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

Decision Date14 April 1983
Docket NumberNo. 10236,BERGQUIST-WALKER,10236
Citation333 N.W.2d 414
PartiesREAL ESTATE, INC., Plaintiff and Appellant, v. WILLIAM CLAIRMONT, INC., and William Clairmont, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

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

Patrick A. Conmy (argued), of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, and Richard P. Rausch, of Rausch & Rausch, Bismarck, for defendants and appellees.


Bergquist-Walker Real Estate, Inc. (hereinafter "Walker"), appealed from a judgment dismissing its action against William Clairmont, Inc. (hereinafter "Clairmont"), or, in the alternative, granting Clairmont a new trial, entered upon an order for judgment notwithstanding a jury verdict. We affirm in part and reverse in part and remand for further proceedings.

Walker alleged that he had an oral contract with Clairmont for the exclusive right to sell lands purchased by Clairmont from Jim and Marie Tyler (hereinafter "Tyler Ranch"). Clairmont denied Walker the right to attempt to sell the property. The action was tried to a six-person jury which returned a verdict in favor of Walker for $500,000. Clairmont moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted the motion for judgment notwithstanding the verdict and, pursuant to Rule 50(c), N.D.R.Civ.P., conditionally granted the motion for a new trial if the judgment was thereafter vacated or reversed. The trial court's order and judgment limited the new trial to the issue of damages upon a quantum meruit basis. Walker appealed from the order and judgment.

Before we consider the issues raised by Walker, we briefly review the functions of this court on appeal from a judgment notwithstanding the verdict. Recently, in Okken v. Okken, 325 N.W.2d 264, 267 (N.D.1982), we stated:

"In determining if the evidence is sufficient to create an issue of fact, and hence in determining if judgment n.o.v. should be granted, the trial court must employ a rigorous standard with a view toward preserving verdicts. [Citation omitted.] The test is whether or not the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. [Citation omitted.] In employing this standard, the trial judge is not free to consider the weight of the evidence or to judge the credibility of witnesses; on the contrary, he is required to accept the truth of the evidence presented by the party opposing the motion and the truth of all reasonable inferences from that evidence which support the jury verdict. [Citations omitted.] The trial court must give proper deference to the jury's evaluation of the evidence and its judgment of the credibility of witnesses under a motion for judgment n.o.v.

"In order to determine whether or not the trial court erred in granting ... motion for judgment n.o.v., we must examine the trial record and then apply the same standard that the trial court was required to apply initially." [Emphasis in original.]

In its order granting judgment n.o.v., the trial court stated:

"The Court finds the facts in their most favorable light to the plaintiff for the establishment of a contract to be:

"1. That an oral contract was an agreement between Walker and Clairmont that Walker would sell all of the Clairmont properties owned by him at the date of the agreement together with all thereafter acquired property.

"2. That as each purported sale or group of sales came about, the oral agreement would be reduced to writing.

"3. That the agreement was to last for the lifetime of the parties.

"4. That this contract came into effect some time in the fall of 1973 at a meeting in a local steak house.

"This was the evidence given by Mr. Walker in support of his contract. All of the other parties who testified admitted they only presumed that the parties would enter into a contract for the sale of the 'Tyler properties', but none of them had any knowledge of the specifics of that property.

"5. No sales were ever made of any of the alleged properties covered by the oral agreement.

"The alleged contract is invalid by virtue of the statute of frauds of the State of North Dakota, Section 9-06-04 of the NDCC. It fails to have the following items which are required in a contract:

"1. The purported agreement exists for a period of more than one year, i.e. a lifetime.

"2. The contract fails to identify the object of the contract, i.e. the property to be sold.

"3. There is nothing which indicates the obligations of the plaintiff underneath the contract.

"There is no question in this Court's mind that the parties anticipated and hoped that they might be able to arrive at an agreement for the sale of certain property in the city by Mr. Walker on Mr. Clairmont's behalf. However, such a contract was never entered into or consummated in any fashion. Based on the foregoing, the Court hereby grants Judgment Notwithstanding the Verdict and enters Judgment for a Dismissal of the plaintiff's Complaint."


Walker's first challenge is that the trial court committed error by granting the motion for judgment n.o.v. based in part upon an alleged violation of the statute of frauds because the purported agreement could not be performed within one year.

Section 9-06-04, N.D.C.C., provides, in part:

"The following contracts are invalid, unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent:

"1. An agreement that by its terms is not to be performed within a year from the making thereof; ..."

The trial court's conclusion that the contract was to last a lifetime apparently was based upon the following testimony given by Walker on cross-examination:

"Q. Now, going back again to April 9, 1974, in your understanding that this was to cover all property sold by Mr. Clairmont, did you have an end date in sight as to when this contract would no longer apply to Mr. Clairmont's property?

"A. You indicated that Mr. Clairmont sold, I would be selling all of Mr. Clairmont's property that he owned as he acquired it.

"Q. Okay, we are defining sale differently, I guess, but did you have any end date in sight? How many years were you to be the exclusive seller of Mr. Clairmont's property?

"A. Each property would be handled as far as the length of time on a separate basis.

"Q. How many years, though, would Mr. Clairmont, under your theory be obligated to market his property through you, Mr. Walker--forever?

"A. I wouldn't expect him to obligate himself to that point. I think if the property was of comparative size, I was willing to consider ten years as an adequate maximum length.

"Q. Well, assuming again, and I am just trying to understand what you say your agreement was, assuming Mr. Clairmont acquired a piece of property in 1980, would you anticipate that under your agreement you would be allowed to market it for him?

"A. Yes.

"Q. Now, I am going to get ridiculous--1990?

"A. If I was active and he was active, yes, and I was doing a good job, I would expect it, yes.

"Q. So the terms of this contract that you're describing to me and to the jury is one that was going to extend through your business lifetime?

"A. Through both of our lifetimes if I did my job."

Although this colloquy between Walker and Clairmont's counsel appears to apply to all property of Clairmont, whether presently owned or to be acquired at any time in the future, thus indicating that the contract would not be performed within one year, there is other testimony by Walker indicating that the agreement to which Walker referred in this action involved only the Tyler Ranch.

Insofar as the testimony could have been construed to apply only to the Tyler Ranch, and under the Okken standard we must so construe it, the question then becomes whether or not the contract is invalid under Section 9-06-04, N.D.C.C., because it could not be performed in one year.

If there is any possibility that an oral contract is capable of being completed within one year, the contract is not within the statute of frauds even though it is clear that the parties may have intended and thought it probable that the contract would extend over a longer period, and even though the contract does so extend. Drummey v. Henry, 115 Mich. 107, 320 N.W.2d 309 (1982). Thus the contract must be impossible of performance within one year if it is to be proscribed by the statute. Johnson v. Ward, 265 N.W.2d 746 (Iowa 1978); Restatement (Second) of Contracts, Sec. 130. Furthermore, the authorities indicate that if the contract is for the duration of a lifetime it is not within the statute of frauds because of the possibility that the performer may die within that time period. See 2 Corbin on Contracts Sec. 446 at 548-550; 3 Williston on Contracts Sec. 495 at 579-583.

We agree with Walker that a judgment n.o.v. should not have been entered on the basis the contract was invalid because it could not be performed within one year. However, the trial court also determined that judgment n.o.v. should be entered because the property to be sold was not identified nor was there any evidence to indicate the obligation of Clairmont under the contract. But we must view the evidence in the light most favorable to the verdict and we believe there is sufficient evidence in the record whereby the jury could have concluded that the property involved was the Tyler Ranch. Although a precise description would require reference to extrinsic documents, we do not believe that factor alone is sufficient for a conclusion that the property to be sold was not identified. Rohrich v. Kaplan, 248 N.W.2d 801 (N.D.1977). 1 Nor do we believe a judgment n.o.v. is justified because of insufficient evidence as to Clairmont's obligation under the contract. There was evidence that...

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