of     the
ranch.          We hold         that       the court         erred       in including                    in its        judgment
the $10,000             for     improvements;             we also            hold,         however,             that    Neil       is
entitled         to judgment               in the amount of $1,900 for                           such improvements.


          5. Did the District  Court err in concluding                                                    that         Neil     and
          Martha owed rent payments to the Estate?
          In     its     counterclaim               and third            party            complaint,              the     Estate
alleged         that     Neil       and Martha breached                      the lease           by failing              to make
the rent         payments,           and sought           recovery           of the unpaid                rental         amounts
and interest              thereon.            Based on its              findings            that         Neil      and Martha
                                                             20
failed         to make the rental                     payments              required       by the lease                and that
the      lease      does not require                    a notice              of default          before         pursuing         a
claim      for     rent,        the District                Court           concluded          that     Neil     and Martha
were      liable          to     the      Estate            for    the         lease      payments.               The court
separately             determined              that     the       payments           were due as a result                      of
Neil      and Martha's                failure         to cure the defaults                       of which          they    were
given      notice         and that         any error              in the first                notice      of default         was
cured      by      the       second        notice           which            Neil    received           and Martha           was
presumed          to have received.
          Neil     and Martha             do not challenge                      either         the District             Court's
findings          or its         Conclusion              of Law #12,                 based on those                findings,
that      they         are     liable          to     the     Estate           for      the     unpaid         rent.       They
assert         error     only with             regard        to the court's               Conclusion            of Law #13,
which      related           to the        sufficiency                 of     the notices              of default.         They
contend          that,         because          the     earlier             notice       incorrectly             stated      the
amount         owed and the               second notice                     was not       "served"          on them,         the
Estate         is precluded             from        pursuing           its      claim     for     rent.         We need not
address         Neil     and Martha's               argument           regarding          the sufficiency                 of the
default          notices,        however,             given        the court's             unchallenged                separate
determinations                 that     they breached                  the lease          and that         the lease         did
not require              the Estate             to give notice                 of default             before     pursuing         a
breach         action        based on failure                     to pay rent.
          In      pertinent             part,          the        default            provision            in     the      lease
provides:
                Default   by Tenants prior   to termination  of lease.
          If the Tenants should fail to carry out substantially     the
          terms of this lease, the Landlord may serve a ninety     (90)
          day written   notice to the Tenants of the Tenants' failure
                                                                  21
         to fulfill    the terms of this rental agreement, specifying
         the exact default,     and the requirements     to correct    said
         default.
                If the Tenants fail     to correct   such default   within
         the ninety     (90) days, the Landlord shall have the right
         to re-enter     and to take full   possession of the farm and
         buildings    . . . .
This provision                establishes                 the necessity                     of a go-day written                   notice
of default          and an opportunity                             to cure before                       the Estate         could      re-
enter,      take        possession                  of the          ranch        and terminate                    the lease.           It
does      not     require               such        a notice             before              the        Estate       may pursue            a
breach      claim           for     unpaid           rent.
         The Estate                did        not        pursue          its      right            of     re-entry         under      the
lease pursuant                to the notices                   of default.                    The claim           pursued         by the
Estate      is a claim              for       rent        owed by Neil                 and Martha under the lease.
Thus,      the District                 Court's            finding             that         the lease          does not require
a notice          of        default           before          a claim                 for     rent           may be pursued            is
supported         by the language                        of the lease.                      Moreover,            Neil     and Martha
admitted,         and the court                     found accordingly,                        that        they    failed         to make
the rent         payments             as alleged              by the Estate.
         While         a lease            is        in     effect              and prior                to    any termination,
tenants         are liable              for     unpaid         rent            pursuant            to the lease.                 Montana
Williams         Double            Diamond Corp.                   v.    Hill          (19781,           175 Mont.         248,     255,
573 P.2d          649,            653     (citation                omitted).                  Although            Hill       involved
distinguishing                when rent               was due under                     a lease              from when unlawful
detainer         entitles            a landlord               to treble                damages, our statement                       that
the      tenant        remains            liable             for        rent          under         an existing             lease      is
applicable             to     the       instant            case.               Here,         the District                Court     found
that     the lease                was never              terminated              by either               party;         indeed,     Neil

                                                                        22
admitted         at trial            that      the lease          was still              in existence.               We hold,
therefore,             that        the District              Court       did not err              in concluding                 that
Neil     and Martha                are      liable       to the          Estate          for     the     rent      owing         and
unpaid      under           the lease.
         Neil     and Martha                also      contend          that     the District              Court      erred           in
concluding             that        the Estate          was not estopped                   from pursuing              its        rent
claim.           Their          contention              is     based           on a 1987               letter       from         the
Estate's         counsel            containing          Joe Banderob's                   view that          the lease            was
no     longer          in      existence              because           of      the      unpaid          rent      payments.
According         to Neil              and Martha,             the Estate               should      be estopped                 from
changing         its        position           in    1990 by claiming                    a right          to unpaid             rent
under      the lease.
         The object                of equitable              estoppel           is      to prevent              a party         from
taking       unconscionable                    advantage          of     its      own wrong while                   asserting
its    strict      legal           right.           Matter     of Shaw (1980),                   189 Mont.          310, 316,
615 P.2d          910,         914       (citation           omitted).                An essential                element            of
equitable          estoppel               is    that         a party           must      detrimentally                   rely        on
another's         conduct.                King v. Rosebud County                          (1981),         193 Mont.             268,
279,     631 P.2d 711,                   717 (citing           m,             615 P.2d at 914).                    The party
claiming         estoppel              must act         upon the               other's         representation                   in     a
manner that             changes his position                      for         the worse.           Carroccia             v. Todd

(1980),         189 Mont.            172, 177, 615 P.2d 225, 228 (citation                                        omitted).
         Here,          Neil           and          Martha        did          not        establish               that          they
detrimentally                 relied        on the 1987 letter                       from the Estate.                    Indeed,
in     response          to     the       Estate's           letter,           Neil's          attorney          immediately
communicated                that     the lease           was still              in effect          and there             were no

                                                                23
further              communications              in that            regard.              Neil     and Martha             continued
to      live         and work           on the         ranch          and receive                 income          from     it.          We
conclude,               therefore,              that          the      District             Court         did      not       err         in
rejecting              Neil      and Martha's                 estoppel            theory.
          Finally,             Neil     and Martha contend                        that     lathes        bars the Estate's
claim      because             the Estate          failed             to pursue             a claim         for     rent         during
the period              between          1986 to 1990.                      Lathes         is     an equitable              concept
which          is     applicable          when there                  has been an unexplained                             delay         of
such       a duration                 and character                  that         would         create       an inequitable
result          if     the      asserted         rights          were enforced.                     Filler         v.      Richland
County              (1991),      247 Mont.              285,         290,         806 P.2d          537,        540      (citation
omitted).               Lathes          is not applied                    due simply              to elapsed             time,         but
turns      primarily              on whether             it     would be inequitable                         to enforce                the
asserted              claim;      each case must be determined                                     in light           of its           own
particular              circumstances.                   Filler,             806 P.2d at 540.
          Here,          the     lease      is     a written                 agreement            between          the      parties
which          has remained              in effect             since         it     was executed                in 1984.               The
first      breach            vis-a-vis          nonpayment                of rent          occurred         in September                of
1986.               The statute            of     limitations                     for      an action              on a written
agreement               is      eight      years.               Section             27-2-202(l),                  MCA.           It     is
undisputed              that      the Estate             counterclaimed                     for    breach         of the lease
via     unpaid           rent     in     1991,         well         within         the time         limit         specified             by
the statute.                   When an action                 is filed            within        the applicable              statute
of      limitations,               the     party         claiming             lathes            must demonstrate                      that
extraordinary                   circumstances                  exist         requiring             the       application                of
lathes.               In re Marriage               of Hahn and Cladouhos                                 (1994),         263 Mont.

                                                                     24
315,     319,          868 ??.2d 599,                601 (citation            omitted).
         Neil         and Martha              contend        that       the Estate          waited          to pursue         its
action          for     rent      until        the      special          use valuation             agreement           period
was over          and the Estate                    had saved $110,693                in taxes;              under     such a
circumstance,                  they       urge       that     allowing         the        Estate       to     enforce         the
lease would be inequitable.                                 We fail       to understand             how a benefit               to
the Estate             clearly          contemplated            by all        who executed             the special            use
valuation               agreement,               including            Neil,         can     constitute               such       an
extraordinary                  circumstance             as to require            the application                    of lathes
to the Estate's                  timely         pursuit        of a remedy under                   the lease          between
the      parties.                 This         is     particularly             true         in     light        of     Neil's
admissions              that     the lease             remained          in existence,             that      rent     was not
paid     and that             Neil      and Martha            continued        to receive              the benefits             of
the lease.              Moreover,             Neil     and Martha do not challenge                           the District
Court's          finding              that     the      Estate          refrained          from      terminating              the
lease          because         Neil      hoped to make the payments                              "when better               times
came.     ‘I

         Neil           and      Martha             have     not      demonstrated               any        extraordinary
circumstances                  which would require                      the application             of lathes           to the
Estate's              timely         claim.          See Marriase             of Hahn and Cladouhos,                          868
P.2d at 601.                   Nor,     under        the circumstances                of this          case,     have they
established              any inequity                 resulting          from requiring                them to pay the
rent     the lease              requires.              We conclude            that    the Estate's                  claim     for
rent     under          the lease             is not barred              by lathes.

         6. Did the District      Court err in concluding  that Neil is not
         entitled   to a set-off    against rent owed, under the theory of
         unjust   enrichment,    for the Estate's    tax savings   from the
                                                                   25
          special       use valuation               agreement?
          Neil     and Martha            claimed        that         the Estate            was unjustly             enriched
in   the amount             of     the     tax     savings            resulting             from     the     special          use
valuation           agreement            because          Neil        operated             the     ranch         during       the
special          use     valuation             period.                On that          basis,             they      asserted
entitlement            to    a set-off            against            rent      owed for             the     $110,000          the
Estate       saved under               the special          use valuation                   agreement.
          The District             Court       found       that        Neil     was aware of the Estate's
intent       to     seek         the     special          use        valuation             before         he signed           the
lease,      but included                no provision            in the lease allowing                       compensation
to   Neil         and       Martha--or             less         rent         from      them--upon                his       later
execution          of the agreement.                 Moreover,               Neil     freely         entered        into      the
special      use valuation                agreement,             together           with     Frank's        other      heirs,
some five              months          after      the       lease           was      executed.                Under         such
circumstances,              the District              Court          found no fault                 or misconduct               by
the Estate          with     regard        to the special                 use valuation               agreement.              The
court      concluded             that      the existence                of     a written             lease        expressly
stating          the payment--and                other--rights                and responsibilities                      of the
parties,          and the         absence         of misconduct                   by the          Estate,         precluded
recovery         by Neil         of the $110,000                 estate       tax savings             under an unjust
enrichment          theory.
          Neil     and Martha             do not        specifically                 contend         that        any of the
District          Court's          findings          of     fact        relating             to     the     special           use
valuation          agreement             and their         unjust           enrichment             claim     are clearly
erroneous.              Instead,           they     advance            conclusory                statements            such as
7P[o]bviously            they      were put in a position                           of being          taken       advantage

                                                                26
of.     .          ."         Neil        and Martha             also     do not assert             error        with     regard
to     the District                   Court's         legal         conclusions;              indeed,        they       cite       no
legal        authority               in presenting                this     issue.
            As     discussed                under           issue        two      above,        plaintiffs               seeking
recovery                under         a     theory          of      unjust          enrichment          must         establish
misconduct               or     fault         of     some kind             by the         defendant,           or     that       the
defendant               took     advantage            of them.             Brown,         432 P.2d at 390.                   Here,
the District                  Court        found no fault                or misconduct             by the Estate.                  We
review           that         finding         under         the      clearly         erroneous          standard.                See
Daines,            888 P.2d at 906.
            The evidence                  supporting          the court's            finding       indicates            that,      at
the     time        Neil        executed            the lease            with       the Estate          in May of 1984,
he knew that                  the Estate            intended            to seek the special                  use valuation
agreement.                With        that        knowledge,             he chose to enter                into       the lease
which         contained               certain          express            rental,         and other,             provisions.
Some months later,                         Neil     chose--together                  with     Frank's        other       heirs--
to execute               the     special            use valuation               agreement         which       would       result
in estate               tax     savings            to the ultimate                  benefit       of the Estate                 and,
therefore,               the     heirs.              The upshot              of these         two transactions                   was
that        Neil        made himself               a party        to two separate               written          agreements,
each        of      which        contained              express           terms        relating         to     the       subject
matter           of the agreement,                    and neither               of which referenced                  or varied
the     terms            of     the        other.           The aim of              the     special          use valuation
agreement               ultimately            was achieved:                  the Estate           benefited          by saving
approximately                   $110,000            in federal            estate       taxes.         We conclude               that
the District                   Court's            finding        that      the Estate           was not          at fault          or

                                                                     27
guilty        of any misconduct                      by electing             the special               use valuation              and
not      paying           the     tax     savings            to     Neil      is         supported           by substantial
evidence.
           Neil's         conclusory            arguments            in this         regard       essentially            request
us to determine                 that      evidence           exists         to support            a finding          different
from       that      made by the District                            Court         or,     in    the alternative,                  to
simply        make our own finding                        that        there        was fault            or misconduct              by
the Estate.               Neither         alternative               is available                under our standard                 of
review        of trial            court      findings.                See Daines,               888 P.Zd at 906.                   It
is     the     sole         province            of     the        trier       of        fact--here,            the     District
Court--to             weigh             evidence             and          determine             the      credibility               of
witnesses;            we will             not        substitute             our      judgment           for     that     of       the
factfinder.                 &      Masone,             892 P.2d at                544.          We conclude            that       the
District           Court's        finding            of no fault            or misconduct                by the Estate             is
not     clearly           erroneous.
           On the basis             of its           finding         that     Neil        had not established                     the
necessary             fault/misconduct                    by        the      Estate,             the     District             Court
concluded            that       Neil       was not            entitled             to     a set-off            against         rent
owed, under               the theory            of unjust             enrichment,               for     the Estate's              tax
savings            from     the     special           use valuation                  agreement.               As set          forth
above,        there        can be no recovery                     under a theory                of unjust         enrichment
absent        demonstrated                 fault        or misconduct                     by the        defendant.              See
Brown,        432 P.2d            at      390.          We hold,             therefore,               that     the     District
Court        did     not err        in concluding                   that      Neil        was not entitled                to the
set-off        under         the theory              of unjust             enrichment.
          We affirm             in part          and reverse                in part.             As a result              of      the

                                                                   28
partial      reversal,        we modify         the judgment       entered    by the      District

Court      by decreasing           the judgment       in favor     of Neil    Banderob        to the
amount      of     $1,900,         decreasing      the   set-off       against      the     accrued
interest         portion      of     the   Estate's      judgment       to   that     amount         and
increasing         the amount of the net judgment                  entered   against      Neil       and
Martha      Banderob,        and in favor        of the Estate,        accordingly.




We concur:




                 J,&strces




                                                   29
