Ziebarth v. Kalenze

• Decision Date: 02 January 1976
• Docket Number: No. 9104,9104
• Citation: 238 N.W.2d 261
• Parties: 18 UCC Rep.Serv. 614 Silver ZIEBARTH, Plaintiff and Appellee, v. LeRoy KALENZE, Jr., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 261

238 N.W.2d 261

18 UCC Rep.Serv. 614

Silver ZIEBARTH, Plaintiff and Appellee, v. LeRoy KALENZE, Jr., Defendant and Appellant.

Civ. No. 9104.

Supreme Court of North Dakota.

Jan. 2, 1976.

Syllabus by the Court

1. The fusion of law and equity puts the authority to grant equitable or legal relief in courts of general jurisdiction, regardless of common-law technicalities such as the rule of 'substituted legal relief in equity.'

2. The existence of a remedy at law does not preclude equitable relief if the equitable remedy is better adapted to render more perfect and complete justice than the remedy at law, and a legal remedy should be granted where equity fails.

3. A rule that a court may grant legal relief upon failure of the equitable relief prayed for is limited to cases where such a rule would not operate to deprive a litigant of a right to a jury trial.

4. The distinction between law and equity is still of primary importance in determining the right to a jury trial. N.D. Const. § 7.

5. Where the defendant knew that specific performance was impossible when the complaint was served, he therefore must have known that damages would be the sole remedy if the plaintiff prevailed; the defendant could have demanded a jury trial and his failure to do so was a waiver of that right.

6. Even though the complaint on its face showed grounds for equitable relief only, where the defendant had knowledge that the sole remedy available was damages, he had a right to demand a jury trial and his failure to do so was a waiver of his right to a jury trial.

7. The trial court decides in the first instance which cases are triable by a jury by examining the face of the complaint or the face of all the pleadings. If a party believes he is entitled to a jury trial for reasons not apparent on the face of the pleadings, it is his duty to demand a jury and disclose his reasons for asserting the right to a jury trial.

8. Even if time is not of the essence of a contract, it is nevertheless incumbent upon a party to perform within a reasonable time.

9. Where a seller bore risks of casualty to the subject of the contract (cattle) and was required to feed and shelter the cattle for one month beyond the date contracted for, and no agreement between the parties had been reached as to compensation to the seller for his costs, the buyer's delay of approximately 30 days before his offer to perform was unreasonable.

10. Where a buyer breached the contract by failure to accept the goods, the aggrieved seller was within his rights in canceling the contract and selling the goods to a third party. Sec. 41--02--82, N.D.C.C. (UCC § 2--703).

McGee, Hankla, Backes & Wheeler, Minot, for plaintiff and appellee; argued by Richard H. McGee, Minot.

Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for defendant and appellant; argued by Jon R. Kerian, Minot.

VOGEL, Justice.

This case originated in the district court, Ward County, North Dakota, on a claim for equitable relief based upon contract. The plaintiff-appellee, Silver Ziebarth, a cattle buyer, sought specific performance of a contract for the sale of cattle from the defendant-appellant, LeRoy Kalenze, a rancher in the business of selling cattle.

The district court, without a jury, found for Ziebarth. The court awarded damages in the sum of $4,589 plus costs in lieu of specific performance. Kalenze moved under Rule 41(b), N.D.R.Civ.P., at the end of the plaintiff's case, for dismissal of the action on the ground that the pleadings asked for specific performance of the contract, whereas the subject matter of the contract, the cattle, was no longer available, making specific performance impossible. The district court denied the motion.

Kalenze appeals to this court from the judgment entered on October 23, 1974. He demands a new trial at law on the issues of liability and damages. He also appeals from the order of the district court denying his 41(b) motion to dismiss, and asserts that he was deprived of a jury trial on the issue of damages because of the denial of the motion. He never filed a demand for a jury in the trial court.

The issues on appeal are: (1) Did the lower court err in denying the defendant's motion to dismiss when it became apparent that specific performance was not possible as a remedy? (2) Was the decision of the lower court clearly erroneous in finding that the parties extended the time of delivery of the calves? (3) Was the decision of the court clearly erroneous in finding as a fact that the defendant Kalenze breached the contract by selling the calves to a third party?

On June 16, 1971, Ziebarth and Kalenze entered into a written contract. Ziebarth agreed to purchase all of the Simmental heifer calves produced from Kalenze's cows which were to be artificially inseminated with Simmental semen furnished by Ziebarth. Ziebarth furnished the contract form, which provides, in part:

'1. Buyer (Ziebarth) shall furnish Seller with a total of 160 ampules 60 Bismarck of 48 M13 32 Eiger semen having an agreed value of 10. & 15. per ampule. Buyer agrees to pay All.% Of semen costs until authorized pregnancy test or upon purchase of calves.

'2. Seller agrees that he will artificially breed not less then (sic) 175 mature cows with the above semen during the 1971 breeding season. All brood cows so inseminated shall be identified by Seller with tag, neck chain, or other appropriate identification acceptable to Buyer.

'3. Seller shall keep adequate records showing birth dates of each calf and dam of calf. Calves shall not be number branded. Seller shall retain all crossbred Simmental calves until Buyer purchases the same as hereinafter mentioned.

'4. Seller agrees that any cows inseminated pursuant to this agreement cannot be sold during the term of this agreement without consent of the Buyer.

'6. Buyer agrees to purchase (ALL) (100% Of all) crossbred Simmental heifer calves at the price of _ _ cents per pound in excess of the then prevailing market price of straight bred commercial Angus or Hereford Heifer Calves, whichever price is the greater or $260. per head for crossbred Simmental heifer calves . . .

'7. Delivery shall be at about seven (7) months of age or at least 450 pounds, no earlier then (sic) October 15 or no later then November 15. Buyer reserves the right to refuse any sick or maimed calves. Delivery shall be made at Buyer's expense.'

Twenty-six heifer calves were produced from the artificially impregnated cows. Several telephone communications occurred between the parties during the period of the contract and after the contract dates. What the parties said in these conversations is the subject of some dispute in this case. The parties at no time met each other in person after the contract was signed. There had been no prior dealing between the parties.

The testimony at trial establishes that Kalenze began weaning the heifers on October 25, when the veterinarian gave the calves preconditioning shots. He brought the calves out of the pasture and put them into corrals on the farmstead. The calves were fully weaned about a week later, in early November. Kalenze imformed Ziebarth on November 8 or 9 that the calves were 'in'; 'and they had their shots, and on preconditioned feed, and they were ready to go, so he could pick them up.'

As the contract and the testimony at trial indicated, the buyer, Ziebarth, assumed all the obligations of delivery of the calves. He was 'to come with a truck, pick them up,' and 'deliver the money.'

The seller's obligation to 'deliver' the calves was merely to retain the calves so that Ziebarth could pick them up at the Kalenze farmstead. Ziebarth apparently made no attempt to pick up the cattle on or before November 15, the date specified in the contract as the final delivery date.

There is dispute between the parties as to the content and dates of the subsequent conversations. Ziebarth contends that 'at the end of November' the weather turned bitterly cold and he decided it would be necessary to wait until the weather modified to pick up the calves. Ziebarth testified that Kalenze agreed 'to wait until the end of the week, or later, to see if the weather wouldn't modify,' and 'as soon as the weather modified we'd pick them up.' The date of this telephone conversation is unclear, but it appears to have taken place in early December.

Ziebarth claims that in this conversation the parties discussed the fact that Ziebarth still had the opportunity to pick up the calves, but since the contract had run past the 15th of November, some reimbursement for feeding costs was necessary. Ziebarth admits that no set price was established for the feed costs, Ziebarth offering 25 cents per day head cost, Kalenze asking about 50 cents per day. Ziebarth maintains that this conversation constituted an oral modification of the contract and that the time for delivery of the cattle was thereby extended beyond the contract date.

According to Ziebarth, the next conversation between the parties occurred when he called Kalenze on December 15 or 16, stating that he was sending a truck to pick up the calves. Kalenze told Ziebarth at that time that he would not deliver the calves to Ziebarth and there was 'no use coming.' Kalenze told Ziebarth that Ziebarth had breached the contract, that Kalenze had received a much better offer, and 'it would take a lot more money to buy them at that time.' Ziebarth claims that Kalenze breached the contract when he sold the calves to another party for $450 per head. (Note: Ziebarth in his brief claims the breach occurred on December 12, 1972, whereas the testimony in the record puts the sale of the calves on December 23, 1972.)

Kalenze, on the other hand, contends that the weather in the month of November in 1972 was generally good and did not turn bad until around the end of November or the first part of December. In his testimony Kalenze stated that there was no reason 'weatherwise' why the cattle could not...