Bentler v. Brynjolfson
| Decision Date | 27 November 1917 |
| Court | North Dakota Supreme Court |
Appeal from the judgment of the District Court of Pierce County Honorable A. G. Burr, Judge.
Reversed.
Reversed and remanded.
Harold B. Nelson, for appellants.
In construing contracts the first and main rule is that the intent of the parties, as expressed in the words they have used, must govern. 9 Cyc. 577; Travelers Ins. Co. v California Ins. Co., 1 N.D. 151, 8 L.R.A. 769, 45 N.W 703.
It can never be assumed that the parties were making a contract they both knew would not be performed. Gorder v. Hilliboe, 17 N.D. 281, 115 N.W. 843.
Such assumption is necessary in order to sustain plaintiff's theory of the contract involved. Morrison Mfg. Co. v. Fargo Storage & Transfer Co., 16 N.D. 256, 113 N.W. 605; Young v. Metcalf Land Co., 18 N.D. 441, 122 N.W. 1101;; Stewart v. Marvel, 101 N.Y. 357, 4 N.E. 743.
All rules are subordinated to the real intention of the parties, and this is to be gathered from the contract itself, lawful in form and substance. Taylor v. Enoch Morgan's Sons Co., 124 N.Y. 184, 26 N.E. 314; Mauran v. Bullus, 16 Pet. 528, 20 L.Ed. 1056; Chesapeake & O. Canal Co. v. Hill, 15 Wall. 94, 21 L.Ed. 64; Wilson v. Marlow, 66 Ill. 385.
Where ambiguity is claimed the court should endeavor to ascertain the real intent of the parties. Walker v. Tucker, 70 Ill. 527, 8 Mor. Min. Rep. 672; Ross v. Garlick, 10 Rob. (La.) 365; Salmon Falls Mfg. Co. v. Portsmouth Co., 46 N.H. 249; Comp. Laws 1913, § 5908; Crimp v. McCormick Constr. Co., 18 C. C. A. 595, 34 U. S. App. 598, 72 F. 366; Hall v. Farmers' Nat. Bank, 53 Md. 120.
If a contract is susceptible of more than one interpretation, it is to be interpreted in the sense in which the promisor has reason to suppose it was understood by the promisee. Comp. Laws 1913, § 5909; Potter v. Berthelet, 26 F. 240; Metropolitan Bank v. Northern Fuel Co., 73 Ill.App. 164, 173 Ill. 345, 50 N.E. 1062; McClendon v. Moore, 68 Ark. 621, 58 S.W. 347; Bickle v. Beseke, 23 Ind. 18; Losecco v. Gregory, 108 La. 648, 32 So. 985; Wisner v. Field, 15 N.D. 43, 106 N.W. 38.
In case of doubt as to the construction of a contract, the conclusion must be in the sense the least onerous to the obligor. Wagner v. Kenner, 2 Rob. (La.) 120; Erwin v. Greene, 5 Rob. (La.) 70.
Greater weight is given to the written, rather than to the printed, portions of the contract. Comp. Laws, 1913, § 5911; Farmers Nat. Bank v. Delaware Ins. Co., 83 Ohio St. 309, 94 N.E. 834; Union P. R. Co. v. Graddy, 25 Neb. 849, 41 N.W. 809; John Deere Plow Co. v. City Hardware Co., 175 Ala. 512, 57 So. 821; Low v. Young, 158 Iowa 15, 138 N.W. 828; Eighme v. Holcomb, 84 Wash. 145, 146 P. 391; Harney v. Wirtz, 30 N.D. 292, 152 N.W. 803; Bolman v. Lohman, 79 Ala. 67; Regent State Bank v. Grimm, 35 N.D. 290, 159 N.W. 842.
Where there is a conflict, the written portions will control. Loveless v. Thomas, 152 Ill. 479, 38 N.E. 907; Murray v. Pillsbury, 59 Minn. 85, 60 N.W. 844; Clark v. Woodruff, 83 N.Y. 518.
Where parties do not agree upon the same terms, there is no completed contract. 1 Elliott, Contr. § 36; Phenix Ins. Co. v. Schultz, 25 C. C. A. 453, 42 U. S. App. 483, 80 F. 337.
An agreement is reached when without fraud, duress, or mistake on the part of either, one submits, and the other accepts, a given proposition. 1 Elliott, Contr. § 36; Davenport v. Newton, 71 Vt. 11, 42 A. 1087; American Can Co. v. Agricultural Ins. Co., 12 Cal.App. 133, 106 P. 720.
The acceptance must be unconditional. One who makes an offer cannot be bound by a conditional acceptance. Comp. Laws 1913, §§ 5859, 5862; Martin v. Northwestern Fuel Co., 22 F. 596; Bowen v. Hart, 41 C. C. A. 390, 101 F. 376; Breen v. Mayne, 141 Iowa 399, 118 N.W. 441; Melick v. Kelley, 53 Neb. 509, 73 N.W. 945; Strong & T. Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92; Monk v. McDaniel, 116 Ga. 108, 42 S.E. 360; Baxter v. Bishop, 65 Iowa 582, 22 N.W. 685; Flynn v. Dougherty, 3 Cal. Unrep. 412, 26 P. 831; Corcoran v. White, 117 Ill. 118, 57 Am. Rep. 858, 7 N.E. 525; Sawyer v. Brossart, 67 Iowa 678, 56 Am. Rep. 371, 25 N.W. 876; Esmay v. Gorton, 18 Ill. 483; Payne v. Newby, 49 Ill.App. 141; Scribner v. Rutherford, 65 Iowa 551, 22 N.W. 670; Green v. Cole, 103 Mo. 70, 15 S.W. 317; Krum v. Chamberlain, 57 Neb. 220, 77 N.W. 665; Beiseker v. Amberson, 17 N.D. 215, 116 N.W. 94; Patterson v. Farmington Street R. Co., 76 Conn. 628, 57 A. 853; Harding v. Gibbs, 125 Ill. 85, 8 Am. St. Rep. 345, 17 N.E. 60; McCormick v. Bonfils, 9 Okla. 605, 60 P. 296; Parlin v. Hall, 2 N.D. 473, 52 N.W. 405; Cedar Rapids Lumber Co. v. Fisher, 129 Iowa 332, 4 L.R.A. (N.S.) 177, 105 N.W. 595.
Under a general denial by way of answer, defendant may show anything that will defeat plaintiff's right to recover, or, in this case, plaintiff's right to possession of the property. Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N.W. 756; Gunderson v. Holland, 22 N.D. 258, 133 N.W. 546; Advance Thresher Co. v. Pierce, 74 Mo.App. 676; Oester v. Sitlington, 115 Mo. 247, 21 S.W. 820; Cunningham v. Skinner, 65 Cal. 385, 4 P. 373; 34 Cyc. 1501; Hillman v. Brigham, 110 Iowa 220, 81 N.W. 451; Pulliam v. Burlingame, 81 Mo. 111, 51 Am. Rep. 229.
And where a general denial has been interposed, plaintiff must prove every collateral fact necessary to establish the cause of action. Harvey v. Ivory, 35 Wash. 397, 77 P. 725; Aultman, M. & Co. v. Stichler, 21 Neb. 72, 31 N.W. 241; Jackson v. Morgan, 167 Ind. 528, 78 N.E. 633; Kaufman v. Cooper, 38 Mont. 6, 98 P. 504, 1135.
The burden of proof is upon the plaintiff to show that he is entitled to the property taken. Chaffee v. Blaisdell, 142 Mass. 538, 8 N.E. 435; Russell v. Amundson, 4 N.D. 112, 59 N.W. 477; Stephens v. Williams, 46 Iowa 540; Vennum v. Thompson, 38 Ill. 143; Plano Mfg. Co. v. Daley, 6 N.D. 330, 70 N.W. 277; Haveron v. Anderson, 3 N.D. 540, 58 N.W. 340; 34 Cyc. 1503.
The property described in the complaint is the property in question in claim and delivery. Shinn, Replevin, § 457; Talcott v. Belding, 4 Jones & S. 84; Nicholson v. Dyer, 45 Mich. 610, 8 N.W. 515.
The rule as to the identification of the property is very strict. Ames v. Mississippi Boom Co., 8 Minn. 467, Gil. 417; Stanchfield v. Palmer, 4 G. Greene, 23; Russell v. Amundson, 4 N.D. 112, 59 N.W. 477; Berthold v. Holman, 12 Minn. 347, Gil. 221, 93 Am. Dec. 233; Hardin v. Palmerlee, 28 Minn. 453, 10 N.W. 773; Cobbey, Replevin, § 27; Shackelford v. Hargreaves, 42 Neb. 680, 60 N.W. 951; Nichols & S. Co. v. Paulson, 10 N.D. 440, 87 N.W. 977.
The judgment is not supported by the evidence, but is contrary thereto. John Deere Plow Co. v. City Hardware Co., 175 Ala. 512, 57 So. 821; Martin v. Northwestern Fuel Co., 22 F. 596; Bowen v. Hart, 41 C. C. A. 390, 101 F. 376; Ames v. Mississippi Boom Co., 8 Minn. 467, Gil. 417.
Richard E. Wenzel, for respondents.
When parties enter into a contract they do so with the law in reference to the same as it then existed, ever in mind, and the construction of a contract is always with this consideration. 2 Elliott, Contr. § 1507.
"A contract should be construed so as to carry out the real intention of the parties, even though it is necessary to depart from the strict letter." Ross v. Garlick, 10 Rob. (La.) 365.
The issue here was whether or not plaintiff was entitled to the possession of the property described in the complaint. The evidence showed he was so entitled. 11 Enc. Ev. 224.
This action is one of claim and delivery for the recovery of possession of certain personal property, or, in the event possession thereof cannot be had, for judgment for the value thereof.
The complaint is in the ordinary form, and among other things alleges the right to possession of 936 bushels of oats and 663 bushels of barley, grown and raised upon the west half of section 21, township 158, range 73, Pierce county, North Dakota, for the season of 1914.
The answer is a general denial, and the further allegation that the value of the property described in the complaint is $ 1,430.
The facts in the case are substantially as follows: On the 23d day of September, 1909, the plaintiffs were the owners of the west half of section 21, township 158, range 73, Pierce county, North Dakota. On the 23d day of September, 1909, the plaintiffs agreed to sell said premises to the defendant for the sum of $ 12,800, and, in pursuance of such agreement, executed and delivered to the defendant a contract for deed of said premises. The defendant agreed to pay the purchase price of such premises at the times and in the manner as follows: $ 3,800 on or before December 1, 1910; $ 3,000 on or before December 1, 1911; $ 3,000 on or before December 1, 1912; and $ 3,000 on or before December 1, 1913,--with interest at the rate of 7 per cent per annum, payable annually, on the whole sum remaining from time to time unpaid. He made the following payments upon such contract: Paid on principal December 1, 1910, $ 1,800; paid interest until December 1, 1910, $ 1,060.26; January, 1912, defendant paid $ 1,000; December, 1912, defendant paid $ 2,000. These payments were the only payments made upon such contract.
The contract for deed is in the ordinary and customary form of such contracts, with the exception that it contains the following provision: "It is mutually agreed that, until the payment each year of the payment due each year hereunder to the said first parties, the legal title to, and the possession of, all grains grown upon...
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