*1 Beck, D. BECK Sharon K. Jester
Plaintiffs, Appellants, LIND, Defendant, Appellee.
Willie
No.
Supreme of North Dakota. Court 31, 1975.
Oct.
242
Freed, Dynes, Malloy Reichert, & Dickin- *5 son, plaintiffs, appellants; for argued by George Dynes. T.
Greenwood, Moench & Galloway, Dickin- son, defendant, for appellee; argued by L. Greenwood, E. Dickinson.
SAND, Judge. by plaintiff This is an appeal Beck from judgment of the district court of Dunn County and from the denial of his motion for a new trial.
Beck had leased his ranchland to Lind 1970, 1, April period for a years. of five Disputes later arose over this lease and other interrelated activities between Beck Lind, and which culminated in Beck initiat- ing legal against action defendant Lind. 1973, In September of Beck brought an contract, action for breach of for cancella- remaining tion of the term of lease, for additional rents due damages for caused cattle, the additional and for other amounts due him which оf arose out the interrelated during period activities of time in- volved.
The action was tried to the court without jury. judgment a The court’s terminated 1, 1974, April the lease as of but disallowed any rents due on the terminated lease and damages of the only portion a contained that provision allowed in the event the on related activities. grain Beck feed governmental claimed and wheat certifi- trial, for a which made motion new programs cate are discontinued Lind shall appeals followed. Beck was denied. Beck for up the loss revenue reimburse of numer- trial court made exceeding $2,500 contends per sum to but of to, identify, and will refer errors. We ous and that sum shall be year, payable at the are essential to the dis- those which discuss manner and in the as the pay- times lease appeal. of this position ments. part part reverse in remand
We
trial court
terminated and canceled
a new trial.
April
lease
of
1974. The total
start
due from the
of the lease
amount
are
before this court
The errors raised
1, 1970,
the date of
April
its termination
substantially
upon
the same as
which
those
court,
$46,000.
April
was
by the
trial.
relied for his motion for a new
trial court also held
plaintiff
was
majority
disputes
noteworthy
A
1, 1974,
rent from April
not entitled
five-year lease,
of
either
out
arose
1,1975. The trial
April
court found that
directly
relate
or indi-
part,
or in
whole
$48,566
of
had been paid
the sum
to Beck as
to it.
rectly
Lind,
15,1973, by
ostensibly
of June
transaction, Beck leased
the basic
In
$2,000
land. But Lind
lеased
admitted that
Lind
1,920
period
acres
land to
for a
was for
of this amount
rent for a separate
1, 1970,
April
at the
years, beginning
five
land,
parcel
reduced the amount of
$11,500
year, of which the sum
per
rate
$46,566.
The trial
payments
court held
$5,750
payable
was
on the 1st
due
Lind
the defendant
had fulfilled his
$5,750
year,
sum of
August
each
obligation under the lease and
financial
payable
day
January
on the 1st
due
overpay-
credit of
for the
$566
entitled
year.
of each
ment.
*6
480 acres of land that
The lease included
Beck, however, claims that
substantial
from the
North
had leased
of
Beck
State
payments
portions
pas
for rent and
Dakota,
prohibition
contained
which
rent,
wages.
but
ture were not for
were for
subleasing without
consent of
against
trial,
employ
Beck claimed
At the
that his
Dakota.
provided
of North
The lease
State
with
April 1,
Lind extended
ment
from
upon Lind’s failure
fulfill the cove-
that
31,
rate
to December
at the
of
Beck
with-
of the lease
could re-enter
nants
week,
$9,100,1
per
amounting to
which
$100
“working a failure of the rents to be
out
$46,566.
from
should be deducted
Beck
limited
to 130 head
The lease
Lind
paid.”
$1,546.78
that the sum of
also claims
should
during
period
except
cows
between
of
$46,566,
from the
be deducted
as such
April
year.
15 and
of each
A
November
represents payments
amount
due under the
premises
and
located on the
Quonset
home
agreed
Lind
whereby
up
lease
to make
Beck, but
Lind could use
were reserved
payments
whenever
under
difference
buildings as
сattle
other
needed. Four
in
program
which Beck
government
was
were leased
for the same
“brands”
Lind
$2,500
reach
per year.
failed to
enrolled
lease,
to the
agreed
Pursuant
Lind
period.
that
further claims
the additional
sum
premises
leased
at the end
surrender the
$1,499.70
him
govern
is due
under the
of
years in
and
good
the five
as
a condition
deficiency
year
contract
for the
ment
clause
them,
he took
wear and tear
repair when
court
1973.
trial
denied all claims for
damage
excepted.
by elements alone
and
deficiency payments.
payments
as stated in the
make
Failure
grounds
breach
constituted
for
Because this case
agreement
involves numerous
The lease also
agreement.
relating
allegеd
rulings
the lease
claims
erroneous
wages,
payments,
represents
than rental
according
This
rather
amount
to Beck.
evidence, we
admission of
deem it
on the
would be of no avail to the plaintiff in
to call attention to what
this
appropriate
case for two
this
decisive reasons.”
Allery,
in
v.
210 N.W.2d
said
Schuh
Court
The trial court -then referred
princi-
to the
(N.D.1973),
repeated
and which was
law found in
ples
Crum,
Janzen v.
supra,
Drilling
Liberty
Co. v.
Petroleum
Signal
in
Krueger
City
Hatton,
supra.
(N.D.1975)
Company,
N.W.2d 148
Matson,
(N.D.
“We
that a trial
in a
believe
the court should
find and con-
case,
nonjury
ordinarily
should
admit all
clude that
the version of the facts testi-
clearly
which is not
inadmissible.
plaintiffs
evidence
fied to
on this issue are
judge
competent
upon
A
who is
to rule
true and correct it would be of no avail to
admissibility of evidence can
plaintiffs
distin-
because
the principle of
mind,
in his own
when
guish
deliberating
law decided in the above cases.”
decision, between
his ultimate
evidence
We believe that the trial court misapplied
is admissible and
evidence which is
applied
broadly
too
the principle
of law
not admissible.
introduction of al-
stated in the above-cited cases.
inadmissible
legedly
nonju-
evidence
rarely
error,
will
ry case
be reversible
A contract of employment
per
possible
often avoid a
may
it
reversal in
forming
personal
lawful
service
per
is
se
court,
appeal,
where this
cases
holds
Therefore,
illegal.
if a contract or
the evidence is admissible.”
agreement
personal
for lawful
services was
into
entered
between Beck and Lind the
employment,
As to the
Beck claims that
agreement
contract
would be valid. The
paid by
was
check for the employment,
question
illegality
arises from the meth
the checks were labeled
pas-
but
“for
payment
manner of
od and
as distinguished
ture,”
rent,”
pasture
“for
or “for
and rent.”
from the basic contract for personal serv
claims that this arrangement
pro-
We,
course, recognize
ices.
that before
posed by Lind so that both
employer
question
payment
method of
can
employee
required
were not
to make
considered it must
first be determined
Security.
contributions to Social
a contract
personal services,
The trial
deliberating
court in
ques-
this
fact, existed.
tion,
as evidenced
the memorandum
agree
We
with the
principles
basic
of law
opinion, gave great weight
to the rule of
*7
Crum,
However,
announced in
supra.
we
law that the court will not
party
aid either
they
not
application
do
believe
have
here or
any illegal agreement,
nor enforce
but will
applied
should be
so as to miscarry justice.
parties
them,
leave the
where it
espe-
finds
cially
parties
pari
where the
are in
delicto.
Wisconsin,
Supreme
Court of
early
as
applied
The trial court
the rule announced
1898,
in Crowns v. Forest
Compa-
Land
Crum,
544,
in Janzen v.
50 N.D.
197 N.W.
103,
546,
ny,
said,
99 Wis.
74 N.W.
in a case
(1924),
Krueger
City Hatton,
138
and
v.
оf
involving a note
mortgage given
for
(1947).
75 N.D.
“But even if the court their it found of would seem a mon- plaintiff’s injustice permit and determined that the strous to ver- a mortgagor to the with respect sion of facts to his em- the of payment by defeat his debt bring- ployment by the defendant from ing any 4-1-70 such issue into a brought suit to true, not, 12-22-71 were which it mortgage. to does alleged foreclose his tur- belief, finding, or such determination pitude mortgagee furnishes no 246 mortgagor ny of discharge the also
ground during for that showed that the period just of his debt.” for payment taking the he worked Lind care the from that of land, leased cattle the worked with provide revenue laws internal land, they on the leased the were taxes the evasion of for ample punishment ranch, working on only two the and that any of A rule law or contributions. they performed the same tasks. so benefit applied not be as to event should perpetrator of violation. principal The commission of an act can be 31-11-05, 8 and subsections See Section by showing acts a similar of nature proved we making this observation In N.D.C.C. if acts are person the same connect by making implied suggesting or an are not way special indicating in some a relevan ed exist employment that an contract finding beyond similarity mere as to some cy partic ultimately to re is a matter be ed. This Martin, v. Curns 193 214 ulars. See N.W.2d facts. by the trier of solved (N.D.1971). proper The test whether evi is whether it is irrelevant would rea dence case, attempt Beck was In this not actually prove to sonably and tend or dis per his ing alleged enforce contract for any of matter fact issue. prove See intended use the services. He sonal Knoop, (N.D. Hogan N.W.2d 263 em payment alleged under method 1971); v. Brudevig, Bale 77 N.D. contract as evidence show that ployment (1950). N.W.2d still indebted to him for lease Lind was particularly pay certain payments object the court It is the in exer form of checks which were labeled ments in jurisdiction appellate cise of its assure $9,100 in the total “pasture rent” amount justice possible. as far as Haaland ultimate rеality payments personal serv were in Cooperative, Verendrye Electric rental of whatso ices and not land (N.D.1954). N.W.2d 902 prove attempted an oral ever. evidence, not for contract as but executed Generally, testimony of anoth enforcing any provision purpose as to the circumstances his person er it employment contract. Thus alleged relevant would to estab employment basically question respect of fact is in this However, employment. your own lish evidence, the rules governed to be facts, conditions, circumstances, where as to the amount of evidence particularly comparable are to the the similarities an oral to establish existence of needed relаtionship intended to be employment contract. testimony be admitted. proven, the should “ had em-
In an effort show Lind ‘An as to the existence occur- issue or same person another under ployed fact, condition, particular rence or Nich- arrangement, Beck called scheme event, proved by may be evidence as to (Nichols) an testify that he had such ols to or occurrence of the existence similar objection with Lind. Under arrangement facts, conditions, events, under ’ Lind, testimony of was ruled Nichols same, similar, substantially circum- Beck, trial court. in his *8 inadmissible the C.J.S., Evidence, 584, p. 32 § stances.’ proof, showed that Nichols was offer of Co., Ry. v. Union Pacific 438.” Ellis 148 by during the from employed period Lind (1947). Neb. N.W.2d 921 working that Nichols was 1970 to proposed testimony The of Nichols whereby arrangement employ- the an under value probative and should have been had reported was relationship not er-employee trial court committed error admitted. Security pur- and income tax for Social denying testimony. the admission of such in arrange- was the and that it same poses, deficiency payments, Beck claimed he As to the the trial under which ment testimo- that Beck prove Lind. Nichols offered found had failed to working for court by graph IV, arose reason of the any deficiencies the second amended com- programs federal any the plaint changed figures, had discontinuance but specifi- and that he was not by the lease cally covered answered as follows: anything. The trial to recover entitled “. . . that the Defendant has to mean that interpreted the contract court paid all sums that has been informed to nothing entitled from would be deficiency are due to the of Government government programs were unless the Lind payments, and that if the Plaintiff can discontinued, merely reduced, rather than establish that there are additional sums of the lease. during the term that he not due did inform the Defendant of the lease pertinent language per- of, that is willing Defendant to pay said is question this as follows: taining to agreement.” per sums as “IT AGREED That all IS FURTHER complaint and answer formu payments made in
governmental
connec-
late the issues of an action
may
and as such
operation
with the
said real estate
tion
constitute admissions which will stand un
feed
relating
governmental
grain
to
satisfactorily explained
less
contrary
programs, soil
wheat certificate
conserva-
through testimony
one
parties.
of the
programs
payable
other
shall be
tion and
Gallagher Haffner,
See
77 N.D.
to the said First Parties.
It is further
(1950).
N.W.2d 491
See also its
governmen-
that in the event the
limited
agreed
in
application as stated
wheat
Stockmen’s
grain
pro-
tal
certificate
Insur
feed
Agency,
ance
Inc.
Guarantee
grams
Party
are discontinued
Second
Reserve
Co., 217
Life
(N.D.
the First
Insurance
N.W.2d
shall reimburse
Parties for their
1974).
but
The effects
up
exceeding
of revenue
answer
loss
should
Two
Five
have been considered
the sum of
Thousand
Hundred
court in con
deposition, which,
($2,500.00)per year
junction
and that
with the
Dollars
said
we will
later,
at the
have
payable
point
permitted
sum shall be
times and in
out
should
been
payments.”
evidence,
the manner as the lease
be used as substantive
well
as
testimony
as the
defendant Lind.
whole,
a
provision,
This
taken as
is sub-
is ambiguous
to construction and
as to
ject
Lind,
witness,
as a
At the trial
was asked
payments
that the
it means
have
whether
any payments
if he made
under
provi-
totally
par-
discontinued or whether
question.
Lind
sion
claimed he could not
requires
payment
discontinuance
tial
Beck then attempted
remember.
use
been
payments which have
discontin-
those
deposition in which Lind had admitted mak-
portion
The last
strongly
or reduced.
ued
ing payments on that feature of the lease.
amount,
guaranteed
with
suggests
lessee
court, however,
dep-
The trial
held that the
deficiency.
paying
could not be used for impeachment
osition
other
purposes
purposes
because
show,
attempted
through
know if
Lind said he didn’t
he had made
testimony,
parties
that the
pleadings
that statement.
language
of the lease to
understood
smaller,
partially
reduced
discon-
mean
32(a),
Rule
North Dakota Rules of Civil
than
payments, rather
discontinued
tinued
Procedure,
provides,
part, as follows:
totally,
accordingly.
and in fact had acted
“(a)
At
depositions.
Use of
the trial or
answer,
In an amended
Lind admitted
of a
upon
hearing
motion or an inter-
making
he had
deficiency pay-
been
locutory proceeding, аny part
or all of
interpreta-
with Beck’s
in accordance
ments
as
deposition, so far
admissible under the
of the contract.
tion
applied
though
rules of evidence
Lind,
present
amended
in his second
answer to
witness were then
and testifying,
*9
against any
of action in the
may
party
first cause
second
be used
who was
the
stated,
complaint,
para-
present
under
at the
represented
amended
taking
reasonable no-
We
or who had
evidence.
would further note that the
deposition
the
thereof,
any
adopted
with
in accordance
in 1973
Rule 801 even before
court
tice
approved by Congress. Rule
following provisions:
801 as
it was
the
Congress
by
approved
changes
contains
may
by
be used
deposition
“(1) Any
significant
are not
this case.
In
of contradict-
purpose
for the
any party
case,
statement
in
deposition
the
testimony
depo-
impeaching the
ing or
as an
by
admissible
admission
a
would be
witness.”
a
nent as
801(d)(2).
Rule
opponent.
party
obviously designed to com-
was
rule
This
memory, exaggerations, under-
faulty
bat
Dickson,
in Battagler
This court
v.
defenses,
we
statements,
claims or
false
(1949),
38 N.W.2d
N.D.
said if
logical
justifica-
reason or
no
can think of
a
language
ambiguous
contract is
develop a rule which would abro-
tion to
parties
acts of the
subsequent
performed
limit,
application
its
so as
curtail
gate,
entering
pursuant
into the contract
after
purposes or
accomplish such basic
not to
may
helpful
determining
contract
in
designs.
рarties
intentions
and the con
on the
placed
language by the
struction
what
being
able to recall
A witness
application
This rule has
parties.
here.
is,
deposition
in
stated in
recently
he
contradicting that which
effect,
indirectly
it was
We conclude
error for the
deposition. This then
in the
stated
he
deny
use of the deposition.
trial court
one of the uses of
brings it within
clearly
Lind,
also
Beck
claims that
over
provided
for in Rule
deposition
damaged the 480
grazing,
acres of State
not a
question
whether or
On
(Beck) initially
land which
leased from
may
impeach a wit
be used to
deposition
and later sublet
to Lind. The
the State
Igoe,
v.
ness,
court in State
however,
this
court,
any recovery
denied
trial
291, 297,
discussing the Feder
after
N.W.2d
party
that Beсk
not the réal
the basis
Evidence,
specifi
Rules of
Proposed
al
and because the lease
in interest
from the
by saying:
concluded
cally Rule
a provision that
it
contained
was not
State
without consent of the
sublet
State.
to be
prior
state-
hold that
“.
.
.we
which is inconsistent
ment of declarant
damages to the
The
State land were not
testimony
the declarant at the
with
and,
permanent
according
nature
of a
trial,
being subject to cross-
the declarant
testimony,
the land could be restored
statement,
concerning the
is
examination
remaining period
of Beck’s lease
within
evidence of the
as substantive
admissible
damages
Thus the
suf-
from the State.
asserted in the state-
the matter
truth of
would be sustained
rather
fered
ment.”
damagе
to the lease-
than the State.
pasture
in the land or
being
resulted
hold
advisory committee’s notes as
accommodate the usual
number
unable
admissibility
the evidence stated:
to the
cattle,
limited it to a
but
smaller amount
tradi-
statements
“Prior
inconsistent
purposes.
grazing
Thus the
of cattle
impeach
been admissible to
tionally have
damage is for the loss of the use of the
evidence. Under
as substantive
but not
damage
such
is the value
property
they are substantive evidence.”
rule
to the leaseholder.
such loss
relating
this court
of law
to the holder of a
reached
The rule
conclusion
damages
is
supra, was in criminal case.
to recover
stated in
Igoe,
lease
State
Schumacher,
why
apply
it should not
trial
4;
for the use of
17
collecting payment
Contracts
Am.Jur.2d Con-
§
or
C.J.S.
ing for
error.
tracts
Quonset was
§
that Lind is liable to him
claims
Beck also
implied in
Contracts
fact are based
of cattle on the
additional heads
grazing
mutual
intentions
parties.
on the
of the
(pasture).
land
leased
court must determine
The
from the sur
and
rounding facts
circumstances whether
lease Lind was
the terms
Under
actually intended to enter into a
parties
of cattle on the
run 130 head
to
permitted
Bismarck Hospital
contract.
Association v.
15
April 1 and November
land between
Burleigh County,
(N.D.
Implied
‘.
.
.In
other
fact,
benefit,
retain,
inequitable
and con-
implied
contracts
of a
is the
classes:
up
findings by
trial court
the date
2. This is
the trial court in a new trial
paid
to Beck after
Lind had
rent
relationship
found that
employment
contend-
as to the
knowledge
overgrazing.
Beck had
ed
Beck.
subject
change depending
is
This date
obligation,
quasi-contractual
1973than
the lease allowed.
essence
Beck made no
quasi
objection
can lie in
con-
this breach
of action
until 1973.
no cause
not shown to have been
of the number of
against one
was aware
cattle on the
tract
land,
helped
wrongfully
рlaintiff’s
taking
at
care
ex-
of them.
enriched
accept
continued to
person
the mere fact that a
rent
over this
pense,
covering
period
period and
is not of itself
of time
another
sufficient
benefits
*12
1, 1973.3
August
other to make restitution
require the
to
”
City Savings
Loan
Gate
&
therefor.’
court, in Udgaard
This
Schindler,
75
v. International
Ma-
Business
Association
776,
(1948),
N.D.
31 N.W.2d
with
888, 893.
Corp., 213 N.W.2d
chines
question
waiver,
to the
of
reference’
said:
have known
“She must
what was taking
and rescission are
Cancellation
yet
objections
she made no
place,
with
compatible
implied quasi or con
not
suggestions.
offered no
Months later in
contract
theories of law. The
structive
during
fall of 1946
all
of which time
in one instance claim that
cannot
plaintiff
with,
tenants,
dealt
defеndants
she
as her
enlarged by
was
an
written contract
she claimed a breach of the conditions of
contract and at the
time
executed
same
oral
lease. The claim came
too late.
If
acts constituted a
that the
violation
claim
acts
breach,
defendants’
did constitute a
Thus,
contract.
the trial
the written
of
had waived the
plaintiff
right to forfei-
recovery
denying plaintiff
based
court’s
recognition
ture. There was a clear
implied
quasi
contract was not er
upon
tenancy
the continuation of the
after
however,
This,
dispositive
is not
of the
ror.
plaintiff
knowledge
alleged
had
of the
damages.
on
issue
recognition
breach.
is a
Such
waiver of a
appeal,
the trial and on
Lind contend-
At
(Land-
to forfeiture. 32 Am.Jur.
right
rights Beck had for rescission
any
ed
882) 747;
Tenants
lords &
Sec.
35 C.J.
of the lease or for damages
cancellation
254) 1079;
(Landlord & Tenant Sec.
court,
effect,
waived. The trial
were
117;
C.J.S.,
Tenant,
Landlord
Han-
§
that Beck had waived certain
concluded
Co.,
Hardware
v. Hanson
son
N.D.
a certain
rights up to
date.
766.”
135 N.W.
Dakota,
statute,
by
North
adopted
has
voluntary
a
A waiver is
and inten
maxims of law as an
interpre-
certain
aid to
relinquishment or abandonment
tional
statutes,
of its
including, amongst
tation
benefit,
existing right, advantage,
known
others,
following:
31-11-05(6),
Section
which,
privilege,
except for such
claim or
consents to an act
wronged
“He who
is not
waiver,
enjoyed.
would have
party
Ga
by it.”
Bratcher,
(N.D.
ments to ly). tled; necessary I but find it to add concur Lind; (3) for oats used Damages following:
254 case Beck claimed that Lind used
In this
1,000 of oats worth fifty bushels cents that he Lind denied used
bushel. The trial court concluded that
the oats. award was entitled to an $300 used.
600 bushels opinion finds this majority award there is no because evidence to
be erroneous every Not in case where the
support it. testimony damage is either zero or
only can we conclude that award is $300
$500 evidence, supported by but when strong inference that the trier of
there is compromised right between the to re-
fact damages sustained, proved
cover and justified concluding is
we are there Dege v. Produce Exchange
error. See Paul, 44, 212 Minn.
Bank of St. N.W.2d Mueller, (1942), and Schore v. (1971). 186 N.W.2d
Minn. Dakota,
STATE North
Plaintiff-Appellee,
v. BERGER, Defendant-Appellant.
Frank Dakota, of North
STATE
Plaintiff-Appellee, BERGER, Defendant-Appellant.
Robert Dakota, of North
STATE
Plaintiff-Appellee, BERGER, Defendant-Appellant.
Donald
Crim. Nos. 506-508.
Supreme Court of North Dakota.
Nov. 1975. Nov.
Rehearing Denied