Beck v. Lind

• Citation: 235 N.W.2d 239
• Decision Date: 31 October 1975
• Docket Number: No. 9065,9065
• Parties: Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee.
• Court: North Dakota Supreme Court

Page 239

235 N.W.2d 239

Jester D. BECK and Sharon K. Beck, Plaintiffs, Appellants, v. Willie LIND, Defendant, Appellee.

No. 9065.

Supreme Court of North Dakota.

Oct. 31, 1975.

Syllabus by the Court

1. A trial judge in a nonjury case should generally admit all evidence which is not clearly inadmissible where he is capable of ruling upon the admissibility of evidence which will also enable him in his deliberations to distinguish between evidence which is admissible and evidence which is not admissible.

2. A contract for employment is not per se illegal even if the method of payment is in part contrary to law.

3. Evidence of an executed illegal contract should be admitted even though the method of payment allegedly was in violation of law.

4. The commission of an act may be proved by showing acts of a similar nature by the same person where the acts are connected in some special way indicating a relevancy beyond mere similarity as to some particulars.

5. The test whether proper evidence is relevant or irrelevant is whether it would reasonably and actually tend to prove or disprove any matter of fact in issue.

6. An issue as to the existence of a particular fact may be proved by evidence as to the existence of similar facts under the same or substantially similar circumstances.

7. It is the object of the appellate court in exercising its jurisdiction to assure ultimate justice as far as possible.

8. In construing an ambiguous contract which has been performed in part, the subsequent acts of the parties performed after entering into the contract will be helpful in determining the intentions and construction placed on the contract by the parties.

9. A prior inconsistent statement made in a deposition of a witness who at trial is unable to recall the statement is admissible.

10. A prior statement of a declarant which is inconsistent with declarant's testimony at the trial, the declarant being subject to cross-examination concerning the statement, is admissible as substantive evidence of the truth of the matter asserted in the statement.

11. Pleadings in a civil action may constitute admissions which will stand unless satisfactorily explained to the contrary by the party on whose behalf the pleadings were made.

12. The lessee of State grazing land has a cause of action for damages against a sublessee for overgrazing said land even though the lessee had no authority to sublet the lease where the damages were sustained and are suffered covering the period of the lessee's lease with the State.

13. The enactment of Section 31--11--06, N.D.C.C., made the equitable principle of estoppel cognizable in both law and equity.

14. An essential element of equitable estoppel is a representation which may consist of words, acts, or silence relied upon by the party claiming the benefit of the estoppel which induced him to act or refrain from acting to his prejudice.

15. Action for cancellation and rescission is not compatible with implied or constructive contract theories of law.

16. On appeal, this court does not review on a de novo basis but determines whether the findings of the trial court are clearly erroneous. If there is substantial evidence to support the findings made by the trial court they are not clearly erroneous.

17. A waiver is a voluntary and intentional relinquishment or abandonment of a known existing right, advantage, benefit, claim or privilege which, except for such waiver, the party would have enjoyed.

18. To constitute a waiver there must be an intention to relinquish a known right and intentional forbearance to enforce a right.

19. Forfeiture in a lease as to future rent payments generally are not looked upon favorably by the courts and are generally considered as a penalty.

20. On the question of damages to pasture or grazing land, any competent evidence which would tend to shed light on the question should be admitted.

21. Subsequent weather conditions generally shold not be considered on a question of assessing damages to pasture.

Freed, Dynes, Malloy & Reichert, Dickinson, for plaintiffs, appellants; argued by George T. Dynes.

Greenwood, Moench & Galloway, Dickinson, for defendant, appellee; argued by L. E. Greenwood, Dickinson.

SAND, Judge.

This is an appeal by plaintiff Beck from the judgment of the district court of Dunn County and from the denial of his motion for a new trial.

Beck had leased his ranchland to Lind April 1, 1970, for a period of five years. Disputes later arose over this lease and other interrelated activities between Beck and Lind, which culminated in Beck initiating legal action against defendant Lind.

In September of 1973, Beck brought an action for breach of contract, for cancellation of the remaining term of the lease, for additional rents due for damages caused by the additional cattle, and for other amounts due him which arose out of the interrelated activities during the period of time involved.

The action was tried to the court without a jury. The court's judgment terminated the lease as of April 1, 1974, but disallowed any rents due on the terminated lease and allowed only a portion of the damages claimed by Beck on the related activities. Beck made a motion for a new trial, which was denied. The appeals followed. Beck contends that the trial court made numerous errors. We will refer to, identify, and discuss those which are essential to the disposition of this appeal.

We reverse in part and remand in part for a new trial.

The errors raised before this court are substantially the same as those upon which Beck relied for his motion for a new trial. A noteworthy majority of the disputes arose out of the five-year lease, either in whole or in part, or relate directly or indirectly to it.

In the basic transaction, Beck leased 1,920 acres of land to Lind for a period of five years, beginning April 1, 1970, at the rate of $11,500 per year, of which the sum of $5,750 was due and payable on the 1st of August of each year, and the sum of $5,750 due and payable on the 1st day of January of each year.

The lease included 480 acres of land that Beck had leased from the State of North Dakota, which contained a prohibition against subleasing without consent of the State of North Dakota. The lease provided that upon Lind's failure to fulfill the covenants of the lease Beck could re-enter without 'working a failure of the rents to be paid.' The lease limited Lind to 130 head of cows except during the period between November 15 and April 1 of each year. A Quonset and home located on the premises were reserved to Beck, but Lind could use the other buildings as needed. Four cattle 'brands' were leased to Lind for the same period. Pursuant to the lease, Lind agreed to surrender the leased premises at the end of the five years in as good a condition and repair as when he took them, wear and tear and damage by elements alone excepted. Failure to make payments as stated in the agreement constituted grounds for breach of the lease agreement. The lease also contained a provision that in the event the governmental feed grain and wheat certificate programs are discontinued Lind shall reimburse Beck for the loss of revenue up to but not exceeding the sum of $2,500 per year, and that sum shall be payable at the times and in the manner as the lease payments.

The trial court terminated and canceled the lease as of April 1, 1974. The total amount due from the start of the lease on April 1, 1970, to the date of its termination by the court, April 1, 1974, was $46,000. The trial court also held that plaintiff was not entitled to any rent from April 1, 1974, to April 1, 1975. The trial court found that the sum of $48,566 had been paid to Beck as of June 15, 1973, by Lind, ostensibly for the leased land. But Lind admitted that $2,000 of this amount was for rent for a separate parcel of land, which reduced the amount of payments to $46,566. The trial court held that the defendant Lind had fulfilled his financial obligation under the lease and was entitled to a credit of $566 for the overpayment.

Beck, however, claims that substantial portions of the payments for rent and pasture were not for rent, but were for wages. At the trial, Beck claimed that his employment with Lind extended from April 1, 1970, to December 31, 1971, at the rate of $100 per week, amounting to $9,100, ¹ which should be deducted from the $46,566. Beck also claims that the sum of $1,546.78 should be deducted from the $46,566, as such amount represents payments due under the lease whereby Lind agreed to make up the difference whenever payments under the government program in which Beck was enrolled failed to reach $2,500 per year. Beck further claims that the additional sum of $1,499.70 is due him under the government deficiency contract clause for the year 1973. The trial court denied all claims for deficiency payments.

Because this case involves numerous claims relating to alleged erroneous rulings on the admission of evidence, we deem it appropriate to call attention to what this Court said in Schuh v. Allery, 210 N.W.2d 96, 99 (N.D.1973), and which was repeated in Signal Drilling Co. v. Liberty Petroleum Company, 226 N.W.2d 148 (N.D.1975) and Matson v. Matson, 226 N.W.2d 659 (N.D.1975):

'We believe that a trial judge, in a nonjury case, should ordinarily admit all evidence which is not clearly inadmissible. A judge who is competent to rule upon the admissibility of evidence can distinguish in his own mind, when deliberating his ultimate decision, between evidence which is admissible and evidence which is not admissible. The introduction of allegedly inadmissible evidence in a nonjury case will rarely be reversible error, and it may often avoid a possible reversal in cases where this court, on appeal, holds that the evidence is admissible.'

As to the employment, Beck claims that he was paid by check for the employment, but that the checks were labeled 'for pasture,' 'for rent,' or 'for pasture...