Black v. The North Dakota State Fair Association for Grand Forks

Decision Date22 March 1917
Citation164 N.W. 297,38 N.D. 105
CourtNorth Dakota Supreme Court

On rehearing filed September 24, 1917.

Appeal from the District Court of Grand Forks County, Honorable Chas. M. Cooley, J.

Affirmed.

J. F T. O'Connor and Sveinbjorn Johnson, for appellant.

It is a well-established rule that when a contract, doubtful in meaning as to any of its terms, has been prepared by one party, it shall be construed favorably to the other party and most consistent with the right of the case, and so as to accomplish the objects and purposes the parties had in view and so as not to impair or render nugatory the rights of either party. Wyatt v. Larmer & W. Irrig. Co., 18 Colo. 298, 36 Am. St. Rep. 280, 33 P. 144; Noonan v Bradley, 9 Wall. 395, 19 L.Ed. 757; Kentzler v American Mut. Acci. Asso. 88 Wis. 589, 43 Am. St. Rep 934, 60 N.W. 1002; Christian v. First Nat. Bank, 81 C. C. A 53, 155 F. 705.

It is presumed that the promisor caused the ambiguity in a contract. Blankenship v. Decker, 34 Mont. 292, 85 P. 1035.

A contract should be so construed as to render it operative, reasonable, and lawful. Young v. Metcalf Land Co., 18 N.D. 441, 122 N.W. 1101; Horton v. Rohlff, 69 Neb. 95, 95 N.W. 36; 2 Page, Contr. § 1121.

In ambiguous contracts, parol evidence is admissible not to determine what the parties said, but "to understand what they wrote." Thomas v. Scutt, 127 N.Y. 141, 27 N.E. 961; Juilliard v. Chaffee, 92 N.Y. 535; Chapin v. Dobson, 78 N.Y. 74, 34 Am. Rep. 512.

If a writing is incomplete, even if the incompleteness does not appear on its face from a mere inspection of it, but appears from the attendant circumstances, the subject-matter and the purposes intended to be accomplished. Putnam v. Prouty, 24 N.D. 525, 140 N.W. 93; Comp. Laws 1913, §§ 5907, 5908; Thomas v. Scutt, 127 N.Y. 138, 27 N.E. 961.

Also where some material clause, phrase, or term in the contract is of doubtful, indefinite, or ambiguous meaning. Phoenix Pub. Co. v. Riverside Clothing Co., 54 Minn. 207, 55 N.W. 912; Cameron Mill & Elevator Co. v. Charles F. Orthwein's Sons, 56 C. C. A. 613, 120 F. 463; Merica v. Burget, 36 Ind.App. 453, 75 N.E. 1083; Bagley & S. Co. v. Saranac River Pulp & Paper Co., 135 N.Y. 626, 32 N.E. 132; Behrman v. Linde, 47 Hun, 530; Durant v. Henry, 33 Wash. 38, 73 P. 775; Thomas v. Scutt, supra; Carstens v. Earles, 26 Wash. 676, 67 P. 404; Gould v. Boston Excelsior Co., 91 Me. 214, 64 Am. St. Rep. 221, 39 A. 554; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S.W. 210; Windsor v. St. Paul, M. & M. R. Co., 37 Wash. 156, 79 P. 613, 3 Ann. Cas. 62; Union Special Sewing Mach. Co. v. Lockwood, 110 Ill.App. 387.

Also to complete the instrument which the parties did not intend to embrace the entire agreement between them. Halliday v. Mulligan, 113 Ill.App. 177; Domestic Sewing Mach. Co. v. Anderson, 23 Minn. 57; Beyerstedt v. Winona Mill Co., 49 Minn. 1, 51 N.W. 619; Minnesota Mfg. Co. v. Grant City Lumber & Hardware Co., 81 Mo.App. 255; Casners' Estate Mills v. Stafford, 86 Ill.App. 469; Niles v. Sire, 46 Misc. 321, 94 N.Y.S. 586; Glos v. Bain, 223 Ill. 343, 79 N.E. 111; Reeves & Co. v. Bruening, 13 N.D. 163, 100 N.W. 241; Wigmore, Ev. §§ 2427ff, 2472.

In such cases it may become necessary to resort to extrinsic evidence to ascertain the meaning and intent of the parties in the light of the information thus acquired. Cunningham v. Washburn, 119 Mass. 224; Eaton v. Smith, 20 Pick. 150; Burnham v. Allen, 1 Gray, 496; Smith v. Faulkner, 12 Gray, 251.

Where the extrinsic facts concerning an ambiguity are subjects of conflicting testimony, the inferences to be drawn are questions for the jury, and not for the court. Thorne & H. Line & C. Co. v. St. Louis Expanded Metal Fire Proofing Co., 77 Mo.App. 21; Rosenthal v. Ogden, 50 Neb. 218, 69 N.W. 779; Alworth v. Gordon, 81 Minn. 445, 84 N.W. 454; First Nat. Bank v. Rothschild, 107 Ill.App. 133; Mackenzie v. Seeberger, 22 C. C. A. 83, 40 U. S. App. 188, 76 F. 108; J. W. Reedy Elevator & Mfg. Co. v. Mertz, 107 Mo.App. 28, 80 S.W. 684; Hix v. Edison Electric Light Co., 27 A.D. 248, 50 N.Y.S. 592.

Where the parties have themselves construed and acted upon an ambiguous contract, it is binding upon them and is accepted as controlling by the courts. Such conduct is the best evidence of its meaning. Hubbard City v. Bounds, Tex. Civ. App. , 95 S.W. 69; 2 Page, Contr. § 1126; Geithman v. Eichler, 265 Ill. 579, 107 N.E. 180; Chicago v. Sheldon, 9 Wall. 54, 19 L.Ed. 596; Indiana Natural Gas & Oil Co. v. Stewart, 45 Ind.App. 554, 90 N.E. 384; Sattler v. Hallock, 160 N.Y. 291, 46 L.R.A. 679, 73 Am. St. Rep. 693, 54 N.E. 667; Parmelee v. Hambleton, 24 Ill. 609; Pratt v. Prouty, 104 Iowa 419, 65 Am. St. Rep. 472, 73 N.W. 1035; Haddock v. Woods, 46 Iowa 433; Moore v. Beiseker, 77 C. C. A. 545, 147 F. 367.

Where the contract is ambiguous and where there is a dispute between the parties as to its meaning, evidence of the terms and nature of provisions, similar contracts between the same parties, and the practical construction thereof, is admissible. Richards v. Millard, 56 N.Y. 574; Gray v. Gannon, 4 Hun, 57.

A contract ambiguous or indefinite in its terms is to be construed in the sense in which the promisor has reason to believe it would be interpreted by the promisee. Inman Mfg. Co. v. American Cereal Co., 133 Iowa 71, 8 L.R.A. (N.S.) 1140, 110 N.W. 287, 12 Ann. Cas. 387; Blankenship v. Decker, 34 Mont. 292, 85 P. 1035.

Evidence that defendant construed the contract as plaintiff did, is admissible. Kennedy v. Lee, 147 Cal. 596, 82 P. 257; Off v. J. B. Inderrieden Co., 74 Ill.App. 105.

The complaint alleges, and the proof offered but rejected, tended to show, that the agreement to keep the aisles open was a part of the consideration of the contract with defendant, and the principal inducement that led to the execution of the same. First Nat. Bank v. Prior, 10 N.D. 150, 86 N.W. 362; Klemik v. Henricksen Jewelry Co., 128 Minn. 490, 151 N.W. 203; Tylee v. Illinois C. R. Co., 97 Neb. 646, 150 N.W. 1015; Dunnell's Dig. (Minn.) § 3373, note 87; Hughes, Ev. p. 240; Stephen's Dig. Ev. art. 90.

Our statute on the admissibility of such evidence embraces the common law on the subject, and goes no further, and the rule has full application only within very narrow limits. Courts are careful to avoid an application of it which will further and protect, rather than prevent, fraud and oppression. Other and collateral agreements relating to the same subject and between the same parties are admissible, and should be received and considered as throwing light upon the situation and as evidencing the intent and purpose of the parties. Comp. Laws 1913, § 5889; Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Juilliard v. Chaffee, 92 N.Y. 534; Wigmore, Ev. §§ 2425, 2429.

The trial court ignored and failed to apply the distinction of the highest importance in the law of damages for breach of contract, between uncertainty as to whether or not damages did result from the breach, uncertainty as to the cause, and uncertainty as to amount of damages, when there is no doubt that some damage has been suffered because of the breach. Blagen v. Thompson, 23 Ore. 239, 18 L.R.A. 315, 31 P. 647; Thayer-Moore Brokerage Co. v. Campbell, 164 Mo.App. 8, 147 S.W. 550; Comp. Laws 1913, § 7146; Needham v. Halverson, 22 N.D. 594, 135 N.W. 203.

Where the value of the benefit which the party is to derive from the performance of the contract may be certain, yet if the benefit be certain, but only uncertain in value or amount, the rule that damages to be recoverable must not be contingent or uncertain does not apply. The court will not refuse redress to a litigant because the problem of solving the amount of damages is difficult, if there is substantial evidence in the record. Blagen v. Thompson, 23 Ore. 239, 18 L.R.A. 321, 31 P. 647; Richey v. Union Cent. L. Ins. Co., 140 Wis. 486, 122 N.W. 1030; Blagen v. Thompson, 23 Ore. 239, 19 L.R.A. 315, 31 P. 647; Treat v. Hiles, 81 Wis. 280, 50 N.W. 896; Schumacker v. Heinemann, 99 Wis. 251, 74 N.W. 785.

There is ample in the record in this case to enable a jury to arrive at the amount of damages with no less an approximation to exact justice than in the cases of lost limbs, losses by fire, and in other like cases. Tootle v. Kent, 12 Okla. 674, 73 P. 310; Gilbert v. Cherry, 57 Ga. 128; Cranmer v. Kohn, 7 S.D. 247, 64 N.W. 125; World's Fair in Chicago, 1893; World's Columbian Exposition v. Pasteur-Chamberland Filter Co., 82 Ill.App. 94; Nash v. Thousand Island S. B. Co., 123 A.D. 148, 108 N.Y.S. 336; San Antonio v. Royal, Tex. , 16 S.W. 1101.

Clearly plaintiff could and would have made profits on his sales on the two days in question, had he been permitted to carry on his business according to the contract. San Antonio v. Royal, Tex. , 16 S.W. 1101; Cranmer v. Kohn, 7 S.D. 247, 64 N.W. 125; Bryson v. McCone, 121 Cal. 153, 53 P. 637; Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250; Schumaker v. Heinemann, 99 Wis. 251, 74 N.W. 785.

In such cases the court should instruct the jury that they are not to conjecture or guess, but to draw reasonable and safe conclusions from the evidence in the case as it has been developed on the trial. Treat v. Hiles, 81 Wis. 280, 50 N.W. 896; Emerson v. Pacific Coast & N. Packing Co., 96 Minn. 1, L.R.A. (N.S.) 445, 113 Am. St. Rep. 603, 104 N.W. 573, 6 Ann. Cas. 973; Wakeman v. Wheeler & W. Mfg. Co., 101 N.Y. 205, 54 Am. Rep. 676, 4 N.E. 264; Wells v. National Life Asso. 53 L.R.A. 33, 39 C. C. A. 476, 99 F. 222.

A person under the circumstances of this case, who has sold like goods and refreshments to crowds in the open air for thirty years, and for many seasons at the same place, may be permitted to estimate...

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2 cases
  • Kist v. Kist
    • United States
    • North Dakota Supreme Court
    • February 25, 1932
    ... ... 5952Supreme Court of North DakotaFebruary 25, 1932 ...           ... Black v. Fair Asso. 38 ... N.D. 105, 164 N.W. 297; ... , the plaintiff, lives at Linton, North Dakota, and his ... brother, the defendant, lives at ... normal function of a witness is merely to state facts within ... his personal knowledge and ... ...
  • Black v. The North Dakota State Fair Association for Grand Forks
    • United States
    • North Dakota Supreme Court
    • March 22, 1917

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