Cendak Agri-Service, Inc. v. Hausman

• Decision Date: 01 February 1979
• Docket Number: AGRI-SERVIC,No. 9514,INC,9514
• Citation: 275 N.W.2d 326
• Parties: CENDAK, a corporation, Plaintiff and Appellee, v. James HAUSMAN, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 326

275 N.W.2d 326

CENDAK AGRI-SERVICE, INC., a corporation, Plaintiff and Appellee, v. James HAUSMAN, Defendant and Appellant.

Civ. No. 9514.

Supreme Court of North Dakota.

Feb. 1, 1979.

Thomas E. Rutten, of Traynor & Rutten and Tom Traynor, Jr., law student, Devils Lake; for defendant and appellant, argued by Thomas E. Rutten, Devils Lake.

James H. Williams, Towner, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

The defendant, James Hausman, appeals from the order of the District Court of Benson County, dated April 13, 1978, denying the defendant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. He does not appeal from the judgment itself which was rendered on the first day of February, 1978, in the sum of $8,792.70 plus costs. The judgment was based upon a verdict of the jury in the amount of $7,096.53 to which the court added interest at the rate of six percent per annum computed to January 17, 1978, in the sum of $1,696.17. We shall hereinafter refer to the plaintiff as Cendak, and to the defendant as Hausman.

The essential parts of the complaint, read:

"2.

"That on or about January 23, 1974, defendant sold approximately 123 hogs owned by Plaintiff and which were being cared for by Defendant under an agreement whereby Plaintiff was to furnish feeder pigs and all feed and veterinary expense and Defendant was to furnish labor and housing for the pigs, and with Defendant to receive 25% Of the net proceeds realized from the sale of the pigs. That the amount received for the 123 pigs sold was $10,848.54. That although the 123 pigs in question were owned by Plaintiff, Defendant without any authority caused the same to be sold and the check for sale proceeds to be issued in his name. That on or about January 27, 1974 Defendant cashed the check in question and converted the funds to his own use.

"3.

"That with the sale of the hogs in question, the net profit from feeder pig sales to the date of this sale was $23,008.03 of which amount Defendant under the agreement was entitled to receive 25% Or a total of $5,752.01; that Defendant had already received advances of $3200.00, leaving a balance due him in the amount of $2552.01, with the balance of $8,296.53 belonging to Plaintiff.

"4.

"That Plaintiff has demanded that Defendant pay over and account to Plaintiff for the property and funds illegally converted to his own use, but Defendant has failed and refused to do so.

"5.

"That Defendant also kept and converted to his own use approximately 5000 straw bales of the reasonable value of 25cents per bale, or a total of $1250.00.

"6.

"That as a result of defendant's wrongful, illegal and fraudulent selling and converting Plaintiff's property and money to his own use, Plaintiff has suffered damage in the form of interest paid by Plaintiff on bank loans which were to have been paid from the sale of the hogs converted and misappropriated by Defendant. That the rate of interest paid by Plaintiff and its stockholders was and is 9% Per annum, which on the principal sum of $8296.53 from January 23, 1974 to August 23, 1977, totals $2675.62 plus accrual from 8-23-77 at the rate of $2.07 per day."

The prayer for relief is for judgment in the sum of $12,222.15 plus interest at the rate of $2.07 per day from 8-23-77 plus interest at the legal rate on all amounts due and owing Cendak and for costs and disbursements.

Hausman filed an answer and counterclaim, the pertinent parts of which read:

"Now comes the above named Defendant and for his Answer to the Plaintiff's Complaint, alleges as follows, to-wit:

"FOURTH DEFENSE

"That the Defendant entered into preliminary negotiations with one Wayne Trottier whereby the Defendant and said Wayne Trottier discussed a certain proposal which was to be reduced to writing which would require the Defendant to furnish certain labor and materials for the purpose of raising pigs in exchange for a certain percentage of the net profits realized from the sale of such pigs or, in the alternative, to provide that the Defendant received a certain flat rate for each pig raised. That the preliminary negotiations never resulted in any definite agreement, nor were such preliminary negotiations ever reduced to writing.

"FIFTH DEFENSE

"Pursuant to the preliminary negotiations of Wayne Trottier who allegedly represented the interests of the Plaintiff corporation, the Defendant incurred considerable expense in time and labor in constructing certain buildings, remodeling other buildings and other miscellaneous work in reliance on the preliminary negotiations which the Defendant was led to believe would result in a definite written contract relating to the pig operation.

"SIXTH DEFENSE

"That in reliance on the preliminary negotiations and statements of Wayne Trottier as alleged hereinabove, the Defendant was required to spend the sum of Twelve Thousand Four Hundred Eighty-two Dollars and Thirteen Cents ($12,482.13) for labor and materials and the Defendant was required to work a total of Two Thousand One Hundred Twenty-one (2121) hours which said labor was worth a minimum of Three Dollars ($3.00) per hour resulting in total expense to the Defendant for his own labor and paid labor and materials in the amount of Eighteen Thousand Eight Hundred Forty-five Dollars and Thirteen Cents ($18,845.13).

"SEVENTH DEFENSE

"That the Defendant admits that he negotiated a certain check realized from the sale of certain pigs from the pig operation mentioned hereinabove which resulted in a payment to the Defendant in the amount of Ten Thousand Eight Hundred Forty-eight Dollars and Fifty-four Cents ($10,848.54) which compensated the Defendant for part of the labor and material expense he incurred and as alleged hereinabove. That in addition to the sum of Ten Thousand Eight Hundred Forty-eight Dollars and Fifty-four Cents ($10,848.54) realized from the sale of the pigs on or about January 23, 1974, the Defendant also was advanced the sum of Three Thousand Dollars ($3000.00) during the time of the preliminary negotiations mentioned hereinabove.

"Now comes the above named Defendant and for his Counter-claim herein alleges as follows, to-wit:

"II.

"That the Defendant is entitled to payment of the total sum of Eighteen Thousand Eight Hundred Forty-five Dollars and Thirteen Cents ($18,845.13) for his labor and materials as alleged hereinabove but the Defendant admits that he has received the total sum of Thirteen Thousand Eight Hundred Forty-eight Dollars and Fifty-four Cents ($13,848.54) resulting from the sale of certain pigs and an advance payment of Three Thousand Dollars ($3000.00)."

In his prayer for relief, Hausman asked for judgment in the sum of $4,996.59 plus interest at the rate of six percent per annum from January 23, 1974, and for his costs and disbursements.

In his motion for a new trial on the basis of Rule 59, N.D.R.Civ.P., Hausman asserted three grounds: (1) irregularity in the proceedings, (2) insufficiency of the evidence to support the verdict, and (3) errors in law occurring at the trial. In the alternative, he moved for judgment notwithstanding the verdict on the basis of Rule 50, N.D.R.Civ.P.

Relative to the first alleged basis for a new trial, irregularity in the proceedings, our court has said:

"1. An irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial may justify the granting of a new trial, but an irregularity to justify a new trial must be one which is patent, obvious, or evident from the record." Bohn v. Eichhorst, 181 N.W.2d 771, 772 (N.D.1970).

Relative to the second alleged basis for a new trial, insufficiency of the evidence to support the verdict, we have said:

"A motion for a new trial upon the ground of the insufficiency of the evidence is addressed to the sound discretion of the trial court and the granting of such a motion will not be disturbed upon appeal except for a manifest abuse of that discretion." Ferguson v. Hjelle, 180 N.W.2d 408, 413 (N.D.1970).

For a recent analysis of the law applicable to a motion for new trial in determining whether or not a trial court appropriately granted a new trial, See Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D.1977).

As to the third alleged basis for a new trial, errors in law occurring at the trial, we believe that the rule applicable to irregularity in the proceedings is applicable.

Let us examine the alleged irregularities which occurred during the trial which Hausman contends justify a new trial.

Hausman contends that irregularities in the proceedings resulted when the jury, during the course of its deliberations, sent certain written questions to the court. He asserts that these questions were answered by the judge in writing, without asking the jury to return to the courtroom and the presence of the judge, and without consulting the attorneys or the parties. The judge merely wrote his answers to the questions on the sheets of paper sent to him by the jury after informing counsel of his intended answers although counsel objected to some of the proposed answers and to the failure on the part of the judge to return the jury to the courtroom. Although the court reporter was not present at the time, the objections were later entered as a matter of record.

The first note from the jury asked the following question: "Can any of the amounts claimed by either party be altered?" The court wrote...