Stonewood Hotel Corp. v. Davis Development, Inc.

shаre and The Sisters op- that The Brothers m an obligations involved enforceable farm, 1,320 rather equally the acre Jorstad supported by consideration. agreement tion only should receive The Brothers keep to than that the offer is contract to The first the option. their of the upon The land exercise the through specified the time. open sell upon sell the land contract to is the second testimony uncorroborated The Sisters’ the by optionee of the timely acceptance The by the court. was discredited to the id. As contract offer to sell. See was no credible evi- found that there remaining open, Maynard’s offer keep the Pearl, otherwise, by her will or dence that to, he did not have farm when option the or that she intended to revoke parents’ for his provided consideration actually so. did was, at opеn and promise to the offer hold supported The Sisters’ if the facts Even their offer acceptance of same time the sup- option not. An position, the law does Later, exer- The Brothers open. when hold by consideration an irrevocable ported their option, they accepting the cised only by can terminated offer which be Pay- sell the farm. parents’ offer to them time, supervening illegality, or the lapse of that price complete of the sale will ment person thing or destruction of a death or contract. sales performance of the con- essential to question We next address Perillo, & J. Contracts tract. J. Calamari by timely option was exercised whether (1987). supervening 124-25 Neither the that The court found Brothers. The attempted optionor nor an revo- death of an terms, option could be exercised by its cation will terminates an irrevocable year of the death of anytime within Thus the trial court did not err offer. Id. die, optionors to Pearl of the two last concluding the will did not revoke died C. when Pearl Martin Jorstad. option. The We have considered Sis- Mar having outlived on November arguments they do other but not af- ters’ tin, option by its terms remained own our decision. fect death, following year Pearl’s open for one Accordingly, judgment cоurt’s 1988. To obtain i.e. until November affirmed. The right property, enforceable option within Brothers had exercise ERICKSTAD, C.J., and VANDE and time and terms conditions MESCHKE, WALLE, JJ., and GIERKE option agreement. provided See concur. Whetstone, Wessels (N.D.1983). option permitted exercise following option year within a contemplated that writ

Pearl’s death would ad

ten notice of the exercise of her estate.

dressed the administrator op Because The Brothers’ exercise of CORPORATION, HOTEL STONEWOOD specified frame was within the time tion INC., Appеllee, Plaintiff noticed, properly exer option their January option was cise of finding

timely and the trial court’s INC., DEVELOPMENT, DAVIS clearly erroneous. effect was Appellant. Defendant argue Finally, The Sisters Civ. No. 890045. “Option Contract” was revoked before of North Dakota. ‍‌​‌​​‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌​‌‌​​​​​​​​‌​‌‌​​‌‌​‌‌‌‍Supreme Court acceptance by Pearl’s execution Brothers’ testimony offered of the will. The Sisters Oct. to the effect that it was Pearl’s intention signed,” everything out she had ever “wipe

including option, by making the will.

They that it Pearl’s intention maintain Cook, Bismarck, plaintiff

Beauclair & appellee; argued by James L. Norris Kelsch, Austin, Mandan, Kelsch, Ruff & appellant; argued for defendant Thomas D. Kelsch.

LEVINE, Justice. Development, (Davis), appeals Inc. judgment from the in an eviction action Corporation, “II. SEVEN SEAS WAS WHETHER Hotel brought by Stonewood TO PARTY AN INDISPENSABLE and remand (Stonewood). We reverse Inc. ACTION. THE EVICTION proceedings. for further THE PARTIES “III. WHETHER 18, 1988, purchased July Stonewood On TO ALL MATERIAL AGREED Bank. Inn from Norwest the Stonewood LEASE. TERMS OF A LONG-TERM the Stonewood purchase, time of the At the IS STONEWOOD “IV. WHETHER operated Davis and Seven being Inn was AGREE- THE LEASE BOUND TO oper- Seas, purchase, Inc. After the Davis PER- BECAUSE OF PART MENT Inn while in the Stonewood ated the bar BY DAVIS. FORMANCE negotiated the terms and Davis Stonewood THERE IS “V. IF NO LONG-TERM Barry long-term lease. contemplated of a LEASE, THE RE- LEASE WHETHER of Sev- executive officer Davis the chief A MONTH-TO- LATIONSHIP WAS Seas, Inc., he and his ex-wife own en and LEASE, MONTH OR ONE-YEAR the undisputed parties that It is Davis. 47-16-05, TO LEASE PURSUANT bar lease for contemplated two leases —a NDCC.” a restaurant lease Seven Davis and Seas, parties ne- Inc. Thе continued their 1. Venue attorney in- gotiations until Stonewood’s trial. Ill place means the of Venue attorney by letter that Davis’ formed on the Blackstone, Commentaries W. to withdrawing its offer was Stonewood England *384; Laws Am.Jur.2d Ven the facilities to Davis and direct- lease bar of (1975); ue 1, p. 832 Black’s Dictio Law § premises the to vacate bar ed Davis (5th ed.1979). nary the real Because 30, 1988. November property involved is located in Morton cоmplaint on served By summons N.D.C.C., 28-04-01, required the County, § 19, 1988, brought an December Stonewood brought County, action to be in Morton County evict Morton Court action “subject power of to the the premises. from the The Honorable Davis change place upon agreement of trial Graff, Presiding Judge A. of the Benny provided by or in eases of counsel other District, assigned Central Judicial South statute.” Burt Riske- the matter to the Honorable L. brought the action in Morton dahl, Burleigh judge County of the Court. directed County but its summons Davis Burleigh The matter was tried Coun- appear County before the Morton Court ty on 29 and Courthouse December Burleigh County on De- in the Courthouse mo- court denied 1988. The answer, In cember 1988. its Davis al- Seas, Inc.; denied Davis' tion Seven leged proper that venue for “[t]he improper for dismissal based motion County Court- action is Morton venue; “[tjhere that existed a concluded' house, оbjects any Defendant tenancy at will month-to-month between proceedings venue.” and all outside that July from to Novem- parties objection The trial court overruled Davis’ 30,1988;” parties concluded that ber “[t]he only ground trial was “[t]he negotiated long-term good for a faith Burleigh County held Courthouse but did not ever come lease space no was available in Morton because lease;” long agreement an on a term County as December 1988.” that Davis should vacate concluded 28-04-01, N.D.C.C., Relying on Judgment premises by January agreement argued “in of an absence ap- accordingly and Davis has was entered order, right or Court Davis had absolute pealed, raising following issues: Stonewood, on County.” to trial Morton OF THIS “I. WHETHER VENUE hand, argued that 28- the other “Section N.D.C.C., provides 04-07(3), IN BURLEIGH COUNTY WAS the court with CASE authority to the trial to be held allow PROPER. justice would be was for the Bismarck since ends Courthousе convenient witnesses, promoted.” corpo- who owners attorneys. rations their these Under N.D.C.C., 28-04-07(3), circumstances, Burleigh County provides change may permissible trial court did not place of trial the convenience of “[w]hen in changing abuse its discretion venue. justice witnesses and ends of Indispensable party promoted change.” by the “A motion for a of venue addressed sound 19, N.D.R.Civ.P., provides Rule the trial court.” Mar judicial discretiоn joinder persons just adju needed for Beach, City shall v. 19(b) provides dication. Rule dis (N.D.1980). A movant for of venue missal of in which person actions a cannot must show “that both the convenience of made party be a and is indispensable. justice witnesses and ends of that, by joining contends not Seven Id., ‍‌​‌​​‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌​‌‌​​​​​​​​‌​‌‌​​‌‌​‌‌‌‍promoted by change.” such a at 628. Seas, Inc., join failed an in Stonewood parties Generally, the convenience of will dispensable party. argues that Motors, Jerry Harmon not be considered. we should not consider this issue because Co., Inc. v. National First Bank & Trust Davis did it in not raise the trial court. 704, (N.D.1989); Ameri 440 711 N.W.2d a Generally, join party failure to Hoffelt, can v. State Bank Dickinson under Rule 19 should be raised in re (N.D.1976). may 246 484 N.W.2d Courts sponsive 12(b) or in pleading timely a Rule speed consider the relative with which a motion, but an indispensable failure may determining trial be had when venue may See, party be raisеd “as late trial.” Mullen, as the e.g., questions. Mullen v. 135 3A Moore’s Federal Practice 1119.05[2],p. 179,160 Thomas v. (1916); Minn. N.W. 494 (1989). appellate Small, may 19-78 An con 622, 121 A.D.2d 504 N.Y.S.2d 132 question joinder a sider about of an absent Cory., (1986); Gerber B.C.R. Hotel 10 person though even it was not raised be (1960); 201 A.D.2d N.Y.S.2d Id., ¶ 19.19-1, p. low. 19-296. (1975). Am.Jur.2d Venue 65§ 12(b)(7) “[Independent of Rule and Rule The instant action was an eviction action 12(h)(2) appel both the court and the 33-06, N.D.C.C., under Ch. a which is sum- power duty late court have the and the mary proceeding to possession recover sponte protect rights act sua Shopping South Forks Cen real estate. person, by ordering absent whether ter, Dastmalchi, Inc. v. 446 N.W.2d 440 or, feasible, that he be if this added is not (N.D.1989); Mortgage Fireman’s Fund by dismissing party’s the action. But a Smith, Corp. (N.D. 436 N.W.2d 246 objection non-joinder person of a 33-06-02, N.D.C.C., pro- joinder whose feasible will treated is be “expedited period vides an time 3 to 15 [of as if after untimely pleadings made days] ... within whiсh a defendant must closed, are a defendant not since should appear and defend in an eviction action.” postpone objection allowed to his until Credit, Winkowitsch, Flex Inc. v. inevitably joinder delay trial when will (N.D.1988). controversy.” resolution of the question, While it is a close we are not Id., ¶ 19.05[2], p. “Upon 19-81. a literal persuaded that abused its reading person a Rule cannot be an allowing discretion in action be tried indispensable party unless he ... ‘cannot Burleigh County In Courthouse. ” Id., p. party.’ 1119.05[2], be made a 19- summary view of the nature of an eviction trial, jury action and the absence of a justice promoted by ends of nothing conduct- indi There is the record ing Seas, period cating Inc., the trial within the allotted not have Seven could 33-06-02, Seas, Inc., N.D.C.C. party. No courtroom was made a Seven been therefore, ‍‌​‌​​‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌​‌‌​​​​​​​​‌​‌‌​​‌‌​‌‌‌‍available in Morton prompt indispensable рarty not Burleigh resolution of action. The objection, and Davis’ raised for the first requests a acceptance which “An failure to Stonewood’s appeal, time on to the terms of the change or addition Inc., Seas, untimely. join Seven thereby unless is not invalidated offer depend on an acceptance is made to 3. Lease terms. changed or added assent to concluded The trial court “Comment: tenancy а month-to-month existed “[t]here acceptance. Interpretation “a. July from between will unequivocal. acceptance must be An 1988,” 1988, to November re- inclusion of words But the mere negotiated for a good parties in faith “[t]he pro- questing modification ever parties did not long-term lease but prevent pur- not posed terms does long term agreement on to an come closing acceptance from pоrted underlying the The rationale lease.” unless, interpreted, fairly if contract apparent in the court’s conclusions depends the offeree’s assent findings of fact and conclusions court’s acquiescence in the offeror’s further law. Commer- See Uniform modification. 2-207(1).” cial Code § general subject are Leases 341, McLeod, also, 79 Nev. Pravome v. See interpreting contracts. South rules for (1963). 383 855 P.2d Center, v. Inc. Dastmal Shoрping Forks attorneys exchanged three parties’ The common chi, supra. “Under traditional proposed leases dur- redrafts of drafts and law, if terms contract was reached no September, ing the of 1988. In summer acceptance varied.” offer and attorney submitted to Davis’ 20 Corp., Oil Cal.3d Steiner Mobil (draft This attorney proposed leases (1977). Cal.Rptr. 569 P.2d 757 141 by an October letter was followed 9-03-21, N.D.C.C.,1 However, pro stating part: attorney, to Davis’ vides: only pro- “It unsettled appears that Ex- “Acceptance must be absolute. regard to the restaurant lease vision with 41-02-14, by an provided as section cept verifying to the manner sales relates unqual- acceptance must absolute generated by In the the restaurant.... accept- ified, in itself or must include an agree- lease most recent draft of the propo- of that character which the anсe ment, provide cop- proposed I that lessee rest separate can from the and which ser prepared register receipts ies of cash person A accepting. will conclude closing cash out restaurant’s acceptance proposal.” is a new qualified day. registers at the end of each business n * * * * * Thus, statute, acceptance an under the unqualified or must be absolute and signature lеssee’s “Please obtain parts separable from least those agreement and it to me the lease forward and un- are not absolute acceptance which along amount of his check with Thus, qualified. every proposal not new $4,943.71 cleaning for rent and restroom acceptance or coun- qualified constitutes Upon receipt, I through will October. acceptance necessarily not An teroffer. my signatures on leas- obtain clients’ changes or addi- by proposing invalidated copies you. es forward executed (Second) Con- tions. See Restatement if not I do receive Please be advised (1981)and thereto: Comment a tracts § payment and rental the executed lease letter, Requests days the date of this within ten Acceptance Which “§ I no to assume will have alternative but Change of Terms N.D.C.C., 9-03-21, goods.” The Uniform Commercial actions in § reference in The N.D.C.C., (U.C.C. 2-207), not apply does sales. South § 41-02-14 Code not to real estate § does applicable trans- 41-02-14 to real estate §make Owner’sAss’n Con center ViewCondominium 2-102), (U.C.C. Inc., § Section 41-02-02 Builders, actions. Wash.App. dominium N.D.C.C., provides context (1986). "[u]nless P.2d 1075 applies chapter trans- requires, this otherwise occupying plated long-term is not lease. Davis partially per- that lessee interested premises, appropriate which case formed its duties. measures will be taken.” present did not evidence over- telephone Stone- After a conversation with coming statutory presumption of a one- attorney, attorney Davis’ made wood’s year 47-16-05, provided lease N.D. § changes and some returned leases executed remand, if on C.C. even (draft 5). Draft same 5 was the court determines that the did not except (relating changes as draft to agree long-term lease, to a Davis had rent, monthly prorating 47-16-05, N.D.C.C., one-year under lease § date, payment substituting reg- rent cash presents unless Stonewood further evi- summary register ister sheets for cash re- dence presump- sufficient overcome the licensees,” deleting ceipts, and “or “visitors one-year tion of a lease. licensees,” liability and “or invitees” in judgment is reversed and the matter provisions) attorneys discussed proceedings remanded for further in ac- telephone conversation. Stonewood opinion. cordance this with its then withdrew offer and directed Davis premises. appear vacate It does not ERICKSTAD, C.J., GIERKE, J., to us that the trial court wheth- considered concur. proposals may er the new have constituted acceptance dependent on Stone- WALLE, Justice, concurring VANDE terms, wood’s assent to the added in ac- specially. (Second) with cordance Restatement I majority opinion. concur in the I write 9-03-21, supra, Contracts § separately my note to concern with the We, therefore, and re- N.D.C.C.2 reverse procedure by change place which of the mand for reconsideration. of trial in Although occurred this case. I Tenancy-at-will 4. agree right the court had the to Davis contends if the that “even change place may of trial and have had reject to argu Court were all of Davis’s adequate doing for reason so in in- this exists, long-term a ments that lease it stance, proper procedure I a believe is compelled apply to Section 47-16- motion, notice, change place to of one-year 05 and rule that Davis has a lease trial, not a which summons directs the de- July July from 1988 to 1989.” place fendant in a appear other than that argues “[sjinee there is no Stonewood prescribed by the change statute. The lease, 47-16-05, N.D.C.C., cannot Section place party of trial not automatic is and a apply.” right object to the has the action to the 47-16-05, N.D.C.C., See, e.g., change. Jerry Harmon provides: Motors Bank, (N.D. 440 N.W.2d 704 First Nat. property, “A lease of real other than places in lodgings, where there is no

usage subject, presumed to be Here, objectiоns change Davis’s commencement, year for one from its place rejected by of trial heard but expressed otherwise in the lease.” unless at the time set 'for trial. may minimally placed possession Although satisfy this due Davis parties process ‍‌​‌​​‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌​‌‌​​​​​​​​‌​‌‌​​‌‌​‌‌‌‍approve premises procedure. as a tenant I do not of the while the negotiated the final contem- a trial to the court terms of a Because it was and argues acceptance, application v. Blood tests of 2. Stonewood that under Cooke of flexible such Inc., (N.D.1982), Systems, (Second) contemplated 320 N.W.2d 124 as those in Restatement "acceptance cannot introduce additional terms (1981), appropri- all the Contracts more of ate The and conditions.” fact that Stonewood determining agreed a if have for placed tenant, possession premises as а lease, they though signed have not a lease even partially performed ob- which leasehold mirror-image application of- rather than distinguishes ligations this case from Cooke v. Cooke, fer-and-acceptance-rule enunciated in su- Inc., Systems, supra. In a case such as Blood pra. this, possession partial performance render jurisdiction rather “a matter of place en- that it was change in оf trial because miles, that unless action than of venue and for the only a counsel tailed few has proper county in the the court assumed, brought may have plaintiff and the court subject matter.” out, jurisdiction no over it that the presumptuously as turns N.W.2d, the locale of Had objection. no would have defendant has en- actions been of real estate effect on the any substantive there been jurisdictional quality North dowed with case, adequately try its I ability of Davis to disregards that Today’s decision Dakota. that basis also. Because would reverse on standing. happening in this I do not discern action in re- our instance because course, that come to like all matters Of in the reasons I concur versing for other government, Hayden judicial branch opinion. majority Compensation v. North Dakota Workers Bureau, (N.D.1989), the 447 N.W.2d 489 MESCHKE, Justice, concurring. change place power has parts 4 of Justice join I way proper in a and for disposition I re- opinion majority. for the Levine’s says that 28-04-01 proper case. NDCC of an spectfully disagree that trial action power of the court “subject to the venue is of real estate Morton possession in ... cases place of trial ... summarily held Bur- could be case, provided by in this statute.” But Therefore, I County. do leigh changed place prоper way in a was neither part 1. proper nor for a reason. opinion scarcely majority notices The place The of trial was scheduled for the has for real estate historic that a local trial Burleigh County in the sum- Courthouse this significance. ancestory of convic- attorney issued mons Stone- Mag- law traces to tion in the common Apparently, this wood. was done arbitrari- 18 and 19 of paragraphs na Chartа. See ly parte by attorney and ex Magna in 13 North Dakota Cen- Charta Burleigh County judge because had been actions, Code, p. “In where tury local designated handle the case while the recovered, possession of land is County judge on vacation. Morton was damages trespass, actual or for recognized summary the nature While we waste, etc., land, plaintiff affecting proceedings of eviction Forks South inju- lay his declaration or declare his must Center, Dastmalchi, Shopping Inc. v. 446 ry very county happened to have (N.D.1989). (Civil 890018; N.W.2d 440 No. place really Ill happen; that it did ...” 9-26-89), filed we have not set due aside Blackstone, W. Commentaries process. change place A of of trial England, *294. Deviation Laws by judicial Jerry must be made a order. enduring not trivial. from that tradition is Motors, Harmon Inc. First v. National majority opinion does not cite or Co., (N.D. 440 704 Bank & Trust N.W.2d Johnson, 86 N.W.2d discuss Jоhnson judicial A order needs a notice and (N.D.1957), relied which was hearing. McWethy McWethy, Johnson, In' landlord sued Davis. (N.D.1985). opening At the County enjoin Pierce District Court Burleigh County Court- interfering tenant from with Botti- former house, the overruled Davis’ ob- This re- neau farmland. jection This place trial. fait ac- order, restraining declaring versed compli proper way. not jurisdiction it was “void for want part proper Pierce Court of Coun- Nor was this a casе. NDCC 28- District 04-07(3) N.W.2d, ty_” Tracing authorizes a court to place history “[wjhen of trial the convenience of predecessor of NDCC 28-04- through ‍‌​‌​​‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌​‌‌​​​​​​​​‌​‌‌​​‌‌​‌‌‌‍ends justice 01 from territorial times revision witnesses and the promoted by change.” (adding in 1943 Convenience of Code Commission not brought”), “must be this Court declared witnesses was involved. The Dickinson, ND, space court ruled that “no was available in Representa Personal County,” Starcher, evidently Morton which was tive of thе Estate of Hattie Respondents argument by Appellees. on an based only place counsel “this is the which Civ. No. 890088. hearing place could take within the Supreme Court of North Dakota. parameters of the statute.” If [time] time, reason, space, not was the no “ends Oct. justice” “promoted.” When a cus- unavailable, tomary any courtroom is meet-

ing dispen- room can be made suitable justice.

sation of Consecration of the facil-

ity judicial prerequisite. is not a

reason seems rather to have been the con- assigned judge,

venience of an who did not

want to take time from his hectic schedule go nearby county for a trial. The judge

“ends” of the are not the same as the justice.” judge’s

“ends of A convenience is acceptable

not an changing reason for

place of trial. my opinion,

In the trial court misruled judicial

and abused changing discretion in place of trial. Since are remanding we

for reconsideration for other reasons which in,

I I However, do not dissent. I

would direct proceedings on remand County,

be held Morton the Bur-

leigh County Courthouse.

In the Matter of the ESTATE of Hattie

STARCHER, also known as Hattie M.

Starcher, Deceased. BAIRD,

Robert B. Petitioner Appellant, ANUNDSON, Judy Heinze, A.

William Heglie, Parke,

Bonnie and Michael C. Bank,

Trust Officer for American State

Case Details

Case Name: Stonewood Hotel Corp. v. Davis Development, Inc.

Court Name: North Dakota Supreme Court

Date Published: Oct 24, 1989

Citation: 447 N.W.2d 286

Docket Number: Civ. 890045

Court Abbreviation: N.D.