Bohlman v. Big River Oil Co., 8087

• Decision Date: 07 November 1963
• Docket Number: No. 8087,8087
• Parties: Ed H. BOHLMAN, d/b/a Bohlman Truck Line, Plaintiff and Appellant, v. BIG RIVER OIL COMPANY, a Corporation, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 835

124 N.W.2d 835

Ed H. BOHLMAN, d/b/a Bohlman Truck Line, Plaintiff and Appellant, v. BIG RIVER OIL COMPANY, a Corporation, Defendant and Respondent.

No. 8087.

Supreme Court of North Dakota.

Nov. 7, 1963.

Rehearing Denied Dec. 12, 1963.

Syllabus by the Court

1. The law looks with favor upon compromise and settlement of controversies between parties. Where a settlement is fairly entered into, it is conclusive on the rights of the parties to such settlement.

2. Where a controvery between parties is settled before trial, and where the settlement is fairly made, the stipulation of settlement becomes a contract between the parties and is final and conclusive in the absence of fraud, duress, undue influence, or other facts which would warrant setting aside any contract in equity.

3. Parties to a controversy may not go behind a compromise or settlement of that controversy if such settlement is free from fraud and all of the other grounds for which a contract can be set aside in equity.

4. The power of the court to enter judgment by consent is dependent upon the existence of actual consent of the parties at the time the settlement is approved by the court.

5. Where parties fully understood and agreed to a settlement made in open court, the original controversy between the parties results in an agreement and, in the absence of fraud, duress, undue influence, or other grounds showing that the consent of one of the parties was not freely and voluntarily given, such settlement is final and conclusive.

Cox, Pearce, Engebretson, Murray, Atkinson & Gunness, Bismarck, for plaintiff and appellant.

Max D. Rosenberg, Bismarck, for defendant and respondent.

STRUTZ, Judge.

The plaintiff, doing business as Bohlman Truck Line, brought suit against the defendant for damages to certain of the plaintiff's equipment which had been left at the defendant's place of business for servicing. The plaintiff also demanded damages for loss of use of such equipment during the time it was being repaired.

The answer of the defendant denied that any damage caused to the plaintiff's equipment was caused by the negligence of the defendant or its agents; it admitted that the plaintiff did deliver the equipment to the defendant for servicing, but alleged that the work was done and completed and the equipment was redelivered to one of the plaintiff's employees, who was in possession of and working on such equipment when it was damaged by fire; and alleged that any damages sustained by the plaintiff were the result of the negligence of his own employee and not the result of any negligence on the part of the defendant, its agents or servants.

The defendant also counterclaimed for damages to its premises caused by the fire which the defendant contends was the result of the negligence of the plaintiff's employee.

After issue was joined, the case came on for trial on December 11, 1962. In the course of the trial the parties, after a conference, stipulated in open court that judgment be entered by the plaintiff for the sum of $9,441.84; that $5,164.80 of this sum was for damages to the plaintiff's equipment, $4,141.84 of such sum was for loss of use, and that the balance for which judgment was to be entered, or $135.20, was to be for plaintiff's attorney fees, it being agreed that the balance of plaintiff's attorney fees were to be paid by the plaintiff himself.

The stipulation further provided that, upon payment of the sum of $5,300 by the defendant to the plaintiff, the judgment which was to be entered on such stipulation was to be fully satisfied, the balance of the amount represented by such judgment to be paid by defendant's crediting the plaintiff for such sum on the balance due the defendant from the plaintiff on open account. It was further stipulated that the payment provided for in the compromise settlement was to be made by the defendant within ten days. Both the plaintiff and the president of the defendant company were personally present in court and agreed to such settlement.

Following the stipulation in open court, the jury which had been impaneled to try the case was discharged by the court.

No judgment was entered on the stipulation, as agreed, and the payment due the plaintiff from the defendant was not made within ten days. Thereafter, on January 8, 1963, the defendant made a motion to vacate such stipulation and set aside the consent to entry of judgment, basing such motion on the ground of newly discovered evidence which was not known to the defendant at the time of the stipulation for entry of judgment. The plaintiff thereupon moved for entry of judgment on the stipulation and agreement.

The trial court, after hearing the motions and the resistance thereto, ordered that the motion by the plaintiff for entry of judgment be in all things denied, and that the defendant's motion to vacate and set aside the stipulation of compromise and settlement and the stipulation for entry of judgment thereon be granted. The court further ordered the case restored to the calendar and set for trial.

From this order, plaintiff has appealed to this court.

There is only one question for determination on this appeal:

Was the final and complete compromise settlement and stipulation for entry of judgment, entered into in open court during the course of the trial, subject to vacation on discovery of new evidence which was not known to the defendant at the time of such settlement?

In North Dakota, the law looks with favor upon compromise and settlement of controversies between parties; and, where such settlement is fairly entered into, it is conclusive on the rights of the parties to the settlement. Herold v. Hill, 41 N.D. 30, 169 N.W. 592, at 597.

Where a controversy between parties is settled before trial, and where the settlement is fairly made, the stipulation takes on the character of a contract between the parties and is final and conclusive, and based on good consideration. Such settlement cannot be set aside in the absence of a showing of fraud, duress, undue influence, or such other facts as would warrant the setting aside of any contract.

Although there is some authority to the effect that a stipulation of settlement may be set aside on a proper showing that no material change in the position of the parties has taken place since the stipulation was entered into, the general rule followed by the majority of courts is that, to justify the granting of relief from such stipulation, a showing must be made which would justify setting aside a contract in equity. This court had before it a somewhat similar question in the case of Lilly v. Haynes Co-op. Coal Mining Co., 48 N.D. 937, 188 N.W. 38. In that case, the plaintiff was suing for damages for personal injuries suffered as an employee in the defendant's coal mine. During the pendency of the action, the plaintiff and the defendant entered into a settlement agreement by which the plaintiff, for a consideration, executed and delivered to the defendant a release of all claims and a stipulation dismissing the action was prejudice.

Thereafter, the plaintiff made a motion to set aside the stipulation of dismissal and the settlement, which motion was granted by the trial court. This court, on appeal from the order granting such motion, reversed the trial court's order and held that it was error for the trial court to set aside the settlement in the absence of some distinct ground which would be sufficient in equity to warrant the setting aside of any contract or agreement. This court, in its decision, did not determine whether the...