Schue v. Jacoby, 8499
| Decision Date | 04 November 1968 |
| Docket Number | No. 8499,8499 |
| Parties | Donald C. SCHUE and Betty L. Schue, Plaintiffs and Appellants, v. Clifton E. JACOBY, Defendant and Respondent. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The execution of a contract in writing, whether required by law to be in writing or not, supersedes all oral negotiations or stipulations concerning its subject-matter which preceded or accompanied the execution of the instrument. Sec. 9--06--07, N.D.C.C.
2. Exception to this rule is made in cases where one of the parties to the contract is induced by fraud to become a party to the agreement. In such case, parol evidence will be admitted to show fraud.
3. Where fraud is relied upon by a party in bringing an action to modify or set aside a written contract, such fraud must be specifically alleged.
4. Where it is claimed by one of the parties to a written contract that he was induced by the fraudulent representations of the other to sign the contract, and where it is claimed by such party that the fraudulent representations were to do certain acts, which acts are prohibited by law, the trial court properly denied such party's offer of proof as to such agreement.
5. Where a contract has several distinct objectives, of which one or more are lawful and at least one is unlawful, in whole or in part, the contract is void as to the unlawful part and valid as to the lawful objectives.
6. Where a contract is claimed to be partly in writing and partly oral, the written portion is no more subject to contradiction by parol than the entire contract would be, had it been wholly reduced to writing.
7. A written agreement is presumptive evidence of a consideration.
8. Any benefit conferred or agreed to be conferred upon the promisor by any other person to which the promisor is not entitled lawfully, or any detriment suffered or agreed to be suffered by such person other than such as he, at the time of consent, is lawfully bound to suffer, as an inducement to the promisor, is good consideration.
9. Errors not discussed on appeal, either in the brief or on oral argument, are deemed waived.
10. If a party to an action feels that any item of costs and disbursements taxed against him is improper, he may specify in writing the grounds for his objection. If any party feels aggrieved by the action of the clerk in taxing or in refusing to tax any item of costs and disbursements, he may file a notice of appeal with the clerk, who shall certify the matter to the court for determination. Failure to so object to any item of costs deemed improper is a waiver of objection to the taxing of the same. Rule 54(e), N.D.R.Civ.P.
11. For reasons stated in this opinion, the judgment of the district court is affirmed.
Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, for plaintiffs and appellants.
Caldis & Arneson, Grand Forks, for defendant and respondent.
The plaintiffs are the owners of certain real property in the city of Grand Forks, described as Lot 12, Block 7, of the Replatting of Lots 10 and 12, Block 7, Skidmore's Addition to the Original Townsite of Grand Forks. The defendant owns property immediately to the north of the plaintiffs' property, the defendant's real estate being described as Lot 10. A building in which the defendant operates a restaurant is located partly on Lot 10 and partly on other real estate owned by him, adjacent to Lot 10. The plaintiffs operate a bar in the building which is located entirely upon their property, above described.
The north wall of the plaintiffs' building was of cement-block construction. The defendant, desiring to enlarge his restaurant building, contacted the plaintiffs for permission to build up to the wall of their building, using that wall as a party wall. As a result of negotiations between the parties, they eventually entered into a written party-wall agreement which was in the following words:
'PARTY WALL AGREEMENT
'THIS AGREEMENT Made this 19 day of April, 1958, by and between CLIFTON E. JACOBY, hereinafter referred to as JACOBY, and DONALD C. SCHUE and BETTY L. SCHUE, husband and wife, hereinafter referred to as SCHUE.
'WHEREAS Schue is the owner in fee simple of a certain parcel of land situated in the County of Grand Forks, State of North Dakota, described as follows, to-wit:
'Lot Twelve (12) of Block Seven (7) of the Replatting of Lots Ten and Twelve (10 & 12), Block Seven (7), SKIDMORE'S ADDITION TO THE ORIGINAL TOWNSITE OF GRAND FORKS.
'WHEREAS Jacoby is the owner in fee simple of a certain parcel of land contiguous to the above-described land owned by Schue, and situated in the County of Grand Forks, State of North Dakota, described as follows:
'Lot Ten (10) of Block Seven (7) of the Replatting of Lots Ten and Twelve (10 & 12) Block Seven (7), SKIDMORE'S ADDITION TO THE ORIGINAL TOWNSITE OF GRAND FORKS.
'WHEREAS a wall has been erected by Schue on the north boundary line on and along part of the common boundaries of said parcels, and said wall is hereby declared a Party Wall.
'NOW, IT IS HEREBY AGREED AS FOLLOWS:
'1. That the wall now standing on the common boundary of the above-described parcels of land, is standing entirely on land owned by Schue, be, and the same is hereby declared to be a PARTY WALL forever for the benefits of the parties hereto.
'2. Each party has and shall have the right to use said wall as a party wall, in the construction, reconstruction and maintenance of any buildings on said parcels of land. If it becomes necessary or desirable to repair or rebuild the whole or any portion of said Party Wall, including the footings and foundations thereof, the expense of such repairing or rebuilding shall be borne equally between the parties, to the extent that they are using said wall. Whenever any of said wall, or footings or foundations thereof or any portion thereof, shall be rebuilt, they shall be erected on the same spot and on the same land and of the same dimensions as to width, depth and height and shall be of the same or similar material and of like quality as the present wall, footings or foundation, as the case may be, unless the parties hereto, or their successors shall agree to the contrary.
'3. Either party may build said wall higher, provided that no addition to the height of said wall shall be made which shall endanger or weaken the structure of the other party and proper support for such wall shall be provided by the one constructing said addition to the height thereof. When a party shall have added to the height of said wall, the other party shall have the right to use it as a party wall.
'4. In the event that the wall now located on said Lot Twelve (12) is not on the property line, and that a portion of said Lot Twelve (12) remains north of said Wall, then and in that event, Schue grants to Jacoby the right to use and occupy and to erect his building upon any portion of said Lot Twelve (12) which is south of the common boundary and north of the Wall as the same is now located.
'5. Either party may freely go upon the land of the other for the purpose of performing any construction (including excavation and shoring), in connection with the use of said Party Wall or any addition thereto. Any party going upon the land of the other for the purpose of performing any construction in connection with the use of any Party Wall, shall do so with the minimum inconvenience to the other, and shall restore or repair any damage to the property of the other.
'6. Schue also grants to Jacoby an easement for the construction, maintenance and reconstruction of a wall, including footings and foundations therefor in, along and under a one-foot (1 ) strip of land, in said Lot Twelve (12) being the North one foot (1 ) of said Lot Twelve (12). Any wall constructed thereon shall, when erected, be and the same is, hereby declared to be a Party Wall forever for the benefit of the parties hereto.
'7. This agreement shall bind and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors and assigns and shall be perpetual and at all times construed as a covenant running with the above-described parcels of land; but no part of the fee of the land upon (which) said Party Wall stands, shall pass to or be vested in the other party by virtue of this agreement.
'IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above written.
'BETTY L. SCHUE
'CLIFTON E. JACOBY
'HAZEL E. JACOBY'
(Signatures acknowledged.)
After the party-wall agreement had been executed, the defendant constructed an addition to his building, attaching it to the wall of the plaintiffs. A door was cut in the wall, both parties paying an equal share of the cost of this improvement.
The plaintiffs allege in their amended complaint that they were induced by the fraudulent representations on the part of the defendant to the effect that if plaintiffs would permit the defendant to use their wall as a party wall, the defendant would advertise to his patrons the presence of the door between his restaurant and the plaintiffs' place of business, where only beer was sold, and thereby promote the sale of beer. Plaintiffs made an offer of proof to show that defendant had agreed to have his waitresses solicit sale of beer from defendant's customers in defendant's restaurant, and have such waitresses go to plaintiffs' bar to fill such orders. They further assert that, after the party-wall agreement had been executed and the defendant had made use of the plaintiffs' wall as such party wall, the defendant fraudulently failed to keep his agreement and made application for a beer license for his restaurant. Plaintiffs thereupon brought this action to enjoin the defendant from engaging in the sale of beer, or, in the alternative, for an order cancelling the party-wall agreement.
The plaintiffs further contend that the defendant paid nothing for the party-wall...
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