Buettner v. Nostdahl

• Decision Date: 18 January 1973
• Docket Number: No. 8848,8848
• Citation: 204 N.W.2d 187
• Parties: Lyle BUETTNER, Plaintiff and Appellant, v. Ward NOSTDAHL et al., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 187

204 N.W.2d 187

Lyle BUETTNER, Plaintiff and Appellant, v. Ward NOSTDAHL et al., Defendants and Respondents.

Civ. No. 8848.

Supreme Court of North Dakota.

Jan. 18, 1973.

Syllabus by the Court

1. When considering the validity of a ruling which grants a defendant's motion for dismissal of a plaintiff's complaint, this court must consider the evidence in the light most favorable to the plaintiff.

2. Part performance of an oral contract exempts it from the provisions of the statute of frauds only when the contract is proved by evidence that is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract. A mere preponderance of the evidence is not sufficient. Acts relied upon as constituting part performance must unmistakably point to the existence of the claimed agreement. If they point to some other relationship or if they may be accounted for on some other hypothesis, they are not sufficient.

3. For reasons stated in the opinion, the evidence as to part performance is held to be insufficient to take the alleged oral contract out of the statute of frauds.

Thompson, Lundberg & Nodland, Bismarck, for plaintiff and appellant.

Mitchell Mahoney, of Pringle & Herigstad, Minot, for defendants and respondents.

ERICKSTAD, Judge.

By complaint dated the 14th of January 1971, the plaintiff Lyle Buettner commenced an action against the defendants Ward Nostdahl, Bennie Bechtold, Harold Anderson, and Dennis Meyer. In essence, the plaintiff alleges:

(1) That in the year 1968 he was approached by the defendants and asked to commence a cattle-feeding operation on their land south of Riverdale, North Dakota, which operation was to utilize the sugar-beet tops from their irrigated sugar-beet field;

(2) That the defendants represented to him that he would net approximately $33,640 per year on the cattle-feeding operation, which was to be exclusively his in consideration for his management and work in connection with the sugar-beet operation on the defendants' land;

(3) That in reliance upon the defendants' representations he terminated his employment with Budd's Welding Company in Minot, North Dakota, with the understanding that the defendants were to pay him $500 per month, which was to constitute a loan to be returned at the end of each cattle-feeding season, unless a sugar-beet crop failure occurred, in which case the $500 per month should then constitute his pay for the work done on the defendants' land;

(4) That he devoted great time and effort in obtaining information and knowledge to equip him for the operation of the defendants' business, to be known as the Terra Flats Company, and further that he incurred great expense in moving his family from Minot to Riverdale and in obtaining employment for his wife as a school-teacher there;

(5) That at the end of the first crop year after the sugar-beet crop had been harvested, he was informed that the defendants backed out of their agreement and was told by defendant Dennis Meyer that he should leave the defendants' property and stay away; and

(6) That as a result of the defendants' breach of contract he has incurred special and general damages in the sum of $40,000. The complaint prays for judgment in the sum of $40,000 plus interest, costs, and disbursements.

At the time of the trial, Mr. Buettner moved to amend the prayer for relief to ask for $120,000, on the ground that the agreement was to continue for a three-year period with an option to extend it one more year. This motion was granted.

By amended answer dated the 12th of November 1971, the defendants (1) Generally denied the material allegations of the complaint; (2) Asserted that the complaint failed to state a claim upon which relief could be granted; and (3) Asserted that the alleged contract upon which the plaintiff's action is based is not in writing which has been subscribed by the defendants or their agents.

The plaintiff's case consisted of testimony of Harold Anderson, one of the defendants, who was called for cross-examination, and testimony of Mr. Buettner. At the close of the plaintiff's case, the defendants moved for a dismissal of the complaint under Rule 41(b) of the North Dakota Rules of Civil Procedure. The defendants based their motion on the ground that the claim for relief was based upon a contract that was to run for a period of three years, with an option to renew it for a fourth year; that there was nothing in writing corroborating this contract, other than plaintiff's Exhibit 1; and that this exhibit did not meet the requirements of the statute of frauds. The court granted the motion for a dismissal, stating that the exhibit is a mere memorandum which fails to identify the parties, fails to show the subject matter involved, fails to express the consideration, and fails to disclose the terms and conditions of the contract, and is not signed by the party sought to be charged, as required by Section 9--06--04, Subsection 4, of the North Dakota Century Code.

Based upon findings of fact, conclusions of law, and order for judgment dated the 26th day of April 1972, the judgment dismissing the plaintiff's complaint was executed as of the 27th of April 1972.

Mr. Buettner now appeals from said judgment by notice of appeal dated July 24, 1972.

The essence of Mr. Buettner's appeal is that a certain memorandum in the handwriting of one of the defendants, namely Ward Nostdahl, and partial performance of the contract by Mr. Buettner take the contract out of the statute of frauds.

We shall attempt to set forth herewith the handwritten memo, designated plaintiff's Exhibit 1 and as defendants' Exhibit A, as we read it.

                "500 head X 2.5 gain = 1250# X 170 = 212500 X 25 =           $ 53,100.00
                "15 lbs. silage X 500 = 7500 X 170 = 638 Ton                      -0-
                "3 lbs. alfalfa X 500 = 1500 X 170 = 128 Ton                    2,560.00
                "2 lbs. oats X 500 = 1000 X 170 = 5300 bu.  X T 50 cents =       2,650.00
                "Int. at 7% on 50,000 =                                         1,750.00
                "4 cents loss on resale = 16.00 per animal =                    8,000.00
                "4% loss =                                                      2,000.00
                "Hauling, putting up silage, manure, etc.  X 5.00 per head =     2,500.00
                                                                             ------------
                                                                               19,460.00
                                           "Net                              $ 33,640.00"
                

The pertinent parts of our statute of frauds follow:

'9--06--04. Contracts invalid unless in writing.--Statute of frauds.--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;

'4. An agreement for the leasing for a longer period than one year, or for the sale, of real property, or of an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing subscribed by the party sought to be charged.' N.D.C.C.

In the instant case, the judgment results from a motion to dismiss, made under Rule 41(b) of the North Dakota Rules of Civil Procedure. The pertinent part reads:

'(b) Involuntary dismissal--Effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. * * * ' Rule 41(b), N.D.R.Civ.P.

We have recently held that when considering the validity of a ruling which grants a defendant's motion for dismissal of a plaintiff's complaint, this court must consider the evidence in the light most favorable to the party against whom the motion is made. Thompson v. Nettum, 163 N.W.2d 91, Syl. 1 (N.D.1968).

It is obvious that in viewing the evidence in the light most favorable to the plaintiff that the memorandum does not satisfy the statute of frauds, in that it is not subscribed by the party to be charged, although the alleged contract involves a cattle-feeding arrangement and real-estate lease for a longer period than one year.

The more difficult question is whether, when considering the evidence in the light most favorable to the plaintiff, the plaintiff has proved sufficient partial performance to take the case out of the statute of frauds.

In this case, the defendants Ward Nostdahl, Bennie Bechtold, and Dennis Meyer did not testify. The defendant Harold Anderson was called for cross-examination by the plaintiff. He testified in essence as follows:

Terra Flats, a beet farm at Riverdale, North Dakota, is currently a partnership of Harold Anderson and Ward Nostdahl, but at the time that Lyle Buettner worked on the farm, in 1968, there were two other partners, the defendants Bechtold and Meyer. Lyle was hired to work for the partners, although the actual hiring was done by Ward alone, and the cattle deal was between Ward and Lyle alone. The partnership was going to furnish beet tops for feeding the cattle as an incentive for Lyle to work on the beet farm for the partners, but the cattle were not to be a part of the Terra Flats partnership.

Harold was aware that working on the farm required Lyle to move his family from Minot to Riverdale and that Mrs. Buettner had returned to school over the summer in order to qualify to teach in Riverdale.

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