author: MORRIS, Chief Justice.

text:
    SCHAFF v. KENNELLY et al.
    No. 7403.
    Supreme Court of North Dakota.
    Dec. 4, 1953.

      J. K. Munay, Bismarck, for plaintiff-appellant.
    Kelsch & Scanlon, Mandan, for defendants-respondents.
   MORRIS, Chief Justice.

On September 24, 1951, the plaintiff, as purchaser, and the defendants, as sellers, entered into a written contract for deed involving the sale of the following property:

“Lots One (1), Two (2) and Three (3) in Block Forty (40), in the Original Town, now City, of Mandan, North Dakota, including all buildings thereon except one frame playhouse, which the parties of the first part reserve and shall have the privilege of removing from the premises ’within a reasonable time; Included also is the kitchen equipment contained in said house on said lots, consisting of steel cabinets, electric stove, gas refrigerator, electric dishwasher, garbage disposal, brealcfastnook furniture, and exhaust fan; and laundry equipment consisting of automatic washer, dryer and gas range; also all carpets on floors and all window shades and drapes now in the house.”

The total purchase price was $35,000, $10,000 of which was paid at the time the contract was executed. The balance of the purchase price was to be paid as follows: $5,000 on January 30, 1952; $8,000 on January 30, 1953; $6,000 on January 30, 1954; and $6,000 on January 30, 1955. Interest was provided for at four per cent per annum, payable annually. The purchaser agreed to keep the buildings on the premises insured for not less than $25,000. The sellers agreed to give possession of the house on October 1, and the garage on October 10, 1951. The plaintiff actually took possession on September 28.

On or shortly after February 14, 1952, plaintiff served on the defendants by mail the following notice of rescission:

“Take Notice that the undersigned, Paul S'chauf, does hereby rescind that certain contract for deed made between you and he on the 24th day of September, 1951 wherein and whereby you promised and agreed to sell him the following described real property situated in the City of Mandan, North Dakota, to-wit: Lots Two and Three (2 & 3), in Block Forty (40), in the Original Town, now City, of Mandan, North Dakota including certain buildings designated in said contract for deed, for the purchase price of Thirty-Five Thousand Dollars ($35,000.00).
“This rescission is based upon the following grounds, among others:
“1.) That you fraudulently misrepresented to the undersigned the condition of the dwelling house situated on said lots, among other tilings in this: that you guaranteed, warranted and represented that said dwelling house and all of its fixtures and • appurtenances were in good condition and that there were no hidden defects in said property; that in truth and in fact said dwelling house had been gutted by fire and the evidences of such fire have been covered up by repairs, which gutting by such fire greatly depreciated the, value of said property.
“2.) That the sewer system was defective; that it did not and does not yet carry the waste water off and away from the said house; that said sewer was all blocked up and it is so defective that it can not be efficiently repaired without installing a whole new sewage system.
“3.) That after the sale of said dwelling house aforementioned and without the knowledge or consent of the undersigned, you took and carried away fixtures and appurtenances of said dwelling house and in place of the fixtures and appurtenances so removed, replaced some of' them with cheap and defective ones; that such constitutes a breach of your contract.
“4.) That the undersigned hereby' tenders and offers to execute and deliver to you the deed to such premises, re-transferring' same to you on the condition that you contemporaneously therewith return to the undersigned the purchase price so paid to yoü, to wit: Ten Thousand Dollars ($10,000.-00) or more; that upon your failure to acquiesce in this rescission and restore the purchase price so paid, the undersigned will deem it and -take it as a fact that you refuse to acquiesce in this rescission.”

On May 6, 1952, the plaintiff served on the defendants the summons and complaint in this action, setting forth the contract and fact that notice of rescission and restitution had been given. The grounds for rescission as contained in thé notice were also alleged. The plaintiff then concluded:

“That by reason of the aforesaid facts, the defendants and. each of them are now indebted to the plaintiff in the sum of $10,350.00, together with interest thereon at the rate of 4% from date of payment of same to the defendants and to the insurance company for premiums; that the reasonable rental value of said property was and is the sum of $100.00 a month and that this plaintiff does hereby offer to allow the defendants credit on the aforementioned sum, the sum of $100.00 a month from the time the plaintiff took possession of same, to-wit: the 24th day of September, 1951, leaving a balance due the plaintiff from the defendants of $9,550.00, together with interest at the rate of 4% per cent per annum from the date of the contract.”

The plaintiff then prays for a money judgment in the above amount. Under date of November 3, 1952, the plaintiff amended his complaint by amplifying the allegations of fraud. He realleged the portion of his former complaint above quoted and ■ended it with the same prayer for judgment.

To the plaintiff’s amended complaint the ■defendants filed an amended answer and cross-complaint. They deny generally the allegations of the complaint. They admit the execution of the contract and the payment of $10,000 to them on September 24, 1951. They admit receiving the notice of rescission on or shortly after February 14, 1952, but deny that the plaintiff •offered to restore everything of value which he had received from the defendants under the contract. They admit that the ■dwelling house and some of its furniture and furnishings were damaged by fire on August 7, 1948; but allege that the damage was fully repaired prior to the sale and that ■certain improvements and betterments were made whereby the real and personal property described in the contract were materially ■increased and enhanced in value.

The defendants further allege that plaintiff had actual knowledge and notice of all the facts of which he complains in his amended complaint prior to October 2, 1951; that he failed to act promptly in ■cancellation or rescission of the contract; and that the plaintiff has not returned or restored to defendants everything he has received of value, nor has he offered such restoration.

The cross-complaint of the defendants alleges the execution of the contract, defaults by the plaintiff, and asks for a decree of foreclosure thereof. The issues raised by the amended complaint and the amended answer were tried to a jury and a verdict rendered in favor of the plaintiff for $5,000. The defendants at the close of the case made a motion for a directed verdict, which was denied. The defendants moved for a judgment notwithstanding the verdict which included the same grounds that were set forth in the motion for directed verdict. The trial court granted the defendants’ motion for judgment notwithstanding the verdict. Pursuant thereto judgment was entered dismissing plaintiff’s cause of action and granting to the defendants judgment for foreclosure of the contract for deed. After entry of judgment the plaintiff moved for a new trial. On May 4, 1953, the trial court entered an order denying plaintiff’s motion. The plaintiff appeals both from the judgment entered April 6, 1953, and the order denying a new trial entered May 4, 1953.

The first point raised by the appellant is one of procedure and is based on the following facts: The verdict was rendered January 8, 1953. On January 15, 1953, the attorneys for defendants served on the plaintiff’s attorney a notice of motion for judgment notwithstanding the verdict, to which was attached a motion for judgment notwithstanding the verdict setting forth grounds substantially the same as those upon which the defendants had moved for a directed verdict at the close of the testimony. The notice of motion stated that the motion would be brought on for hearing on the 29th day of January, 1953, at two o’clock p. m. The plaintiff objected to the jurisdiction of the trial court to hear the motion and now urges in this court that the trial court was without jurisdiction because the motion was not brought on for hearing or heard within ten days after the reception of the verdict. Plaintiff’s counsel points to a provision contained in Section 28-1510 NDRC 1943, as amended by Chapter 204 SLND 1951, which says:

“Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict, * *

Plaintiff argues that although the motion and notice thereof were served on plaintiff’s counsel within ten days after the rendition of the verdict, the motion was not brought on for hearing or filed in the office of the clerk of the district court until January 29, 1953; and that such procedure does not constitute compliance with the statute sufficient to vest jurisdiction in the court; and that the subsequent order of the court granting defendants’ motion and directing the entry of judgment notwithstanding the verdict was beyond the power of the court and void.

A motion for judgment notwithstanding the verdict is a step taken within and as a part of a pending action. There seems to be no special statute as to how the motion shall be made, filed, or heard other than that above set forth. Section 28-2803, being a general statute with respect to motions, states:

“A motion, except when otherwise properly made in open court, shall be accompanied by notice thereof, together with copies of the affidavits or other papers in support of the same, or otherwise particularly specifying papers in the action which have been served, or which are on file.”

If personal service is made of the notice of motion it must be at least eight days before the time appointed for the hearing. Section 28-2815 NDRC 1943. If, as plaintiff’s counsel seems to contend, the time for hearing the motion must be set within the ten-day period prescribed in Chapter 204 SLND 1951, the moving party would have only two days to prepare and serve his papers in order to set the hearing within the ten-day period. Clearly this is unreasonable and no such result was intended by the legislature. The statute requires only that the motion be made within ten days. As to this, plaintiff’s counsel contends that the service of the notice and motion on opposing counsel without the filing of the papers with the clerk is not sufficient and that the motion is not made until it is filed. Thus we are called upon to decide when a motion may be said to have been made.

The making of a motion is in some ways analogous to the commencement of an action in that it seeks the determination of the court with respect to a right claimed by the moving party. Under civil procedure in this state an action may be instituted and relief sought without filing papers in the office of the clerk of court.

“Civil actions in the courts of this state shall be commenced by the service of a summons.” Section 28-0501 NDRC 1943.

Statutory provision is made for the filing of a summons and pleadings, Section 28-OS 11 NDRC 1943, but filing is not a condition precedent to the acquisition of jurisdiction of the court where personal service within the state is made. Johnson v. Engelhard, 45 N.D. 11, 176 N.W. 134. We have no statute that requires filing as a condition precedent to the making of a motion. It seems clear to us that a motion, when made otherwise than in open court, must be in the form and accompanied by the notice prescribed by Section 28-2803 NDRC 1943 and that the notice accompanying it must be in writing. Service must be made in the time and manner prescribed by Chapter 28-28 NDRC 1943. When the provisions of the statute have been followed and service thereof made within ten days after the reception of a verdict, a motion for judgment notwithstanding the verdict has been made within the time prescribed by Chapter 204 SLND 1951, although the motion has not been filed with the clerk of the district court.

The plaintiff further argues that where, as in this case, the motion for directed verdict is noticed for hearing more than ten days after the rendition of judgment, the same rule should apply as that laid down in Sea-Gate Tire & Rubber Co. v. Butts, 58 N.D. 232, 225 N.W. 787, wherein it was held that the trial court had no jurisdiction to hear a .motion in the alternative for a new trial or for a judgment notwithstanding the verdict that was noticed to be heard before the time for appeal from the judgment had expired but was not brought on for hearing or in any manner presented to the court until after the time for appeal had expired and there was no agreement, either express or implied, for a continuance of the motion, to the hearing of which timely objection had been made. In that case the time for appeal from the judgment had , expired. It had become final and the action was no longer pending. No such situation exists here.

“A civil action in a district court is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.” Section 28-0510 NDRC 1943.

When the order here complained of was made the action was still pending in the district court. The motion was made within the ten-day period prescribed 'by the statute authorizing motions for judgment notwithstanding the verdict. The trial court heard and determined the motion at a time when he had jurisdiction of the case. His order is not vulnerable to jurisdictional attack. See Nicholson v. Roop, N.D., 62 N.W.2d 473; Farmers Insurance Exchange v. Arlt et al., N.D., 61 N.W.2d 429.

Section 9-0902 NDRC 1943 sets forth the only cases in which a.party may rescind a contract. These paragraphs are of interest here:

“1.'' If the consent of the party rescinding or o'f any party jointly contracting with him was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds or of any other party to the contract jointly interested with such party;
“2. If through the fault of the party as to whom he rescinds the consideration for his obligation fails in whole or in part; * *

Plaintiff’s notice of rescission recites facts tending to support fraud and partial failure of consideration through breach of the contract by the defendants. Both grounds for ■ rescission are stated in the complaint. Plaintiff’s proof as to the failure of consideration through fault of the defendants is extremely weak and for the most part has been waived by subsequent conduct of the plaintiff; It consists mainly of petty irritations and minor disagreements such as sometimes arise between people who have been dealing with each other at arm’s length and in an atmosphere of mutual mistrust, a situation which this record clearly shows existed both before and after the contract for the sale of the property in question was signed. There was a dispute over, light fixtures which never was resolved and the record does not show the value of. the property in dispute. The plaintiff claims that the defendants took a food warmer from the kitchen, which the evidence but vaguely describes. The defendants claim -there never was a food warmer. The defendants took out some shelving from the house and the garage. They brought a load of it back. There is a dispute in the testimony as to whether it was all brought back. The defendants took the door knocker and upon complaint of the plaintiff brought it back and replaced it.

A failure or even a partial failure of consideration imports a breach of the contract. Page on the Law of Contracts, Section 2978. But every breach of a contract does not import failure of consideration. A breach of contract amounting to a failure of consideration must be a substantial breach in order to warrant rescission of the contract. A failure of performance amounting to a breach of the contract which is not substantial is an insufficient basis for rescission in equity. 9 Am.Jur., Cancelation of Instruments, Section 28; Williston on Contracts, Revised Edition, Section 1457. Most of the small breaches of contract of which the plaintiff complained were remedied by the defendants and the remedy accepted. With respect to these, clearly any right of rescission was waived. As to the disputed food warmer and light fixtures, assuming the plaintiff’s contentions to be correct, there would be but an inconsequential breach of the contract which would not be material to its total performance and would not be a ground for rescission of the entire contract. Illustration -3 under Section 275, Restatement of the Law of Contracts, is analogous and pertinent. . We quote:

“A contracts to sell, and B to buy, Blackacre. Before the time fixed for the performance of the contract A wrongfully removes from the land a small building of ordinary construction. This breach of, duty can be adequately compensated by damages . and is not material.”

The plaintiff has established no breach of the contract by the defendants which would warrant a rescission on the ground that through the fault of the defendants the consideration for plaintiff’s obligation to purchase the premises failed in whole or in part.

The other ground for rescission upon which the' plaintiff relies "and places great emphasis is fraud. The two claims of fraud set out in plaintiff’s notice of rescission were that the defendants fraudulently misrepresented the condition of the house in that damage that had been done by a fire some years previously had been concealed by repairs and that the sewer system was defective and cannot be effectively repaired. ■ To these contentions of fraud the plaintiff, when he instituted this action, added another and alleged that after the plaintiff had purchased the property an adjoining owner had the' south, line to plaintiff’s property surveyed and it was determined that the defendants owned' only about one-half of a - driveway- that led to the street past the south side of the house and that the adjoining owner, has set a fence through "the driveway and rendered it useless to- the.-plaintiff.

The evidence is sharply conflicting with respect to the three matters concerning which the plaintiff claims fraud. The sewer became clogged immediately after the plaintiff moved into the house and sewage, backed up through a drain in the basement floor. The plaintiff called up Mr. Kennelly in Fargo and Kennelly arranged for and paid for having the sewer drain leading from the house to the street cleaned out and tree roots that had grown into it removed. The plaintiff testified that the sewer still does' - not work properly and that noxious odors pervade throughout the house. In this he is corroborated by his wife, son-in-law, and daughter. On the other hand, tenants to whom the plaintiff rented part of the house, including the basement, did not smell the odors and did ' not- know that the sewer was clogged or caused trouble.

There is ■ no dispute as to. the fact that, several years before the contract, in, question was made a fire had occurred in the basement of the house which had damaged the first floor joists and that in four rooms on the first floor and one on the second floor there had resulted either fire or wa- , ter ..damage, or both. The plaintiff had read. about, the, fire in the newspaper at the time.it occurred. He discussed it with Mr. Kennelly. .There is- also no dispute as to-the fact .that Mr. Kennelly told the plaintiff that the fire damage had been repaired. The real dispute on this point is as to the extent and effectiveness of the repairs made. The plaintiff contends that the repairs were superficial and that damaged-woodwork was resurfaced instead of being replaced; that-the-repair of floor joists left- them in a' charred and weak condition; and that floors had been carpeted over and their damaged condition concealed. On the other hand, according to the defendants’ evidence, the repairs were made in a thorough and workmanlike manner. The defendants expended over $24,000 after the fire in making repairs and improvements and in installing kitchen • equipment, carpets, and drapes. Negotiations regarding the sale covered a period from about June -first until the contract was signed in September. During that time the plaintiff made three thorough inspections of the house from basement to attic. On two of these occasions he was accompanied throughout the house by his wife. The third time she came to the house with him but stayed downstairs.

A U-shaped driveway partly encircles the house and affords access to the garage. The south leg of the driveway is partly on the property of the adjoining landowner. According to the plaintiff, Mr. Ken-nelly told him that the boundary was in the middle of the driveway but that it had been used for more than twenty years and that he had title by adverse possession. Later he testified that Kennedy never promised to include the south portion of the driveway in the contract for deed. Kennedy, on the other hand, flatly denies that he had told the plaintiff that he had acquired title to the south portion of the driveway by adverse possession.

Actual fraud is always a question of fact. Section 9-0310. NDRC 1943. The evidence of fraud being conflicting and this being an action at law for the recovery of money, the question of whether the plaintiff was fraudulently induced to enter into the contract was for the jury. We reach the conclusion, as did the trial court, that the evidence is sufficient to warrant a determination of fraud on the part of the jury and on that issue the verdict is binding on the court.

One -who has been induced to enter intp a contract for the purchase of real estate by fraudulent representations of the vendor may elect to affirm the contract, retain the property received under it, and bring an action against the vendor for damages. As an alternative he may elect to rescind the contract for fraud and restore to the other party everything of value which he has received from him under the contract, or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses so to do. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808; Kent v. Clark, 20 Cal.2d 779, 128 P.2d 868, 142 A.L.R. 576; Nevada Land & Investment Corp. v. Sistrunk, 220 Cal. 174, 30 P.2d 389; Kaluzok v. Brisson, 27 Cal.2d 760, 167 P.2d 481, 163 A.L.R. 1308; 55 Am.Jur., Vendor and Purchaser, Section 569; 12 Am.Jur., Contracts, Section 146; 17 C.J.S., Contracts, § 167; Thompson on Real Property, Permanent Edition, Section 4605.

A party who elects to rescind a contract on the ground that he was fraudulently induced to enter into it has a further choice of procedures. He may bring an action in equity setting forth his election to rescind and ask the court to declare a termination of the contract; or he may bring an action at law based upon his election to rescind and his restoration, or offer to restore, as required by Section 9-0904 NDRC 1943. In this case the vendee has chosen to take the latter course. He undertook to rescind without resorting to a court of equity and brings this action on the theory that rescission has been accomplished. A discussion of the distinction between an action at law to recover money on a contract that has been rescinded and an action in equity to obtain a rescission of the contract is found in Philpott v. Superior Court, 1 Cal.2d 512, 36 P.2d 635, 95 A.L.R. 990, and an annotation following that case, 95 A.L.R. 1000.

In order to effect a rescission the obligation rested on the plaintiff to give notice of rescission and make an offer to restore in compliance with the provisions of Section 9-0904 NDRC 1943. This section is identical with Section 1691 of the Civil Code of California. Decisions dealing with the California statute are therefore of particular interest in this case. A rescission cannot be effected without an offer to restore. Hammond v. Wallace, 85 Cal. 522, 24 P. 837; Thayer v. Magill, 13 Cal.App.2d 21, 55 P.2d 1272; Kent v. Clark, supra. This court has applied the rule in equitable actions to rescind. Loff v. Gibbert, 39 N.D. 181, 166 N.W. 810; Donovan v. Dickson, 37 N.D. 404, 164 N.W. 27; Rosenwater v. Selleseth, 33 N.D. 254, 156 N.W. 540.

The rule that we have been discussing has certain exceptions based upon sound reason, for instance, when restitution is rendered impossible by the act of the defendant, Liland v. Tweto, 19 N.D. 551, 125 N.W. 1032, or where the defendant has parted with nothing of value, Sneve v. Schwartz, 25 N.D. 287, 141 N.W. 348; Thayer v. Magill, 13 Cal.App.2d 21, 55 P.2d 1272. But none of the exceptions apply to this case.

With respect to personal property this court has also held that as a condition precedent to rescission everything of value received under the contract must be restored or offered to be restored. Owens Co. v. Doughty, 16 N.D. 10, 110 N.W. 78; Fuller v. Fried, 57 N.D. 824, 224 N.W. 668.

It is stated to be the rule in California that

“in order to effect a unilateral rescission in pais of a contract, the rescinding party must give the other party prompt notice of his election to rescind, and must restore or offer to restore everything of value that he has received under the contract. Subject to applicable exceptions, compliance with such requirements as to an affirmative act of rescission and restoration is a condition precedent to maintaining an action for rescission or cancellation of a contract or other instrument on the ground of fraud, mistake, or other defect justifying its avoidance.” 9 Cal.-Jur. (2d) Cancellation of Instruments, Section 28.

. In Paulson v. Hartzel, Mo.App., 93 S.W.2d 1095, it was held that in an action at law by the vendee to recover from the vendor for money had and received recovery could not be had unless the vendee rescinded before commencing the suit.

In Lightner v. Karnatz, 258 Mich. 74, 241 N.W. 841, 842, involving an action to rescind two written contracts for the purchase of real estate, in discussing the difference between actions at law and actions in equity, the court said:

“There may be some confusion in the cases elsewhere on this subject, but in this state the rule is settled. A court of law entertains an action for the recovery of land or damages based upon a rescission by the party plaintiff. Rescission is a condition precedent to the maintenance of suit. It can be maintained only where rescission has taken place.”

In Swan v. Great Northern Railway Co., 40 N.D. 258, 168 N.W. 657, L.R.A. 1918F, 1063, this court held that the plaintiff could not avoid a .compromise settlement for personal injuries on the ground of fraud in the absence of a repayment or tender of the consideration received.

Rescission, once accomplished, completely abrogates the contract from the beginning. Funk v. Baird, 72 N.D. 298, 6 N.W.2d 569; Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808.

The notice of rescission which the plaintiff mailed to the defendants on or about February 14, 1952, was defective in several particulars. Although it otherwise described the contract between the plaintiff and the defendants, it omitted one of the lots described in and covered by the contract. The notice of rescission did not offer to restore possession to the defendants, account for the rents collected by the plaintiff and his wife, or pay to the defendants the reasonable value of the use and occupation of the premises. The contract included personal property of considerable value that was specifically set out in the contract but is not mentioned in the notice.

The house was 44x40. It consisted of three stories and a full basement. The garage, which was- separate from the house, contained a workshop .and stalls for three cars. The plaintiff’s testimony shows that at the time the notice of rescission'was served the plaintiff was renting the' basement of the house to a tenant for fifty or sixty dollars a month and was renting the third floor of the house to another tenant for fifty dollars a month. The wife of 'the basement tenant testified that the rental was sixty dollars a .month for the basement and ten for the garage. Later on, still another tenant rented the third floor for seventy-five -dollars a month. No offer was made to- account for these rentals. The renting of part of the house continued until within nine days of the trial. When the notice of rescission is compared with the description of the property contained in the contract and considered in the light of undisputed testimony, it clearly fails to meet the requirements of Section 9-0904 NDRC 1943 that the party rescinding must restore or offer to restore everything of valúe which he has received under the contract.

The plaintiff points to four occasions on which he complained orally to the defendant, John Kennedy, about the house. On at least one of these occasions the plaintiff asked ICennelly to take the house and give him his money back. However, on none of them was there an offer of restoration by the plaintiff that could qualify as such under our statute. But the plaintiff contends that the written notice of rescission and these conversations constituted offers to rescind and restore; that the defendants pointed out no deficiencies in such notices or offers; and that all defects therein were therefore waived. He relies on Section 9-1218 NDRC 1943, which provides :

“The creditor must make objections to the mode of an offer of performance at the time it is made to him. If this is not done, any objection which could have been obviated at that time is waiv- , ed by his failure to make the same.”

In further support of his contention he cites Shermaster v. California Home-Building Loan Co., 40 Cal.App. 661, 181 P. 409. That case involved an action to rescind two -contracts. The purchaser’s attorney wrote to the vendor offering to rescind the contracts and tendering a quitclaim deed upon payment to the purchaser of the purchase price with interest, cost of improvements, and damages. The vendor refused to accept the offer to rescind and merely took exception to the tender of the quitclaim deed without making specific objections. The court held that there was a sufficient offer and a direct refusal of rescission and although the plaintiff demanded more from the defendant than he was entitled to recover, the defendant could not take advantage of that fact in the absence of a specific objection to the tender. In support of its holding the court cited the Civil -Code of California, Section 1501, which is substantially the same as our Section 9-1218 ND RC 1943. In that case it was held that there was a sufficient offer and a direct refusal. That is not the situation here. The offer of restoration in this case is fatally defective. The applicable provision of our code is Section 9-1208 NDRC 1943:

“An obligation is extinguished by an offer of performance made in conformity to the provisions set out in this chapter and with intent to -extinguish the obligation. An offer of partial performance, however, is of no effect.”

In this case the offer of restoration is at best an offer of partial performance of the plaintiff’s obligation to restore and is of no effect.

The plaintiff also cites O’Keefe v. Routledge, 110 Mont. 138, 103 P.2d 307, 148 A.L.R. 409. In that case the defendant’s offer to restore was held to be sufficient under a Montana statute much broader in scope than our Section 9-1218, which, if applicable at all to an offer to restore as an incident of rescission, requires only that “The creditor must make objections to the mode' of an offer of performance at the time it is made to him.” (Italics supplied.) See Colton v. Oakland Bank of Savings, 137 Cal. 376, 70 P. 225.

The plaintiff urges the applicability here of the rule set forth in Black on Rescission and Cancellation, Second Edition, Section 623, that

“any insufficiency in a tender of rescission and return will be waived by an absolute refusal of the other party to entertain the proposal at all.”

The record does not present a'factual basis for the application of this rule. It does not appear that the defendants refused to rescind. Plaintiff’s counsel, on cross-examination of Mr. Kennelly, asked:

“At the time you received these two notices of rescission, Exhibits 2 and 3, what was your attitude, — to reject the rescission or to acquiesce in it? * * A. My attitude was that if I had been' offered what I had sold Paul Schaff I would gladly have given back $10,000 and took the property back.”

It is appropriate here to again refer to the amended complaint upon which the action was tried. Paragraph I describes the contract. Paragraph II pleads at length the facts pertaining to fraud in the inception of the contract. Paragraph III alleges a breach of the contract. Paragraph IV alleges that the plaintiff did not discover the defects of which he complains until on or about February 10, 1952, and thereupon promptly rescinded the contract and on or about February 14, 1952, offered to restore “to the defendants everything of value he had received from the defendants under said contract” upon condition that the defendants should do likewise. Plaintiff further alleges service of notice of rescission in writing which included a written offer to restore. Paragraph V of the complaint, which we heretofore quoted, sets forth that the defendants are indebted to the plaintiff in the sum of $10,350 and offers to allow defendants a credit of $100 per month from the time the plaintiff took possession as the reasonable rental ■ value of the property. The plaintiff then prays for a judgment against the defendants for $9,550 with interest and costs. Th'fe cause of action thus pleaded is one at law for the recovery 'of money which the plaintiff claims’to be due him because he is entitled to a return of the purchase price of the property he purchased under the contract which he rescinded on or about February 14, 1952. If there has been' no rescission-, the plaintiff is not' entitled to prevail. In order to prove a réscission it must appear that the plaintiff substantially complied with Section 9-0904 NDRC 1943,. paragraph 2, and restored to the defendants-everything of value which the plaintiff received from them under the contract or offered to restore the same upon condition-that the defendants do likewise, unless the defendants were unable or positively refused to do so. The plaintiff wholly failed to comply with this provision of the statute. Upon this record the jury could not determine that there was a rescission, for as a matter of law there was none. The verdict cannot stand. The trial court properly set it aside and granted a judgment notwithstanding the.verdict in favor of the .defendants.

The trial court reached the conclusion that the plaintiff, after discovery of the alleged fraud, waived his right to rescind by his acts and conduct. Since we have.determined that there was no rescission, it is unnecessary to determine the question of waiver. The evidence tending to support the prooí of waiver has some bearing on whether the plaintiff by his service of the notice of February 14, 1952, actually intended a definite, complete, and final rescission. For that reason we allude -to it. Whether or not that evidence establishes a waiver on the part of the plaintiff, it does indicate that he was wavering between treating the property as his own and treating it as the property of the defendants. Briefly summarized this evidence shows that while occupying it as his home he rented out to various tenants substantial portions of the house and a portion of the garage and received approximately $1,100 in rent which he retained; that part of this rental was received before and part of it received after the service of the attempted notice of rescission. After service'of the'notice of rescission he rented' to new tenants. In December of 1951 the plaintiff installed a gas burner in the basement and a sink on the third floor. Those were portions of the house that were being rented out. The plaintiff accepted the return and replacement of various items that he claimed had been taken by Kennedy and demanded the return of others. In January 1952 a real estate man asked the plaintiff to sign an option for the sale of the house, which the plaintiff- refused to do. The plaintiff testified:

“I told him to sell and give me my money and give Mr. Kennedy his. * * * I told him to sell it and do with it'what he wants; give me my money and give Kennedy his.”

These acts on the part of the plaintiff are consistent with confirmation rather than rescission of the contract.

The defendants counterclaimed for foreclosure of the contract for deed. The court made findings of fact and conclusions of law and ordered judgment for the foreclosure of the contract upon which judgment was entered.

The contract provides:

“And in case of default by said party of the second part, in whole or in part, in any or either of the covenants of this agreement to he by him kept and performed, he hereby agrees upon demand of said parties of the first part, quietly and peaceably to surrender to them possession of said premises and every part thereof, it being understood that until such default, said party of the second part (except as hereinafter stated) to have possession of said premises, parties of the first part to have the right in case of default in any of the terms of this contract by party of the second part, to declare the entire purchase price immediately due and payable.”

The plaintiff contends that this provision of the contract prescribes an exclusive method of procedure in event of default and that the defendants must proceed to cancel the contract by notice under the provisions of Chapter 32-18 NDRC 1943 providing for the cancellation of land contracts by notice and setting forth the rights of the respective parties when that procedure is followed. The plaintiff asserts that the defendants cannot proceed to foreclose their contract by court action as they sought to do in their counterclaim; that the remedy provided in the contract is exclusive and the defendants have no election. Regardless of what the rule may be elsewhere, this question has been settled adversely to the plaintiff by this court in Johnston Land Co. v. Whipple, 60 N.D. 334, 234 N.W. 59. In paragraph 1 of the syllabus, we said:

“When such contract contains a provision that, upon default in payments to be made by the vendee, the vendor may at its option cancel the contract, such vendor is not required to exercise the option.”

Plaintiff next contends that if the court has power to decree a foreclosure of the contract it can only do so pursuant to the foreclosure procedure provided in the case of mortgages and points out that in this case no power of attorney to foreclose has been given.

Chapter 32-19 NDRC 1943, as amended by Chapter 217 SLND 1951, provides for the foreclosure of mortgages and other liens on real estate, including land contracts. With respect to powers of attorney it is provided :

“No power of attorney shall be required to foreclose any equitable mortgage, deed, or instrument other than a mortgage which has been executed or delivered to secure the payment of money or the performance of any other act.” Section 32-1902 NDRC 1943.

This provision is broad enough to and it does include the foreclosure of land contracts by action. This sentence is a part of the same section that specifically requires the agent or attorney foreclosing a mortgage to possess a power of attorney authorizing the foreclosure.

The plaintiff also suggests that the procedure followed for the foreclosure of the contract for deed fails to comply with the statutes in other respects, including- the form of the judgment entered. Section 32-1906 NDRC 1943, as amended by Chapter 217 SLND 1951, provides for the contents of the judgment to be entered in an action to foreclose a real estate mortgage or to cancel or foreclose a land contract. Among other things it says that

“The court under no circumstances shall have power to render a deficiency judgment for any sum whatever against the mortgagor or purchaser, or to the successor in interest of either, except as hereinafter provided.”

Then follows provision for the bringing of a separate action for a deficiency judgment, if the plaintiff has stated in his complaint that he will later bring a separate action for any deficiency. In this case no deficiency judgment is asked for or indicated in the complaint. The judgment entered provides that the property described in the contract for deed “be sold to satisfy the judgment entered herein.” It is clear to us that the judgment will be satisfied by a sale of the property and that no deficiency judgment will remain or can be obtained.

The plaintiff also contends that the contract could not be foreclosed without giving a notice of intention to foreclose, as required by Section 32-1920 NDRC 1943 in foreclosure of mortgages on real estate. The requirement that thirty days’ notice be given before the commencement of proceedings to foreclose a mortgage came into our law as Chapter 131 SLND 1919. It clearly applied only to mortgage foreclosures. It has been amended and expanded by a number of subsequent legislative enactments, but in none of them is there an express or implied indication that the requirement applies to foreclosure of other instruments than real estate mortgages. This requirement clearly has no application to the cancellation or foreclosure of contracts for the sale of real estate. The trial court did not err in entering judgment for the foreclosure of the contract for deed.

The plaintiff made a motion for a new trial and urged that the jury was guilty of misconduct in that they disregarded certain instructions of the court with reference to the amount to be awarded to the plaintiff in event they found in his favor. Our determination that the defendants must prevail as a matter of law and that the judgment notwithstanding the verdict must stand renders the specifications of error on the motion for new trial wholly immaterial to a disposition of the case. The judgment and order appealed from are in all respects affirmed.

BURKE, SATHRE, CHRISTIANSON and GRIMSON, JJ., concur.


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    COMFORD v. LOCKEN et al.
    No. 7355.
    Supreme Court of North Dakota.
    Dec. 23, 1953.
    Swendseid & Bekken, Stanley, for appellant.
    Eugene A. Burdick, Williston, for respondent.
   BURKE, Judge.

This is an action to determine adverse claims to real property. The complaint is in the statutory form. The defendants answered and counterclaimed, demanding that title to their respective interests in the described property be quieted in them. The trial court awarded judgment to the defendants and plaintiff has appealed from the judgment.

Upon an appeal from a judgment in a case tried without a jury, the appellant may proceed under Section 28-2732 NDRC 1943, and demand a trial de novo or he may proceed under Section 28-1809 NDRC 1943,. and demand a review of specified errors. First National Bank of Crary v. Bremseth, 60 N.D. 401, 234 N.W. 758, 762.

In this case appellant did not demand a trial anew upon appeal but elected to proceed by serving and filing specifications of errors. Upon such an appeal the statute, Section 28-1809, supra, precisely sets forth what the contents of the specifications of error shall be. It reads as follows :

“A party desiring * * * to appeal from a judgment or other determination of a district court * * except upon appeals triable de novo in the supreme court, shall serve with the * * * notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict * * * he shall so specify. * * * ”

In this case the designated “specifications of errors” served and filed with the notice of appeal are as follows:

“1. The court erred in finding that the defendant, Peter L. Locken, has an estate in fee simple in certain real property situated in. Mountrail County, North Dakota, described as follows:

Bast half of Northeast Quarter (EVzN'EVi.)
Northwest Quarter of Northeast Quarter (NW%NE^
Northeast Quarter of Southeast Quarter (NE%SBW
Section Fourteen ( 14)
Township One Hundred Fifty-seven (157)
Range Ninety-three ( 93)

and entitled to the immediate possession thereof.

“2. The court erred in finding that plaintiff's claims to the above described land are junior and inferior to the rights of the defendants.

“3. The court erred in entering judgment that the defendant, Peter L. Locken, is the owner in fee simple of the above described land and that the defendant Amer-ada Petroleum Corporation has a valid oil and gas lease on said land.

“4. The court erred in. refusing to find that plaintiff is the owner in fee simple .of the above described land.

“5. The court erred in refusing to enter judgment in favor of the plaintiff and against the defendants, quieting title in the plaintiff as against any and all claims of the defendants or either of them.”

Each of these so called specifications is simply a paraphrase of a statement that the court erred in making findings of facts and in entering judgment. Not a single reason as to why the findings and judgment are incorrect is specified. We cannot tell from the specifications whether appellant has appealed because of errors of law committed by the trial court or because of the insufficiency of the evidence. We considered similar specifications of error in First National Bank of Crary v. Bremseth, supra. In that case we said:

“The specification made by the appellant in this case would require an examination and weighing of all of the evidence to ascertain whether it is sufficient to sustain the finding of the trial court. This could only be done if the appeal were taken under section 7846, supra (Sec. 2B-2732 NDRC 1943). But, under the settled law of this state, the appeal here does not justify or permit a review of the evidence under that section. There is no specification of any error of law committed by the trial court, and upon the record before us the findings must he and are presumed to be based upon sufficient evidence.”

The language above quoted applies with equal force to the instant case and the judgment of the district court is therefore affirmed.

MORRIS, C. J., and GRIMSON, CHRISTIANSON and SATHRE, JJ., concur.


text:
    BJORNSON v. FIVE STAR MFG. CO.
    No. 7361.
    Supreme Court of North Dakota.
    Dec. 23, 1953.

      Emanuel Sgutt and Herman F. Wegner, Fargo, for appellant.
    Johnson & Hoghaug, Lakota, Johnson & Rausch, Bismarck, for respondent.
   BURKE, Judge.

This is an action for breach of contract. In his complaint, the plaintiff alleged that he is the inventor of, and the owner of letters patent upon, a device described as a cam lug battery terminal and bolt; and that on April 21, 1949, plaintiff and defendant entered into an agreement, by the terms of which defendant was to have exclusive license to manufacture and sell the patented device, the plaintiff was to have a royalty upon each of the devices sold and defendant was to purchase plaintiff’s stock on hand, materials and tools for the sum of $10,000; that in pursuance of the agreement defendant obtained samples from plaintiff, published circulars and catalogues advertising the device and sent its salesmen out in the territory to sell it and that thereafter defendant repudiated the contract. Plaintiff alleged several items of damage in the total sum of $34,100. The defendant, in its answer, denied that any final agreement between the parties had ever been reached and alleged that the claimed agreement was not evidenced by any written note or memorandum signed by the defendant and was therefore invalid under the statute of frauds.

Upon the trial of the case, the jury returned a verdict in favor of the plaintiff for the sum of $2,500. Defendant moved for judgment notwithstanding the verdict. This motion was granted and judgment was entered accordingly. This appeal is from the judgment.

The only issue to be decided is whether the evidence in the case was sufficient to make the question of the existence of a valid contract between the parties a question of fact for the jury.

The Five Star Manufacturing Company is engaged in the business of manufacturing automobile accessories at East Grand Forks, Minnesota. Through its sales manager it entered into negotiations with the plaintiff in March 1949 with the object of securing the exclusive right to manufacture and sell plaintiff’s patented device. As a result of these negotiations a meeting between the parties was arranged. This meeting took place on April 20, 1949 at the offices of the defendant in East Grand Forks. Present at the meeting were the plaintiff and Mr. Johnson, his attorney, Mr. Freeman, president of the defendant company, Mr. Mitchell, its sales manager and Mr. Vanyo, one of the company’s employees. At this meeting the terms upon which the plaintiff would license the defendant to sell his patented device were thoroughly discussed and it is evident that all parties were satisfied that an agreement had been reached as to the principal provisions which were to be incorporated into a written contract in the event that the parties decided to go ahead with the transaction. During the three weeks following this meeting negotiations were continued by an exchange of letters ending with a letter written by the president of the defendant corporation terminating the negotiations. No written contract was ever executed. Plaintiff however contends that the oral agreements reached at the meeting on April 20th constituted a contract and it is this claimed contract which he alleged was breached.

A determination of whether informal oral agreements as to provisions which are to be incorporated into a written contract, in themselves constitute a contract depends upon the intention of the parties as shown by the circumstances of the case. 17 C.J.S., Contracts § 49, page 391; 12 Am. Jur., Contracts § 25, p. 523; Annotation 122 A.L.R. 1232.

It is clear from the testimony of all the witnesses that at the meeting on April 20th, Mr. Freeman, the principal negotiator for the defendant, withheld his consent to the transaction until he should have an opportunity to discuss the proposition with Mr. Kincaid, one of the directors of the corporation. The arrangement made by the parties was that Mr. Freeman was to discuss the matter with Mr. Kincaid that evening and let Mr. Johnson know by phone the following day what the result of the discussion was. This was done and on April 22nd, Mr. Freeman confirmed the phone conversation with Mr. Johnson by letter which was as follows:

“This letter is intended to confirm my telephone conversation yesterday in which I told you it was our intention to accept Mr. Bjornson’s offer to manufacture his Cam Lug Cable Clamps.
“We would appreciate it if you would have Mr. Bjornson write us a letter of ‘intent’. We would also like to ask that you prepare an agreement along the lines of our discussion held Wednesday for our consideration and execution.”

This letter is not an acceptance of Mr. Bjornson’s offer. It is a statement of an intention to accept. It requested that a contract be prepared for consideration as well as execution. The clear import of the letter is that acceptance is to be made at some future time by the execution of a formal contract, the terms of which are still open to consideration. The same day Mr. Johnson wrote a letter to defendant’s sales manager in which he said:

“Andy (Mr. Freeman) called yesterday and advised me that you people are ready to go ahead with Mr. Bjorn-son’s proposition as we discussed it.
“This letter is being written as a preliminary to confirm our negotiations and agreement. It being understood that we will prepare the final contract as quickly as possible which will incorporate all the details of the agreement.
“Mr. Bjornson’s proposition was briefly this: (here follows a summary of the proposal)
“We suggest that upon receipt of this letter you write us a letter confirming that this letter contains the essential points of the agreement reached. We will then proceed immediately to the preparation of the contract.”

The statement by Mr. Johnson that the letter was “a preliminary to confirm our negotiations and agreement. It being understood that we will prepare the final contract * * ” implies an intention on his part that his client should not be bound until the final contract was executed.

On May 3rd, Mr. Johnson wrote Mr. Freeman as follows:

“I am enclosing herewith tentative draft of your contract with Mr. Bjorn-son. I wish you would have your attorney look this over and let us have his opinion on the same or any 'changes you are going to request or insist on * ⅜

The whole tenor of this letter is inconsistent with the contention that a final agreement had been reached. According to its terms the draft of the contract is tentative and the defendant still has the right to request or insist on changes.

On May 4th Mr. Freeman wrote to Mr. Johnson as follows:

“Mr. Mitchell has shown me your letter of April 22nd regarding the preliminary terms which you have prepared for our review and comment.
“With reference to paragraph four, we here in Grand Forks are in agreement that we did not understand that the 2‡ royalty applied to the first 500,-000 units of each year’s production with 1‡ on all units thereafter. * *”

To this letter Mr. Johnson replied on May 6th.

“You have undoubtedly now received the tentative draft of the contract. It is my suggestion that you go over it in detail.
“I suggest that we get this contract as far along as possible so that we know all of the points of difference before we have a conference. At that conference let us try to iron out our differences and reach a final written contract. * * * The way to bring this to a close is to agree on what we disagree on and then see if we can finally get together by giving a little here or there on both sides.”

As expressed in these two letters, the attitude of plaintiff’s attorney and of defendant’s president was that no contract had yet been made and that the terms upon which the final contract would be made were still open to negotiation.

On May 14th, Mr. Freeman ended the negotiations by a, letter in which he stated that he did not believe a satisfactory agreement could be reached.

We think the letters of the plaintiff’s attorney and of defendant’s president affirmatively demonstrate that the negotiators intended that neither party should be bound until the final contract was executed. Since negotiations were abandoned before that contract was executed, there was no contract which can be made the basis of a cause of action. Metzler v. O. J. Barnes Co., 58 N.D. 455, 226 N.W. 501; Palen v. Pierce, 44. S.D. 316, 183 N.W. 973; Marti v. Ludeking, 193 Iowa 500, 185 N.W. 476; Dexter v. Ankiewicz, 26 Cal.App.2d 326, 79 P.2d 400.

It follows that the decision of the district court granting the motion for judgment notwithstanding was correct.

The judgment is affirmed.

MORRIS, C. J., and SATHRE, CHRISTIANSON and GRIMSON, JJ., concur.


author: GRIMSON, Judge.

text:
    DAHL v. NORTH AMERICAN CREAMERIES, Inc. et al.
    Nos. 7383-84.
    Supreme Court of North Dakota.
    Dec. 16, 1953.

      Fred J. Graham and J. B. Graham, Ellen-dale, and H. I. King, Jr., Aberdeen, S. D.,. for plaintiff-appellant.
    T. L. Brouillard, Ellendale, and Ray F-Williamson, Aberdeen, S. D., for defendants-appellants.
   GRIMSON, Judge.

On March 25, 1952, a collision occurred between a car driven by Maynard Dahl and a truck of the defendant, the North American Creameries, Inc., driven by the defendant, James McPhail. In that collision both the father and mother of the plaintiff received fatal injuries. They died within two days. Plaintiff was their only child. Two actions were brought by the plaintiff against the same defendants for damages, one for loss of plaintiff’s mother and the other for the loss of plaintiff’s father. The titles of both actions are indentical. In both actions plaintiff alleges the collision was caused by the negligence of the defendant, James Mc-Phail. Defendants deny that and allege the collision was caused by the negligence of Maynard Dahl. The cases were tried separately to two different juries. Substantially the same evidence was offered in both cases. The same procedure was had; the same motions and the same rulings were made in each case. The district court decided both cases in one memorandum opinion. The same issues are involved on the appeals in both cases. The cases were argued together in this court. It is most expedient, therefore, to consider both cases in one opinion, treating separately only the facts and damages pertinent to each case.

At the close of the testimony in each case the defendants made a motion for a directed verdict in their favor on the ground of the insufficiency of the evidence which motions were denied. The jury in the case for damages on account of the mother’s death rendered a verdict on Oct. 13, 1952, in the sum of $7500 in favor of the plaintiff and the jury in the case of the damages for the father’s death rendered a verdict, on Oct. 15, 1952, for $10,000. Immediately upon the announcement of the verdict in each case the defendants made an oral motion for judgment notwithstanding the verdict upon the same grounds as had been alleged in the motions for directed verdict, or in the alternative, for a new trial on the grounds that the verdicts were patently excessive and rendered under the influence of passion and prejudice. In both cases the attorneys expressed a desire to be heard on those motions. About a month later a written notice of motion and a written motion to set aside the verdict and for a new trial together with specifications of error in each case were served upon plaintiff’s attorneys. A hearing on all these motions was had on Dec. 4, 1952. On Jan. 23, Í953, the court filed his memorandum decision covering both cases, granting a new trial in each case on the ground “that the verdicts are so excessive that the court can reach but one conclusion and that is that the verdicts were rendered under the influence of passion and prejudice.” A separate order granting the motion for a new trial in each case was signed by the court on Jan. 29, 1953. On Feb. 27, 1953, an amended order in each case was signed by the court denying the motions made for judgment notwithstanding the verdict and again granting a new trial in each case. The defendants appeal from the orders of Feb. 27th., insofar as they denied the motions for judgment notwithstanding the verdict. Plaintiff appeals from the orders of Jan. 29th granting new trials and also from the amended orders of Feb. 27th insofar as they purported to grant new trials.

The evidence shows that in the afternoon of March 25, 1952, Mr. and Mrs. Maynard Dahl and their ten year old daughter, Nancy Louise, of Ellendale, North Dakota, were returning home from a trip-to Britton and Aberdeen, South Dakota, on U. S. Highway No. 281. That was a quite level highway, black top, 22½ feet wide. A heavy fall of snow had formed drifts across the highway. To keep the highway open for travel cuts had been made through those drifts with a snow plow. Such cuts varied somewhat in width and the snow banks along the cuts were in places from four to seven feet high. In one of those cuts on the highway, which was some 400 feet or more in length, a collision occurred between the 1941 Ford driven by Maynard Dahl, and an International K.B.-ll tractor trailer combination owned and operated by the defendant, North American Creameries Company, Inc. and driven by Defendant, James McPhail. That combination was 44½ feet long, 8 feet wide, weighing empty, 25,000 lbs., and at the time was carrying an 11,000 pound load. R had dual wheels on the rear of the tractor and tandem dual wheels on the rear of the trailer. The Ford was 6 feet wide.

The Dahl car coming from the south entered the cut first and was almost through it before the collision occurred. The defendant’s truck came from the north. The driver, McPhail, had driven through other cuts prior to reaching this one and had had to stop in one place to let a car that was in a cut get through before he entered it. He testified that he saw the Dahl car when it was at least a half mile away from him. He saw it enter the cut and almost reach the north end before he entered the cut. He did not, however, wait to let the Dahl car get through. Instead he proceeded into the cut at the admitted speed of 35 to 40 miles per hour to where the collision occurred about 50 feet from the north end. He made no effort to stop or put on the brakes. The sun had been shining that day and there was some slush and snow in the bottom of the cuts causing the road there to be somewhat slippery. McPhail claims to have been driving on the right hand side of the road, and that the front end of the Dahl car.had swerved over across the center line into his side of the driveway just before the collision occurred. Nancy Louise was sitting on the left front seat of the Dahl car looking at the snow banks. She denied that her father’s car had swerved and testified that her father was driving straight ahead on his side of the highway at a speed of 20 to 25 miles per hour. McPhail claims he was driving 35 to 40 miles per hour; that he turned into the snow bank on the right side to try to avoid the collision; that his trailer then began to jacknife; that he put on the power to get out of the snow to straighten it; that he then applied his brakes and stopped about 350 feet from the point of the collision. The momentum of the Dahl, car carried it 50 feet north after the collision where it stopped facing west with its front wheels on the center of the road. The pictures taken of the Dahl car after the accident show that the left side of the Dahl car was caved in. The. left front fender of the truck was crushed, left rear tire and the left driving wheel were damaged and there was “quite a dent” made in the left, front corner of the trailer. The plaintiff testified that at the place of collision the snow bank on the east was 6 or 7 feet high. The defendant, McPhail, testified that the snow bank on the west .was 3½ to 4 feet high. The evidence' is in conflict as to the distance between the banks. Three witnesses for the plaintiff testified that the width, according to their estimate was 15 to 18 feet. Shortly after the collision the highway patrolman, a witness for the defendants, measured the width with a tapeline, claiming the distance between the ’ banks was 21 feet “on the tape.”. The patrolman had McPhail, the interested driver, hold one end of the tape. Whether that was the distance between the banks as they were after McPhail had driven his truck into the snow bank and naturally widened the space between the banks is not shown.

The decision on a motion for judgment notwithstanding the verdict is but deferred action on the motion for a directed verdict made at the close of the evidence. The decision is made on the evidence as it stood at that time. On such motions the evidence is considered in the light most favorable to the verdict. Bormann v. Beckman, 73 N.D. 720, 19 N.W.Zd 455; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476. The motion for judgment notwithstanding the verdict can only be granted if at the time of the motion for directed verdict the party making such motion was entitled to a judgment as a matter of law. Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456. Such party would not be entitled to such judgment if there was any conflict in the evidence upon which a jury should pass! ín Nelson v. Scherling, 71 N.D. 337, 341, 300 N.W. 803, 804, this court said:

“On a review of an order denying a motion for judgment notwithstanding the verdict, this court is limited to a consideration of the evidence. If the record is such that there was some is- . sue of fact to submit to the jury, and the jury rendered a verdict thereon, then it is clear the motion for judgment notwithstanding the verdict should be denied.” See also Aetna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W, 436; Cunningham v. Great Northern Railway Co., 73 N.D. 315, 14 N.W.2d 753; Zink v. Lahart, 16 N.D. 56, 110 N.W. 931; State Bank of Maxbass v. Hurley Farmers Elev. Co., 33 N.D. 272, 156 N.W. 921.

The evidence discloses that there was a •conflict as to the width of the cut in which the collision occurred; as to whether or not the Dahl car swerved to his left side of the road, and as to the speed at which the Dahl car was going. The evidence raises the •question as to the speed with which defendant’s truck was being driven. There is a dispute as to whose negligence was the proximate cause of the injury. Clearly there is evidence to warrant the submission ■of the case to the jury. Defendants were not entitled to judgment as a matter of law. There was no error in the denial of the motions for judgment notwithstanding the verdicts.

On the motions for a new trial defendants filed written 'specifications of error. Among them were some specifications of errors at law in the admission of testimony and in the instructions of the court to the jury. Such specifications of error, however, were not argued on appeal, •and will be deemed abandoned. Then the specifications go into some detail in regard to defendants’ claim of insufficiency of the evidence to show that the negligence of McPhail was the proximate cause of the collision. They also assert that the evidence was insufficient to warrant the amount of damages awarded and alleges that the damages were .awarded under the influence of passion and prejudice. '

Sec. 28-1906, NDRC 1943=provides:

“With all orders granting or refusing .a new trial, the judge, shall file-a writ- ■ ten memorandum concisely stating the different grounds on which his ruling is based, and unless the insufficiency or unsatisfactory nature of the evidence is expressly stated in such memorandum as a reason for granting the new trial, it shall 'be presumed, on appeal, that it was not on that groundl”

The court did write a memorandum on granting the new trials. The grounds for granting the new trials as stated by the court in that memorandum are as follows:

“Under the evidence offered by the plaintiff the verdicts are so excessive that the court can reach but one conclusion and that is that the verdicts were rendered under the influence.of ' passion and prejudice.”

The court does not make any reference in his memorandum to the claimed insufficiency of the. evidence to show that the negligence of the defendants was the proximate cause of the collision. It will be presumed, therefore, that that was not ground for the granting of a new trial. The only ground mentioned by the court in his memorandum for granting the new trials was that the verdicts were so excessive that he concluded they were rendered by the jury under the influence of passion and prejudice. Only the evidence and law 'bearing on that question will be considered.

On the appeal plaintiff specifies as error the granting of the motions for new trials on the grounds that the damages awarded were excessive and further that the court abused his discretion granting new trials on that ground.

This action is brought under Sec. 32-2101, ND'RC 1943, providing that damages may be recovered when the death of á person is caused by the wrongful act, neglect or default of another in cases .when such person or corporation would . have been liable for damages if death had not ensued. Sec. 32-2Í02, NDRC 1943 provides:

. “In an action brought under the provisions of this chapter, the jury shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery.”

The rights of action in such matters being entirely statutory the statutory rule is the only measure of damages. Under the statute the amount of damages is left entirely with the jury except that the damages shall he proportionate to the injury resulting from the death to the person entitled to recover. In an action for damages for wrongful death it is the province of the jury, under proper instruction from the court, to determine the amount of the damages from the facts and circumstances of the case before it. The jury in fixing the damages has a wide range of discretion.

In Schumacher v. Storberg, 69 S.D. 103, 7 N.W.2d 141, 143, the court says:

“Appellants stress the lack of proof of damages, claiming that the verdict was excessive. The amount of damages to be recovered in a death case under our holdings seems to be a matter to be left to the fair and intelligent judgment of the trial jury, as no exact formula and standard can be definitely prescribed to measure the exact amount of damages. (Citing cases.) In Bottom v. Kamen, 43 S.D. 498, 180 N.W. 948, this Court held that there was no mathematical rule or formula by which damages in this class of cases must or should be computed by courts or juries, and that the jury might draw inferences from material matters shown by the evidence and thereby arrive at reasonably and approximately the correct amount of damages in cases where computation of such damages are practically incapable of proof by direct evidence.”

In S Sutherland on Damages, 4th Ed. § 1267 p. 4893, it is said.:

“The jury is not confined in estimating the damage to any exact mathematical calculation, but is vested with considerable discretion, with which the courts will not interfere unless it has been abused.”

The defendants contend that the pecuniary value of the services lost by the injured person is the measure of damages. Many courts, including this court, have held that the pecuniary value of that which the beneficiary could expect to receive from the per&on on account of whose death the action was brought may be considered by the jury in determining the damages. Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096. That does not allow the consideration of any damages by way of sola-tium for the injured person for loss of affection and injured feelings, nor does it allow the consideration of any damages by way of punishment of the wrongdoer. It does, however, allow the jury to consider any services of monetary value to the beneficiary no matter how difficult of appraisement.

This court, speaking through Judge Christianson, in Umphrey v. Deery, 78 N.D. 211, 218, 48 N.W.2d 897, 905, concluded that:

“The term ‘pecuniary’ as applied to damages allowable under a death statute has been considered by legal writers and by the courts of last resort in many jurisdictions. In some of the states the term ‘pecuniary’ occurs in the statute providing for an action for wrongful death thus restricting damages recoverable in such action to pecuniary injuries or pecuniary losses, and where the term ‘pecuniary’ is found in the statute the courts have held that it should not be construed or applied in a strict narrow sense and as meaning only the immediate loss of money or property. 5 Sutherland on Damages, 4th ed., p. 4859; Tilley v. Hudson River R. Co., 24 N.Y. 471, 475-476; McIntyre v. New York Central R. Co., 37 N.Y. 287; The St. Lawrence and Ottawa Railway v. Lett, 11 Can Sup.Ct.Reps. 422. And obviously the term ‘pecuniary’ should not be given a more narrow or restricted meaning where it is in effect inserted in the statute by judicial interpretation than where it has been inserted in the law by the lawmakers.”

Tiffany in his work on Death by Wrongful Act, 2d Ed. § 158, p. 332, says:

“The use of ‘pecuniary’ to designate the kind of loss for which recovery can be had is misleading, for the damages are by no means confined to the loss of money, or of what can be estimated in money. * * * The word has been used rather for the purpose of excluding from the recovery damages to the feelings and affections than of confining the damages strictly to those injuries which are ‘pecuniary’ according to the ordinary definition.”

In 16 Am.Jur. § 182, Death, p. 122, it is said:

“The word ‘pecuniary’ where it occurs in death statutes, is not used in a sense of the immediate loss of money or property. It looks to prospective advantages of a pecuniary nature which have been cut off by the premature death of the person from whom they would have proceeded. Pecuniary loss is, therefore, not dependent upon the actual earning of money or money’s worth or contributions to the support of the beneficiaries at or before the date of the death, where there was a reasonable expectation of pecuniary benefit from the continuance of the •life. It consists not only of the loss of financial assistance which the beneficiaries might reasonably be expected to have received from the deceased had his career not been shortened by the act of the defendant, but also the loss of other things which have a pecuniary worth. See also McIntyre v. New York Central R. Co., 37 N.Y. 287, 295. See Annotation 74 A.L.R. 95 and cases cited.”

Thus it is generally held that damages, •even under the pecuniary construction of the measure of damages, are not limited to •damages from the loss of money or income. The loss of any and all services which a child would probably have received from his father or mother may 'be considered by .the jury in determining the verdict.

In determining the amount of damages to the plaintiff the jury had a right to consider the value of the nurture and instruction, moral and physical, the training and protection which a father or mother gives to their child. See Annotation 74 A.L.R. 95 and cases cited.

The jury in considering the loss to the plaintiff by the death of the father or mother is not limited to the time during which she is a minor if it can conclude from the evidence that such services would have continued after she attained her majority. There is no such limitation in the statute nor is there any such limitation in the value of the mother’s service or a father’s protection to a daughter at the critical period of her life when she is about to enter the more or less distinct and separate life upon attaining her maturity. Damages are not restricted to the loss of benefits to which plaintiff had a legal right. Texas & Pacific R. Co. v. Wilder, 5 Cir., 92 F. 953; Redfield v. Oakland Consolidated Street Ry. Co., 110 Cal. 277, 42 P. 822, 1063; Peters v. Southern Pacific Co., 160 Cal. 48, 116 P. 400; Bond v. United RR’s of San Francisco, 159 Cal. 270, 113 P. 366, 48 L.R.A.,N.S., 687; Tilley v. Hudson River R. Co., 29 N.Y. 252, 86 Am.Dec. 297; See also Annotation 74 A.L.R. 111. The jury also had a right to consider the reduced purchasing power of the dollar. Dedman v. McKinley, 238 Iowa 886, 29 N.W.2d 337.

The memorandum decision of the district court discloses that in passing on the amounts of the verdicts he based his conclusion solely on the loss of the present monthly income of the father and during her minority. He writes:

“The evidence in the matter of damages is not in dispute. The father and mother at the time of their demise were about 50 years of age. The father had accumulated no substantial amount of property at the time of his death. There is no evidence of separate property on the part of the mother, nor is there any evidence relative to the earning capacity of the mother. It was evident that the father was dependent upon his daily labor for the support of himself, his wife and his daughter, and that his income was about $40.00 per week. The evidence further discloses that the cost of the care and education of the plaintiff until she reaches maturity would 'be about $50.00 per month, According to the expectancy tables the court would be justified in assuming that if no accident had occurred the -father and mother would both have lived until after the maturity of the daughter. The jury in the case involving the mother brought in a verdict of $7500.00 and in the case of the father a verdict of $10,000.00. There was but one child, the plaintiff in these actions, who at the time of the death of her parents was between 10 and 11 years of age. If the father had lived with an earning capacity of about $2000 a year, out of this sum he would have had to support himself, his wife and his daughter. Under the verdicts as rendered, if the money was placed to yield a small rate of interest such as a savings bank would give, the verdicts would afford the plaintiff during her minority more than $2000 annually, in fact, more than the total earning capacity of the father, under the evidence.”

It is clear that only such monetary value of the services of plaintiff’s father and mother as could be mathematically computed were considered by the court. There is no reference to the training, the care and nurture given by a mother to her daughter, nor to counselling and special protection the plaintiff would receive from her father and mother during her formative years, nor to their services for her in securing education and preparation for her future life. Had the court considered those matters he would have found more grounds for the juries’ verdicts.

The Damages and Verdict in the Mother’s Case.

The evidence in the case shows that plaintiff’s mother was 48 years of age and had a life expectancy of 22.36 years. That she was keeping house for the plaintiff and plaintiff’s father in the house provided by the father. At the time of the accident plaintiff was 10 years old. The evidence shows she was.then in the 5th grade. That shows she was advanced for her age and indicates the care and the interest of her mother in keeping her in school. That indicates also the attitude of the mother to provide for the plaintiff the training and education which would make her better able to meet the problems of life as they arose. The plaintiff had a right to look forward to that care, advice and counsel for the 22.36 years of normal expectancy of her mother’s life whenever she needed it. The jury is not limited in determining the value of a mother to the plaintiff to the services and care that would be given to the plaintiff by hired substitutes. No one can take the place of a good mother in the development of a child.

“It has frequently been held, how- ’ ever, that damages are not confined to the loss of such education as is procurable only by pecuniary means, but that they may be given for the loss of the personal care, training and instruction of a parent, and even of a mother where' father still survives.” Tiffany, Death by .Wrongful Act, 2d ed. § 162, p. 344.
“It is certainly possible, and not only so, but highly probable, that a mother’s nurture, instruction, and training, 'if judiciously administered will operate favorably upon the worldly prospect and pecuniary- interests of the child * * * If they (the children) acquire health, knowledge, and a sound bodily constitution, and ample intellectual development under the judicious training and discipline of a competent and careful mother, it is very likely to tell favorably upon their pecuniary interests.” Tilley v. Hudson River R. Co., 24 N.Y. 471; Id., 29 N.Y. 252, 86 Am.Dec. 297.

The jury awarded to' the plaintiff $7500 for the loss of her mother from whom she had a right to expect that training only a mother can successfully give. If that is apportioned among the next ten years of her life when plaintiff is in most need of that training it only amounts to an average of $750 a year or.about $2.10 a day. Certainly a mother’s loving care, training and counsel is of more value than that over and above the care any stranger could give her, even when figured on the basis of pecuniary value. It will make her a stronger and abler young woman. All this the jury had a right to consider. To us the verdict does not seem unreasonable.

The Damages and Verdict in the Father’s Case.

The testimony shows that the father, Maynard Dahl, was 46 years of age; that for about three years prior to his death he had been working in a hardware store at an average weekly pay of $40 per week; that the employer would have continued him in that employment; that he maintained a home for his wife and daughter in Ellendale. The evidence further shows that he had the interest of a father in the welfare of his daughter. The fatal trip to Britton, South Dakota, was, taken to obtain treatment for the plaintiff with a Dr. Graff. There is no claim that the father was not in good health. His life expectancy was 23.80 years.

The plaintiff had a right to expect from her father not only support by the way of nurture, clothes and housing but also the care.and protection of a father. She is deprived of that. Those are services that cannot be supplied as well by anyone other than the father. Every young girl now has the right to expect her father'to provide her special training along whatever line of work she plans to enter. All these services are certainly of pecuniary value to a growing child. The presumption is that the plaintiff would have those valuable services from her father during her growth and development and even after that as she might need them during his life- expectancy. ■

In Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897, 899, this court held:

“In an action for the benefit of the surviving wife and surviving minor children for the wrongful death of the husband and father who had been discharging his obligation to support his wife and children and was discharging such obligation at and immediately pri- or to his death, it will be presumed that such surviving wife and surviving minor children sustained a substantial pecuniary loss from the death of the husband and father.”
“The law will imply a pecuniary loss in some amount to the wife and children by the death of the husband and father who was at the time employed and presumably receiving wages, and therefore able to discharge his obligation to support them. The presumption is in favor of substantial damages.” 5 Sutherland on Damages, 4th ed. § 1267, p. 4894.
“A presumption of pecuniary loss exists in favor of one legally entitled to Service or support from one killed by the wrongful or negligent act of another. Where the relation of husband and wife, or of parent and minor child exists, the law generally presumes a pecuniary loss to the survivor from the fact of death so that proof thereof is not required, unless he has in some way forfeited his claim”. 25 C.J.S., Death, ■§ 118, pages 1284-1285.

Plaintiff’s damages on account of the loss of such services and training are elements the jury had a right to consider. The pecuniary value of the loss of the support, protection, and counsel of her father and of the special training she had a right to expect was a matter-for the jury to determine. The jury may also consider the possibility that Maynard Dahl might be able to better his position with continued service in the hardware business. Kennelly v. Northern Pacific Railway Co., 48 N.D. 685, 700, 186 N.W. 548.

The evidence shows that the support of plaintiff now costs $600 per ’ year and that that cost will increase greatly as she advances in school, especially if she enters college. Add to thát the value of the services, protection and education that would be provided by the father the verdict of $10,000 does not seem unreasonable.

The Granting of New Trials.

The district court granted new trials on the grounds that the verdicts were influenced by passion and prejudice. The plaintiff claims the court abused his discretion in so doing.

The court has power to grant a new trial for excessive damages only if it appears that the verdict was given under the influence of passion and prejudice. Su'b. Sec. 5, Sec. 28-1902, NDRC 1948.

A verdict will not be disturbed on that ground unless the amount of damages is obviously so disproportionate to the injury as to justify the conclusion that the verdict is not the result of the cool and dispassionate judgment of the jury. This court in Umphrey v. Deery, 78 N.D. 211, 219, 245, 48 N.W.2d 897, 915, says:

“In actions for damages for wrongful death the jury is vested with a large discretion in fixing the amount of damages. 25 C.J.S., Death, § 115, p. 1265; 5 Sutherland on Damages, 4th ed., pp. 4892-4894, and while the discretion of the jury in such cases is subject to the supervision of the court, a verdict may be interfered with on the ground of excess only where it is manifest that the amount awarded is not within the evidence and was influenced by passion or prejudice. NDRC 1943, 28-1902; Whaley v. Vidal, 27 S.D. 642, 132 N.W. 248; Whaley v. Vidal, 27 S.D. 627, 132 N.W. 242; 25 C.J.S., Death, §§ 115, 116, pages 1266-1267.”

The burden is on the party seeking a new trial to show effectively and satisfactorily that the verdict is excessive and to what extent. “The amount, so it is said, must appear to be unreasonable or outrageous, or such as to manifest, on the part of the jury, mistake, misapprehension of duty, or misconduct, indicating that they were influenced by passion and prejudice.” 39 Am.Jur. New Trial, § 144, p. 150.

“In order to justify the granting of a new trial on the ground that the amount of the verdict is excessive, the fact that the award is excessive must be plain or evident. It is not sufficient for the party seeking a new trial merely to raise a doubt as to whether the damages are too large, he must show affirmatively and satisfactorily, that they are so and to what extent. The amount, so it is said, must appear to be unreasonable or outrageous, or such as to manifest, on the part of the jury, mistake, misapprehension of duty, or misconduct, indicating that they were influenced by passion or prejudice.” 30 Am.Jur. § 144, p. 150.
“Only where the award appears to be unconscionable or clearly not warranted by the record, should the judgment of the jury, in such matters, be disturbed.” Dunham v. Des Moines Ry. Co., 240 Iowa, 421, 35 N.W.2d 578, 583, 584.

What warrants setting aside a verdict? The formula which has been most frequently used is to the effect that to warrant interference the verdict must be so flagrantly outrageous and extravagantly excessive as to appear, at first blush, to have been given under the influence of passion, prejudice or corruption. See Brown v. Beck, 63 Cal.App. 686, 220 P. 14; Weaver v. Shell Oil Co., Cal.App., 49 P.2d 857; Bond v. United Railroads, 159 Cal. 270, 113 P. 366, 48 L.R.A.,N.S., 687; Varcoe v. Lee, 180 Cal. 338, 181 P. 223; Aldrich v. Palmer, 24 Cal. 513, 516; Doolin v. Omnibus Cable Co., 125 Cal. 141, 144, 57 P. 774; Anderson v. San Francisco-Oakland Terminal Railways, 61 Cal.App. 21, 214 P. 289; Redfield v. Oakland Consol. St. Railway Co., 110 Cal. 277, 42 P. 822, 1063; Tedford v. Los Angeles Electric Co., 134 Cal. 76, 66 P. 76, 54 L.R.A. 85; 13 Cyc. 123.

There is no evidence in the case at bar of any acts or circumstances indicating passion or prejudice on the part of the jury in either case. The District Court cites only the amounts of the verdicts as indicative thereof. We are all agreed that these verdicts are not so large as to show on the face of them that they are the result of passion and prejudice.

“The value of the counsel, advice, guidance, loving care, and solicitude of both mother and father would be difficult of ascertainment in money and must be left to the sound judgment of a jury, where it is not shown that such judgment was swayed beyond reason and common sense by passion or prejudice.” Halbrook v. Williams, 185 Ark. 885, 50 S.W.2d 243, 245.

The District Court erred in granting new trials on the grounds of excessive verdicts. The orders of the District Court setting aside the verdicts and granting new trials are reversed and the cases are remanded with directions to re-instate the verdicts and judgments originally entered.

MORRIS, C. J., and CHRISTIANSON, SATHRE and BURKE, JJ., concur.