Farmers Co-op. Ass'n of Church Ferry v. Cole, 9139

Citation239 N.W.2d 808
Decision Date25 February 1976
Docket NumberNo. 9139,9139
Parties18 UCC Rep.Serv. 1151 FARMERS COOPERATIVE ASSOCIATION OF CHURCHS FERRY, a North Dakota Cooperative Association Corporation, Plaintiff and Appellant, v. Elmer COLE, Defendant and Appellee. Civ.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. An order for judgment is not appealable but may be reviewed when there is an appeal from the judgment.

2. On a motion for judgment notwithstanding the verdict, the evidence will be construed most favorably to the party against whom such judgment is sought.

3. Under Section 41--01--03, NDCC, equitable estoppel may act as a bar to the raising of the Statute of Frauds as a defense in oral agreements for the sale of goods.

4. The basic elements of equitable estoppel that must be met as to the person

being estopped are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the other party or persons; and (3) knowledge, actual or constructive, of the real facts. The elements that must be found as to the person claiming the estoppel are: (1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon, of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

5. Equitable estoppel will not be allowed as a bar to the assertion of the Statute of Frauds until it is shown that the statutory exceptions to the operation of the Statute of Frauds do not apply.

6. Exceptions to the Statute of Frauds cannot be enlarged by usage in trade, such as a consistent failure of grain dealers to utilize written agreements.

Ackre & Britton, Cando, and Neil B. Dieterich, Minneapolis, Minn., for plaintiff and appellant; argued by Neil B. Dieterich.

Traynor & Rutten Devils Lake, for defendant and appellee; argued by John T. Traynor.

PEDERSON, Judge.

This is an appeal from an order granting a motion for judgment notwithstanding the verdict. We affirm the order, and remand for vacation of the judgment on the verdict and for entry of a judgment of dismissal.

Farmers Cooperative Association of Churchs Ferry is an elevator association engaged in buying and reselling grain. Undisputed facts are that Robert Kringlen, manager of the elevator association, was invited to deal with Elmer Cole by a telephone call from Lyle Leas, a stranger to Kringlen. Leas first asked about the price for durum, then told Kringlen that Cole had 40,000 bushels for sale and gave him Cole's telephone number. Leas was an acquaintance but not an agent of Cole.

Before calling Cole, Kringlen telephoned General Mills at Great Falls and received a bid on 40,000 bushels of No. 1 hard amber durum at $4,35 per bushel. At about 7 a.m. on July 25, 1973, Kringlen telephoned Cole at his home at Sarles and offered to buy 40,000 bushels at $4.18 per bushel.

At this point the parties disagree as to what happened. Kringlen claims that they orally agreed to the sale and purchase of 40,000 bushels of No. 1 hard amber durum at $4.18 per bushel for delivery from August to December 1973. Kringlen further claims to have told Cole that he was going to resell the grain, and that he would write up the contract and sign it. Kringlen testified that Cole agreed to stop at Churchs Ferry and sign the contract in two or three days.

Cole, contrarily, alleges that he only agreed to consider the written contract after it was delivered or mailed to him and that when the contract was neither delivered nor mailed to him, no contract resulted.

Kringlen and Cole never met until the case was being tried. There had been no previous dealings between them, and Sarles, being over 60 miles from Churchs Ferry, would not be considered as part of the Churchs Ferry local trade area.

After the July 25th telephone conversation, Kringlen again called General Mills and confirmed a resale to it of 40,000 bushels of No. 1 hard amber durum. Kringlen also drew up a contract in writing covering the purchase from Cole, which he signed and retained in his file. Several days thereafter the confirmed sale to General Mills was reduced to writing and signed by General Mills and Kringlen.

Cole did not stop at Churchs Ferry and Kringlen did not deliver or mail the written contract to Cole for signature. On July 30th Kringlen called the Cole residence and asked about early delivery. Mr. Cole was not at home and Mrs. Cole indicated to Kringlen that she was upset about the matter. On August 1st Kringlen called again and spoke to Mr. Cole, who did not give any answer about delivery but, according to Kringlen's testimony, agreed to stop by and talk about the deal. On this point Cole disagrees, claiming that he told Kringlen specifically that there was no contract and he would not deliver.

The next contact between the parties occurred on August 28th when Kringlen said he called to ask why Cole hadn't stopped at Churchs Ferry to sign the contract. Kringlen claims that during this conversation Cole repudiated his oral contract. Cole alleges that his comments were that there was no contract between the parties.

The elevator association, claiming to have then purchased 40,000 bushels at a cost of $6.66 per bushel to fulfill its contract with General Mills, sued Cole for damages of $122,800 for breach of an oral contract. Cole denied the existence of a contract but alleged that if there was an oral contract, it was unenforceable under § 41--02--08, NDCC (2--201, UCC), because contracts for the sale of goods for $500 or more must be in writing. The elevator association responded to this allegation by claiming that estoppel prevents Cole from relying on § 41--02--08, NDCC (Statute of Frauds).

Before trial Cole moved for summary judgment, which was denied. During trial, at the end of plaintiff's case and at the end of the trial, Cole moved for a directed verdict, both of which were also denied. The jury returned a verdict for the elevator association in the amount of $89,500. Within the time provided in Rule 50(b), N.D.R.Civ.P., Cole moved for judgment notwithstanding the verdict or for a new trial. The trial court granted Cole's motion for judgment notwithstanding the verdict and directed the clerk to enter a judgment of dismissal.

We find nothing in the record that specifically vacates the judgment on the verdict nor do we find that judgment was ever entered pursuant to the order for judgment notwithstanding the verdict. Farmers Cooperative Association appealed from the order granting the motion for judgment notwithstanding the verdict.

First of all, an order for judgment is not appealable but may be reviewed when there is an appeal from the judgment. See § 28--27--02, NDCC, and Gebeke v. Arthur Mercantile Company, 138 N.W.2d 796 (N.D.1965), Syllabus 1. Since this has not been argued by anyone in this case and since the merits have been extensively researched, briefed and argued, and in order to expedite a case which is of pressing concern to the litigants, this court will decide the case on its merits now rather than remanding for technical corrections which should have been made before appealing to this court. See Kittelson v. Havener, 239 N.W.2d 803 (N.D.1976).

Secondly, where motions for judgment notwithstanding the verdict are based upon insufficiency of the evidence, without weighing the credibility of the witnesses, the evidence will be construed most favorably to the party against whom such judgment is sought. See Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182 (N.D.1973); Kunze v. Stang, 191 N.W.2d 526 (N.D.1971); Chicago, M., St. P. & P.R. Co. v. Johnston's Fuel Liners, 130 N.W.2d 154 (N.D.1964), and 122 N.W.2d 140 (N.D.1963).

Construing the evidence most favorably to the elevator association, we find no evidence upon which the jury could have found fraud, positive misrepresentation, or unconscionable conduct akin to fraud chargeable to Elmer Cole. The trial court reached the same conclusion and, relying upon Williston on Contracts, Third Edition, § 533A, held that such proof was necessary before Cole would be estopped from raising the Statute of Frauds as a defense, and that estoppel to assert the Statute of Frauds does not arise merely because an oral contract within the statute has been acted upon by the promisee and not performed by the promisor, nor does it arise upon the mere refusal to make a writing as agreed.

Quoting at length from the Illinois case involving an oral contract for the sale of corn, Ozier v. Haines, 411 Ill. 160, 103 N.E.2d 485, 488 (1952), the trial court stated:

'It is true that harsh results * * * may occur where one has changed his position in reliance on the oral promise of another, but it is a result which is invited and risked when the agreement is not reduced to writing in the manner prescribed by law. * * *

'* * * In the absence of fraud or misrepresentation, the party changing his position must be said to have acted solely upon his own judgment and at his own risk, and he is not entitled to an application of the estoppel doctrine.'

The trial court distinguished what it felt was the most persuasive case for the elevator, Oxley v. Ralston Purina, 349 F.2d 328 (6th Cir. 1965).

The Statute of Frauds is intended to prevent frauds and perjuries, and it has often been said that courts ought not to allow the Statute of Frauds to be used as an instrument to accomplish fraud. See 73 Am.Jur.2d, Statute of Frauds, §§ 564, 565. Estoppel in this State is limited for some purposes by a statute which provides:

'When a party, by his own...

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