Graber v. Engstrom, 10980

• Decision Date: 19 March 1986
• Docket Number: No. 10980,10980
• Citation: 384 N.W.2d 307
• Parties: Donald GRABER, Plaintiff and Appellant, v. Sonia ENGSTROM, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 307

384 N.W.2d 307

Donald GRABER, Plaintiff and Appellant, v. Sonia ENGSTROM, Defendant and Appellee.

Civ. No. 10980.

Supreme Court of North Dakota.

March 19, 1986.

Donald Graber, pro se.

John R. Gregg, Bottineau, for defendant and appellee.

ERICKSTAD, Chief Justice.

Donald Graber, appearing pro se, appeals from a district court judgment which dismissed his action against Sonia Engstrom to recover damages for breach of a rental agreement and awarded Engstrom $480 in damages and $200 in partial attorney fees on her counterclaim against Graber. We affirm.

Engstrom entered into a written one-year lease agreement to rent Graber's mobile home effective August 15, 1981. According to Engstrom, while inspecting the mobile home before entering into the agreement, Graber promised to make certain repairs to the premises. Engstrom claimed that Graber promised to replace bathroom flooring, to replace a broken bedroom window, to fix a step and the skirting, to properly winterize the mobile home, and assured her that the residence would be liveable and suitable for occupancy. Graber denied making these promises. Although Graber made some of the repairs during the fall, other repairs were not made and problems ensued. The flooring around the toilet became moldy and unsanitary. Inadequate skirting around the mobile home allowed the entry of mice. The problems eventually became so severe that Engstrom vacated the premises during December 1981.

Graber brought this action against Engstrom seeking $2,570 in damages for Engstrom's breach of the lease agreement, for damages to the premises caused by Engstrom's negligence, and for mental anguish and "loss of reputation to rent said mobile home ..." Engstrom denied Graber's allegations and asserted that she was constructively evicted from the mobile home. Engstrom counterclaimed, alleging that she was fraudulently induced to enter into the lease agreement by Graber's promises and that, although the mobile home was not suitable for occupancy, she continued to reside on the premises because of Graber's promises that repairs would be made. Engstrom requested that the lease be declared void and that she be awarded actual and punitive damages, attorney fees, or other appropriate relief.

Following a bench trial, the court ruled that Graber was not entitled to any relief. The trial court determined that Graber's failure to make the dwelling fit, habitable, and liveable constituted violations of both the leasing agreement and Graber's statutory obligation to maintain the premises in a fit and habitable condition; that Graber breached the rental agreement; that Engstrom by residing in the mobile home did not waive Graber's breach of the agreement; and that Engstrom was justified in terminating the lease and vacating the premises. The trial court awarded Engstrom treble damages in the amount of $480 for Graber's unreasonable withholding of her $160 security deposit, $200 for Engstrom's partial attorney fees, and costs of the suit.

The major issue raised by Graber in this appeal is whether the trial court erred in considering parol evidence of his promises to repair or renovate the mobile home. Graber asserts that the written lease placed the responsibility for maintaining the property upon Engstrom, and that his alleged oral promises conflict with the express language of the lease.

Section 47-16-13.1(1), N.D.C.C., among other things, requires a landlord of a residential dwelling unit to comply with the requirements of applicable building and housing codes materially affecting health and safety; to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition; and to maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, and other facilities and appliances supplied or required to be supplied by the landlord. See also Mitchell v. Preusse, 358 N.W.2d 511, 513 (N.D.1984). Section 47-16-13.1(4), N.D.C.C., however, allows the landlord and tenant of a single-family residence to agree in writing that the tenant perform the landlord's duties concerning specified repairs, maintenance tasks, alterations and remodeling if the transaction is entered into in good faith.

The lease agreement signed by the parties in this case provides in pertinent part:

"The party of the first part [Engstrom] understands that in renting said property, he must act as a reasonable and prudent person and any negligence on his part in maintaining said property, such as pluged [sic] sewer, frozen pipes, breakage and other damages, not due to normal wear and tear must be paid by himself."

The trial court ruled that this provision in the lease was ambiguous as to the specific responsibilities intended to be delegated to Engstrom, and allowed the admission of extrinsic evidence to aid in the interpretation of the agreement.

The determination of whether a contract is ambiguous is a question of law for the court to decide. Miller v. Schwartz, 354 N.W.2d 685, 688 (N.D.1984). A contract is ambiguous when rational arguments can be made in support of contrary positions as to the meaning of the language in question. Johnson v. Mineral Estate, Inc., 343 N.W.2d 778, 780 (N.D.1984).

We agree with the trial court that the above-quoted language in the lease agreement is ambiguous as to Engstrom's specific responsibilities. Although this provision generally places the responsibility for maintaining the property on Engstrom, it is vague as to the specific maintenance tasks intended to be delegated to Engstrom. The lease provision does not specifically mention repairs, alterations or remodeling, and imposes liability for damages only for Engstrom's acts of negligence in maintaining the property. The phrase "such as," used in the lease, is not a phrase of strict limitation, but is a phrase of general similitude indicating inclusion of other matters of the same kind which are not specifically enumerated. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 327 (8th Cir.1981).

In Smith v. Michael Kurtz Construction Company, 232 N.W.2d 35, 39 (N.D.1975), this court stated that "[i]t is not error to permit parol evidence to explain vague and ambiguous written contract provisions or to show representations made prior to the written contract which induced the party to sign the contract." Oral negotiations or agreements which preceded or accompanied the execution of a written contract may be employed to explain its uncertain expressions but not to contradict or nullify its express terms. E.g., Paul W. Abbott, Inc. v. Axel Newman Heat. & Plumb. Co., 282 Minn. 493, 166 N.W.2d 323, 325 (1969); Eggers v. Eggers, 79 S.D. 233, 110 N.W.2d 339, 342 (1961). In addition, the parties' conduct subsequent to a contract's execution may be used to help determine the meaning of ambiguous language. Stracka v. Peterson, 377 N.W.2d 580, 583...