Baldus v. Mattern

• Decision Date: 20 November 1958
• Docket Number: No. 7775,7775
• Citation: 93 N.W.2d 144
• Parties: Clarence H. BALDUS, Plaintiff and Respondent, v. Wendelin MATTERN, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 144

93 N.W.2d 144

Clarence H. BALDUS, Plaintiff and Respondent, v. Wendelin MATTERN, Defendant and Appellant.

No. 7775.

Supreme Court of North Dakota.

Nov. 20, 1958.

Syllabus by the Court

1. As a general rule, in absence of any contractual or statutory liability therefor, attorneys' fees and expenses incurred in an action by a plaintiff or which he has become obligated to pay in litigating a claim against a defendant, apart from the usual court costs, are not recoverable as an item of damages either in actions based upon contract or tort.

2. Where a defendant has properly objected to the elicitation of testimony as to attorneys' fees to be incurred by a plaintiff against a defendant involving litigation concerning sale and purchase of real and personal property, and it appears that the record is not unequivocally clear that the defendant withdrew his objection to such testimony, he is not barred from urging that the admission of such testimony was error on appeal.

3. The statute of frauds relevant to the sale of real property has no application where the seller, the party to be charged, has consummated the sale by a contract for deed executed, acknowledged and delivered to the purchaser.

4. A party sought to be charged upon a contract within the statute of frauds, Section 51-0105, NDRC 1943, must invoke its protection in some appropriate manner or he will be deemed to have waived his rights under it. This statute of frauds is not available as a defense unless specially pleaded.

5. Whether the issuance of a check by the defendant was an offer of compromise and settlement depends upon what it was intended for and the facts and circumstances relating to its issuance. It is held for reasons stated in the opinion that the check issued by the defendant was not an offer of compromise and settlement.

6. An agent's authority to sell personal property includes the authority to warrant the title of the principal. Section 3-0210, NDRC 1943.

7. The rule which requires a person injured by the wrongful act of another to exercise reasonable care to avoid loss or minimize the resulting damages and requiring a party to a contract, subject to injury for breach by the other party, to make reasonable efforts and exercise ordinary care and diligence to reduce the resulting damages, is not applicable where the party whose duty to perform a contract has equal oportunity for performance and equal knowledge of the consequences of nonperformance, as he cannot be heard to say that the other party might have performed for him.

8. For purposes of application of the parol evidence rule, the question whether a written contract was intended to be the complete and final agreement is to be determined from the circumstances of the case.

Friederich & Ziegler, Rugby, for appellant.

Waldron & Kenner, Minot, for respondent.

JOHNSON, Judge.

In this case, a liberal construction of the pleadings together with the method and manner of procedure adopted during the trial, discloses that the plaintiff is attempting to recover damages arising out of a sale of some real and personal property to him by reason of an alleged breach of the agreement of sale whereby the defendant failed and refused to convey that portion of the property designated as 'personal property' by bill of sale warranting the title thereto. The action was tried to a jury in Pierce County, North Dakota.

A summarization of the allegations as they appear in the pleadings will show that the plaintiff's theory is based upon an attempt to recover money damages.

On or about April 9, 1957, the defendant, Wendelin Mattern, was the owner of Lot 3, Block 4, Suburban Homes Addition to the City of Minot, Ward County, North Dakota. Prior to that time he had given the Allen Realty Company, operated by Earl Allen, a listing agreement covering the premises and the bottling plant equipment therein located. This listing agreement was exhibited to the plaintiff by Earl Allen, who claimed that under the agreement he had an exclusive right and option to sell the above described real and personal property; that the plaintiff agreed to buy it at the specified price of $24,150, set forth in the agreement. On April 9, 1957, the plaintiff paid to Earl Allen, the defendant's broker, $7,000 in cash to apply on the purchase price. On that date the plaintiff executed a contract for deed which had already been executed and acknowledged by the defendant covering the purchase of the real property described in the listing agreement. Thereupon the plaintiff took possession of the premises. At the time of the tender of the contract for deed covering the real property, the defendant also tendered a bill of sale covering the property located in the premises hereinbefore described, and designated in the listing agreement as 'bottling plant equipment' and which we will hereinafter refer to as the 'personal property.' The plaintiff claims that the bill of sale was not in the form agreed upon between the parties. The defendant had eliminated the warranty clause therefrom. Earl Allen, as the defendant's agent, assured the plaintiff that he would get him a proper bill of sale to the personal property, and that it would be transferred to him free and clear of all liens, encumbrances, and with warranty of title. The defendant, Wendelin Mattern, has failed and neglected to deliver such a bill of sale to the plaintiff covering the personal property. Earl Allen was unsuccessful in procuring such a bill of sale from him. At the time of the sale of the property, taxes on the personal property for the years 1952 through 1956 inclusive were due and delinquent, amounting to $1,195.16, and there may be other encumbrances against the personal property. It is asserted that the taxes constituted an encumbrance upon the personal property and that by reason of the provisions of the listing agreement and the statutes of the state of North Dakota, the representations of the defendant's agent, the defendant contracted and covenanted, expressly and impliedly, to convey the property free of encumbrances and with warranty of title; that he has failed, refused and neglected to carry out his part of the sale. It is then contended that under the terms of the listing agreement, the personal property was separately listed at a price of $5,000; that the plaintiff is willing to let the defendant retain the same, provided the contract for deed be reformed and reduced in the amount of $5,000. The plaintiff sets forth that he has performed all conditions on his part to be performed, but that the defendant has wrongfully and unlawfully refused and failed to fulfill his part of the agreement, and that by reason thereof the plaintiff has suffered special and peculiar damages by reason of attorney's fees, and other expenses amounting to $1,500. He prays judgment that the defendant be required to specifically perform his part of the listing agreement and that he be ordered to satisfy the encumbrances against the personal property, or that the plaintiff be awarded a money judgment for the amount of the liens and encumbrances mentioned and that the defendant be required to furnish a bill of sale with covenants of warranty for the personal property. He also prays that should the defendant be unable to furnish clear title to the personal property, that then the defendant be permitted to retain the property and that the contract for deed be reformed and reduced by the sum of $5,000 and that the plaintiff be allowed to offset as credit on the contract all the monies paid in satisfaction of the taxes, encumbrances or liens on the personal property. He then asks for special damages amounting to $1,500.

The defendant answered denying the allegations of the plaintiff's complaint; admits the ownership of the property, but specifically denies that he has any knowledge that the listing agreement was exhibited to the plaintiff. Then he pleads that the listing agreement was modified prior to the execution of the contract for deed between the plaintiff and the defendant on April 9, 1957, and that the plaintiff, through Earl Allen, entered into the purchase of the real property only, as described, for the sum of $24,150 and '* * * that said plaintiff has paid the sum of Seven Thousand and no/100 Dollars ($7,000.00) at the time of execution of said contract and the installments as provided for therein.'

Then he sets out that he did not specifically agree to warrant title to the personal property. He admits that the plaintiff, after the execution of the contract for deed made the down payment thereon, took possession of the premises and the personal property, and the he has been in possession since that time. He further pleads that he has complied with all the terms and conditions of the sale; that the plaintiff has no cause of action.

Originally the action had been instituted against the defendants, Wendelin Mattern and Earl Allen. It was dismissed as to Earl Allen.

The case was tried to a jury in Pierce County, North Dakota, and resulted in a verdict in favor of the plaintiff for $2,766,

'to be applied in reduction of the obligation under the contract for deed, Exhibit 1.'

The burden of the evidence presented at the trial involved an attempt to show that Wendelin Mattern sold both the real and personal property to the plaintiff; that he refused to deliver a bill of sale to the personal property warranting title thereto; that after the purchase of the personal property and down payment thereon, the same was sold for delinquent taxes by the sheriff of Ward County, and that by reason of the inability of the defendant to deliver title to the property sold to the plaintiff, he incurred damages for which defendant is liable.

It is clear that this is not an action for the reformation of a contract. It is also clear that both parties are agreed that the real property was sold, possession delivered, down payment made thereon, and that the plaintiff is in...