G.L. Ness Agency v. Woell, 10334

Decision Date24 June 1983
Docket NumberNo. 10334,10334
Citation335 N.W.2d 561
PartiesG.L. NESS AGENCY, Plaintiff and Appellee, v. William WOELL, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Wegner, Fraase, Nordeng & Johnson, Fargo, for plaintiff and appellee; submitted on briefs.

Schneider, Schneider & Schneider, Fargo, for defendant and appellant; submitted on briefs.

SAND, Justice.

William Woell (Woell) appealed from a district court judgment in favor of the plaintiff, G.L. Ness Agency (Ness Agency), in the amount of $3,024.76 plus interest in the amount of $353.45, and costs and disbursements in the amount of $55.00, for a total judgment of $3,433.21.

Ness Agency initiated an action against Woell for $3,024.76 for advertising services allegedly rendered during August and September 1980 to market a product developed by Woell and known by its trade name as a "supportable." 1

Woell answered and denied owing Ness Agency the money because (1) Ness Agency failed to make the timely placement of an advertisement in the November (holiday) issue of the magazine Fine Woodworking; (2) Woell's payment to Ness Agency was conditioned upon production of a usable product (advertising package) which Ness Agency failed to provide; and (3) Ness Agency failed to provide a statement showing the tangible, usable products produced by them or a detailed description of the hours expended.

Woell also counterclaimed and alleged that he and Ness Agency entered into an oral agreement in which Ness Agency promised to produce an advertisement to meet a deadline to be published in the November issue of Fine Woodworking, and that Ness Agency did not meet that deadline, thereby causing him to lose profits of $20,000.00.

After a trial to the court, the court entered findings of fact, conclusions of law, and order for judgment in which it found that Ness Agency contacted Woell in July 1980 for advertising work to market the "supportable"; that advertising work was performed and Woell was billed on the basis of $28.00 per hour; that Ness Agency sent Woell a bill for July 1980 services in the amount of $437.76, which was paid by Woell after Ness Agency informed him the services performed were billed on an hourly basis; that Woell wanted advertising in the November 1980 issue of Fine Woodworking magazine so as to reach Christmas buyers; that the deadline for getting an advertisement in the November 1980 issue was 26 August 1980; that Ness Agency made Woell aware of the deadline; that Ness Agency began working on an "advertising package" including the Fine Woodworking advertisement, and performed eighty percent of the work needed for the advertising package; that Woell would not approve the advertising package, and because he did not approve the advertising package, there was no way of meeting the deadline for the advertising in the November Fine Woodworking magazine; that certain brochures and photographic work were done in August and September by Ness Agency for the advertising package; that the bill for the work done by Ness Agency in August and September was $3,024.76; that Woell did not express dissatisfaction with Ness Agency...

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