Mitchell v. Barnes

• Decision Date: 13 August 1984
• Docket Number: No. 10603,10603
• Citation: 354 N.W.2d 680
• Parties: Abner MITCHELL and Judith Mitchell, Plaintiffs and Appellants, v. Jack BARNES and Don Barnes, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 680

354 N.W.2d 680

Abner MITCHELL and Judith Mitchell, Plaintiffs and Appellants, v. Jack BARNES and Don Barnes, Defendants and Appellees.

Civ. No. 10603.

Supreme Court of North Dakota.

Aug. 13, 1984.

James A. Wright (argued), of Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for plaintiffs and appellants.

James R. Jungroth (argued), of Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendants and appellees.

VANDE WALLE, Justice.

Abner and Judith Mitchell appealed from a district court judgment of dismissal entered on a jury verdict in favor of Jack and Don Barnes and from an order denying their motion for a new trial. We affirm.

By written lease, the Mitchells leased farmland to Jack and Don Barnes for a three-year term, commencing December 15, 1975. The lease required basic cash rent of $36,800 per year, based on an average price of $2 per bushel for hard amber durum and No. 1 dark northern spring wheat. The lease contained a provision for additional payments, and a formula for the calculation thereof, if the prices of those commodities exceeded $2 per bushel during the term of the lease. The lease also contained a provision stating:

"Parties of the second part [Barneses] will also do the following:

* * *

Leave summer fallow and fall work as is, approximately 20% summer fallow, 20% dug, and 60% fall plowed and dug once; ..."

In the last year of the lease, the Barneses did not comply with the above-quoted provision. They planted all but 152 acres and did not do any of the fall work.

By summons and complaint served in 1981, the Mitchells brought suit against Jack and Don Barnes for failure to comply with the lease. The second amended complaint alleges that the lease was for 1,840 acres, of which 1,775 acres were tillable; that at the expiration of the lease the Barneses were required to return the land with 355 acres summer-fallowed, 355 acres dug once, and 1,065 acres fall-plowed and dug; and that the Barneses did none of the digging or fall-plowing required and left only 152 acres unplanted, which was summer-fallowed by a new tenant. The Mitchells sought damages of $13,367.50 as the cost of what the summer-fallowing, digging, and fall plowing would have been; damages of $1,337.78 as the Barneses' share of the cost of rock burial; damages of $3,459 because the Mitchells leased the land to another tenant in 1979 on a crop-share basis and the yield on the 203 acres that should have been summer-fallowed was reduced and barley had to be planted instead of wheat; and damages of $14,372 by which they claim the Barneses were unjustly enriched by seeding 203 acres more than they were entitled to.

The Barneses contend that Abner Mitchell orally modified the contract to eliminate the summer-fallow and fall-work requirements.

The testimony of the Barneses and Abner is in direct conflict. Generally, the Barneses testified that in the spring of 1976 Abner said they didn't have to follow the lease and could farm the land any way they wished; that they cropped the whole farm in 1976 and 1977 and were going to in 1978, but at the Mitchells' request stopped fertilizing in the spring of 1978 and left 152 acres unseeded; that Brent Anderson summerfallowed the 152 acres; and that in 1978, Abner said, "If the boys lost so much money, to make it [up] to them they will not have to do any fall work." Generally, Abner testified that the land was farmed "according to the contract" in 1976; that Abner gave permission to crop all the land in 1977, but that "in 1978 they would follow the contract"; that in the spring of 1978 Abner told Jack Barnes "I want you to summerfallow and do the work like you are supposed to"; and that Abner never in 1976, 1977, or 1978, indicated to the Barneses "that they would not have to leave the property in the condition as spelled out in the lease."

By its verdict in favor of the Barneses, the jury necessarily found that the written lease was orally modified to excuse compliance with the summer-fallow and fall-work requirement. The evidence is sufficient to sustain the verdict.

The issues raised are whether or not (1) the trial court erred in permitting testimony that the written lease was modified by a subsequent oral agreement; (2) the jury should have been instructed on estoppel; (3) the trial court erred in refusing to admit expert testimony relating to the average county yield for barley in 1979; (4) income tax returns of Bradley and Craig Barnes should have been received in evidence; and (5) the trial court erred in admitting testimony that the Mitchells were overpaid for 1977 and 1978 rent.

The Mitchells first assert that the admission of testimony relating to oral modification of the written lease contravenes Sec. 9-09-06, N.D.C.C., which provides:

"9-09-06. Alteration of written contract.--A contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise. An oral agreement is executed within the meaning of this section whenever the party performing has incurred a detriment which he was not obligated by the original contract to incur."

Thus it is clear that a written contract may be modified by an executed oral agreement. Testimony relating to an oral agreement modifying a written contract is admissible. The question here is whether or not the Barneses incurred a detriment they were not obligated by the original contract to incur. The Mitchells contend that the Barneses "did not incur an additional detriment under the alleged oral agreement. Indeed, they obtained a benefit because they did not have to do the costly summer fallowing, digging and fall work."

The comments of this court in Gulden v. Sloan, 311 N.W.2d 568, 572 (N.D.1981) are instructive and we quote extensively from that opinion:

"The North Dakota Century Code provides that 'good consideration' may be any benefit conferred or detriment suffered. Sec. 9-05-01, N.D.C.C. Both benefit and detriment have technical meaning and neither the benefit to the promissor nor detriment to the promissee need be actual. Detriment, as used in testing the sufficiency of consideration, means legal detriment as distinguished from detriment in fact. 'It means giving up something which immediately prior thereto the promissee was privileged to retain, or doing or refraining from doing something which he was then privileged not to do, or not to refrain from doing.' Id. [Citation omitted.]

"This court in Divide County v. Citizens State Bank of Ambrose, 52 N.D. 29, 30, 201 N.W. 693, 693-94 (1924), held that a promise to release a seed lien is good consideration for a promise to pay money, even though the lien was subsequent to another lien which would exhaust the value of the land. After noting the argument that the county gave up nothing of value, this court stated:

'It is elementary that a promise is a good consideration for a promise, even though the thing that is promised may be of no real benefit to the promiser. It is sufficient if it be a detriment to the promisee, and a detriment in this connection may consist in changing or agreeing to change or relinquish one's legal right regardless of the value of that right.' [Emphasis added.] 201 N.W. at 694.

"This court followed that rule in Keen v. Larson, 132 N.W.2d 350, 357 (N.D.1964), holding that a compromise of a bona fide controversy constitutes a good consideration for a promise, regardless of allegations that the claim was doubtful. This court said:

'A legal detriment may be sustained by a promisee by the surrender of a legal right, whether such right has substantial value or not.' [Citation omitted.] Id."

We believe the expense and risk of loss borne by the Barneses in planting a crop, in reliance on Abner Mitchell's statement that they did not have to follow the lease and could farm the land any way they wished, on land that otherwise would have been summer-fallowed, constituted a detriment they were not obligated by the original contract to incur. It does not matter that it had little, if any, value to the Mitchells. Gulden v. Sloan, supra. Detriment need not even be actual.

The Barneses also gave up their right to perform the summer-fallowing of the acres they did not plant in 1978--as well as the fall plowing and digging that year--with their own equipment and labor, in reliance on Abner Mitchell's statement in 1978 that they would not have to perform those operations. The Mitchells now propose to charge them for those operations at rates charged by custom operators. We believe that this constitutes a detriment the Barneses were not obligated by the original agreement to incur. But for Abner Mitchell's statement in 1978, the Barneses would have performed the operations with their own labor and machinery at less cost than that charged by the custom operator. The Barneses thus changed their position and incurred a detriment as a...