Stetson v. Investors Oil, Inc.

• Decision Date: 11 February 1966
• Docket Number: No. 8248,8248
• Parties: D. E. STETSON, as Trustee in Bankruptcy, of the Estate of Willard Odegaard, Bankrupt, Plaintiff and Respondent, v. INVESTORS OIL, INC., a foreign corporation, Defendant and Appellant, and Anchor Casualty Company, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 349

140 N.W.2d 349

D. E. STETSON, as Trustee in Bankruptcy, of the Estate of Willard Odegaard, Bankrupt, Plaintiff and Respondent, v. INVESTORS OIL, INC., a foreign corporation, Defendant and Appellant, and Anchor Casualty Company, Defendant and Respondent.

No. 8248.

Supreme Court of North Dakota.

Feb. 11, 1966.

Syllabus by the Court

1. An appeal in a civil action may be taken from a judgment by serving and filing a notice of appeal within six months after written notice of the entry of judgment, and where such notice was not served and filed within six months after notice of entry of judgment was served, the appeal from the judgment must be dismissed.

2. An appeal from an order denying a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, may be taken by serving and filing a notice of appeal within sixty days after written notice of the entry of the order shall have been given to the party appealing.

3. A motion for judgment notwithstanding the verdict calls for a review of the court's ruling in denying the motion for directed verdict, and only the grounds assigned on the motion for directed verdict may be considered.

4. The rule that a written contract supersedes all discussions, conversations and oral negotiations concerning the subject matter of the contract which preceded or accompanied its execution presupposes that the entire subject matter involved in the prior negotiations was included within the framework of the written contract and does not exclude the possibility of a contract being partly oral and partly written.

5. Where a contract is partly oral and partly written, the written portion is no more subject to contradiction by parol than the entire contract would be had it been wholly reduced to writing.

6. It is the duty of the court to construe the contract as a matter of law, but when the court has construed the contract as being ambiguous it is within the province of the jury to determine the intention of the parties and the jury may consider the subsequent acts of the parties in determining their intention.

7. It was not error for the court to instruct the jury that it is the duty of the defendant to minimize the damages, if any were suffered by failure of the plaintiff to perform the contract, as the law requires the defendant to make reasonable efforts and exercise ordinary care and diligence to reduce the resulting damages as much as it is practicable.

8. To entitle a contractor to recover upon a construction contract under the doctrine of substantial performance, it must appear, not only that the contractor endeavored to perform it in good faith, but also that he has done so, except as to unimportant omissions or deviations, which are result of mistake or inadvertence, and were not intentional, and which were susceptible of remedy, so that other party will get substantially the structure contracted for, and defects must not be so serious as to deprive property of its value for intended use nor be such that a deduction in damages will not be fair compensation.

Vogel, Ulmer & Bair, Mandan, for plaintiff and respondent.

Cox, Pearce, Engebretson, Murray & Anderson, Bismarck, for defendant and appellant Investors Oil, Inc.

Nilles, Oehlert & Nilles, fargo, for defendant and respondent Anchor Cas. Co.

KNUDSON, Judge.

This is an appeal by Investors Oil, Inc., defendant and appellant herein, from an order of the District Court of Williams County denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and from a judgment in favor of Willard Odegaard, plaintiff and respondent, and Anchor Casualty Company, defendant and respondent herein. This is the second time that this case has been before this Court. Our opinion on the first appeal appears at 118 N.W.2d 362, wherein we set aside the verdict and the judgment and granted Investors Oil, Inc., a new trial.

The facts presented on this appeal are similar to those on the first appeal and were extensively discussed in our prior opinion. We briefly summarize them here.

Investors is a Minnesota corporation and has an oil well located within the area, encompassed by the Garrison Reservoir. About the time the oil well was completed. the water in the Reservoir began to rise and would have covered the well head unless something was done to protect it. Odegaard, who is a construction contractor, entered into a written contract with Investors on February 20, 1958. Under the terms of the contract, Odegaard was to construct a mound directly over the well head so that it would be protected from the rising water and the ice in the Reservoir.

Anchor is also a Minnesota corporation, and on April 4, 1958, executed a bond as surety for Odegaard indemnifying Investors against any loss it might sustain by reason of the failure or default of Odegaard under the contract to a sum of $70,000.00.

The pleadings in this appeal are identical to those on the first appeal except for certain amendments relating to the amounts prayed for by the various parties. For a complete discussion of the pleadings, see our previous opinion. Briefly, Odegaard alleged in his complaint that he had substantially completed construction of the mound and asked for judgment in the sum of $90,872.09, which he claimed was the balance which Investors owed him under the terms of the contract. Investors filed an answer and a counterclaim against Odegaard and Anchor in which it denied that Odegaard had properly performed his obligations in accordance with the contract and that it would cost Investors $57,000.00 to complete the mound in accordance with the terms of the contract. Investors held Anchor responsible for the performance of the contract under its surety bond and then asked that Odegaard's cause of action be dismissed, that Anchor be made a party defendant to the counterclaim, and that it have judgment against Odegaard and Anchor in the sum of $57,000.00 plus $15,600.00 for the time the well had been shut down.

Anchor, after being made a party defendant to the counterclaim, served and filed its answer and reply to the counterclaim denying the general allegations thereof and alleged that because the terms of the contract had been materially altered by subsequent agreements between Odegaard and Investors, the bond became wholly invalid and unenforceable. Odegaard replied to the counterclaim and alleged among other things that Investors had breached the contract by failing to comply with the contract provision which provided for payment at the end of each fifteen-day period.

After all the parties had rested, Investors return a verdict of dismissal and also made return a verdict of dismissal and also made a motion for a directed verdict on their counterclaim. Both motions were resisted by Odegaard and Anchor, and both were denied by the court. The jury returned a verdict in favor of Odegaard and against Investors for $52,933.57, and further found in favor of Anchor for a dismissal of the counterclaim against it. Judgment was entered in accordance with the verdict.

The initial question to be determined is procedural in nature and relates to the timeliness of the appeal from the judgment. The notice of entry of judgment, dated October 3, 1963, was served on Investors October 8, 1963, and filed in the office of the clerk of the district court October 9, 1963. On April 23, 1964, Investors caused a notice of appeal to be served on Odegaard and Anchor. The notice was filed on April 24, 1964.

An appeal in a civil action may be taken from a judgment by serving and filing a notice of appeal within six months after written notice of the entry of judgment and from an order within sixty days after written notice of the order. Section 28-27-04, N.D.C.C.; Jager v. Grommesh, N.D., 77 N.W.2d 873. The notice of appeal was not served and filed by Investors within six months after the notice of entry of judgment was served. The appeal from the judgment must therefore be dismissed. C. & M., Inc. v. Northern Founders Insurance Co. of North Dakota, N.D., 124 N.W.2d 471.

The order denying Investor's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was dated February 26, 1964, and was served on Investors February 28, 1964. Notice of appeal was served and filed within sixty days of notice of the order, as required by Section 28-27-04, N.D.C.C. Therefore, the appeal from the order is timely. We will review the court's order.

On the first appeal of this case, we reviewed the merits of Investors' appeal from the order denying its motion for judgment notwithstanding the verdict. After noting that this court could properly review the order appealed from under the provisions of Section 28-27-29.1, N.D.C.C., we said:

'A motion for a judgment notwithstanding the verdict calls for a review of the court's ruling in denying the motion for directed verdict, and only the grounds assigned on the motion for directed verdict may be considered. See Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588; Jager v. Grommesh, N.D., 77 N.W.2d 873.

'The motion of Investors Oil, Inc., for a directed verdict was based upon stated contentions that the evidence established that the work was performed by the plaintiff under a written contract, that prior negotiations were merged in that contract, that the mound was not constructed in substantial compliance with the contract, and that there is no clear and convincing evidence of changes or modifications of the written contract.' Odegaard v. Investors Oil, Inc., N.D., 118 N.W.2d 362, 368.

We reproduce the above language because at the second trial Investors stated identical grounds for its motion for a directed verdict for the dismissal of Odegaard's action. In the second trial, Investors also moved the court to direct the jury to return a verdict in favor of Investors on its counterclaim against Anchor. The grounds stated in support of its...