Black v. N.D. State Fair Ass'n for Grand Forks

• Decision Date: 24 September 1917
• Parties: BLACK v. NORTH DAKOTA STATE FAIR ASS'N FOR GRAND FORKS.
• Court: North Dakota Supreme Court

38 N.D. 105

164 N.W. 297

BLACK

v.NORTH DAKOTA STATE FAIR ASS'N FOR GRAND FORKS.

Supreme Court of North Dakota.

March 22, 1917.

After Rehearing Had Sept. 24, 1917.

Syllabus by the Court.

The purchaser of a license to sell cigars and drinks in the grand stand of a fair association takes his own chance on the crowd and the conditions.

Appeal from District Court, Grand Forks County; Chas. M. Cooley, Judge.

Action by J. N. Black against the North Dakota State Fair Association for Grand Forks. Judgment for defendant, and plaintiff appeals. Affirmed.

Bruce, C. J., dissenting.J. F. T. O'Connor and Sveinbjorn Johnson, both of Grand Forks, for appellant. Bangs & Robbins, of Grand Forks, for respondent.

ROBINSON, J.

The plaintiff brings suit to recover $500 damages for the alleged failure of defendant to observe a written concession giving to him exclusive grand stand privileges during fair days in July 20-24, 1915, to sell eats, drinks, candy, etc. He appeals to this court from a directed verdict and judgment and from an order denying a new trial.

There is no claim that plaintiff did not have the usual sale privileges of the grand stand, and it appears that he had all he bargained for. But defendant claims that on two of the days of the fair, when the crowds were large and the people very hungry and thirsty, the defendant permitted the aisles to become crowded and filled with people, so that it became difficult or impossible to serve them. And so the plaintiff failed to make a large expected profit. Of course, the crowd was just what the plaintiff and the Fair Association wanted, but it seems there was too much of a good thing. And so it is possible that plaintiff might have made more sales to a smaller crowd. However, it is folly to think of the defendant bargaining to limit sales to the fair grounds or to the grand stand, or that the defendant agreed with plaintiff to police the stand or to aid him in selling his drinks. As the trial court said:

“The agreement was simply a license to do business on the grand stand, and Mr. Black was bound to take the conditions there as he found them.”

The case does not seem to involve any real question of law or of fact.

The judgment is clearly right, and is affirmed.

BIRDZELL, J., being disqualified did not participate.

BRUCE, C. J. (dissenting).

This is an action for the breach of a concession for the sale of ice cream and similar articles in the grand stand at the State Fair. The written concession was as follows:

“Grand Forks, N. D., 7-7-15.

This agreement witnesseth, that the North Dakota State Fair Association for Grand Forks leases to J. N. Black, concessioner, space as follows: Grand stand privilege, eats, drinks, candy, etc., to be used exclusively for eats, drinks, candy, etc., during July 20-24, for which the concessioner agrees to pay $200 on demand. Receipt of $50 is hereby acknowledged. It is mutually agreed that the terms, conditions, and stipulations printed on the back hereof are a part of this concession contract.”

On the back of the concession were provisions to the effect that the representatives of the Fair Association should have access to the premises at all times; that the buildings, tents, and inclosures should be under the approval of the superintendent; that the prices charged should be posted, as well as the number of the concession; that such concessions should not be assignable; that the violation of the concession should be the subject of forfeiture; that the premises should be left in good repair and surrendered to the Fair Association without notice to quit at the expiration of the contract; that the Fair Association should have a lien upon the property of the concessioner for its claims.

The complaint alleged that this printed concession only contained some of the terms of the agreement, and that others were oral, and that such additional terms not included were:

“That the defendant promised and agreed with this plaintiff that the aisles and passages between the groups of seats into which the grand stand is divided upstairs would be kept free and clear of obstructions and spectators, so that this plaintiff and his servants could pass freely along the said aisles and passages and among the people occupying seats, for the purpose of selling and offering for sale things to eat and drink among the occupants thereof.”

The complaint then alleged that on the 22d and 24th days of July, 1915, in total disregard of his promises and agreements, the defendant caused the aisles and passages between the sections and groups of seats in the said grand stand to be filled with people, and so completely obstructed by spectators, placed there by the defendant, that it was impossible for the plaintiff or his servants to pass along or through the said aisles, and that by reason thereof the plaintiff lost profits on sales of things to eat and drink in the sum of $500.

The answer is a general denial, though defendant admits the fact of the holding of the fair, the execution of the written contract, and the attendance of large crowds. At the close of the trial the defendant moved for a directed verdict in the following language:

“At this time, if the court please, the defendant moves the court to direct the jury to return a verdict for the defendant, the State Fair Association of Grand Forks, on the ground and for the reason that the plaintiff has failed to establish facts sufficient to constitute a cause of action, in this: First, that the contract or agreement that has been introduced in evidence, showing the relations existing between the plaintiff and the defendant and what is known as Plaintiff's Exhibit D, evidences a mere license condition, and discloses the fact that the plaintiff, Black, was a mere licensee, authorized to vend certain articles in the grand stand and the portions of the grand stand immediately connected therewith. Further, there is no evidence showing or tending to show any violation of the agreement, or of the conditions of any agreement, entered into between the plaintiff and defendant, and hence no way in which the jury could determine the issues in this case in favor of the plaintiff.”

The motion was granted by the trial court, and the trial judge directed the jury as follows:

“Gentlemen of the jury: In view of the conditions arising here, I deem that it is not best to allow this case to go to the jury; that is, the plaintiff, even upon the plaintiff's own showing, has not made out a case against the defendant here; that even if the case was allowed to go to the jury, and the jury should find in favor of the plaintiff in this case, it would be my duty to set the verdict aside, so, in view of the condition, why it is my duty to direct the jury to find a verdict for the defendant in this case.”

Later the trial court filed the following memorandum decision:

“I think that in this case the only condition shown, under the terms of the agreement which has been introduced here in evidence, is simply a mere license to do business in the grand stand; that is, Mr. Black's privilege to sell goods in the grand stand-and he was to take the conditions there as he should find them; that the fair association, perhaps, might not have a right to willfully keep Mr. Black from selling goods there, but in the condition which arose from the numerous patronage of the grand stand, the selling of tickets for the grand stand, I think that condition was assumed by Mr. Black in taking the contract from the State Fair Association. There was no contract entered into between the plaintiff and defendant to keep the aisles clear; there was no duty on the defendant to police the grand stand in such a way as to make all of the patrons of the grand stand behave in a perfectly gentlemanly way towards the venders of pop and cigars. Moreover, it does not seem to me that the testimony is sufficient to warrant the case to go to the jury upon the question of whether the aisles were obstructed, so as to prevent the boys from selling goods in the grand stand. And on that question alone I think there is a failure of proof, even from the testimony that has been introduced on behalf of the plaintiff. Moreover, the testimony with regard to the damage suffered is so indefinite and uncertain that it would be impossible for the jury to arrive at any definite, or any legal rule of estimating the damage; that is, the damage due simply to the obstruction of the aisles, if any such obstruction took place. The testimony, I think, shows that it was possible for the boys to get up there; it might not have been as convenient for them as it would have been if the aisles had been kept entirely clear, but it does not show-the testimony does not show-that it was impossible for them to get up. In fact, whatever testimony there is on that question it seems to me tends to show that it was possible; so that the motion will be granted.”

The first question to be determined is whether the court erred in refusing to permit the plaintiff to prove any other terms than those set out in the printed contract and in holding that the printed instrument was complete and unambiguous. Did he err in denying the plaintiff's following offers of proof:

Mr. Johnson: “Plaintiff offers at this time to prove by this witness that a similar memorandum with respect to the grand stand privilege as the one attached to the complaint, already introduced in evidence and marked Plaintiff's Exhibit C, was issued to the plaintiff and accepted by him for the same concession by the defendant in the year 1911, and during said year the question of blocking of the aisles was brought to the attention of the defendant by the plaintiff, and at that time the defendant agreed with the plaintiff that the plaintiff had the right under this contract to have free access to the aisles and the right to pass through them at all times, and at that time the defendant kept the aisles free and clear and did not permit people to sit or stand and...