Bergquist-Walker Real Estate, Inc. v. William Clairmont, Inc., BERGQUIST-WALKER

• Decision Date: 11 July 1984
• Docket Number: No. 10627,BERGQUIST-WALKER,10627
• Citation: 353 N.W.2d 766
• Parties: REAL ESTATE, INC., Plaintiff and Appellant, v. WILLIAM CLAIRMONT, INC., and William Clairmont, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 766

353 N.W.2d 766

BERGQUIST-WALKER REAL ESTATE, INC., Plaintiff and Appellant, v. WILLIAM CLAIRMONT, INC., and William Clairmont, Defendants and Appellees.

Civ. No. 10627.

Supreme Court of North Dakota.

July 11, 1984.

Daniel J. Chapman, of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Patrick A. Conmy, of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendants and appellees.

VANDE WALLE, Justice.

This is the second time this matter has been before us on appeal. In Bergquist-Walker Real Est. v. Wm. Clairmont, 333 N.W.2d 414 (N.D.1983), we reversed a judgment n.o.v., modified the order granting a new trial to require a new trial on all issues, not only that of damages, and, as modified, we affirmed the order granting a new trial. On remand a new trial was held and the jury returned a verdict in favor of the defendants (hereinafter Clairmont). The plaintiff (hereinafter Walker) appealed from the judgment and from the order denying its motion for a new trial. We affirm.

The facts involved in the transactions between Walker and Clairmont are referred to in our previous opinion and we will not repeat them here. It is sufficient to note that Walker alleged that he had an oral contract with Clairmont to sell certain lands purchased by Clairmont. Clairmont denied Walker the right to attempt to sell the property and Walker brought an action against Clairmont alleging breach of the contract by Clairmont. Additional facts relative to specific issues will be referred to in the discussion of the particular issue.

The first three issues raised by Walker concern a question asked of Clairmont by counsel for Walker. As we have noted above, Walker's contention was that he had an oral agreement with Clairmont concerning the sale of the property and Clairmont's contention is that there was no such agreement. The following colloquy occurred between counsel for Walker, Clairmont, and the trial judge:

"Q. Well, that's my next question, Mr. Clairmont. After you got sole ownership of the property, did you ever call Jack Walker up and say anything about that the group decided about your listing agreement is off?

"A. No, I don't know that I did or didn't.

"Q. Did you write him a letter to that effect?

"A. No, I don't think so.

"Q. In any way did you convey to Mr. Walker that the deal that the group had made with him was off?

"MR. CONMY: Your Honor, I will object to that on the grounds of facts not in evidence. It assumes the group made a deal. That is not what the witness has testified to.

"THE COURT: I am going to sustain that objection. The two of you seem to be making certain assumptions, and your questions and his answers are not quite the same; at least, that's the way I understand what he said. You just referred to a deal and to an agreement, and I never understood him to say an agreement was struck.

"MR. CHAPMAN: No, I don't agree, your Honor.

"THE COURT: Well, perhaps you should examine further on the subject.

"BY MR. CHAPMAN:

"Q. Is there any question, Mr. Clairmont, that the group wanted Mr. Walker to market this property?

"A. At that time the group planned on having him do it. That doesn't necessarily mean that I did.

"Q. But you were part of that group.

"A. Yes, I was part of the group.

"Q. Now, is there any question in your mind that at least the group understood that there was an agreement with Mr. Walker to market the Tyler property?

"A. There never was an agreement, because we never got that far.

"Q. I see. Well, then, your previous testimony, Mr. Clairmont, maybe you should clarify it, at least for my sake. Are you saying that the group merely intended to make an agreement with Mr. Walker but did not do it?

"A. As I remember, the group contemplated having Jack Walker sell it if the group went through with it the way it happened they were going to at first.

"Q. All right. Well, in any event, Mr. Clairmont, after the property came into your own name, did you in any way communicate to Mr. Walker that, whatever the group might have intended to do, you did not intend to do it?

"A. I don't remember that I did. But I never told him that he was going to have it."

Walker contends that the trial court's action in sustaining the objection on the ground the question assumed facts not in evidence constitutes reversible error where, as here, the primary issue was the existence of an oral contract. Walker argues that even if Clairmont had not conceded that there was a "deal," previous witnesses constituting "the group" testified to prior discussions with Walker concerning the sale of the property. In responding to that contention in the memorandum opinion and order denying the motion for new trial, the trial judge made the following observation:

"Insofar as sustaining the objection itself goes, the question was a 'Have you stopped beating your wife yet?' question. Had I required the witness to answer it, he would have found it necessary to endorse the proposition that an agreement existed, which was one of the main points in issue. It is important to note here that it was the form of the question which was objectionable. Had counsel reframed the question, he certainly would have been permitted to inquire into the subject matter, which had to do with what, if any discussions were later had regarding the sale of these lots."

We agree with the observation of the trial judge. Our review of the transcript reveals that Clairmont surely did not concede the existence of any agreement or "deal" for Walker to sell the property. Walker urges the question asked of Clairmont did not necessarily imply that Clairmont conceded the existence of an agreement but rather referred to the testimony of the others involved in the group. However, our review of the transcript reveals that the testimony of these witnesses is, for the most part, equivocal on the issue of whether or not an actual agreement had been reached. Although Walker contends that there were sufficient facts introduced into evidence from which the jury could have concluded that an agreement had been reached, and that this was the import of the question, we cannot so construe it. It is apparent to us that an answer to the question, whether negative or affirmative, would concede the existence of an agreement, and that concession was one which Clairmont had refused to make.

It is the long-standing position of this court that the trial judge has discretion as to how a trial shall be conducted and that he is more than a referee whose function it is to see that any contest is carried on in strict accordance with the rules, to the end that the decision may be awarded to the more skillful; rather, it is the duty of the trial judge to keep the examination of witnesses reasonably within bounds, so that the real issues may not be obscured but he must do so in a proper manner and without violation of any of the rules of evidence. See, e.g., Bryngelson v. Farmers' Grain Co., 54 N.D. 543, 210 N.W. 19 (1926). We conclude the ruling of the trial judge in this instance was within his discretion. Eriksen v. Boyer, 225 N.W.2d 66 (N.D.1974).

In connection with this same portion of the trial, Walker claims that the comment of the trial judge that he "never understood him to say an agreement was struck" was improper comment on the evidence and that it was for the jury to determine whether or not an agreement had been reached. In Haugen v. Mid-State Aviation, Inc., 144 N.W.2d 692, 696 (N.D.1966), this court stated:

"A trial judge should, of course, maintain at all times an impartial attitude in the trial of the case over which he presides. He should not, by word, by question, by his attitude, or by any conduct on his part, do anything which may influence the jury in its consideration of the case. He should make no remarks which would show bias on his part in favor of any party to the lawsuit. Other than that, however, the trial judge is allowed great latitude and discretion in conducting the trial and, except for any obvious abuse of that discretion, his conduct of the trial will not be grounds for reversible error."

Although we agree that it was for the jury to determine whether or not an agreement had been reached, we cannot conclude that the comment can be considered improper. The record is clear that Clairmont had not conceded the existence of an agreement and, in the full context of the trial judge's remarks, as set forth earlier in this opinion, it is also clear that he was only attempting to explain his reason for sustaining the objection--presumably in an attempt to assist counsel should he have wished to explore the matter further. Walker attempts to distinguish Hennenfent v. Flath, 66 N.W.2d 533 (N.D.1954), in which this court held that remarks which merely state what the record showed as to certain matters do not constitute comments upon the testimony in the objectionable sense that they comment upon the credibility or weight to be given to testimony. Walker argues that, here, because the judge stated he "understood" Clairmont had not testified that an agreement had been reached, he is deprived of arguing to the jury that the testimony showed that there was an agreement between the group and Walker. We do not agree. Walker did, of course, argue to the jury that the testimony showed that Clairmont reached an agreement with Walker. What Clairmont said or did not say in his testimony, and what his actions or other transactions might imply or what other witnesses might testify to are different matters. The trial court's comments were limited to what Clairmont testified to on the record and in this respect the remarks are no different from the comments made by the trial judge in sustaining an objection in Hennenfent, supra. In State v. Yodsnukis, 281 N.W.2d 255 (N.D.1979), we observed that jurors are quick to be influenced by any opinion that they think the trial judge harbors about the merits of the case or the weight of certain...