Kilgore v. Farmers Union Oil Co. of Epping

• Decision Date: 24 August 1946
• Docket Number: 6976.
• Citation: 24 N.W.2d 26,74 N.D. 640
• Court: North Dakota Supreme Court

24 N.W.2d 26

74 N.D. 640

KILGORE v. FARMERS UNION OIL CO. OF EPPING.

No. 6976.

Supreme Court of North Dakota

August 24, 1946

Syllabus by the Court.

1. A party has a constitutional as well as a statutory right to have a jury decide disputed questions of fact in a case properly triable to a jury, unless he waives such right.

2. In an action for damages for the breach of contract the defendant cannot be deprived of a trial by jury because the plaintiff prays that defendant be required to account.

3. The jurisdiction of a court of equity cannot be predicated upon the prayer for relief but must be based upon the allegations of fact in the complaint.

4. Where the complaint prays for both legal and equitable relief and the former alone is warranted by the facts pleaded, it is error to deny defendant's demand for a trial by jury.

5. Where A was employed by B to operate a gasoline and oil station, under a contract which provided that A was to be compensated for his services by the payment to him by B of a certain sum for each gallon of gasoline and other fuel and lubricating oils sold and A is discharged during the period for which the contract was to exist, and B continues to operate the business during a period of the time covered by the contract of employment and A brings action to recover damages which he alleges that he sustained by wrongful discharge in violation of the terms of the contract, the action is one at law for the recovery of money, and triable to a jury unless a jury is waived; and such action is not converted into an equitable action properly triable to the court without a jury because the plaintiff prays that the defendant be required to account for the number of gallons of gasoline and other oils sold during the time the defendant continued to operate the business after the discharge of the plaintiff.

6. Where the record on appeal shows that an action for damages properly triable to a jury, was tried by the court without a jury; and such record further shows that the defendant did not waive a trial by jury but demanded that the action be tried to a jury, such record presents a mistrial which requires a reversal of the judgment and a new trial.

E. J. McIlraith, of Minot, for appellant.

Walter O. Burk, of Williston, for respondent.

CHRISTIANSON, Chief Justice.

This controversy stems from a certain contract between the plaintiff and the defendant which provided for the sale by the plaintiff to the defendant of an oil and gasoline station at Epping in this state and the employment of plaintiff by the defendant to operate the station on a commission basis until the purchase price was paid.

At the threshold of the trial defendant's counsel stated: 'At this time the Defendant moves that this action be tried before a jury, and the Defendant demands a jury trial in this action on the ground and for the reason that it appears from the very files that this action is one properly triable before a jury.'

Plaintiff's counsel resisted the motion. The motion was denied and the trial proceeded. At the close of all the testimony defendant's counsel again moved the court that the action be tried to a jury. He stated: 'The Plaintiff having rested, the Defendant moves that this action be tried before a jury on the ground that the pleadings and evidence before this Court show that this action is one properly triable before a jury only.'

Plaintiff's counsel resisted the motion and the trial court denied it. The trial court thereafter made findings of fact wherein it found that there was due to the plaintiff from the defendant the sum of $551.33 as of November 15, 1944, and that upon a counterclaim the defendant was entitled to recover $293.51 with interest from November 15, 1941. Judgment was entered accordingly, and the plaintiff has appealed from the judgment and demanded a trial anew in the Supreme Court.

In his brief on the appeal defendant's counsel contends that the plaintiff is not entitled to a trial anew in this court. He says: 'The plaintiff in his Notice of Appeal asks for a trial de novo in the Supreme Court. Defendant submits that plaintiff is not entitled to a trial anew in the Supreme Court. It appears both from the pleadings and the evidence introduced at the trial that this action is one for damages for breach of contract. The plaintiff in his prayer for relief in his complaint sought to avoid a jury trial by asking for an accounting. However, the allegations of the complaint clearly show that the action is one for damages for breach of contract.' Counsel proceeds and calls attention to the demands made in the trial court that the case be tried to a jury.

In his complaint the plaintiff alleges that on January 16, 1935, he was the owner of a lease upon a certain tract of land known as plot 11 of the Great Northern Railway right of way at Epping, North Dakota, and that he owned certain oil station tanks and other oil station equipment situated on said land, and used the same in operating a wholesale and retail business of selling gasoline, kerosene, lubricating oils, tractor fuels and other articles of merchandise commonly sold in a general petroleum supply business. That on January 16, 1935, the plaintiff and defendant entered into a certain contract whereby the plaintiff agreed to sell to the defendant the above described property with the good will thereof, and that said contract also contained a provision for the employment of the plaintiff by the defendant until the said property should have been paid for in full. A copy of the contract is attached to and made a part of the complaint. The plaintiff is designated as party of the first part and the defendant is designated as party of the second part in said contract. The contract provides that the party of the first part in consideration of the covenants and agreements thereafter stated 'does hereby sell to the party of the second part, and the party of the second part does hereby buy from the party of the first part' the said described property. The contract states that the purchase price of the property is $1,884, 'which said sum is evidenced by a promissory note in the sum of $1884.00 dated July 5, 1934, bearing interest at the rate of 6 per cent per annum upon the balance remaining unpaid from time to time from date of note until paid'.

The contract provided that the party of the first part is to 'operate said oil and gas distribution station for the party of the second part until said note above mentioned is paid, and in consideration of the performing of said services by the party of the first part and as full compensation therefor, and for all thereof, the said party of the second part agrees to and will pay to said party of the first part, the following wages, by way of commission on sales of merchandise made and completed, at and through said oil station, by said party of the first part, namely: Two cents (2¢) per gallon upon all gasoline sold to consumers, flat rate, per gallon, one and one-half cents (1 1/2¢) a gallon upon all gasoline hauled to all Farmers Union gasoline stations, one and one-half cents (1 1/2¢) per gallon upon kerosene, two and one-half cents (2 1/2¢) per gallon upon commercial alcohol, one and one-half cents (1 1/2¢) per gallon upon tractor fuel, seven cents (7¢) per gallon upon lubricating oil and ten per cent (10%) upon greases and all other merchandise sold, all of the commissions above mentioned are to be paid in cash each month to the party of the first part.'

'That all merchandise sold, of whatever nature or description, is to be sold for cash only and that if the party of the first part does sell any merchandise whatsoever upon credit that the amount so sold shall be deducted each month from the commissions to be paid to the party of the first part and retained by the party of the second part until said merchandise so sold upon credit is paid.'

'That in addition to the commissions above mentioned to be paid, that the party of the first part is to be paid one-half cent per gallon upon all gasoline sold direct to consumers, which sum is to be paid monthly and is to be applied exclusively toward paying the purchase price of said oil station, and is to be credited upon the note in the sum of One Thousand Eight Hundred Eighty-Four Dollars ($1884.00) above mentioned. That the party of the second part shall not be required to make any payments toward the purchase price of said property other than paying over to the party of the first part one-half cent per gallon upon each and every gallon of gasoline sold direct to consumers. That the legal title to the property above described shall remain with the party of the first part until said note is fully paid, but that when such note is fully paid, that the party of the first part shall execute and deliver to the party of the second part a good and sufficient Bill of Sale giving merchantable title and also an assignment of the lease which the party of the first part now has with the Great Northern Railway.' The contract provided that the party of the second part (defendant) should furnish and pay for all repairs that might be necessary in and about the oil station and should pay all taxes against the property beginning with the 1934 taxes and pay the rent under the lease to the Great Northern Railway Company. The contract provided also that the party of the first part (plaintiff) should work faithfully and diligently for the party of the second part (defendant) and operate and conduct the business in a businesslike manner and for the best interests of the party of the second part; that the party of the first part would keep accurate books of account and deposit all cash received from the business in the name of the party of the second part in the bank or banks...