Bumann v. Maurer

• Decision Date: 28 June 1971
• Docket Number: No. 8722,8722
• Citation: 188 N.W.2d 740
• Parties: Henry R. BUMANN and Alice Jean Bumann, Plaintiffs, v. Elmer MAURER and Dorothy Maurer, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 740

188 N.W.2d 740

Henry R. BUMANN and Alice Jean Bumann, Plaintiffs, v. Elmer MAURER and Dorothy Maurer, Defendants.

Civ. No. 8722.

Supreme Court of North Dakota.

June 28, 1971.

Syllabus by the Court

Before a certified question may be considered by the Supreme Court, it must be such that the determination of the cause in which it arises will depend wholly or principally upon constructions of law applicable to such question.

James D. Schlosser, Bismarck, for plaintiffs.

Rausch & Chapman, Bismarck, for defendants.

PAULSON, Judge.

Two questions in the instant case have been certified to us, pursuant to the provisions of Chapter 32--24, N.D.C.C. They are as follows:

1. Having in mind the fact that the plaintiffs brought an action against the defendants for specific performance of an agreement to convey real estate situated in the State of North Dakota, as is shown by the pleadings, and further having in mind that the plaintiffs also seek damages against defendants relative thereto, and with said cause being at issue and now before the court, is the proper measure of damages to be determined by the provisions of Section 32--03--13 of the North Dakota Century Code?

2. Was the trial court correct in approving plaintiffs' requested instruction and disapproving defendants' requested instruction?

The facts are that on September 11, 1969, the defendants, Elmer Maurer and Dorothy Maurer (herein Maurers), were the owners of certain lands located in the Counties of Kidder and Burleigh, in the State of North Dakota, and, on the same date, an option to purchase these lands was executed by the Maurers and by the plaintiffs, Henry R. Bumann and Alice Jean Bumann (herein Bumanns). The Bumanns, on October 9, 1969, exercised the option to purchase the property and forwarded their written acceptance to the Maurers. On December 10, 1969, Elmer Maurer forwarded a letter which had been prepared by the Bank of Steele to the Bumanns, stating that the option to purchase the real property would terminate on December 11, 1969. The Bumanns then notified the Maurers that they had already elected to exercise the option to purchase and desired to complete the purchase of the property on a timely basis. The Bumanns were ready, willing, and able to pay the full purchase price for the land. However, all of the demands made by the Bumanns requiring the Maurers to convey the land in accordance with the option contract were refused. In January of 1970, the Bumanns commenced a legal action against the Maurers for specific performance and damages. A written tender and offer made by the Maurers and dated December 9, 1970, was forwarded to counsel for the Bumanns, in which offer the Maurers agreed to tender to the Bumanns a warranty deed conveying the property, together with the sum of $300 in full settlement of any alleged claims. The Bumanns refused to accept this tender and offer, contending that their damages far exceeded the sum of $300 because of the refusal by the Maurers to convey the land shortly after the exercise of the option. The case was set for trial in December of 1970. Just prior to the trial, the parties stipulated in open court that the Maurers would convey title to the land to the Bumanns and that the only issue to be determined was what money damages, if any, should be awarded to the Bumanns. Pursuant to the stipulation, the Maurers delivered to the Bumanns a warranty deed and abstracts of title to the property in question. All of the parties agreed to the transfer of the property, and to the certification to the North Dakota Supreme Court of the questions of law pertaining to damages. The Bumanns' Requested Instruction No. 1 was adopted by the trial court as the law applicable in an action for specific performance where the defendants were able to convey the real property. The Maurers' motion to have their Requested Instruction No. 1 adopted by the court was denied and the trial court issued its memorandum opinion on March 10, 1971, determining that the Bumanns' Requested Instruction No. 1 be adopted.

The Bumanns' Requested Instruction No. 1 reads as follows:

'The measure of damages for the breach of an obligation arising from an option contract to sell real property, is the amount which will compensate the aggrieved party for all detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom. The defendants were able to convey said real property and have agreed to specifically perform the option contract, and the only issue remaining is that of damages, which may be awarded to compensate the plaintiffs for the injury sustained by reason of the defendants' delay in conveying.

'The object to be aimed at in awarding damages is to place the parties without fault as nearly as possible in the same condition as they would have been in had there been no default by the vendors. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin. North Dakota Jury Instruction 870. 32--03--09, N.D.C.C. Pillsbury v. (J. B.) Streeter, 15 N.D. (174) 182, 107 N.W. 40; Beddow v. Flage, 22 N.D. (53) 54, 132 N.W. 637; Orfield v. Harney, 33 N.D. 568, 157 N.W. 124.'

The above-cited § 32--03--09, N.D.C.C., provides:

'Measure of damages for breach of contract--Damages must be certain.--For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by the laws of this state, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.'

The Maurers' Requested Instruction No. 1, which was not adopted by the trial court, reads:

'The Court instructs you that in the event you should find that plaintiffs are entitled to damages, then the proper measure of damages for breach of contract is the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and expenses properly incurred in examining the title, and in preparing to enter upon the land, and amount paid on the purchase price, if any, with interest thereon from the time of the breach. Sec. 32--03--13, N.D.C.C.; Missouri Slope Livestock, (Auction) Inc. v. Wachter (N.D.), 107 N.W.2d 349.'

The above-cited § 32--03--13, N.D.C.C., provides:

'Damages for breach of agreement to convey realty.--The detriment caused by the breach of an agreement to convey an estate in real property is the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and the expenses properly incurred in examining the title, and in preparing to enter upon the land, and the amount paid on the purchase price, if any, with interest thereon from the time of the breach.'

The parties agreed that in the event the provisions of § 32--03--13, N.D.C.C., are applicable to this actions, as urged by the Maurers, then the case would be deemed dismissed with prejudice. However, the fact remains that the two questions submitted for certification are not proper, for, assuming without deciding that this court upholds the decision of the trial court, which held that the Bumanns' Requested Instruction No. 1 is the appropriate instruction, the certified answers would not be dispositive of the case and the question of damages would have to be determined by a jury, as well as the amount, if any, of such damages.

The pertinent section of the North Dakota Century Code is § 32--24--01:

'When question may be certified.--Where any cause is at issue, civil or criminal, in any district court or county court with increased jurisdiction in this state and the issue of the same will depend principally or wholly on the construction of the law applicable thereto, and such construction or interpretation is in doubt and vital, or of great moment in the cause, the judge of any such court, on the application of the attorney for the plaintiff or defendant in a civil cause, and upon the application of the attorneys for the plaintiff and defendant in a criminal cause, may halt all proceedings until such question shall have been certified to the supreme court and by it determined.'

This court stated, in School Bd. of Eagle Pub. Sch. Dist. No. 16 of Richland County v. State Board, 126 N.W.2d 799, 802 (N.D.1964):

'If our answers to these questions should be in the negative and we should hold the decisions not appealable, that would, in fact, determine the suit. But if our answers to these questions should be in the...