Burgess v. Turle & Company
| Decision Date | 25 May 1923 |
| Docket Number | 23,388 |
| Citation | 193 N.W. 945,155 Minn. 479 |
| Parties | CLARENCE E. BURGESS v. TURLE & COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $100,000 for libel. The case was tried before Fesler, J., who when plaintiff rested and at the close of the testimony denied defendant's motions for dismissal and a directed verdict, respectively, and a jury which returned a verdict for $9,982. Defendant's motion for judgment notwithstanding the verdict was granted. From the judgment entered in favor of defendant for $414.16, plaintiff appealed. Affirmed.
Defamatory statement privileged under statute of North Dakota.
A notice canceling a North Dakota contract for the sale and conveyance of land in that state, on account of the default of the vendee, contained the statement that his default consisted in appropriating to his own use crops belonging to the vendor, and the further statement that he had misappropriated such crops. The North Dakota statute requires the vendor to state in the notice the default which has occurred. It defines privileged communications as those made in legislative or judicial proceedings or in any other proceeding authorized by law. Held: That the statements with respect to the nature of the vendee's default could not be made the basis of a libel action against the vendor; that the notice which was published in newspapers, as authorized by the North Dakota statute, was absolutely privileged; that the statements complained of were pertinent and material and, since the circumstances of the publication were not in dispute, the trial court properly ruled that, although the statements may have been defamatory, they were absolutely privileged and hence defendant was not liable to plaintiff.
McManus & Morgan, for appellant.
McClearn & Gilbertson, for respondent.
Action for libel in which plaintiff had a verdict. On defendant's motion, judgment in its favor was ordered notwithstanding the verdict, and plaintiff has appealed from the judgment.
Plaintiff was the vendee and defendant the vendor in a contract for the sale of land in North Dakota, executed July 1, 1915. The purchase price, which was $47,270.42, was to be paid on or before December 1, 1920. Interest at the rate of 6 per cent was to be paid annually. Plaintiff was to crop the land. Defendant was to retain the ownership of and sell the crops. They were to be delivered by plaintiff at a place designated by defendant. The proceeds of their sale were to be first applied to the payment of the expenses incurred in producing them. In such expenses $100 was to be included for each quarter section of land cropped to compensate plaintiff for supervising the cropper and attending to the marketing of the grain. The remainder of the proceeds was to be applied to the payment of taxes and interest and to the reduction of the principal specified in the contract. Plaintiff was authorized to make sales of the land. As sales were made, defendant was to convey title to the purchaser on receiving a stipulated sum for each tract sold. On May 14, 1919, a supplemental contract was made. It recited the former contract and stated that $13,278.01 was still due thereon and that two parcels of land remained to be sold. By one of its terms plaintiff was required to convey to defendant three lots in Devils Lake North Dakota. He was to receive a credit of $6,000 for them, thus reducing his indebtedness to $7,278.01. He subsequently did convey these lots and received the credit.
Defendant was a corporation handling consigned grain at Duluth and Minneapolis for a commission. Plaintiff was a North Dakota grain buyer with whom defendant had had extensive dealings. He became largely indebted to defendant and prior to July 1, 1915, it had recovered judgments against him, which he satisfied by conveying the lands described in the contract of that date. Plaintiff had been a resident of Devils Lake, but in the fall of 1918 his family went to California to live and he joined them in the summer of 1919. In July of that year defendant wrote him inquiring about the crops on the unsold land, but received no answer. A crop of rye had been grown and plaintiff had sold it, receiving $301.90, which was less than the expense of producing the crop. Plaintiff made no report to defendant, apparently for the reason that nothing was due from him. Here the matter rested until July, 1920, when defendant placed the contract in the hands of its attorney to take such legal proceedings as might be necessary to enforce its rights thereunder. A provision of the contract read thus:
"Should default be made in the delivery of said several payments of grain or any of them, or any part thereof, as herein agreed * * * said second party * * * hereby agrees, on demand of the party of the first part, to * * * surrender possession of said premises and every part thereof."
and another read:
"Should this contract be recorded * * * the cancelation of the same, in the event that default has been made in any of the terms and conditions thereof, shall be in accordance with the law as prescribed by the statutes of the state of North Dakota * * *."
By section 8119, Comp. Laws N.D. 1913, the giving of a notice by the vendor to the vendee in a contract for the conveyance of land is required as a prerequisite to the cancelation of the contract. Section 8120 contains the following directions with respect to the notice:
"Whenever any default shall have been made in the terms or conditions of any such instrument * * * and the owner or vendor shall desire to cancel or terminate the same [he] shall, within a reasonable time after such default, cause a written notice to be served upon the vendee * * * stating that such default occurred, and that said contract will be cancelled or terminated."
Section 8121 directs that personal service of the notice shall be made if the vendee resides in the state; if he is not a resident thereof, service must be made by the publication of the notice in a newspaper published in the county where the land is situated.
Defendant's attorney at Duluth forwarded the contract to Murphy & Toner, attorneys at Grand Forks, North Dakota, instructing them to take the necessary steps to cancel it. They prepared a cancelation notice specifying plaintiff's alleged default as follows:
...
To continue reading
Request your trial