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BRIEF FORMAT
Your name:
Date:
NAME OF CASE:
Facts:
Relevant facts of case. This section should be between 5 and 7 sentences.
Issue:
The question presented by the case.
Holding:
For which party did the court rule?
Rule of Law: One sentence that states the general principle of law, i.e., “Accountants are not liable
to third parties if they were unaware of the existence of a business relationship.” OR
“The police are prohibited from conducting warrantless searches of your home.” The
Rule of Law should not be phrased in terms of the parties to a particular case.
Incorrect: “The South Orange Police had no right to search Mark Smith’s home for
drugs, therefore, the court ruled in favor of Mr. Smith.” This type of
statement is appropriate for the “Holding” section of the Brief.
Reasoning:
From where did the court derive its reasoning? Another case? The U.S. Constitution?
This section should be between 3 and 5 sentences.
BRIEFS MUST BE SUBMITTED ON THE DATE ASSIGNED FOR COMPLETION.
GENERALLY, THEY SHOULD BE ONE, TYPE-WRITTEN PAGE.
Paraphrase and condense the cases in your own style. Spelling and grammar count. Any deviation
from the above format results in a lower grade.
Please, proofread your work! Very important!
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
Defects in Proceedings for Review
Lack of adherence to rules promulgated by
Supreme Court can result in a dismissal of
an appeal under rule 3(a). N.D.R.App.P., rule
3(a).
232 N.W.2d 61
Supreme Court of North Dakota.
TOWER CITY GRAIN COMPANY,
a corporation, Plaintiff-Appellee,
v.
E. W. RICHMAN, et al., Defendants-Appellants.
Civ. No. 9102.
|
July 11, 1975.
Action was brought for specific performance of oral
contract for sale of wheat. The District Court, Barnes
County, Hamilton E. Englert, J., entered judgment
which granted specific performance, and sellers appealed.
The Supreme Court, Pederson, J., held that substantial
evidence supported trial court’s finding as to terms of
contract; and that under circumstances of case, in absence
of finding indicating what court believed to be proper
circumstances for specific performance relief, grant of
specific performance was an abuse of discretion and
erroneous as matter of law.
Cases that cite this headnote
[3]
Witnesses
Examination of Adverse Party or Witness
as on Cross-Examination
Witnesses
Party Called as Witness by Adversary
Witnesses
Party Called as Witness by Adversary
An adverse party may be called to stand
and interrogated by leading questions,
contradicted and impeached. N.D.R.Civ.P.,
rule 43(b).
Cases that cite this headnote
[4]
Motion to file bond for costs on appeal granted; judgment
reversed and remanded with leave to amend.
Evidence
Conclusiveness of Evidence on Party
Introducing It
A party who calls an adverse party to the
stand is in no way bound by the opponent’s
testimony. N.D.R.Civ.P., rule 43(b).
Erickstad, C.J., and Paulson, J., did not participate.
Cases that cite this headnote
West Headnotes (16)
[5]
[1]
Appeal and Error
Effect of Failure to Give or Defects in
Security
Supreme Court’s scope of review of findings
of fact made by trial court is limited to
a determination of whether or not such
findings are clearly erroneous. N.D.R.Civ.P.,
rule 52(a).
Appeal and Error
Filing Notice and Proof of Service
Service of an undertaking on appeal or deposit
in lieu thereof was not jurisdictional; good
faith service of notice of appeal conferred
jurisdiction, and thereafter Supreme Court
could permit appeal to be perfected.
N.D.R.App.P., rules 3(a), 7.
3 Cases that cite this headnote
[2]
Appeal and Error
Clearly Erroneous Findings
Cases that cite this headnote
[6]
Appeal and Error
Clearly Erroneous Findings
Unless clearly erroneous, findings of fact of
court, sitting without a jury, are binding on
appeal. N.D.R.Civ.P., rule 52(a).
Appeal and Error
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
3 Cases that cite this headnote
[7]
Appeal and Error
Inferences from Facts Proved
6 Cases that cite this headnote
[12]
Legal or Equitable Actions or Issues
Appeal and Error
Clearly Erroneous Findings
A defendant should not be deprived of a jury
trial, to which he would be entitled in an action
at law, unless plaintiff is clearly entitled to the
equitable remedy he seeks.
Supreme Court must give great weight to
findings made and inferences drawn by trial
court and will set aside a finding of fact only
if, based upon all the evidence, it is clearly
erroneous. N.D.R.Civ.P., rule 52(a).
Cases that cite this headnote
[8]
1 Cases that cite this headnote
[13]
Substantial evidence supported trial court’s
finding as to terms of contract in action to
specifically enforce oral contract to sell wheat.
N.D.R.Civ.P., rule 52(a).
[9]
Cases that cite this headnote
[14]
Specific Performance
Contracts Relating to Personal Property
Cases that cite this headnote
Specific Performance
Appeal
3 Cases that cite this headnote
[15]
On appeal in a specific performance action,
Supreme Court cannot presume that an award
of damages fails to put an aggrieved party in as
good a position as if the other party had fully
performed. NDCC 41-01-06.
Specific Performance
Bill, Complaint, or Petition
A complaint which prays for equitable remedy
of specific performance must clearly show that
legal remedy of damages is inadequate.
Specific Performance
Trial or Hearing
Fact that complaint prayed for specific
performance and that sellers had in their
possession type and quantity of wheat called
for in sale contract were not adequate to
support finding of proper circumstances as
basis for specific performance. U.C.C. § 2-716;
NDCC 41-02-95.
1 Cases that cite this headnote
[11]
Trial
Failure to Find on Particular Questions
In the absence of findings of uniqueness
or other proper circumstances, remedy of
specific performance is not available to
enforce a contract for the sale of grain or
other fungible goods. U.C.C. § 2-716; NDCC
41-02-95.
Remedy of specific performance may apply
to contracts for sale of grain under proper
circumstances. NDCC 41-01-06, 41-02-95.
[10]
Trial
Facts and Conclusions to Be Found
A factual basis for a conclusion that remedy
of specific performance is available should be
found by trier of facts in order that Supreme
Court, on appeal, may know basis upon which
it arrived at such conclusion.
Specific Performance
Subject-Matter and Terms of Contract
Cases that cite this headnote
Jury
Cases that cite this headnote
[16]
Trial
Failure to Find on Particular Questions
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
2
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
Under circumstances of case, in absence of
finding indicating what court believed to be
proper circumstances for specific performance
relief, grant of specific performance of oral
contract for sale of wheat was an abuse of
discretion and erroneous as matter of law.
U.C.C. § 2-716; NDCC 41-02-95.
2 Cases that cite this headnote
*62 Syllabus by the Court
1. The service of an undertaking on appeal or deposit
in lieu thereof is not jurisdictional. Good faith service of
notice of appeal confers jurisdiction, and thereafter this
court may permit the appeal to be perfected.
2. A party who calls an adverse party to the stand
under Rule 43(b), N.D.R.Civ.P., is in no way bound
by the opponent’s testimony. The adverse party may
be interrogated by leading questions, contradicted and
impeached.
*63 3. This court must give great weight to the findings
made and the inferences drawn by the trial court and
will set aside a finding of fact only if, based upon all the
evidence, it is clearly erroneous.
4. This court must give due regard to the opportunity of
the trial court to judge the credibility of witnesses.
5. The remedy of specific performance may be applicable
to contracts for the sale of grain if there are proper
circumstances.
6. In the absence of findings of uniqueness or other proper
circumstances, the remedy of specific performance is not
available to enforce a contract for the sale of grain or other
fungible goods.
Attorneys and Law Firms
Kruger, Yuill & Feder, Fargo, for defendants-appellants;
argued by William D. Yuill, Fargo.
Ployhar, Thorson & Weisenburger, Valley City, for
plaintiff-appellee; argued by Roger R. Weisenburger
Valley City.
PEDERSON, Judge.
CASE SUMMARY
This is an appeal by the defendants, E. W. Richman, Peter
Richman, and Kenneth Richman, doing business as E. W.
Richman & Sons, from a judgment of the district court
of Barnes County ordering the specific performance of a
contract for the sale of grain to the plaintiff, Tower City
Grain Company. The Richmans appeal from the entire
judgment.
Motion to file bond for costs on appeal is granted.
Judgment reversed.
FACTS
The Richmans entered into an oral contract to sell 10,000
bushels of 58-pound test weight wheat to Tower City
Grain. The terms of the contract are in dispute. The
Richmans contend that the sale price was to be $2.24 per
bushel and that the contract was entered into on or about
December 15, 1972. Tower City Grain contends that the
sale price was $2.25 per bushel and that the date of the
contract was January 2, 1973, the same date that the grain
was resold to a third party. It is undisputed that there was
no date set for the delivery of the grain. Delivery was to be
made upon availability of storage or rail transportation.
This dispute centers around the date that Tower City
Grain requested that the Richmans deliver the grain in
fulfillment of the contract. The Richmans testified that
they made repeated inquiries throughout the spring and
summer of 1973 concerning the delivery of the grain. On
each of these occasions, the Richmans were told either that
they were next on the list or that the elevator was full and
no boxcars were available for shipment.
The Richmans contend that Tower City Grain was
accepting grain deliveries from other farmers during this
time period. Tower City Grain argues that the grain
accepted was for resale as seed or to fill contracts that had
been entered into prior to the contract with the Richmans.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
3
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
Tower City Grain pointed out that this method of buying
grain had been its custom for almost forty years. It did
agree, however, that the time lag between the date of the
contract and the date it called for delivery was unusual,
but noted that in times of boxcar shortages such delays
did occur. The Richmans admitted that they had been
doing business with Tower City Grain for over thirty years
and that this was the customary transaction between the
parties, but also stated that they had never waited for such
a long time to deliver their grain. Tower City Grain alleges
that the Richmans were asked to deliver the grain on July
17, 1973. The Richmans contend that the actual date was
much later than July 17, possibly not until September of
1973.
The Richmans refused to deliver the 10,000 bushels of
wheat to Tower City Grain because the delay in calling
for delivery of *64 the grain constituted a breach of
the contract. Tower City Grain then brought this action
for specific performance of the oral contract. At the
conclusion of the evidentiary portion of the trial, the court
allowed the Richmans forty-five days to brief the issues.
The brief was not submitted.
On September 27, 1974, the court rendered a
memorandum decision. In its findings of fact, the trial
court found that on or about January 2, 1973, the parties
entered into an oral agreement to sell 10,000 bushels of 58pound test weight wheat for $2.25 per bushel, that delivery
was to be made upon availability of storage and/or rail
transportation, and that this course of dealing and usage
of trade was customary in the business of both parties. The
court further found that in reliance upon the oral contract
Tower City Grain entered into an agreement to sell the
wheat to a third party and that the Richmans still retained
the 10,000 bushels of wheat.
The trial court then ordered judgment in favor of Tower
City Grain granting specific performance of the contract.
ISSUES
1. Is the finding of fact establishing the terms of the oral
contract from the testimony of Tower City Grain rather
than that of the Richmans clearly erroneous?
2. Did the trial court abuse its discretion in ordering
specific performance of the oral contract?
DECISION
Although no formal motion was made before this court,
Tower City Grain asked that this appeal be dismissed
because the Richmans had not filed a bond for costs
on appeal pursuant to Rule 7, N.D.R.App.P. On June
4, 1975, this court received a copy of a letter from
the Richmans’ counsel stating that a cashier’s check
for $250.00 had been sent to the clerk of the Barnes
County District Court. On oral argument, counsel for the
Richmans moved this court to grant him permission to file
the check.
[1] Tower Gity Grain argues that the service of an
undertaking on appeal or deposit in lieu thereof is
jurisdictional and that the appeal should be dismissed.
We do not agree. Good faith service of notice of appeal
confers jurisdiction, and thereafter this court may permit
the appeal to be perfected. On re Guardianship of
Frank, 128 N.W.2d 355 (N.D.1964). Further, Rule 3(a),
N.D.R.App.P., states that the ‘failure of an appellant to
take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal,
but is ground only for such action as the court deems
appropriate, which may include dismissal of the appeal.’
[2] Because it is the preference of this court to decide cases
on their merits rather than on technicalities, we grant the
Richmans’ motion to perfect the appeal. As we have stated
before, the lack of adherence to the rules promulgated by
the court can result in a dismissal of an appeal under Rule
3(a), N.D.R.App.P. This result would be appropriate in
the instant case where there is an obvious lack of diligence
on the part of counsel for the Richmans. Counsel failed to
file appropriate briefs at both the trial and appellate levels.
Such failure prompted this court to issue a Minute Order
on March 31, 1975, dismissing the Richmans’ appeal if
a brief was not filed by April 18, 1975. It was filed by
that date. We do not condone such laxity on the part
of attorneys who practice before us but such a drastic
measure as dismissal of an appeal would unduly penalize
the appellants for failure of their attorney to fulfill his
duties.
I.
The Richmans contend that the trial court erred in
placing total reliance on the testimony of officers of
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
4
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
Tower City Grain to establish the terms of the contract.
In presenting his case to the trial court, counsel for
Tower City Grain began by calling the Richmans for
cross-examination under *65 Rule 43(b), N.D.R.Civ.P.
During this cross-examination, the witnesses testified as to
what they considered to be the terms of the contract.
Citing Dangerfield v. Markel, 222 N.W.2d 373
(N.D.1974), as their authority, the Richmans argue that
by establishing the existence of a contract by testimony
of the adverse parties, Tower City Grain could not
contradict or supplement such evidence by the testimony
of other witnesses. The Dangerfield case, however, is
distinguishable from the instant case in that the existence
of a contract for the sale of potatoes was a central issue.
In the case before us, there is no issue as to the existence of
a contract. In their answer to the complaint of Tower City
Grain, the Richmans admit the existence of a contract.
[3] [4] Any attempt to bind one party by the testimony
of his opponents would be contrary to the intent of
Rule 43(b), N.D.R.Civ.P. In construing Rule 43(b) of the
Federal Rules of Civil Procedure, which is substantially
the same as our rule, an adverse party may be called to the
stand and interrogated by leading questions, contradicted
and impeached. 9 Wright & Miller, Federal Practice and
Procedure: Civil s 2413 (1971); Nuelsen v. Sorensen, 293
F.2d 454 (9th Cir. 1961). Further, a party who calls an
adverse party to the stand (usually cross-examination,
as permitted) is in no way bound by the opponent’s
testimony. 1 Moran v. Pittsburgh-Des Moines Steel Co.,
183 F.2d 467 (3d Cir. 1950). See also the comments about
the ‘voucher rule’ in State v. Hilling, 219 N.W.2d 164, 172
(N.D.1974).
Based upon the testimony presented by Tower City Grain,
the trial court made the following finding of fact:
‘IV.
‘That on or about January 2, 1973, the defendants did
agree to sell to the plaintiff and plaintiff agreed to buy
from the defendants 10,000 bushels of wheat at the price
of $2.25 per bushel; that said wheat was to be of 58 pound
test weight; that delivery of said 10,000 bushels of wheat
was to be made to the plaintiff upon the availability of
storage, and/or rail transportation at the plaintiff’s place
of business; and that this course of dealing and usage of
trade was customary in both the defendants’ and plaintiff’s
businesses.’
[5]
[6] Our scope of review of the findings of fact
made by the trial court is limited to a determination
of whether or not such findings are clearly erroneous.
Rule 52(a), N.D.R.Civ.P. Unless clearly erroneous, the
findings of fact of the court, sitting without a jury, are
binding on appeal. Nitschke v. Barnick, 226 N.W.2d 785
(N.D.1975), at syllabus 2. Further, we must give due
regard to the opportunity of the trial court to judge the
credibility of witnesses. Sand v. Red River Nat. Bank &
Trust Company, 224 N.W.2d 375 (N.D.1974).
[7] This court must give great weight to the findings
made and the inferences drawn by the trial court and
will set aside a finding of fact only if, based upon all
the evidence, it is clearly erroneous. Rolfstad, Winkjer,
Suess, McKennett & Kaiser v. Hanson, 221 N.W.2d 734
(N.D.1974).
[8] We hold that there is substantial evidence to support
the trial court’s finding as to the terms of the contract, and
that the finding is not clearly erroneous. Such finding is
conclusive on appeal.
II.
This issue actually raises two questions: (1) Is the remedy
of specific performance applicable, and (2) Did the trial
court abuse its discretion in granting specific performance
of the contract for the sale of grain?
*66 [9] Although the Richmans cited several sections of
the Century Code pertaining to specific relief, s 41-02-95,
N.D.C.C. (s 2-716 of the Uniform Commercial Code), is
controlling in the instant case and states, in part:
‘1. Specific performance may be decreed where the goods
are unique Or in other proper circumstances.
‘2. The decree for specific performance may include such
terms and conditions as to payment of the price, damages,
Or other relief as the court may deem just.’ (Emphasis
added.)
While the Richman’s contention that fungible goods were
not a proper subject for the remedy of specific relief
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
5
Tower City Grain Co. v. Richman, 232 N.W.2d 61 (1975)
17 UCC Rep.Serv. 1011
under prior laws is correct, the adoption of the Uniform
Commercial Code in 1966 liberalized the discretion of
the trial court to grant specific performance in a greater
number of situations. The Official Comment to s 2-716,
U.C.C., provides in pertinent part:
‘1. The present section continues in general prior policy
as to specific performance and injunction against breach.
However, without intending to impair in any way the
exercise of the court’s sound discretion in the matter,
this Article seeks to further a more liberal attitude than
some courts have shown in conn …
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