Anderson v. Mooney

• Decision Date: 22 May 1979
• Docket Number: No. 9546,9546
• Citation: 279 N.W.2d 423
• Parties: Roger J. ANDERSON, Plaintiff and Appellant, v. Walter MOONEY and Margaret Mooney, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 423

279 N.W.2d 423

Roger J. ANDERSON, Plaintiff and Appellant, v. Walter MOONEY and Margaret Mooney, Defendants and Appellees.

Civ. No. 9546.

Supreme Court of North Dakota.

May 22, 1979.

Harold A. Dronen, of Johnson & Maxwell, Fargo, for plaintiff and appellant.

Dewel E. Viker, Jr., of Viker & Juelson, Hillsboro, for defendants and appellees.

VANDE WALLE, Justice.

Roger J. Anderson appeals from the district court's judgment denying his claim against Walter and Margaret Mooney ("Mooneys") for specific performance of an oral agreement to sell property. The judgment required Anderson to pay to the Mooneys $2,250 in rent for the years 1975 through 1977 and ordered the Mooneys to return to Anderson $6,500 that Anderson had paid to the Mooneys for the property. We affirm in part, modify in part, and remand.

Walter and Margaret Mooney, husband and wife, owned certain real property in joint tenancy. In April 1975 Anderson approached Walter with an offer to purchase a portion of the real property, the number of acres and the price forming the basis for the dispute in this action. After Walter Mooney had discussed the matter with his wife, he and Anderson viewed the property together and Anderson alleges the agreement was made at that time. In April 1975 Anderson paid the Mooneys the sum of $1,000 and an additional $5,500 in May of that same year. The evidence discloses that conversations between Walter Mooney and Anderson concerned the purchase of a tract of land on the Mooneys' property. Anderson contends that the westerly boundary of the property to be purchased was to be marked by an old dead tree located on the river bank and extending east to the border of the Mooneys' 40-acre tract, later determined to be approximately 25 acres, and that the total price was to be $11,500. The Mooneys claim that the agreement with Anderson was for Anderson to buy either 12 1/2 acres for $11,500 or the 25-acre tract, as marked by the dead tree, for $25,000.

The evidence submitted to the court further discloses: that during the conversations between Anderson and Walter Mooney they agreed that a surveyor would be hired to survey the property and determine the number of acres and the legal description of the tract; that a local attorney would be requested to prepare the necessary papers after Walter had secured the abstract of title; that subsequent to the discussions between Anderson and Walter Mooney, Anderson's hired man removed a fence on the property without objection from the Mooneys; that later in the summer of 1975 Anderson talked with Walter Mooney about harvesting the alfalfa crop that grew on the premises and that Anderson had the hay cut and baled three times during that season; that in the fall of 1975 Anderson's hired man plowed the tillable land on the 25-acre tract without objection from the Mooneys, but that subsequently Walter Mooney informed Anderson that he had plowed too much land; that in October 1975 Anderson informed Walter Mooney that the deed to the 25-acre tract and a check for $5,000 were in the local attorney's office and that Walter should have the deed executed and pick up the check; that in the early spring of 1976 Anderson took a deed to the Mooneys and asked them to execute it but they refused; and that later in the spring of 1976 Anderson's hired man was sent out to fertilize the land in question and Margaret Mooney requested him to leave because, according to her, Anderson did not own any of the property.

In April 1976 Anderson filed an action against the Mooneys asking for specific performance of the oral contract between himself and the Mooneys. The matter was tried to the court without a jury and Anderson, Walter and Margaret Mooney, and others testified. The attorney with whom Anderson and Walter Mooney had discussed the matter had died, however, in the spring of 1976. After trial, the district court entered its memorandum decision and findings of fact and conclusions of law and order for judgment decreeing that no agreement as to the price or quantities of the land to be sold was made between Anderson and the Mooneys. The trial court's pertinent findings and conclusions are as follows:

"FINDINGS OF FACT

"I.

"That the Co-defendants Walter Mooney and Margaret Mooney, were and are at all times during these proceedings the fee simple owners as joint tenants and not as tenants in common of the following described real property:

(Description.)

"II.

"That the Plaintiff and the Defendants did at various times and places, all within Traill County, North Dakota, between April of 1975 and April of 1976, negotiate, converse, and orally communicate amongst each other as to the purchase by the Plaintiff and sale by the Defendants of a portion of the real property described above.

"III.

"That on or about April 2, 1975 the Plaintiff tendered onto the Defendant, Walter Mooney, the sum of $1,000.00, and on May 15, 1975 the additional sum of $5,500.00.

"IV.

"That the Spring of 1975, and following farming seasons the Plaintiff did farm 25 acres of land, more or less, within the larger parcel described above with the oral consent of the Defendant, Walter Mooney, but with the rent payable to be determined by later mutual agreement.

"V.

"That in the Spring of 1976, the Plaintiff and Defendants were unable to agree upon the terms of sale, what portion of the parcel was to be sold, and in particular, the Defendant, Margaret Mooney, refused to sign any of the instruments of conveyance.

"VI.

"That the Plaintiff pursuant to Court order retained possession of a portion of said land for the farming season of 1976 and 1977.

"CONCLUSIONS OF LAW

"II.

"That the Plaintiff and Defendants did negotiate for the purchase and sale, of a portion of said real property, but that no agreement as to the price or quantities of the land to be sold was made among them.

"III.

"That the Plaintiff did pay unto the defendant, Walter Mooney, the sum of $6,500.00 and that (Walter Mooney) shall repay the said sum unto the Plaintiff.

"IV.

That the Defendants are entitled to the reasonable rental value of said parcel for the years 1975, 1976, and 1977, which the Court finds to be $750.00 per year, for a total rent due of $2,250.00.

Anderson presents two issues on appeal:

1. Are the findings and conclusion of the trial court that there was no meeting of the minds between Anderson and the Mooneys in their oral negotiations for the sale of land clearly erroneous?

2. Is the trial court's order denying specific performance of the contract clearly erroneous?

The parties agree that the finding of the trial court that there was no meeting of the minds is governed by Rule 52(a) of the North Dakota Rules of Civil Procedure. That rule provides, in part "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . ."

See also, e. g., Pride Laboratories, Inc. v. Sentinel Butte Farmers Elevator Company, 268 N.W.2d 474 (N.D.1978).

We have held that a finding of fact is clearly erroneous "when, although there is some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." See, e. g., Mehus v. Mehus, 278 N.W.2d 625, 633 (N.D.1979). We have also said that in applying this rule this court gives great weight to findings and inferences of the trial court, and will set them aside only if they are found to be clearly erroneous based upon all the evidence, and not merely because the appeals court might have reached a different result. See, e. g., Kee v. Redlin, 203 N.W.2d 423 (N.D.1972).

In its memorandum opinion the trial court held that it must find "a meeting of the minds of all parties involved, as to all necessary elements, including the issue of the acreage involved, to form a valid contract." ¹ The trial court found that the land was owned "in joint tenancy and both husband and wife were necessary parties to the sale of the land and must be shown to have knowledge of the terms of the oral agreement in order for the plaintiff to prevail by way of specific performance . . ." The trial court noted that the principal disputed item at issue was the acreage involved in the alleged land sale agreement. The trial court's findings are essentially explained in the following paragraph from the memorandum opinion:

"The plaintiff offered considerable evidence to support the understanding that the sale of land was understood between the parties to be for acreage westward over to a point running north and south from a dead tree, and which upon a later survey was determined to be 24.96 acres. This was disputed by testimony of the defendants, and with reference to the defendant, Mrs. Margaret Mooney, a joint owner, it appears to the Court there was never any meeting of the minds between her and Mr. Anderson as to what acreage was involved in the sale which had been arranged between the plaintiff and her husband, Mr. Walter Mooney."

Anderson agrees that there must be a meeting of the minds, as the trial court held, in order to form a binding contract.

Section 9-01-02, N.D.C.C., provides that, with other elements, the consent of the parties is essential to the existence of a contract. Section 9-03-01, N.D.C.C., requires that the consent of the parties to a contract must be communicated to each other, and Section 9-03-16, N.D.C.C., provides that consent is not mutual unless the parties all agree upon the same thing in the same sense. However, Anderson argues that certain actions and inactions on the part of the Mooneys prove that there was such a meeting of the minds. He argues that it is unlikely that he and Walter Mooney would have gone to the office of an attorney if they had not in fact established the full and final...