*1 Backes, Geiger v. implications. See on its fact for a few followed a driver
that an officer always stopping him does
miles before although
negate suspicion,
evidentiary some cases. consideration circumstances, we totality
In the of these fairly found that trial court
believe the reasonable
Haga had articulable and stop Neis.
suspicion to lawful, evi- stop was
Because the after intoxilyzer test obtained
dence of the af- stop suppressed. need not
firm Neis's conviction. LEVINE,
ERICKSTAD, C.J., and JJ., GIERKE,
VANDE WALLE
concur. Kathleen M.
Garland L. SWAIN and
Swain, Appellees, Plaintiffs and COOPERATIVES, STATES
HARVEST
formerly doing as Great business Supply Company; known also Plains, a Harvest States Com-
as Great Compa- Supply
pany, and Great Plains
ny, a of Farmers Union Grain Division Association, Defendant
Terminal
Appellant. No.
Civ. 900270.
Supreme of North Dakota. Court
7,May
572 1984,
In the fall of
the Swains noticed
that а wall in the
warped.
basement was
Great Plains told them
was a
warped
In
spring
1985,
stud.
the
the
Swains
cracks in
observed
the basement
floor. Great Plains informed them
the
nothing major.
cracks were
1986,
In
the
larger
Swains noticed
cracks
the base-
ment floor.
a represent-
Great Plains sent
home,
ative to look
the
City
at
and Twin
Testing was hired to take
samples
core
from the basement floor. Those tests re-
vealed that
the foundation did not meet
guidelines
several minimum
for wood base-
4,
ment
1986,
foundations. On November
Great Plains wrote the
Swains
letter
which it
any
disclaimed
responsibility for
problems
with their house.
Plains,
The
alleging
Swains sued Great
Lake,
Traynor,
Traynor,
Rutten &
Dеvils
contract,
breach
negligence, and breach
plaintiffs
appellees; argued by
for
and
J.
warranty.
trial,
At a bench
the Swains
Traynor,
Thomas
Jr.
presented evidence that the basement floor
P.C.,
Herigstad,
Minot,
Pringle &
de-
for
heaving
was
hydrostatic
because of
pres-
argued by
and appellant;
fendant
James E.
drainagе
and failure of
system
Nostdahl.
which in turn
damage
caused structural
According
the remainder of the house.
GIERKE,
Swains,
proper-
Justice.
the doors
did
work
ly,
paneling
warped,
the walls and
were
Cooperatives, formerly
Harvest States
ceiling
cracking,
kitchen
was
the rafters in
doing
Supply
as Great Plains
Co.
business
splitting,
attic were
and the house was
Plains], appeals from a district court
[Great
“falling apart.”
judgment awarding Garland and Kathleen
$77,986.99.
Swain
trial court found
part,
We affirm
Great Plains liable
contract,
under
part,
negligence,
verse in
and
breach of
and
entry
remand
of warranty.
judgment.
amended
court awarded
$46,816,
plus
prejudgment
6%
In
Gregory
1978 Great Plains and
($10,042.99)
4,
intеrest
from November
building
Kathleen Sinclair entered into a
1986,
house;
for the cost
agreed
contract in
Plains
which Great
$9,128
food,
housing,
moving
and stor-
build the Sinclairs a modular
near
house
ing expenses
repairs
incurred while the
$39,300.
rep-
Devils Lake for
Great Plains’
$12,000
completed;
were
for Garland’s
resentatives were
that the
had
аware
land
salary.
lost
high
ground
suggested
water table and
wood
Although
basement foundation.
appeal,
On
Great Plains
does
blueprints
required
for the house
drain tile
contest the trial
court’s determinations
basement,
representa-
Plains
liability,
Great
but contends
trial
court
tive indicated that
tile
wrong
drain
was not neces- used
measure
dam
sary
Relying
of the wood basement founda-
Swains.
on Dobler v.
tion. After
completed
(N.D.1973),
the house
in the
Malloy,
was
spring of
Keller,
(N.D.1984),
the Sinclairs lived there Roll v.
575 upon conjecture speculation. storage expenses for based $5,928 moving and agree. in alter- property and personal expenses while housing and food native In Merrill Iron & Steel v. Minn-Dаk being repaired. their house was Seeds, Ltd., 652, (N.D. 656 1983), we said: the house trial court found “There is clear distinction between for two months and uninhabitable would be recovery ‘inthat the two theories dam- necessary to remove all the it was anticipated not even are recoverable being the home when was from furniture tort, only while such as were court also found: repaired. The reasonably contemplated by parties damages for the estimat- “Plaintiff seeks entering agree- at the time of into the during for motel rooms ed cost of $4200 ment are recoverable a breach [of repair as well as food costs. How- Damages 80 at 888 CJS § contract].’ house, renting apartment ever, by (1966); 32-03-09, (mea- Section NDCC mitigate housing plaintiffs ex- could contract); facility penses provide also 32-03-20, (measure of Section NDCC family preparation. food tort).” damages for figure Court concludes that “The Peterson, 78 N.D. Truscott v. period per month for two-month $1000 (1951), we said: of accommodations for the for rental authority, “According weight oí adequate com- family fair and Swain *5 however, recovery may be had for a [lost addition, pensation. the Court con- reasonably cer- profits] where are person per month per $125 cludes that proximate tain in character and are the expеnse per a total $600 food result tort or a breach of con- of either total is rea- month for two months $1200 tract, where, contract, they in case these circumstances. sonable under reasonably supposed to have “Finally, to remove all the fur- the need contemplation par- been within appears to be rea- niture from home was made as the ties when contract personal property sonable to secure a probable result of breach.” repair, open for and to when the house is tort or An award damage prevent when the basement conjecture must not be based repairs are remоved make walls proximately speculation and must painting done. Plaintiffs obtained or the breach of by either the tort caused all pack, remove store estimate Truscott, See, supra; e.g., Hole contract. in furnishings the amount of their Janke, cek $5,928, finds is a rea- which this Court begin- Although there was evidence that damage figure.” sonable the feder- employer, ning 1987 Garland’s firm not left with definite and We are career government, al had other advance- a mis- that the trial court made conviction available, apply he did not positions ment awarding the those dam- take in Swains Garland, According to positions. for those findings ages. The trial court’s аre not of the structural apply did because he 52(a), N.D.R. clearly erroneous under Rule house, including an ina- problems with the Civ.P. loss without bility to sell without physical deteriora- explanation of finally contends that Great Plains no However, presented awarding tion. the trial court erred sell they tried to salary Garland had re evidеnce for lost They available. positions were employer in another' when those job fuse offer his realtor until which argues did not contact a city in 1987. Great they had Plains. sued Great were was after problems with the house structural any Moreover, not obtain did refus proximate of Garland’s not the cause program govеrnment information about job offer and an award of al of the having option of providing them with salary for the lost difference was purchase government job their house PEDERSON, VERNON R. Surrogate necessary. relocation was We conclude Judge, concurring specially. that, under both the contract and tort theo- It confusing try me tо to under- ries, the Swains did not any show that made, stand the concessions the trial tac- damage salary for lost was foreseeable and tics, legal argument and the presented by proximately caused Great Plains. We strange Great Plains in this agree case. I therefore conclude that the trial court fully with application 52(a), of Rule erred those for that NDRCivP, precedent and the relied claim. majority opinion. I have not read the judgment The district court is affirmed transcript of the evidence but the facts that part, in part, reversed and remanded for undisputed are give nevertheless the entry judgment of amended with consistent appearance sults a definite of a miscarriage opinion.
this justice. circumstances, Under the un- fortunately, I find no basis for a dissent.
ERICKSTAD, C.J., and VANDE LEVINE, JJ., WALLE and concur. PEDERSON,
VERNON R. Surrogate
Judge, specially concurred and filed
opinion. PEDERSON,
VERNON R. Surrogate
Judge, sitting place MESCHKE, J.,
disqualified.