Johnson v. Auran

• Decision Date: 01 February 1974
• Docket Number: No. 8908,8908
• Citation: 214 N.W.2d 641
• Parties: Dolores High JOHNSON, Plaintiff/Appellee, v. Richard W. AURAN and Auran Chevrolet Company, Defendants/Appellants. Civ.
• Court: North Dakota Supreme Court

Page 641

214 N.W.2d 641

Dolores High JOHNSON, Plaintiff/Appellee, v. Richard W. AURAN and Auran Chevrolet Company Defendants/Appellants.

Civ. No. 8908.

Supreme Court of North Dakota.

Feb. 1, 1974.

Syllabus by the Court

1. A ruling made during a jury trial on an issue of law may be sustained on appeal even though the reason given by the trial court for the ruling may be unclear, may not support the ruling, or may be incorrect, if the ruling is correct for some reason.

2. To constitute a sufficient written memorandum of an alleged oral contract not to be performed within a year from the making thereof to remove the contract from the Statute of Frauds, the memorandum must show who are the contracting parties, intelligently identify the subject matter involved, express the consideration, and disclose the terms and conditions upon which the contract is entered.

3. The sufficiency of a memorandum to constitute a contract which meets the requirements of the Statute of Frauds is a question of law for the trial court to determine.

4. Whether an ambiguity exists in a memorandum asserted to be sufficient to constitute a contract which meets the requirements of the Statute of Frauds is a question of law for the trial court to decide.

5. When construing a memorandum under the Statute of Frauds, parol evidence may not be received to add to or vary the terms of the memorandum, nor to supply a missing essential term of the agreement; however, parol evidence may be received to explain and make certain the existing terms of the agreement as set forth in the memorandum, by reference to the circumstances under which it was made.

6. On appeal from a judgment rendered on a verdict or from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial, in determining the sufficiency of the evidence to sustain the verdict of the jury, the evidence must be viewed in the light most favorable to the verdict.

7. On appeal from a judgment rendered on a verdict or from an order denying a motion for judgment notwithstanding the verdict or in the alternative for a new trial, the credibility of the witnesses and the weight to be given their testimony are questions of fact for the jury to determine.

8. Section 9--06--07, N.D.C.C., does not preclude proof of the existence of a second separate contract having a subject matter and a consideration separate from the first contract even though the contracting parties in both contracts are identical.

9. Where evidence introduced at trial supports an issue not pleaded in the complaint, the complaint absent objection is enlarged by the evidence received during the trial relative to that issue.

10. A party seeking review of an alleged error committed by the trial court in submitting a counterclaim to the jury must give the trial judge an opportunity to consider the issues and make a ruling thereon.

Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for plaintiff/appellee.

Farhart, Rasmuson & Olson, Minot, for defendants/appellants.

ERICKSTAD, Chief Justice.

This is an appeal by Richard W. Auran and the Auran Chevrolet Company of Minot from the order of the District Court for the Fifth Judicial District, Ward County, denying their motion for judgment notwithstanding the verdict or in the alternative for a new trial, and from the judgment rendered against them. During the pendency of this appeal Mr. Auran died, and, by stipulation of the parties, the First National Bank in Minot, the duly appointed administrator of his estate, has been substituted as a party defendant-appellant.

The judgment and orders appealed from arose out of a civil action instituted by Dolores High Johnson against Richard W. Auran and Auran Chevrolet Company for specific performance of, or damages for a breach of, an alleged contract in which Mr. Auran and Auran Chevrolet were to furnish Mrs. Johnson with $100 a month for five years and the use of a new car yearly for the balance of her natural life.

In the fall of 1965, Mrs. Johnson's husband, Carmen Johnson, was the owner of Johnson Chevrolet located in Minot, North Dakota. However, all of the Class A common stock and a majority of the preferred stock in that company were owned by Motors Holding Division of General Motors Corporation (hereinafter Motors Holding).

On September 22, 1965, Carmen Johnson died and shortly thereafter Mrs. Johnson consulted Bruce Van Sickle, a Minot attorney, concerning the sale of the automobile business and the probate of her husband's estate.

One problem that complicated the sale was that Mrs. Johnson wanted the purchaser to provide for her use a new car yearly. Mr. Van Sickle's testimony with respect thereto follows:

'Q. Would you please tell the jury about the problems in the sale?

'A. * * * This was not a trouble, but very early Mrs. Johnson pointed out to me that she knew of the fact that her mother-in-law, I believe, who was also the widow of a Chevrolet dealer, had received a car for her natural life as the widow of a selling dealer, and she too desired to have the same benefit so that became a factor in attempting to find a purchaser. And interposed on top of that was the fact that the General Motors' people refused to participate in the purchase unless the purchase contract was held within the terms of their proposed contract, and they very definitely did not, would not, accede to a program which allowed Mrs. Johnson to acquire more than the amount recited in the contract. They would not concern themselves with anything over and above what was recited in the contract. Yet for my client, it was necessary for me to get what I could. This was what she desired.'

On or about December 3, 1965, at a meeting attended by Mr. Van Sickle, Mr. Auran, and possibly Mr. Boos and Mr. Marco, the latter two persons representing Motors Holding, Mr. Auran submitted a written offer to purchase Johnson Chevrolet (hereinafter referred to as Exhibit No. 5). Exhibit No. 5 is a letter from Mr. Auran to Motors Holding and Mrs. Johnson, as administratrix of the estate of Carmen L. Johnson, to which is attached a proposed agreement.

In the letter Mr. Auran offered to purchase all of the common and preferred stock held by Motors Holding and the estate of Carmen L. Johnson. The common stock was to be purchased at book value as of November 30, 1965, and the preferred stock was to be purchased at par value plus accrued but unpaid interest as of November 30, 1965. This represented all of the stock of Johnson's Chevrolet. In the letter he also offered to purchase a 6% Long-term note of Johnson Chevrolet held by Motors Holding for the unpaid balance of the note, and to deposit $30,000 as security for his performance of the contract.

Mr. Van Sickle testified relative to this meeting as follows:

'A. * * * If the Court please, the previous incident was that the Motors Holding people had made clear they would not accept anything outside of their contract. My concern was to get everything I could for my client. When the gentlemen came in, I had the file open in front of me, and my recollection is that the offer was presented to me, printed up, or typed up, as you will receive it, and I said something about the car matter. It was pointed out it was not a matter that General Motors people would consider or countenance. It could not be raised there. It was dropped and taken up between Mr. Auran and myself at a later time. It was not included in their settlement. It was not discussed any more in front of the General Motors' people. That is the transaction.'

Mr. Auran testified relative to the use of a new car yearly as follows:

'Q. And was there any conversation as to furnishing Mrs. Dolores High Johnson, the Administratrix, with an automobile for the rest of her life on December 3, 1965, now at Bruce Van Sickle's office?

'A. I heard no conversation of this nature at that time, and I certainly did not take part in any conversation on that matter.'

Following the meeting duplicate originals of Exhibit No. 5 were delivered to Mrs. Johnson. Mrs. Johnson's signature appears at the bottom of the letter as accepting the offer as the administratrix of the estate as of December 3, 1965.

Apparently in response to a written offer submitted by Mr. Van Sickle on behalf of Mrs. Johnson to Mr. Auran, Mr. Auran submitted a counter offer relative to the use of a new car yearly. This offer we shall hereinafter refer to as Exhibit B.

Mr. Van Sickle testified relative thereto as follows:

'Q. * * * Would you please then disclose to the jury, Mr. Van Sickle, the contents of that discussion that occurred with Mr. Auran?

'A. Yes, sir. On December 3 the option, or the offer, had been tendered, and accepted by Mrs. Johnson. Between that time and January 12, is the time of the occurrence of this memorandum. December 22, 21? Sometime before December 21. Whether a day or a matter of hours, I don't know, but I prepared a letter, a simple recital, drawing it in accordance with the North Dakota Statute, and by the language of that recital, Mr. Auran was to furnish an automobile to Mrs. Johnson for the rest of her natural life. I delivered that to Mr. Auran. Mr. Auran took it out of my office. He returned later, not with the instrument that I prepared, but with an instrument that someone else had prepared, and he advised me at that time that this, the memorandum of December 21, was the only thing that he would be willing to execute, and he explained that the reason it was the only thing, that it would be the only thing he would be willing to execute, his tax adviser informed him he could not execute the instrument I had drawn. I then took that instrument to Mrs. Johnson and explained to her reasons why she should accept the instrument. Incidentally, at the time of the conversation, he said--at the time of the conversation--'You may be sure Mrs. Johnson will receive her car,' or words to that effect, 'I will keep my part.' I took that to Mrs....