Hultberg v. City of Garrison

• Decision Date: 21 November 1952
• Docket Number: No. 7326,7326
• Citation: 56 N.W.2d 319,79 N.D. 356
• Parties: HULTBERG v. CITY OF GARRISON.
• Court: North Dakota Supreme Court

Page 319

56 N.W.2d 319

79 N.D. 356

HULTBERG v. CITY OF GARRISON.

No. 7326.

Supreme Court of North Dakota.

Nov. 21, 1952.

Rehearing Denied Jan. 8, 1953.

Syllabus by the Court.

1. Where no motion for a directed verdict has been made in the trial court and the sufficiency of the evidence to support the verdict is not challenged by a motion for a new trial, the question of the sufficiency of the evidence to sustain the verdict cannot be raised in the supreme court.

2. The question of whether an unambiguous written agreement constitutes a contract is for the court.

3. An option to purchase real property is a privilege to purchase the property given by the owner to the optionee and vests in the optionee no interest in the property until he has accepted the option and become obligated thereby in accordance with its terms.

J. K. Murray, Bismarck, for plaintiff and appellant.

Robert Vogel, City Atty., Garrison, and Higgins & Donahue, Bismarck, for defendant and respondent.

MORRIS, Chief Justice.

The plaintiff seeks to recover damages against the City of Garrison for breach of an alleged contract to sell to her two lots in the city which she claims to have purchased for the purpose of erecting a moving picture theater thereon.

The city denies that it ever entered into a contract of purchase and sale with the plaintiff and alleges that the only agreement ever entered into between the parties was an option granted to the plaintiff to purchase the property upon certain conditions, and the conditions of the option were never fulfilled. The case was tried to a jury which rendered a verdict in favor of the defendant 'that the plaintiff take nothing by this action, and that the plaintiff's cause of action be dismissed.' From a judgment entered on this verdict, the plaintiff appeals. The plaintiff did not move for a directed verdict. There was no motion for a new trial. It has long been the established rule in this jurisdiction that where no motion is made for a directed verdict and the sufficiency of the evidence to support the verdict is not challenged by a motion for a new trial, the question of the sufficiency of the evidence to sustain the verdict cannot be raised in the supreme court. Morris v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 32 N.D. 366, 155 N.W. 861; Security National Co. v. Sanders, 60 N.D. 597, 235 N.W. 714; State v. Van Horne, 71 N.D. 455, 2 N.W.2d 1.

The plaintiff's complaint alleges that on or about September 16, 1948, the plaintiff and defendant entered into a contract for the sale and purchase of Lots 9 and 10 in Block 12 of the original townsite of the City of Garrison for the sum of $1,600, of which $400 was to be paid in cash and the balance on or about July 1, 1949; and that the plaintiff was to commence a substantial amount of construction of a theater upon the property of at least five per cent of the construction thereof on or before the latter date. It also alleges payment of the $400 which the defendant has retained and that as a part of the contract the defendant agreed that the plaintiff would be given proper permits for building a theater and for connecting it with water, sewer, and the heating system of the city. It is further alleged that the plaintiff, relying upon the contract, had plans and specifications prepared for the construction of the theater on the property and so notified the defendant and also notified the defendant that she was able, ready, and willing to pay the balance of the purchase price. It is next alleged that the defendant and its officers and agents maliciously and with intent to cheat and defraud the plaintiff and deprive her of the benefits of the contract, failed and refused to perform its obligations thereunder, including a refusal to execute a conveyance of the property to the plaintiff and that the defendant sold and conveyed the property to the Dakota Investment Company, Inc., without taking any steps to cancel plaintiff's contract. For the breach of the contract thus made, the plaintiff claims damages.

The defendant answered and denied that it entered into a contract for the sale and purchase of the lots with the plaintiff and alleged that the city gave the plaintiff a written option to purchase the lots upon certain conditions which the plaintiff failed to perform and that the defendant at no time prevented or hindered the plaintiff from the exercise of the option.

The option was set out in full in the answer and was introduced in evidence as Exhibit 3 during the course of the trial. It is this instrument that the plaintiff contends is a contract of purchase and sale. It reads as follows:

'Option

'Know All Men By These Presents, That the City of Garrison, a municipal corporation under the laws of the State of North Dakota, for and in consideration of the sum of Four Hundred Dollars ($400.00) in hand paid, receipt of which is hereby acknowledged, by Myrtle W. Hultberg, or Lillie Hultberg, whose postoffice address is Garrison, North Dakota, has agreed and does hereby agree to hold until the first day of July, 1949, at six o'clock P.M., time being of the essence of this agreement and option, subject to the order of the said Myrtle W. Hultberg, the following described real property, to-wit:

'Lots Nine (9) and Ten (10) in Block Twelve (12), original townsite of the village, now city, of Garrison, according to the original plat thereof on file and of record in the office of the Register of Deeds of McLean County, North Dakota.

'and to transfer the said property at any time within the time above prescribed, to the said Myrtle W. Hultberg or such person or persons as she may direct for and at the price of Sixteen Hundred Dollars ($1600.00), payable on or before the date specified above, without interest, subject, however, to the further requirement that this option shall be of no effect and no rights shall inure to the said Myrtle W. Hultberg or any other person or persons hereunder or by virtue of any purported exercise of this option, unless within the time limited written notice of exercise of this option shall be delivered to the City Auditor of the said City of Garrison, and a substantial commencement, amounting to at least 5% of the whole, of construction of a fireproof theater shall have been made on said property.

'In the event that the holder or holders of this option shall decide to purchase the paid property at the above price and terms within the same time, then and in that event the said amount paid for this option shall be credited upon the said purchase price, but in the event the holder or holders hereof do not conclude the purchase above set forth within the time limited, or do not commence construction as above set forth within the time limited, then and in that event the said amount paid for this option shall be retained by the undersigned in full satisfaction for holding the property subject to the said order for the said time.'

This instrument, Exhibit 3, is signed only by the City of Garrison and in the first paragraph purports to give to the plaintiff or Myrtle W. Hultberg, who is plaintiff's daughter, for a consideration of $400 certain privileges with respect to the property in question. The remaining portion of the instrument purports to deal with Myrtle W. Hultberg alone. However, at the trial it appeared that the daughter had no real interest in the transaction. It was the mother who paid the $400, who intended to pay the balance of the purchase price and build the theater, and who was the real party in interest. She was so considered throughout the trial of the case and will be so considered in this court.

Ordinarily, the construction of an unambiguous written agreement in the nature of a contract is a question of law for the court. Whether such a written agreement constitutes a contract is a question for the court. Anderson v. First Nat. Bank, 6 N.D. 497, 72 N.W. 916; Bremhorst v. Phillips Coal Co., 202 Iowa 1251, 211 N.W. 898; Heimberger v. Rudd, 30 S.D. 289, 138 N.W. 374; Leslie v. Minneapolis Teachers Retirement Fund Ass'n, 218 Minn. 369, 16 N.W.2d 313; Lidenberg v. Anchor Stove & Range Co., Inc., 207 Minn. 341, 291 N.W. 512.

The trial court took the view that the instrument under consideration was an option and so instructed the jury. In this he was clearly correct. An examination of the instrument discloses that the plaintiff paid $400 for the privilege of buying from the city for the sum of $1,600 two lots upon her performance of certain conditions prior to July 1, 1949, at six p. m. These conditions were written notice of acceptance, the payment of the full purchase price of $1,600, and the commencement of construction of a fireproof theater to the extent of five per cent of...