Brash v. Gulleson, 20120313.

Citation835 N.W.2d 798,2013 ND 156
Decision Date25 September 2013
Docket NumberNo. 20120313.,20120313.
PartiesJanet L. BRASH, individually and as Personal Representative of the Estate of Larry R. Brash, Deceased, Plaintiff and Appellant v. William M. GULLESON, a/k/a Wm. M. Gulleson, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Jonathan T. Garaas, DeMores Office Park, Fargo, N.D., for plaintiff and appellant.

Megan E. Kummer (argued) and John D. Bullis (appeared), Wahpeton, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Janet L. Brash, individually and as personal representative of the estate of Larry R. Brash, appealed from a judgment entered after a bench trial dismissing her action against William M. Gulleson. We conclude the district court did not err in concluding there was a failure of consideration in the performance of the Cow/Calf Production Lease Agreement between the Brashes and Gulleson. We affirm.

I

[¶ 2] Janet Brash lives in rural Sargent County and is the widow of Dr. Larry Brash, who died in 2004. William Gulleson is a farmer and rancher near Rutland in Sargent County, who operates his farm with his three sons. The Gullesons raise grain, maintain a cow/calf herd, and contract to run other people's cattle on their land. In the 1980s, Dr. Larry Brash, a veterinarian, opened a practice in the Rutland area and lived on a small farm near Gulleson's ranch. Dr. Brash and Gulleson developed a close personal and business relationship, and Dr. Brash provided all of the veterinarian service to Gulleson's ranch.

[¶ 3] In the mid–1980s, Dr. Brash also began running cows on Gulleson's ranch under an oral agreement to operate on a “60/40 share basis.” Gulleson provided care and feed and received 60 percent of the calf crop from Dr. Brash's cows, and Dr. Brash provided veterinarian services. In the fall of 1997, Dr. Brash supervised an inventory and evaluation of cows on the Gulleson ranch, which included cows owned by Gulleson, Dr. Brash, and two or three others who had agreements with Gulleson. At that time, Dr. Brash had 108 cows on the Gulleson ranch.

[¶ 4] In 2000, Dr. Brash and Gulleson executed a written Cow/Calf Production Lease Agreement (“the Agreement”), designating Dr. Brash and Janet Brash as “owner” of the cows and Gulleson as “renter.” Under the terms of the Agreement, the Brashes agreed to furnish 130 cows presently situated on the Gulleson farm to be cared for by Gulleson, and Gulleson would in return give the Brashes 40 percent of the calf crop each year. Specifically, under section one, “General Terms,” the Agreement states:

A. In exchange for the mutual promises and covenants contained in this agreement, Owner will furnish[ ] One Hundred Thirty (130) cows which are presently situated on renter's farm in Sargent County, North Dakota to Renter and Renter will lease the cows from Owner under the terms and conditions set forth in this agreement.

Under section three, “Share of Cattle,” the Agreement states in part: “In return for the use of the cows, Renter will give Owner the following: Forty percent (40%) of the annual calf production from the entire 130 cow herd.” Additionally, under section seven, “Barren Cows,” the Agreement states:

It is the intention of Owner and Renter to maintain the number of cows leased to Renter at One Hundred Thirty (130) head, or as near to that number as is possible and mutually agreeable. Owner will provide replacements by natural addition from his share of the calf crop or by purchaseing [sic] replacements, at owner[']s option.

(Emphasis added.)

After Dr. Brash's death in 2004, Janet Brash testified she became the sole owner of all 130 cows and their offspring; however, when she demanded the return of the estate's and her portion of the herd, Gulleson returned only seven cows.

[¶ 5] In 2005, Janet Brash brought this action against Gulleson, alleging Gulleson failed to comply with the Agreement executed in 2000. Brash alleged that Gulleson failed to account for the animals, asserting Gulleson failed to account for a potential 272 missing animals, and failed to deliver the animals or make payment for the reasonable value of the animals not returned as required by the contract and under state law. Gulleson answered, acknowledging the parties' Agreement but asserting in part the Brashes had failed to deliver the 130 cows under the Agreement, instead delivering only a small fraction of that number, and that Gulleson had accounted for all cows delivered under the Agreement. Among his defenses, Gulleson affirmatively stated the defense of failure of consideration in his answer to the complaint.

[¶ 6] In April 2012, the district court held a bench trial. After trial, the court entered its findings of fact, conclusions of law, and order for judgment, holding in part that Dr. Brash had failed to provide 130 cows as required under the contract, which constituted a failure of consideration, and that Janet Brash had failed to prove a breach of the agreement by Gulleson. The court dismissed Brash's claims with prejudice. Judgment was entered in June 2012.

II

[¶ 7] Our standard for reviewing an appeal after a bench trial is well-established:

In an appeal from a bench trial, the trial court's findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable. Fargo Foods, Inc. v. Bernabucci, 1999 ND 120, ¶ 10, 596 N.W.2d 38. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Moen v. Thomas, 2001 ND 95, ¶ 19, 627 N.W.2d 146. “In a bench trial, the trial court is ‘the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.’ Id. at ¶ 20.

Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681 N.W.2d 431.

III

[¶ 8] Generally, [a]n agreement to pasture, feed, and care for cattle is a bailment if the bailee has the custody and control of the cattle.” Taghon v. Kuhn, 497 N.W.2d 403, 405 (N.D.1993) (citing Bowers v. Western Livestock Co., 103 N.W.2d 109 (N.D.1960); Gunderson v. Johnson, 132 N.W.2d 700 (N.D.1965)). “When a bailee for hire fails to return goods, there is a presumption that the bailee was negligent.” Taghon, at 405 (citing McKenzie v. Hanson, 143 N.W.2d 697 (N.D.1966); Great Plains Supply Co. v. Mobil Oil Co., 172 N.W.2d 241 (N.D.1969); and comparing Tweeten v. Miller, 477 N.W.2d 822 (N.D.1991) (lessee not negligent in caring for cows)).

[¶ 9] A bailment depends on the degree of control and possession, and ‘to constitute a bailment, there must be such a full transfer, actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and give the bailee the sole custody and control of the goods.’ Taghon, 497 N.W.2d at 406 (quoting Great Plains Supply, at 245). This Court has said that [w]here customs or usages on a subject are prevalent, they are impliedly incorporated into agreements to measure the rights of the parties.’ Taghon, at 406 (quoting Tong v. Borstad, 231 N.W.2d 795, 800 (N.D.1975)). Additionally, under N.D.C.C. § 47–15–04, one who has temporarypossession of another's personal property under a contract must exercise ordinary care. Tweeten, 477 N.W.2d at 824.Section 47–15–07, N.D.C.C., requires a hirer of personal property repair all deteriorations or injuries thereto occasioned by the hirer's ordinary or gross negligence. Tweeten, at 824.

[¶ 10] In Taghon, 497 N.W.2d at 406, this Court said that whether the possession of the cattle had been entrusted to the defendants within the relevant statute's meaning was a factual determination, rather than a matter of law, and as such was a question for the trier of fact to decide from the evidence presented at trial.

Findings of the trial court are presumptively correct. Gabel v. Gabel, 434 N.W.2d 722 (N.D.1989) (citations omitted). This court will not reverse a finding of fact unless that finding is clearly erroneous. Rule 52 N.D.R.Civ.P. Had this court been the trier of fact, we may have viewed these facts differently. However, we cannot reverse for that reason alone. Russell Land Co. v. Mandan Chrysler–Plymouth, 377 N.W.2d 549, 552 (N.D.1985). “A finding is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.” Byron v. Gerring Industries, Inc., 328 N.W.2d 819, 821 (N.D.1982) (citations omitted).

Tweeten, 477 N.W.2d at 824–25.

IV

[¶ 11] On appeal, Brash raises a myriad of related issues. Brash argues that a bailee may not introduce parol evidence to alter the terms of a written contract; that a bailee may not seek reformation or revision of the contract terms without complying with N.D.C.C. ch. 32–04, which requires the existence of fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected; and that a bailee may not seek reformation or revision of the contract terms without proper pleading. Brash also argues that a bailee may not ignore a written contract's terms; that a bailor has a right to a money judgment under N.D.C.C. § 60–01–25 for the value of missing animals in absence of evidence otherwise; and that a bailor may rely on statutory presumptions of willful or gross negligence when a bailee does not return or account for entrusted personal property. Brash essentially contends that the trial court erred in finding a scrivener's error to reform or revise the Agreement; however, we do not believe the district court relied on scrivener's error in reaching its conclusions.

[¶ 12] We conclude, therefore, the dispositive issue on appeal is whether the district court erred in finding there was a failure of consideration in performance of the...

To continue reading

Request your trial
25 cases
  • Northstar Founders, LLC v. Hayden Capital USA, LLC
    • United States
    • United States State Supreme Court of North Dakota
    • October 31, 2014
    ...The construction of a written contract to determine its legal effect is a question of law, which is fully reviewable on appeal. Brash v. Gulleson, 2013 ND 156, ¶ 15, 835 N.W.2d 798. “ ‘[O]n appeal, we independently examine and construe the contract to determine if the trial court erred in i......
  • Border Res., LLC v. Irish Oil & Gas, Inc.
    • United States
    • United States State Supreme Court of North Dakota
    • September 21, 2015
    ...is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations. Brash v. Gulleson, 2013 ND 156, ¶ 7, 835 N.W.2d 798 (quotation marks and citations omitted). A district court's findings are "presumptively correct." Tweeten v. Miller, 477 ......
  • Serv. Oil, Inc. v. Gjestvang
    • United States
    • United States State Supreme Court of North Dakota
    • March 30, 2015
    ...determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.” ’ Id. at ¶ 20.”Brash v. Gulleson, 2013 ND 156, ¶ 7, 835 N.W.2d 798 (quoting Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681 N.W.2d 431). A trial court's findings are “presumptively......
  • Golden Eye Res., LLC v. Ganske
    • United States
    • United States State Supreme Court of North Dakota
    • September 23, 2014
    ...If the Borgens were entitled to rescind because their consent was not freely given, the leases effectively cease to exist, see Brash v. Gulleson, 2013 ND 156, ¶ 13, 835 N.W.2d 798, and questions regarding quieting title, cancellation of the leases, and breach of the leases are all rendered ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT