Fargo Public Library v. City of Fargo Urban Renewal Agency

• Decision Date: 30 March 1971
• Docket Number: No. 8574,8574
• Parties: FARGO PUBLIC LIBRARY, Plaintiff and Appellant, v. CITY OF FARGO URBAN RENEWAL AGENCY, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 500

185 N.W.2d 500

FARGO PUBLIC LIBRARY, Plaintiff and Appellant, v. CITY OF FARGO URBAN RENEWAL AGENCY, Defendant and Respondent.

No. 8574.

Supreme Court of North Dakota.

March 30, 1971.

Syllabus by the Court

1. Decisions of lower courts are not binding upon appellate courts.

2. No demand for the performance of a contract is necessary to give rise to an obligation to perform where there has been a refusal in advance to comply with the terms of the agreement.

3. The law neither does nor requires idle acts. Subsection 23, § 31--11--05, N.D.C.C.

4. The performance of a condition precedent is waived where the other party has unequivocally declared by word or act that performance of the condition will not secure performance of the counterpromise.

5. Where the facts establish in this case the vendor's prior knowledge that debris from demolished buildings was deposited in the basement openings, and upon its refusal or indication that it would not remove the debris that thereby it had waived the requirement in the contract of a notice in writing of the default or breach to give the vendor sixty days in which to cure or remedy the default or breach.

6. In this case the contract is construed to require the vendor to remove from the premises the debris from the buildings that were demolished and to backfill the basement openings with proper material.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for appellant.

Wattam, Vogel, Vogel & Peterson, Fargo, for respondent.

KNUDSON, Judge.

This is an appeal from the judgment dismissing the plaintiff's action.

The Fargo Public Library entered into a written contract with the City of Fargo Urban Renewal Agency on June 8, 1961, after several months of negotiations, for the purchase of a tract of land within the Project Area of the North Dakota R--1 Urban Renewal Project located in an area in the city of Fargo, North Dakota, for the purpose of constructing a library building thereon.

As a part of said contract, by addendum, the Public Library was permitted to redevelop this property or lease it for the purpose of off-street parking, with the intention to eventually construct a library building on the property, but without any requirements as to the time of the beginning or completion of the construction of the library building.

A deed to the property, dated June 20, 1961, was subsequently executed by the Renewal Agency and delivered to the Public Library conveying the property to the Public Library. The contract was a printed form prepared by the Renewal Agency and used by it in its transactions with Public Library and others who desired to purchase tracts within the Project Area for the purpose of development under a program for the clearance and reconstruction of slum and blighted areas in the city of Fargo.

Some time prior to the making of this contract, three buildings wholly or partly upon the purchased property, known as the Berry Building, the Flamer Hotel and the Cliquot Club, were demolished by the Renewal Agency by a contractor during the course of the fall of 1960 and the winter of 1961, with the final payment to the contractor who demolished the buildings made in May of 1961. At the time the Public Library entered into the contract for the purchase of the property the old buildings had been demolished and the property had been leveled and graded to the surface of the surrounding property.

The property was thereafter used as a parking lot until April of 1967, when the first excavation was made for the footings and foundations for the construction of the library building. After removing a foot or two of topsoil, the contractor found that rubble and debris of brick, concrete, rotting wood, reinforcing rods, and other matter, had been used as backfill in the basements of the old Berry Building, Flamer Hotel and Cliquot Club.

The plans for the library building called for a floating concrete slab poured on top of the ground as the first floor, with footings and foundation designed to hold the walls and roof structure. The type of building called for in the plans could not be built on the property without removal of this rubble and debris. Therefore, it was necessary to remove the rubble and backfill the basements with proper material.

Within a few days after the discovery of the rubble and debris in the basements of the old buildings, a member of the Public Library brought this matter of the rubble and debris in the basements to the attention of the executive secretary of the Renewal Agency, and inquired what the Renewal Agency was going to do about the removal of the rubble and debris. As the Renewal Agency made no effort to proceed to remove the rubble and debris and to backfill with the proper material, the Public Library caused the contractor for the construction of the library building to remove the rubble and debris from the basements of the razed buildings and to backfill with the proper material.

The Public Library, on June 2, 1967, sent a letter to the Renewal Agency demanding reimbursement for the cost of removing the rubble and debris and for the backfilling with a clean, well-compacted fill, estimated at the sum of thirty-five to forty thousand dollars, for the failure of the Renewal Agency to comply with the provisions of the contract relating to the removal of the rubble and debris from the demolished buildings. On June 5, 1967, the Public Library brought this action against the Renewal Agency demanding damages of $40,000 for breach of contract for the failure of the Renewal Agency to remove the rubble and debris from the property and for failing to backfill with proper material, as required by the contract.

At the opening of the trial of the case to the court, the Renewal Agency made a motion to dismiss the Public Library's action on the grounds that the complaint failed to state a cause of action; that the parties to the contract knew that the buildings already had been razed and the basements already had been backfilled and leveled to grade; and for a further reason that in a previous case in the Case County district court, before the Honorable Roy K. Redetzke, Judge, between the Fargo Chamber of Commerce and the Urban Renewal Agency, involving and construing the same form of contract, the court had held that the Renewal Agency was required only to remove and demolish the buildings down to the grade of the surrounding property. The motion was denied with leave to the Renewal Agency to renew the motion at a later time.

At the close of the presentation by the Public Library of its evidence, the Renewal Agency renewed its motion for a dismissal of the case upon the same grounds as in the original motion.

Judge Maxwell said he was unable to distinguish between the Chamber of Commerce case and the present case, as each, in his opinion, was based on substantially the same facts and on exactly the same language in the same form of contract. He was of the opinion that the decision by Judge Redetzke in the Chamber of Commerce case interpreting the same provisions in the same form of contract was precedent for the present case and deprived him of discretion in the matter under the principle of stare decisis. He observed that Judge Redetzke, in the Chamber of Commerce case, considered together subparagraph (i) of paragraph 2(a) and subparagraph (iii) of paragraph 2(a) of the contract common to each case in rendering his decision absolving the Renewal Agency of liability in that case.

Judge Maxwell expressed the opinion that under the doctrine of stare decisis he was bound to follow decisions of courts of the same stature or level as well as decisions of appellate courts. Therefore, applying the rule in the Chamber of Commerce case to this case, he found that the Public Library had not made out a prima facie case of breach of contract by the Renewal Agency. He further found that written notice of default had not been given prior to the commencement of this action, as required by the provisions of the contract, and that such notice was a condition precedent to bringing the action, without which the action would fall. Judgment was entered accordingly, dismissing the plaintiff's action.

Although the trial court rendered its decision on the principle of stare decisis and followed the decision of a court of equal rank, we are not bound by such decision, and we will proceed to a determination of this case without considering the decision of the trial court as precedent binding on this court.

Generally, stare decisis effect is not given to a decision of a court lower in rank than the court in which the decision is cited as a precedent. 20 Am.Jur.2d Courts § 201.

The principle of stare decisis is most frequently applied or discussed with regard to decisions made by a court of last resort in the given jurisdiction. Idem.

The decisions of inferior courts are not, as a rule, binding on the higher courts, even as establishing the law of the case, although it has been considered that an appellate court will give great weight to the opinions of a lower court upon questions affecting its own practice and jurisdiction, and may consider the decision of such a court on other matters in the absence of any authoritative precedent. 21 C.J.S. Courts § 201, p. 352.

The decisions of lower courts are not binding upon appellate courts. State Board of Equalization v. Courtesy Motors, Inc., 362 P.2d 134, 135 (Wyo.1961); In re Seaman's Estate, 166 Ohio St. 51, 139 N.E.2d 17 (1956); City of Sedalia v. Donohue, 190 Mo. 407, 89 S.W. 386, 4 Ann.Cas. 89 (1905); Ferguson v. Koch, 204 Cal. 342, 268 P. 342, 58 A.L.R. 1176 (1928); Joseph v. Schatzkin, 259 N.Y. 241, 181 N.E. 464, 83 A.L.R. 910 (1932), cited in 20 Am.Jur.2d Courts § 201.

Although the Public Library made several specifications of error and raised several issues, these specifications and issues may be reduced to two issues:

1. Whether the Public Library may be relieved from the provisions of the...