Enderlien v. Kulaas

• Decision Date: 21 May 1913
• Citation: 25 N.D. 385,141 N.W. 511
• Parties: ENDERLIEN et al. v. KULAAS.
• Court: North Dakota Supreme Court

25 N.D. 385

141 N.W. 511

ENDERLIEN et al.

v.KULAAS.

Supreme Court of North Dakota.

March 29, 1913.

On Petition for Rehearing, May 21, 1913.

Syllabus by the Court.

An appeal will not be dismissed on the ground that the title of the action in which it is taken is imperfectly stated, when the body of the notice contains matter sufficiently identifying the judgment from which the appeal is taken.

Following Burger v. Sinclair, 140 N. W. 235, appellant is permitted to furnish an amended or substituted undertaking on appeal for the original, which was imperfect.

An order for judgment is reviewable on appeal from the judgment.

This action was tried in county court having increased jurisdiction, and in special findings the jury found that the defendant owed plaintiff $85.67, and that a certain contract on which this action is brought had been mutually abandoned by the parties thereto. The court directed judgment, notwithstanding the verdict, for the full amount sued upon. Held, that the correctness of this judgment depends upon the record containing evidence to support the finding that the contract had been abandoned, and cannot stand if evidence is found in the record to support it. Held, further, that the record contains sufficient evidence on the question to sustain the finding that the contract was mutually abandoned, and that therefore the granting of the motion constituted error.

In an action for damages claimed to have been occasioned by the breach of a contract, an admission of testimony tending to aid the jury in arriving at the measure of such damages, if any, does not constitute error.

Additional Syllabus by Editorial Staff.

On Petition for Rehearing.

On review of a judgment non obstante veredicto the appellate court must construe the evidence most strongly against the party in whose favor the judgment is rendered.

The parties to a contract may by mutual agreement abandon the contract before it is performed, or after partial performance, subject in the case of partial performance to the performing party's right to recover therefor.

The parties to a contract may, by their failure to act or by their silence, abrogate a contract or the unperformed part.

Appeal from Ward County Court; Davis, Judge.

Action by E. W. Enderlien and others against Kari Kulaas. Judgment for plaintiffs and defendant appeals. Reversed and rehearing denied.Palda, Aaker & Greene, of Minot, for appellant. F. B. Lambert, of Minot, for respondents.

Statement.

SPALDING. C. J.

This action is one to recover $210.67 on two causes of action: First, for material and labor furnished in the performance of work under a contract for plumbing, etc., $85.67; the second for $125, the amount of profit claimed by plaintiffs to have been lost because defendant refused to permit them to fully perform the contract. The contract consists of the written proposal of the plaintiffs and the conceded verbal acceptance; the entire job to be done for $720. The contract provided for the construction of plumbing, etc., in two residences belonging to defendant, situated on Fourth street, in the city of Minot, facing north. Connection with the water main and sewer had to be made by going east to Ramstad street. After the contract had been entered into the city constructed a sewer and water main in front of the residences of defendant, along Fourth street, which enabled her to make connections by going directly north from each of her houses, making 57 feet less trench to dig than was contemplated by the contract. Plaintiffs entered upon the execution of the contract, and their laborers were ordered to quit by the defendant, after having done work and furnished materials of the value alleged in the first cause of action. When defendant found that the connections could be made on Fourth street, she saw plaintiffs and demandeda change in the contract, to fit the changed conditions, and, as we have said, refused to let them proceed without it. They offered to make her an allowance of $75, while she insisted upon a deduction of $150. No further work was done, and this suit was brought. The litigation hinges around the question as to whether the original contract was abandoned or whether it still remained in force because they failed to agree on new terms.

Special findings were made by the jury, and a general verdict rendered. The special findings were that the parties entered into a contract to do the work and furnish the materials for the agreed price of $720; that such contract was abandoned, by mutual consent of all the parties, on the 25th day of August, 1910; that the reasonable profit on the contract, if the plaintiff had been allowed to complete it according to its terms, would have been $100. The general verdict was for $85.67. At the close of the case plaintiffs made a motion for the court to instruct the jury to return a verdict in their favor, as prayed for in the complaint, on the grounds that the plaintiffs had fully proved their case, and that no defense whatever had been put in nor any evidence introduced by the defendant which would warrant any other verdict. An order was entered granting this motion and directing the entry of judgment accordingly. This appeal was perfected. The court, in its order, stated that the motion was granted, in substance, on the ground that no evidence of any kind was introduced showing that the contract had been modified, changed, abandoned, or another one made in its stead; that the evidence offered by plaintiffs showed damages as alleged in their complaint, and no evidence was introduced by defendant changing or mitigating said damages, and also because the defendant had admitted, in her answer, liability for the work and labor actually performed, and that there was nothing on which to base the finding of the jury that the contract had been abandoned by mutual consent. At the proper time respondent submitted a motion to dismiss the appeal, the ground of which will be stated in our opinion.

Opinion

[1] 1. The notice of appeal is entitled, “E. W. Enderlien, Plaintiff, v. Kari Kulaas, Defendant,” and it is claimed that this defective designation of the plaintiffs renders the notice invalid for all purposes. Enderlien was one of the copartners in the plaintiff firm. The notice in all other respects sufficiently described the action in which the appeal was taken to identify it, and we think this was sufficient. The respondent could have been misled in no manner by the defective designation of the plaintiffs.

[2] 2. The same defect and others appear in the undertaking on appeal, but appellant made application in this court for leave to substitute a new and correct undertaking, and under the decision in Burger v. Sinclair, 140 N. W. 235, we must allow this new undertaking to be filed in place of the original.

[3] 3. The notice of appeal reads that it is taken from the judgment rendered in the action on the 22d day of December, 1910, and from the order of the court dated the 21st day of December, 1910, whereby judgment was given in favor of the plaintiff and against the defendant, etc. And it is alleged by respondent that the order is not appealable, and that the appeal is duplicitous. There is nothing in this contention. The order is reviewable on an appeal from the judgment, and is not an appealable one and the notice amounts to an appeal from the judgment only.

[4] 4. The answer of defendant admits her indebtedness to the extent of $85.67, and offers judgment for that amount. The main question to be considered is whether there is any evidence in the record to sustain the finding of the jury that the contract was mutually abandoned. The evidence is set out at considerable length, and it would serve no useful purpose to review it in full, but we think there is sufficient evidence of the abandonment of the contract by the parties to sustain the finding, and that for this reason the judgment notwithstanding the verdict, for a greater amount than the verdict, was erroneous. The defendant testifies that she directed the workmen to cease working on the job after learning of the new sewer and water main, and that she called repeatedly to see the plaintiffs on the subject of a new contract, and that they were unable to get together on any change; and she testifies that one of the firm agreed with her suggestions that the old contract was not any good, and said he would make out a new contract, but that when she saw him he did not have time to do it, and that she did not have time to wait for them longer and got somebody else to do the job. She testified expressly that she asked him to write out a new contract; that when she asked for a new contract he was so busy all the time that he could not make it; that she was there pretty near every day for a week; that she told them that she wanted to know how much she had to pay, because their contract was out of the way; that she asked for the bill four times, and that on the fourth occasion he told her: “You will get that some day;” that she never got a bill from him, and the first thing she knew of the amount was when the suit was brought; that he offered to throw off $75, which she declined to accept; that he told her he would return another contract.

Plaintiffs admitted, in their testimony, that she told them that she did not want them to continue the work, and told them to discontinueit, and that they did discontinue it, and that possibly she told them to stop any further work until they “had made an agreement as...