Mevorah v. Goodman

• Decision Date: 05 March 1953
• Docket Number: No. 7359,7359
• Citation: 57 N.W.2d 600,79 N.D. 443
• Parties: , 49 A.L.R.2d 825 MEVORAH et al. v. GOODMAN et al.
• Court: North Dakota Supreme Court

Page 600

57 N.W.2d 600

79 N.D. 443, 49 A.L.R.2d 825

MEVORAH et al. v. GOODMAN et al.

No. 7359.

Supreme Court of North Dakota.

March 5, 1953.

Syllabus by the Court.

1. In a civil action the question of the sufficiency of the evidence to support the verdict cannot be raised in the supreme court unless it has been first presented to the trial court by a motion for a directed verdict or a motion for a new trial.

2. The propriety of the examination of witnesses and the order in which evidence is to be presented are matters largely within the sound discretion of the trial court and his rulings will not be disturbed in the absence of a showing of abuse of discretion.

3. Orderly trial procedure requires that a party who has not opened his own case will not be permitted to introduce affirmative defenses to the jury by cross-examination of witnesses of the adverse party. This rule is applicable to questions asked of the adverse party which would have been proper upon an examination of the adverse party as a part of the defendants' case.

4. Books and accounts are the best evidence of their contents. But, where the entries are numerous and complicated and involve voluminous records which make it impossible or impracticable for the court or jury to make a comprehensive examination with respect to matters in issue, a properly qualified accountant may be permitted to assist the court and jury and may testify as to a summary of the facts found by him and conclusions to be drawn therefrom which are peculiarly within the scope of his ability and experience as an expert; but he may not testify as to conclusions that would invade the province of the jury where it is competent and qualified to draw its own conclusions, nor may he testify as to conclusions that are beyond the field of his ability as an expert.

5. Where the parties reduce a contract to writing, the written contract supersedes all discussions, conversations, and oral negotiations concerning the subject matter of the contract which preceded or accompanied its execution.

6. Prior conviction of a witness for contempt of court is not conviction for crime and does not come within the rule that permits a cross-examiner to question the credibility of a witness by inquiring whether or not the witness has been convicted of crime.

7. In an action against a father and son, as co-partners, for breach of contract, where an improper question was asked of one implying that he had been guilty of the crime of criminal contempt of court and a wholly irrelevant question was asked of the other defendant assuming that he had been guilty of a crime that was so heinous that another man connected with that crime had committed suicide, it is held: that it was prejudicial error to so inquire of the witnesses despite the fact that objections were interposed and sustained and the witnesses not required to answer.

8. When a contract contains several separate covenants of different degrees of importance and it is provided that a sum certain is to be paid for the breach of any or all of the covenants, the sum named, although denominated liquidated damages, will be treated as a penalty and void under the provisions of Section 9-0804 NDRC 1943.

Lanier, Lanier & Knox and Aaron Aronson, Fargo, for defendants and appellants.

Burnett, Bergesen, Haakenstad & Conmy, Fargo, for plaintiffs and respondents.

MORRIS, Chief Justice.

This is an action for damages for breach of contract. The defendants appeal from a judgment rendered upon a verdict of the jury in favor of the plaintiffs in the sum of $9,250. On June 23, 1950, the plaintiffs, as purchasers, and the defendants, as sellers, entered into a contract for the purchase and sale to the plaintiffs, conditionally, of the business known and operated as Irving's Tractor Lug Company, with branches in Fargo, North Dakota; Portal, North Dakota; and Wichita, Kansas. This business consisted of buying and selling new, reconditioned, and used parts of tractors and agricultural implements. The consideration was $100,000, of which $5,000 was payable in cash and the balance to be represented by the joint and several promissory note of the plaintiffs, Martin Sills and Cesar Mevorah. Title to the stock of goods was retained by the defendants until all of the purchase price was paid. The contract also provided that in the event of default or breach by the purchasers, the sellers might take immediate possession of the property so sold and retain the same, together with all payments previously made, as liquidated damages. The sellers also agreed not to engage, directly or indirectly, in the retail or wholesale business of selling new tractor and farm implement parts in the normal trade territory of the three cities named in the contract, or engage in the foreign export of those items. The contract also provided:

'The sellers agree that they shall not conduct any other business in the name Irving's Tractor Lug Company.'

and stated that the violation of paragraph H, which included the agreement not to compete and not to use the name of Irving's Tractor Lug Company, 'shall subject the sellers to pay the buyers the sum of $10,000.00 as and for liquidated damages.' Other provisions of the contract will be referred to as they become pertinent to the discussion of points in controversy.

The complaint sets forth five causes of action. In the first cause of action it is stated:

'That on or about the 23rd day of June, 1950, the plaintiffs and defendants entered into an agreement in writing wherein and whereby the defendants sold to the plaintiffs the trade name of Irving's Tractor Lug Company as an outright sale, and also sold to the plaintiffs on conditional sale a certain stock of goods and merchandise more specifically described in said written contract.

'That under the terms of said contract the sellers, the defendants herein, specifically agreed that they would not conduct any other business in the name of Irving's Tractor Lug Company and it was specifically provided in said written agreement that in violation of this covenant of the contract the sellers, the defendants herein, would pay to the buyers, the plaintiffs herein, the sum of $10,000 as and for liquidated damages.

'The plaintiffs allege that the defendants have violated the terms of the contract in this regard and have continued to use the name of Irving's Tractor Lug Company; that specifically the defendants have used bank drafts drawn in the name of Irving's Tractor Lug Company in purchasing scrap metal at Portal, North Dakota, which said bank drafts were drawn on the Fargo National Bank for the account of Irving's Tractor Lug Company and that the said defendants have used the said trade name in various other ways and that the plaintiffs have been damaged in this regard on account of said violation of the terms of the contract in the agreed sum of the liquidated damages amounting to $10,000.'

In the second cause of action it is stated:

'That under and pursuant to the terms of the contract hereinbefore referred to it was provided that the defendants should countersign checks drawn by plaintiffs in the conduct of the business; and that the defendants should not arbitrarily or capriciously refuse to countersign such checks.

'The plaintiffs allege that the defendants have arbitrarily and capriciously and constantly refused to sign checks drawn for proper business purposes and have thus violated the terms of the contract resulting in damage to the plaintiff in the conduct of their business and in their credit relations in the sum of $10,000.'

As the third cause of action it is stated:

'Plaintiffs further allege that the defendants have constantly in violation of the spirit, intent, purpose and provisions of the contract continually interfered with the plaintiffs in the conduct of the business so sold; in that they have among other things, acting either personally or through agents or servants, mingled new merchandise bought by the plaintiffs on their own account with the old merchandise sold conditionally to these plaintiffs; they have ransacked the plaintiffs' records at various times and have either taken said records or in all events caused them to be missing or so misplaced them that the plaintiffs have been unable to locate them; that they have constantly abused their privilege of using space in the office upon which the plaintiffs are paying the rent; that they have removed a partition placed in said office so that the plaintiffs do not have even a semblance of privacy in the conduct of their business; that they have used both the place of business at Fargo, North Dakota and the place of business at Portal, North Dakota and the facilities thereof for the purpose of conducting a scrap iron and scrap metal business contrary to the terms of the contract and that on account of the violations set forth in this paragraph the plaintiffs have been damaged in the sum of $15,000.'

As a basis for a fourth cause of action the plaintiffs state:

'That under the terms of said contract it was specifically provided that the sellers, the defendants, herein, would furnish to the buyers, the plaintiffs herein, a written list of the names and addresses of the creditors of Irving's Tractor Lug Company showing the amount of indebtedness due to each and certified by the sellers under oath to be a full, accurate and complete list of the creditors and of their indebtedness.

'That pursuant thereto the defendants did furnish to the plaintiffs a list of creditors which list was made under oath and which list the plaintiffs allege is incomplete and therefore false.

'That incident and related to the failure of the defendants to give to the plaintiffs a full list of their creditors, the plaintiffs allege on information and belief that the statement and account of the defendants business shows bank over-drafts in the amount of approximately $16,000; the plaintiffs also allege on information and belief that these so...