Wilhelm v. Berger, 9768

• Decision Date: 06 October 1980
• Docket Number: No. 9768,9768
• Citation: 297 N.W.2d 776
• Parties: Vic WILHELM, Plaintiff and Appellee, v. Lucas BERGER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 776

297 N.W.2d 776

Vic WILHELM, Plaintiff and Appellee, v. Lucas BERGER, Defendant and Appellant.

Civ. No. 9768.

Supreme Court of North Dakota.

Oct. 6, 1980.

Gordon O. Hoberg, Napoleon, for plaintiff and appellee.

Thomas W. Robb, Bismarck, argued, and Brian W. Nelson, Fargo, for defendant and appellant.

SAND, Justice.

This is an appeal by the defendant, Lucas Berger, from a district court judgment in the amount of $25,452.29 for the plaintiff, Vic Wilhelm. We affirm.

The action involved two main areas of dispute between Berger and Wilhelm. The first area of dispute involved the number of hours and rate of compensation for work done by Wilhelm at a truck stop owned by Berger. Wilhelm and Berger presented conflicting testimony at trial on the rate of compensation. According to Wilhelm's testimony, the rate of compensation was $15.00 per hour for 126 hours of work. According to Berger's testimony, there was no promise by him to pay Wilhelm for the work, and Wilhelm was working for his room, board, and storage of a tractor at Berger's truck stop. Berger also testified that Wilhelm worked for "probably 20 hours" at Berger's truck stop.

The second area of dispute involved several advances made by Wilhelm to Berger during the time that the parties were negotiating the sale of the Silver Dollar Bar in Mandan, North Dakota. The advancements were to be applied towards the purchase price if Wilhelm purchased the bar. The sale of the Silver Dollar Bar to Wilhelm was never completed, and the major area of disagreement between Wilhelm and Berger was whether or not Wilhelm was to get back the advancements. Wilhelm testified that Berger was to pay back the advancements if the sale was not completed. Berger testified that if the sale was not completed the advancements would not be repaid.

The parties met to reach a settlement when negotiations for the sale of the Silver Dollar Bar fell through. It is undisputed that Berger executed a promissory note as part of the settlement agreement. It is also undisputed that the note was for $9,500.00, with monthly payments of $100.00 and that $1,600.00 was paid on the note by Berger. Berger testified that the promissory note was intended to be a complete settlement between the parties. Wilhelm testified that the promissory note, plus a mobile home and the land on which the mobile home was located, was the agreed-upon settlement between the parties. Wilhelm further testified that Berger was to make monthly payments on the mobile home until Berger's debt against the mobile home was cleared. Berger did not make the payments and the mobile home was repossessed after Wilhelm lived in it for approximately twelve months.

The district court found that Wilhelm worked 126 hours at the rate of $12.50 per hour at Berger's truck stop, and granted him $1,575.00, plus interest, for a total of $1,893.11 for his work. The district court also found that Wilhelm gave to Berger, or on Berger's behalf, the following advances:

                10 Jan 1976, check for money on the purchase
                      of the Bar                                  $   500.00
                10 Feb 1976, check                                 10,000.00
                2 Feb 1976, check to "Shilla & Sons" 1 for
                      liquor for the Bar                              448.93
                14 Dec 1976, check                                  7,000.00
                2 Feb 1976, check                                   1,400.00
                13 Mar 1976, check for liquor                       3,703.73
                

Total paid by Wilhelm to Berger or on his

behalf $23,052.66

The district court denied recovery by Wilhelm of the $500.00 earnest money payment but allowed recovery on the other advancements in the sum of $22,552.66, plus interest, for a total of $27,559.18. Thus, Wilhelm was granted $29,452.29 for the work and advancements. The district court allowed Berger to offset the sum of $1,600.00 paid under the promissory note and the sum of $2,400.00 for reasonable rental value of the mobile home during the twelve months Wilhelm lived in it resulting in a judgment for Wilhelm, after offsets, in the amount of $25,452.29. Berger appealed from that judgment to this court.

The first issue Berger raised on appeal is whether or not the district court erred in rejecting the affirmative defense of the statute of frauds.

Berger's attorney objected to testimony concerning conversations in the negotiations for the sale of the Silver Dollar Bar because there was no writing to satisfy the statute of frauds. In order to raise the affirmative defense of the statute of frauds, Rule 8(c), North Dakota Rules of Civil Procedure, requires that the defense be pleaded. Berger's answer does not contain the statute of frauds defense, but it does appear that Berger's attorney made a motion at the beginning of the trial to amend his pleadings to contain the defense. However, several other preliminary matters were also before the court, and the trial judge apparently overlooked the motion and did not specifically rule on it. Despite this oversight and because Berger raised the statute of frauds issue again during the trial without an objection by Wilhelm, we believe that the matter was impliedly tried by the parties and can be considered on this appeal.

The district court judge allowed testimony on the negotiations for the sale of the Silver Dollar Bar because, as he stated "The Court feels that nowhere in the complaint has the Plaintiff asserted that he bought the Silver Dollar Bar. He asserted only that there was discussions concerning it. He doesn't state whether there was or was not even any final contract or entire real contract entered into by the parties. The Court feels that under the pleadings that the Plaintiff has a perfect right to testify concerning the negotiations if such there were to purchase and the amounts of money that he advanced the Defendant during this period of time."

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