This is а dispute over a contract requiring Hugh Redmond (Red) Murphy, now deceased, to pay his uncle, Pat Murphy, $300 per month for Pat’s life. After a bench trial, the district court found: 1) Red Murphy’s estate was liable for $300-per-month payments to Pat; 2) Pat Murphy was entitled to the amount Red’s estate was in arrears; and 3) Pat Murphy was entitled to attorney’s fees. The estate of Red Murphy appeals the judgment, claiming it did not receive а fair hearing because the trial court failed to rule on the motion for guardian ad litem and the motion for joinder until after the hearing. The Murphy estate also argues it was prejudiced because it was not given an opportunity to depose Red’s partner, Tom Murphy, and the trial court abused its discretion in awarding attorney’s fees. We affirm the district court judgment, except we reverse the award of attоrney’s fees.
I
Hugh T. Murphy and his siblings, including his brother Pat Murphy, inherited land known as the Murphy Ranch from their parents. Pat Murphy conveyed his share of the ranch to Hugh T. Murphy in exchange for payment of $300 per month. In 1980, Hugh T. Murphy conveyed a portion of the land to his nephews, Red Murphy and Tom Murphy. In consideration for the conveyance, the parties executed an annuity agreement whereby Red Murphy and Tom Murphy would make annual payments to Hugh Murphy. Red and Tom Murphy also orally agreed to take care of their uncle, Pat.
Upon Hugh T. Murphy’s death, Pat Murphy was entitled to inherit by intestacy an additional portion of the land. On March 12, 1990, Pat Murphy and Red Murphy agreed in writing that Pat Murphy relinquished any rights to Hugh’s estate in exchange for Red paying $300 per month to Pat for the remainder of Pat’s life. For the first six months, Red Murphy gave Pat Murphy $300 per month.
In February 1991, Red Murphy and Tom Murphy formed a partnership for the purpose of operating the ranch, to be retroactively effective as of January 1, 1991. On January 9, 1991, Red Murphy conveyed to his brother Tom Murphy one-half of the interest he had acquired from Pat Murphy. For some time, Tom Murphy made payments of $300 per month to Pat Murphy. On May 6, 1994, Red Murphy died. At the time of his death, he and Tom Murphy were each paying $150 per month to Pat Murphy. Red Murphy’s wifе, Sheila Murphy, continued to pay $150 per month to Pat Murphy. Tom Murphy also paid $150 per month to Pat Murphy during this time.
Pat Murphy filed a creditor’s claim against the estate of Red Murphy. The trial court found the agreement between Pat Murphy and Red Murphy had not been altered by the conveyance of half the ranch to Tom Murphy. Therefore, Red Murphy alone was obligated to make the full payment of $300 per month tо Pat Murphy. Additionally, the trial court found Pat Murphy was entitled to the full $300 per month from the estate from the date of the agreement, less the payments made by Red. The trial court denied Sheila’s motion to join Tom Murphy and awarded Pat Murphy attorney’s fees. The trial court also appointed a guardian ad litem for Pat Murphy-
*436 The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06(2). The appeal was filed in a timely manner under N.D.R.Apр.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-27-01.
II
The district court found Red Murphy’s estate was liable for the entire $300-per-month payment under the March 12, 1990, contract between Red and Pat. We affirm the district court’s findings of fact unless they are clearly erroneous. N.D.R.Civ.P. 52. “[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if, on the entire record, we are left with a definite and firm сonviction that a mistake has been made.”
Shaver v. Kopp,
A
Even though Tom Murphy received a one-half interest in the land, acquiring this interest does not make him liable on the contract.
See Home Ins. of Dickinson v. Speldrich,
B
Under N.D.C.C. § 9-11-03, “[t]he burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as provided by section 47-04-29.” N.D.C.C. § 47-04-29 applies to covenants running with the land. For a covenant to run with the lаnd, it must be contained in the grant of land. N.D.C.C. § 47-04-24. In this ease, there was no reference to the $300 payment in the deed from Red Murphy to Tom Murphy. The transfer of the land was not a transfer of any part of the payment obligation. Since the exception provided in § 47-04-29 does not apply, we consider whether Pat Murphy consented to the transfer of the payment obligation from Red Murphy to Tom Murphy.
C
“An assignment
1
is an expression of intention by the assignor that his duty shall immediately pass to the assignee.” 4 Corbin on Contracts § 866 (1960). The ben-efitted party’s consent to such a transfer can be manifested either expressly or by implication.
Benson County Coop. Credit Union v. Central Livestock Ass’n, Inc.,
Implied consent is “[a]n inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent.” Black’s Law Dictionary 305 (6th ed. 1990);
see also Benson County Coop,
at 241 (under the Uniform Commercial Code, “consent may be shown by implication arising from a course of conduct as well as by express words”). Consеnt is implied when the bene-fitted party knows of the other party’s actions and fails to object to those actions.
See Schaffer v. Smith,
There may be an implied acceptance of an assignment when a seller knows of the assignment and accepts payments from the assignee.
See Rosenberg v. Son, Inc.,
Even where there is an effective assignment of a contractual obligation, the assignor’s “ ‘duty remains absolutely unchanged.’”
Rosenberg
at 74 (quoting 4 Corbin on Contracts § 866);
see also Smith v. Wrehe,
D
Red Murphy would have been released from a portion of the obligation only if a novation had occurred.
See Rosenberg,
“Novation is made by the substitution of ... [a] new debtor in the place of the old one with intent to release the latter.” N.D.C.C. § 9-13-10(2). “To have a novation, the parties must intend to extinguish the old obligation, there must be mutual assent, and there must be sufficient consideration.”
Schmitt v. Berwick Tp.,
“If it clearly appears from the terms of the assignment transaction that the assignee intends to undertake the duty to perform for the assignor, and that the latter intends to be himself no longer bound, there is a discharge of the assignor by novation if the third party accepts performance by the assignee with knowledge of the terms of the assignment or otherwise assents to those terms.” 4 Corbin on Contracts § 866 (citing
Iowa Bridge Co. v. Comm’r of Internal Revenue,
E
Finally, Sheila Murphy argues the $300-per-month obligation is a debt of the partnership and, as such, Tom Murphy and Red Murphy are jointly liable on the debt. Although the district court did not makе a specific finding whether it was a partnership debt, its specific findings preclude it from being material as to Pat. Whether the payment obligation is a debt of the partnership is immaterial to Pat Murphy’s claim because even if Tom Murphy were liable on the debt as a partner, Red Murphy would still be liable to Pat Murphy for the entire $300. There is no evidence that Red Murphy believed that Pat Murphy understood the obligation was a partnership one when made. See N.D.C.C. § 9-07-14 (ambiguous promise “must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it”).
*438 III
The district court awarded Pat Murphy an additional $150 per month for the prior months in which Red and the estate paid only $150. Sheila Murphy argues the district court erred in finding the estate was in arrears on its payment obligation to Pat Murphy. Pat Murphy recеived $150 per month from both Tom Murphy and Red Murphy. Upon Red Murphy’s death, Sheila Murphy continued to pay $150 per month. Red Murphy’s estate claims any obligation it had on the additional $150 per month was extinguished when Tom Murphy made those payments.
“[A]n obligation is extinguished by an offer of performance intended to extinguish the obligation.”
Resolution Trust Corp. v. Gosbee,
IV
The estate asserts Tom Murphy is an indisрensable party in this action and the district court erred in not joining him as a party. The estate claims:
“In Tom’s absence, complete relief cannot be accorded. He has an interest in the subject matter of the action and his absence may leave the estate subject to substantial risk of inconsistent obligations by reason of the claimed interest.”
The estate’s argument ignores our law, the meаning of “indispensable party,” the fact relief for Pat can be obtained without Tom as a party, and the fact the estate could assert claims against Tom in a separate action.
Under N.D.R.Civ.P. 19, a person must be joined as a party if “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may ... leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest.” “[T]he right to join parties in an action is subject to the sound discretion of the trial court.”
Revoir v. Kansas Super Motels of North Dakota, Inc.,
This Court said in Erdmann:
“The purpose of the compulsory joinder rule is to protect an absеnt party from prejudice, to protect parties from harassment by successive suits, and to protect the courts from being imposed upon by multiple litigation. Cudworth v. Cud-worth,312 N.W.2d 331 , 333 (N.D.1981). Although the failure to join an indispensable party may be raised for the first time on appeal, ‘[o]nce the trial has been concluded, the pragmatic considerations in Rule 19 weigh heavily in favor of preserving the judgment of the trial court ... and against dismissal unless there has been real prejudice to those not before the court.’ Cudworth v. Cudworth, supra,312 N.W.2d at 334 . Dismissal of an action for nonjoinder of a party is an extreme remedy which should only be granted where a party is truly ‘indispensable.’ Kouba v. Great Plains Pelleting, Inc.,372 N.W.2d 884 , 887 (N.D.1985).”
Erdmann v. Thomas,
*439 Parties sought to be joined can be classified as nominal, proper, conditionally necessary, or indispensable. See 3A James W. Moore, et al., Moore’s Federal Practice ¶ 19.02 (2d. ed. 1985) (interрreting Fed. R.Civ.P. 19). N.D.R.Civ.P. 19 is identical to Rule 19, F.R.Civ.P. See Explanatory Note. A nominal party is one who stands in “as the next friend” of the real party in interest. 3A Moore’s Federal Practice ¶ 19.02. Tom Murphy is not a nominal party.
“If ... a ‘necessary party [is used] in the sense that in its ‘absence complete relief cannot be accorded among those already parties,’ Rule 19(a), N.D.R.Civ.P. provides that such a ‘necessary’ party should be joined unless the party is not subject to service of process or joinder would defeat jurisdiction or venue. The court is specifically authorized by the rule to order joinder of such a ‘necessary party. But, on this record, it is not clear to us that [the potential party] was a ‘necessary’ party, let alone an ‘indispensable’ one. The trial court was able to accord complete relief between [the actual parties].”
Kouba v. Great Plains Pelleting, Inc.,
In this case as well, the district cоurt was able to accord complete relief between Pat and the estate without joining Tom as a party. The estate was not precluded from pursuing any claim for contribution against Tom in a separate proceeding.
“[A] party is ‘indispensable’ only where the ability of the court to make an equitable adjudication in the absence of that party is seriously impaired
and
where join-der of that рarty cannot be obtained because of a jurisdictional or other limitation.”
Kou-ba.
“ ‘Upon a literal reading of Rule 19, a person cannot be an indispensable party unless he ... “cannot be made a party.” ’ ”
Stonewood Hotel Corp., Inc. v. Davis Dev., Inc.,
A “proper” party may “be joined as defendant where there is a question of law or fact in the action common to the right or duty in which he is interested and the rights or liabilities involved [arose] out of the same transaction [or] occurrence.” 3A James W. Moore, Moore’s Federal Practice ¶ 19.02 (2d. ed. 1985). With respect to “proper” parties, “joinder is permissive and is governed by Rule 20.” Id. A “conditionally necessary” party is a party referred to in rule 19(a)(1) or (2) whose joinder is feasible. Id.
At best, from the estate’s point of view, the liability of Tom and Red is joint and several. If liability is joint and several, joinder is not compulsory. 3A James W. Moore, Moore’s Federal Practice ¶ 19.02 (2d. ed. 1985). The omitted party is “neither indispensable nor a necessary party under Rule 19.”
Wosepka v. Dukart,
Additionally, “Rule 14(a), N.D.R.Civ. P., enables a defendant, as a third-party plaintiff to serve a summons and cоmplaint ‘upon a person not a party to the action who is or may be hable to him for ah or part of the plaintiffs claim against him.’
” Kouba
at 887.
See also Wosepka,
*440 V
The estate argues it did not receive a fair hearing because the district court failed to rule on the motion for guardian ad litem and for joinder until after the hearing was concluded. The estate also claims it was prejudiced by being denied the opportunity to depose Tom Murphy. The standard of review on these issues is whether the rulings of the district court were in error and, if so, constituted “harmless error.” N.D.R.Civ.P. 61. The rulings on these matters should be disregarded unless they have “affeet[ed] the substantial rights of the parties.” N.D.R.Civ.P. 61. Sheila has the burden to show her rights hаve been prejudiced.
See In Re Guardianship of Frank,
A
The purpose for allowing the court to appoint á guardian ad litem is to protect the rights of persons incapable of managing their own affairs.
See Matter of Guardianship of Braaten,
B
The district court did not rule on the motion for joinder until the conclusion of the trial. Procedural due process requires the party to be joined know of his status as a defendant before trial. 3A
Moore’s Federal Practice
¶ 19.01-1[2] (citing
Eakins v. Reed,
C
Sheila Murphy subpoenaed Tom Murphy for a deposition. The trial court granted Tom Murphy’s motion to quash the subpoena until his attorney could be present. The trial court also granted Sheila Murphy a continuance to allow for a rescheduling of Tom Murphy’s deposition. The deposition was not taken. At trial, Sheila Murphy moved for a second continuance. The district court denied the motion.
“A trial court has broad discretion regarding the scope of discovery, and its discovery decisions will not be reversed on appeal absent abuse of discretion.”
Smith v. Smith,
Tom Murphy was present at trial, testified, and called witnesses.
See
N.D.R.Civ.P. 32(a)(3) (allowing depositions to be used when the witness is unable to testify). Also, the record indicates there was sufficient time to take the deposition but the parties had scheduling conflicts. Absent “deliberate abuse of or flagrant bad faith disregard for the rules of discovery,” reversal is nоt an appropriate remedy.
See Thompson v. Ziebarth,
VI
The district court ordered Sheila Murphy to pay Pat Murphy’s guardian ad litem reasonable attorney’s fees and expenses without specifying any authоrity under which it awarded the fees. “Absent specific contractual or statutory authority, the
*441
‘American Rule’ requires parties to bear their own attorney’s fees.”
State Farm Mut. Auto. Ins. Co. v. Estate of Gabel,
In this case, John L. Sherman was appointed guardian ad litem for Pat Murphy under N.D.C.C. § 28-03-04. There is no contractual or statutory authority under which attorney’s fees wеre awarded. We reverse the trial court’s award of attorney’s fees.
VII
The district court judgment is affirmed except for the award of attorney’s guardian ad litem fees, which we reversed.
Notes
. "Assignment” is generally associated with rights under a contract while the term "delegation” refers to duties.
See Rosenberg v. Son, Inc.,
. Although in Wosepka the Court interpreted Rule 19 as it existed prior to its amendment in 1990, no substantive change was intended by the March 1, 1990 amendment.