Zimmer v. Bellon

• Decision Date: 19 October 1967
• Citation: 29 A.L.R.3d 1431,153 N.W.2d 757
• Parties: Laura ZIMMER and Herbert Zimmer, Plaintiffs and Respondents, v. Adam BELLON, Defendant and Appellant. Civ. 8385.
• Court: North Dakota Supreme Court

Page 757

153 N.W.2d 757

29 A.L.R.3d 1431

Laura ZIMMER and Herbert Zimmer, Plaintiffs and Respondents, v. Adam BELLON, Defendant and Appellant.

Civ. 8385.

Supreme Court of North Dakota.

Oct. 19, 1967.

Rehearing Denied Nov. 15, 1967.

Syllabus by the Court

1. Upon proper demand, an action for possession of personal property or for recovery of money only is properly triable to a jury as a matter of right.

2. A prevailing plaintiff in an action for possession of personal property is entitled to judgment in the alternative decreeing a return of the property or for its value.

3. A case tried to a jury is not triable de novo on appeal to the Supreme Court.

4. Review in the Supreme Court of a case tried to a jury is limited to errors assigned or apparent on the face of the judgment.

5. Defendant-appellant on appeal has the burden of not only establishing error by the trial court, but must further show that there was prejudicial error.

6. A deed is a contract subject to the parol evidence rule.

7. The exception to the parol evidence rule that parol evidence is admissible to prove that actual consideration differs from that recited in the deed, does not permit proof of oral agreement, accompanying or preceding execution of the deed, imposing further contractual obligations on a party to the deed, and of which additional obligation there is no indication or suggestion in the deed.

8. The parol evidence rule applies only to parties to a contract, and such rule has no application to a third person who is not a party to the contract or who is not attempting to force rights thereunder.

9. A party cannot request an instruction and on appeal claim error because a substantially identical instruction was given.

10. A purchaser of land is chargeable with notice of the interest of another who occupied a building on the premises at the time of purchase.

11. Whether a purchaser of real property has actual or constructive notice of an outstanding interest in buildings on the premises is a question for jury determination.

Hjellum, Weiss, Nerison & Jukkala, Jamestown, for plaintiffs and respondents.

William R. Mills, Bismarck, for defendant and appellant.

DOUGLAS B. HEEN, District Judge.

This is an appeal from a judgment in an action to recover possession of personal property or for a judgment for its value. A sale of three quarters of land located in Stutsman County, North Dakota, by plaintiff Mrs. Laura Zimmer to defendant Adam Bellon gave rise to this controversy.

Prior to the sale of these lands to the defendant, Mrs. Zimmer had engaged in the business of milk production. In the course of this enterprise, considerable equipment relating to that business had been installed in or affixed to the barn. Also on the premises and resting on a foundation consisting of railroad ties, was a small dwelling claimed by plaintiff Herbert Zimmer, son of Mrs. Laura Zimmer, as his separate property, he having furnished the lumber and materials for its construction, in which he was assisted by other members of the Zimmer family.

On August 17, 1966, a memorandum of the transaction was prepared in the handwriting of Mrs. Zimmer, defendant Bellon assisting in the choice of its language, as follows:

'Sold to Adam Bellon 480 acres S.E. 1/4 and North 1/2 of Section 10--140--66 at $50.00 per acre.

'The Taxes and the Land Contract shall be decuted (sic) from the 50.00 per acre. I gave Mr. Bellon the land contract to be examined.

'/s/ Laura Zimmer

'/s/ Adam Bellon'

Mrs. Zimmer executed a warranty deed dated September 3, 1966, conveying the real property to defendant Bellon, there being no exceptions recited in the conveyance which did set forth that the premises '* * * are free from all encumbrances, except mortgage owing to the State of North Dakota which the purchaser will assume.' The language of the deed discloses that the consideration was 'Ten Dollars and other good and valuable consideration.'

In vacating the premises, the plaintiffs removed a well motor, milking equipment including a motor and pump, light bulbs and fuses, and, at a cost of some damage to the barn, a ventilating fan, a bulk milk tank, and twelve stanchions. Attempted removal by the plaintiff of the Herbert Zimmer house, of a wagon, a gas tank, and 225 bales of barley hay--such number established by the jury's verdict--was prevented by the defendant, who strenuously objects to plaintiffs' retention of those items so obtained by the plaintiffs as above outlined. Because of this dispute, the defendant withheld payment of an acknowledged final remaining balance of $450.98 to Mrs. Zimmer, which was due following final adjustment of the mortgage principal and interest assumed by the defendant buyer.

By this action, plaintiff Mrs. Zimmer seeks to gain possession of the personal property in dispute held by defendant Bellon, or to be awarded judgment for its value, and for the remaining balance of the sale price; plaintiff Herbert Zimmer asks judgment for possession of the house claimed by him as his separate personal property, or for its value; while defendant Bellon has counterclaimed asking damages for loss of fixtures which he claims should not have been taken by the Zimmers.

On demand by the plaintiffs, all issues of the case were submitted to a jury. At this point it is to be noted that this action was one for possession of personal property or for the recovery of money only, and was properly triable to a jury as a matter of right, timely demand having been made therefor. First Nat. Bank of Dickinson v. Kling, 65 N.D. 264, 257 N.W. 631; Kilgore v. Farmers Union Oil Co. of Epping, 74 N.D. 640, 24 N.W.2d 26.

During trial, the plaintiffs over defendant's objection adduced considerable testimony that certain fixtures and the Herbert Zimmer dwelling were excepted from conveyance of the premises as a result of conversations with the defendant preceding or accompanying execution of the written memorandum of sale and execution and delivery to the defendant. Admission of these conversations, to the defendant. Admission of these convrsations, so the defendant argues, does violence to the parol evidence rule which precludes parol evidence to vary, modify or contradict a written contract.

Defendant Bellon, on the other hand, in his testimony denied there was any agreement, oral or written, excluding fixtures from the sale, and further, since there were no exceptions or exclusions noted in either the written memorandum or in the deed, he claims to be the rightful owner of the Herbert Zimmer dwelling and rightfully entitled to possession of all fixtures here in question.

The jury returned a special verdict finding that the dwelling here involved was the separate property of plaintiff Herbert Zimmer; that the stanchions and well motor were fixtures passing to the defendant by operation of the warranty deed; and that the various other items of personal property were not affected by sale and conveyance of the premises and remained the separate personal property of plaintiff Laura Zimmer. Values of the various items in dispute were fixed by the jury as a part of its special verdict.

An interlocutory judgment was entered upon the verdict to enable the parties to deliver or to restore to the other party such personal property and fixtures as by the jury verdict were found to be properly the property of such other party; otherwise a money judgment would be entered. Subsequently, such a final money judgment properly was docketed. Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7; 46 Am.Jur., Replevin, Section 122, page 67.

The defendant's notice of appeal asks trial de novo in this court. However, in argument on this appeal, the defendant-appellant orally withdrew his demand for trial de novo. In this connection it should be remarked that the defendant is not entitled to trial de novo in any event, and even if demanded in the notice of appeal. This being a jury case, our review is limited to errors assigned or apparent on the face of the judgment roll, and sufficiency of the evidence supporting the jury's verdict is not in issue and will not be considered. Kemmer v. Sunshine Mut. Ins. Co., 79 N.D. 518, 57 N.W.2d 856; 28--18--09 NDCC; 28--27--32 NDCC.

On this appeal, the defendant-appellant assigns three specifications of error. The defendant in appealing has the burden not only of establishing that the trial court erred in its rulings during trial or in its instructions to the jury, but further must show that such error prejudiced the cause of the appellant. Teegarden v. Dahl, N.D., 138 N.W.2d 668; Maier v. Holzer, N.D., 123 N.W.2d 29.

The first assignment of error is that the trial court prejudicially erred in admitting into evidence the testimony relating to oral exclusion of fixtures and dwelling from the conveyance of the real property to which such fixtures were attached and upon which the house was situated. Defendant contends that a contract in writing--it is his argument that the written memorandum and deed comprise the written contract--supersedes all oral negotiations or stipulations concerning its matter which preceded or accompanied execution of the written agreement. 9--06--07 NDCC.

Section 9--06--07, NDCC, reads as follows:

'The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.'

This is not a mere rule of evidence or of contract interpretation, but is substantive law. Hanes v. Mitchell, 78 N.D. 341, 49 N.W.2d 606, 608, and 4 Williston on Contracts, 3rd Ed., Section 631, page 948, et seq.

As it is generally expressed, the parol evidence rule prohibits the varying or contradicting of a written contract by extrinsic evidence in the absence of fraud, mistake or accident; and the integrated contract--that is, the written contract--is sole evidence of the agreement of the parties. Hanes v....