author: GRONNA, District Judge.

text:
    Paul SCHAFF, Plaintiff and Respondent, v. J. K. KENNELLY and Mary Kennelly, Defendants and Appellants.
    No. 7499.
    Supreme Court of North Dakota.
    April 1, 1955.

      J. K, Murray, Bismarck, for plaintiff and respondent.
    Kelsch & Scanlon, Mandan, for defendants and appellants.
   GRONNA, District Judge.

Defendants, Kennedy, seek to appeal from an interlocutory order of the district court of Morton county denying three motions made by them, to-wit:

(1) A motion for judgment on the pleadings; and

(2) A motion for dismissal of the action on the merits, and with prejudice, (and without a trial on the merits) because this is, allegedly, a second action upon a former adjudication, Schaff v. Kennedy, N.D., 61 N.W.2d 538, whereby plaintiff and respondent’s cause of action herein became res judicata; and

(3) A motion for the issuance by said trial court of an order certifying controlling questions of law to this, the Supreme Court, for final review and determination, pursuant to the provisions of R.C.1943, chapter 32-24, the source of which is Laws 1919, chapter 2, 1925 Supp. §§ 7849bl to 7849b3, and District Court Rule no. 17.

Respondent, Schaff, moves that this court dismiss this attempted appeal because said interlocutory order is not appeal-able. Such motion to dismiss this appeal must be granted, and accordingly we cannot in any manner pass upon the merits of this action, or determine the questions raised and discussed in the briefs concerning the merits. Wall v. First National Bank, 49 N.D. 703, 193 N.W. 51. So far as the merits of this action are concerned, they are not before us, and still remain pending in the court below, the district court. Ostlund v. Ecklund, 42 N.D. 83, at page 86, 171 N.W. 857, at page 858.

Interlocutory orders are not appealable unless made so by statute. Ostlund v. Ecklund, supra; Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560; Union Brokerage Co. v. Jensen, 74 N.D. 154, 20 N.W.2d 343. Appeals from interlocutory orders are entirely the creation of statute, and will lie only in the cases authorized by the statute, R.C.1943, § 28-2702, Comp.Laws 1913, § 7841. Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Union Brokerage Co. v. Jensen, supra; Schillerstrom v. Schillerstrom, 74 N.D. 761, at page 762, 24 N.W.2d 734, at page 735; Zenker v. Winder, N.D., 68 N.W.2d 671. See Stormon v. District Court, 76 N.D. 713, at page 718, 38 N.W. 2d 785, at page 787; Neff: The “Reviewable Orders” Statute (1952) 28 N.D.L.Rev. 186; Cunningham: Appealable Orders in Minnesota (1953) 37 Minn.L.Rev. 309.

We are not concerned with the question of whether the order herein is “reviewable” upon an appeal from a judgment, R.C.1943, § 28-2728; Stormon v. District Court, supra, 76 N.D. at page 718, 38 N.W.2d at page 787; Neff: The “Reviewable Orders” Statute, supra, p. 186, for the obvious reason that this action has not been tried on its merits. The issue before us is whether the order is appealable.

R.C.1943, § 28-2801, defines an “Order” thus:

“Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.”

R.C.1943, § 28-0901, defines a “Judgment” thus:

“A judgment is the final determination of the rights of the parties in an action.”

In North Dakota there are no judgments other than final judgments. Universal Motors v. Coman, 73 N.D. 337, 15 N. W.2d 73.

Insofar as respondent’s motion to dismiss this appeal is concerned, it makes no difference that the three motions were denied in a single order rather than several orders, because an order appealable in part and nonappealable in part will present for review that part which is appealable. See Marty v. Nordby, 201 Minn. 469, 471, 276 N. W. 739, 740, quoted in Cashen v. Owens, 225 Minn. 25, 29 N.W.2d 440, 442.

Inasmuch as all appeals are statutory, and R.C.1943, § 28-2702, supra, enumerates and specifies what orders are appealable to the Supreme Court, we must examine such statute to determine whether, with respect to one or more of the three-motions, such interlocutory order is of a kind which is among the enumerated orders. 28-2702 embraces seven subdivisions or paragraphs numbered from 1 to 7. Subdivisions numbered 2, 3, 4, 6 and 7 may be dismissed from consideration without comment, because they are obviously inapplicable to the order in question. The remaining subdivisions read as follows:

“The following orders when made by the court may be carried to the supreme court :
“1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;
******
“5. An order which involves the merits of an action or some part there-q£* ‡ ‡ ‡ ^

The Honorable J. H. Newton, Clerk of the North Dakota Supreme Court, has published an article in 27 N.D.L.Rev. 155 (April, 1951) entitled “Appellate Practice and Procedure in North Dakota,” and at pages 161 and 162 there is an enumeration of appealable and nonappealable orders.

Under subdivision 1 of section 28-2702, it is not enough that an order affects a “substantial right.” To be appeal-able'under subdivision 1, two other elements are made essential, namely, the order must be of a certain character and have a certain effect upon the action, to-wit: first, it must be an order which “in effect determines the action”, and, second, must so operate as to prevent “a judgment from which an appeal might be taken.” Zenker v. Winder, supra; Persons v. Simons, 1 N.D. 243, 46 N.W. 969; Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Neff: The “Reviewable Orders” Statute, supra, pages 189 to 194. It is clear, insofar as subdivision 1 is concerned, that statutory permission has not been granted to appeal the kind of an interlocutory order here in question.

The remaining question is whether the appeal can be upheld under subdivision 5, supra, and based upon our construction thereof in previous cases we conclude that it cannot be upheld and must be dismissed. The crucial question in previous cases was whether the order “involves the merits”, and a solution of this question necessitated a construction of the meaning of such phrase; An order which “involves the merits”, within the meaning of the statute, must be decisive of the question involved in the cause or of some strictly legal right of the party appealing as distinguished from mere question's of practice. Hauser v. Security Credit Co., 66 N.D. 399, 406, 266 N.W. 104, 107; Ostlund v. Ecklund, supra, 42 N.D. at pages 84 and 85, 171 N.W. at pages 857 and 858; Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560;

“In short, the statute impliedly contains a distinction between those orders which affect a substantive right of the parties to an action, and those orders which affect a right which is merely procedural in character.” Neff: The “Reviewable Orders” Statute, supra, 28 N.D.L.Rev. 186 at 199.

We have construed the phrase "an order which involves the merits of an action or some part thereof”, 28-2702, subd. 5, as embracing orders which pass upon the substantial legal rights of the party complaining, whether such rights do or do not relate directly to the cause of action or subject matter in controversy. Hauser v. Security Credit Co., supra, 66 N.D. at page 406, 266 N.W. at page 107; Ostlund v. Ecklund, supra, 42 N.D. at page 85,171 N.W. at pages 857 and 858; Northern Pacific R. Co. v. Barlow, 20 N.D. 197, 208,126 N.W. 233, 237; 4 C.J.S., Appeal and Error, § 99, note 12, citing Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357, as does 3 C.J. 452, and 16 A.L.R. 2d 1037 and 1 A.L.R.2d 425.

On the other hand, an order is not appealable under such a provision as subdivision 5, supra, uiiless, in effect, it finally determines some positive legal right of appellant relating thereto. 4 C.J.S., Appeal and Error, § 99, note 13; Ostlund v. Ecklund, supra; 2 Am.Jur., Appeal and Error, sec. 21; 14 A.L.R.2d 462 and 467 ; 37 A.L.R. 2d 591.

“An order which leaves the point involved still pending before the court, and undetermined, does not involve the Merits.” Ferguson v. Jensen, supra, 76 N.D. at page 650, 38 N.W.2d at page 562.
“ ‘Where statutes allow an appeal' from interlocutory orders "affecting a substantial right” or “involving the merits,” an order in the nature of a final judgment decisive of some question or point in the case is meant, as distinguished from mere rulings on matters of practice arising during the progress of the cause.’ 2 Encyclopedia PI. & Pr. 75.” Ostlund v. Ecklund, supra, 42 N.D. at page 84, 171 N.W. 857; In re Glavkee’s Estate, 75 N.D. 118, 122, 25 N.W.2d 925; Burdick v. Mann, 59 N.D. 611, 615, 231 N.W. 545.

Applying the foregoing principles, We held, in Wall v. First National Bank, supra, 49 N.D. 703, 193 N.W. 51, that a motion for judgment on the pleadings does not come within -the “merits subdivision”, 28-2702, subd. 5, and such ruling was reaffirmed in Torgerson v. Minneapolis, St. P. & S. Ste. M. R. Co, 51 N.D. 745, 200 N.W. 1013, and in Ferguson v. Jensen, supra, 76 N-D. at pages 650 and 651, 38 N.W.2d 560 at pages 561 and 562. See 14 A.L.R.2d 467, citing the first two cases, and stating that Wall v. First Nat. Bank, supra, followed McMahon v. Davidson, 1867, 12 Minn. 357, 12 Gil. 232, cited in Ferguson v. Jensen, supra, 76 N.D. at page 651, 38 NW.2d at page 562, wherein the Minnesota Supreme Court held that an order denying a motion for judgment on the pleadings was nonappealable under the "“merits subdivision”, on the ground that an order from which an appeal lies under that clause of the statute must be decisive of the question involved, or of some strictly legal right of the party appealing, and that an order which leaves the point involved still pending before the court and undetermined cannot be said to involve the merits or affect a substantial right. Such Minnesota case stated:

“The motion in this case was made on the ground that the complaint did not ■state facts sufficient to constitute a ■cause of action, and the refusal to allow the motion did not determine the ■sufficiency of the pleading, or prejudice the defendant’s right to raise the question at a subsequent stage of the proceedings.” 14 A.L.R.2d 467.

It is the majority view, as well as our ■view, that, under the “merits clause”, an order overruling a motion for judgment on the pleadings is not appealable. 14 A.L.R.2d 463; 2 Am.Jur., Appeal and Error, sec. 78 ; 4 C.J.S., Appeal and Error, § 116(8), page 225.

Likewise, we conclude that the order denying defendants’ motion for dismissal of the action on the merits, and with prejudice, (and without a trial on the merits) is .a non-appealable order. Note: In view.'of such conclusion, it becomes unnecessary to determine the 'question of practice and procedure as to whether such form of motion is proper. See Westerso v. City of Williston, 77 N.D. 251, 257, 259, 42 N.W.2d 429, 433, cited in Nicholson v. Roop, N.D., 62 N.W. 2d 473, 476; R.C.1943, §§ 28-0801, 28-0803 and 28-0804.

An order denying a motion to dismiss an action, with or without prejudice, is not an appealable order. Union Brokerage Co. v. Jensen, 74 N.D. 154, 20 N.W.2d 343, and cases cited; Burdick v. Mann, 59 N.D. 611, 231 N.W. 545, Id., 60 N.D. 710, at page 719, 236 N.W. 340, 82 A.L.R. 1443; Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148; Strecker v. Railson, 19 N.D. 677, 125 N.W. 560; Newton: Appellate Practice and Procedure in North Dakota, supra, 27 N.D.L.Rev. 161; 4 C.J.S., Appeal and Error, § 121 b., page 241; 2 Am.Jur., Appeal and Error, sec. 80; 37 A.L.R.2d 591; 14 A.L.R.2d 462; 1 A.L.R.2d 423; St. Paul Fire & Marine Ins. Co v. Bender, 153 Kan. 752, 113 P.2d 1062, 1064; Marsol Credit Co. v. Blacker, 1936, 144 Kan. 632, 62 P.2d 914, 916; See Cunningham: Appealable Orders in Minnesota, 37 Minn.L.Rev. (April, 1953) 309, 323, 331, 332, which reads commencing at 331:

“Looking to Judgment. Orders having as their direct object the ultimate entry of judgment have been held non-appealable under the third subdivision (“From an order involving the merits of the action or some part thereof:”) for such orders merely seek direction that an act be done which involves the merits. -That is an appeal does not lie from an order that requires subsequent action to give it effect. Consequently, no appeal can be had under this or other, subdivisions * * * . (page 332) from an order denying a motion to. dismiss the action, * * .Three Minnesota cases are cited: Independent School District v. Rittmiller, 235 Minn. 556, 51 N.W.2d 664; Dady v. Peterson, 219 Minn. 198, 17 N.W.2d 322; Pillsbury v. Foley, 61 Minn. 434, 63 N.W. 1027.

In granting the motion to dismiss, the ■opinion in Independent School District v. Rittmiller, supra,, reads, 51 N.W.2d 664:

“An, order denying a motion to dismiss a cause of action is not appealable; It does nothing more than retain the action for trial. It does not involve the merits of the cause of action, nor is it a final order.”

An order overruling and denying Defendants’ motion to 'dismiss Plaintiff’s cause of action upon the merits and with prejudice, like an order denying a motion to dismiss without prejudice, does not determine the action or prevent a judgment. It not only leaves the Defendants free to conduct'their defense but also permits them, after the cause has been tried upon its merits, to have a review of the order as well as to 'present alleg'ed trial errors and irregularities on final appellate review. The fact that an order is not appealable does not mean that it is not reviewable. In fact, most interlocutory orders which are nonappealable may be reviewed as an incident to or as a part of the final action of the court. Stormon v. District Court, supra, 76 N.D. 713, 718, 38 N.W.2d 785, 787. R.C. 1943, § 28-2728, supra, provides specifically that:

“Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record *

From the foregoing principles and authorities, it also follows that the order denying certification is not an appealable order. The effect of the trial court’s refusal to certify questions of law to this, the Supreme Court, was to require the- determination of such questions by the district court during the trial on the merits, when such trial is held. So, such order denying certification was of procedural effect only, and it does not involve the merits, and it is not a final order, but merely an interlocutory order.

This appeal is unusual in that the appellants seek to invoke the supervis- ' ory, as well as appellate, jurisdiction of the Supreme Court. Defendants and appellants, Kennedy, seek to have this court exercise its superintending control under Const. § 86 to reach matters not included within the appellate powers. Section 86 of the North Dakota Constitution vests in the Supreme'Court “general superintending control over all inferior courts.” Stormon v. District Court, supra, 76 N.D. 713, 717, 38-N.W.2d 785, 786; State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381; Newton: Appellate Practice and Procedure in North Dakota, supra, 27 N.D.L.Rev. 155, 158 and 159; Crum: The Writ of Certiorari in North Dakota (July, 1951) 27 N.D.L. Rev. 271, 286 to 292. The Supreme Court has very broad powers in the exercise of its superintending control over the proceedings of inferior courts. This superintending jurisdiction enables the supreme court to control a lower court which, though within its jurisdiction, is, by mistake of law or wilful disregard of it, doing a gross injustice, and there is no adequate remedy by appeaL State ex rel. Lemke v. District Court, supra, and comment thereon in 27 N.D.L.Rev., supra, at pp. 158, 286 and 287; State ex rel. Shafer v. District Court, 49 N.D. 1127, 194-N.W. 745; State ex rel. Jacobson v. District Court, 68 N.D. 211, 277 N.W. 843;. State v. First State Bank, 52 N.D. 231, 257, 202 N.W. 391; State ex rel. Red River Brick Corp. v. District Court, 24 N.D. 28, 32, 138 N.W. 988. Although we do not recall an instance in which it has exercised superintending control other than in an original proceeding, jurisdiction to issue writs necessary and proper to the complete exercise of its appellate jurisdiction is-granted to the Supreme Court by the Constitution, § 86. See cases cited above and also Haaland v. Verendrye Electric Cooperative, N.D., 66 N.W.2d 902, 908; Newton: Appellate Practice and Procedure in North Dakota, supra, p. 158. However, it should be remembered that such power of superintending control is separate, independent, and distinct from the appellate jurisdiction. State ex rel. Jacobson v. District Court, supra, 68 N.D. at page 219, 277 N.W. at page 846; State v. First State Bank, supra, 52 N.D. at page 259, 202 N.W. at pages 402, 403; State ex rel. Red River Brick Corp. v. District Court, supra, 24 N.D. at page 32, 138 N.W. at pages 989, 990; 12 A.L.R. 1358 and 1359.

Appellants, Kennelly, seek to have this court exercise its superintending control over the presiding judge of the district court of Morton County through its supervisory writ directing such judge to dismiss plaintiff’s action upon the merits, with prejudice, on the ground that this action is res judicata by reason of a former adjudication in Schaff v. Kennelly, supra, 61 N.W.2d 538. Inasmuch as the case at bar is a civil action involving private rights, namely, an action for the recovery of money damages, such trial judge is, obviously, not a party to this action, and is neither a necessary nor proper party thereto. He can only be made a party in an original proceeding for a supervisory writ, and obviously such presiding judge is a necessary party to such a proceeding. Since he is neither a necessary nor proper party to the case at bar, appellants must make an original application for a supervisory writ directed to such judge and court if they would have their application for superintending control considered by this Court. Newton: Appellate Practice and Procedure in North Dakota, supra, 27 N.D.L.Rev. at 159; State ex rel. City of Minot v. Gronna, 59 N.W.2d 514; State ex rel. Christianson v. District Court, 78 N.D. 541, 542, 51 N.W.2d 347; Simpson v. District Court, 77 N.D. 189, 42 N.W.2d 213; Stormon v. District Court, supra; State ex rel. Jacobson v. District Court, supra; 21 C.J.S., Courts, § 435, page 690; 15 C.J. 1104; 14 Am.Jur., Courts, secs. 264 to 274; 112 A.L.R. 1368; 20 L.R.A.,N.S., 942; 51 L.R.A. 33 to 112. See State ex rel. Conrad v. Langer, 68 N.D. 167, 184, 277 N.W. 504, 513 and 514.

Appeal dismissed and application for supervisory writ denied.

BURKE, C. J., and SATHRE, JOHNSON, and GRIMSON, JJ., concur.

MORRIS, J., deeming himself disqualified did not participate. Honorable A. J. GRONNA, Judge of Fifth Judicial District, sitting in his stead.


source: Caselaw Access Project

author: GRIMSON, Judge.

license: Public Domain

text:
    R. Wendell MOUSEL, Plaintiff-Appellant, v. Herman WIDICKER, Defendant-Respondent.
    No. 7458.
    Supreme Court of North Dakota.
    April 18, 1955.

      Strutz, Jansonius & Fleck, Bismarck, and John A. Layne, Fessenden, for appellant.
    John J. Tebelius, Harvey, for respondent.
   GRIMSON, Judge.

The plaintiff brings this action on a check issued by the defendant to the plaintiff on April 1, 1952; but post-dated January 1, 1953, in the amount of $2,000. The defendant stopped payment of that check. The complaint alleges presentment for payment, dishonor and notice. Defendant answers with a general denial, admits the check, raises the defense of failure of consideration and counterclaims for $8,000 damages, alleging that the check was given as part payment for a bull sold by plaintiff to defendant for breeding purposes under a warranty of fitness for that purpose, and that the bull was not as represented and warranted and was unserviceable and incapable. Plaintiff replied to the counterclaim with a general denial. The action was tried to a jury which brought in a verdict for the plaintiff. Thereafter the defendant duly made a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion for judgment notwithstanding the verdict was denied as no motion for a directed verdict at the close of the evidence had been made. The motion for a new trial was granted on account of misleading instructions on implied warranty. This appeal is from the order granting a new trial and the judgment entered thereon.

The district court may grant a motion for a new trial for errors at law occurring and excepted to at the trial. Section 28-1902, sub-section 7 NDRC 1943. All instructions to the jury are deemed excepted to unless written instructions have been submitted to counsel beforehand when written exceptions must be taken. Section 28-1414 NDRC 1943. The instructions were not submitted to counsel beforehand in the case at bar.

The evidence shows that the plaintiff has been in the business of raising purebred, Hereford cattle and selling them for breeding purposes at Cambridge, Nebraska, since 1925. The defendant farms in Wells County, North Dakota, and for the last ten years ■has raised and sold purebred, Hereford cattle. In May 1951, plaintiff, at his ranch in Nebraska, sold a bull to defendant, receiving payment in full by cash and an animal traded in. This bull was moved to defendant’s farm and in time proved to be unsatisfactory for breeding purposes. Plaintiff furnished defendant a relief bull for a period of six or seven weeks in 1951. Thereafter, and on April 1, 1952, as a result of communications, defendant returned the bull he had purchased to plaintiff and purchased another grown bull for $8,000, receiving credit of $5,000 for the bull returned, paying $1,000 and giving the postdated check sued upon for $2,000. Defendant testifies that this last bull was .also warranted but failed as a sire, producing only three calves out of twenty cows.

.The plaintiff and appellant in his brief states that the issues “in the case were as to the serviceability of the bull for breeding, and warranties, either express or implied, in connection with the serviceability.”

The appellant claims that the district court erred in granting a new trial. He specifies as error on this appeal:

“The instructions of the court were neither defective nor insufficient in instructing the jury how and under what conditions the jury might find a verdict in favor of defendant under the evidence tending to prove an implied warranty in the sale of the animal in question.”

The first claim of the plaintiff and appellant is that if there were any errors in the-instruction on implied warranty the defendant is now barred from asserting such errors because he failed to make any request of the district court for a more complete instruction on implied warranty.

This court has repeatedly held that where a party fails to request more complete instructions on any matter in issue he cannot afterwards raise the question that the insufficiency of the instruction given amounted to non-direction.

In Burkstrand v. Rasmussen, 77 N.D. 716, 718, 45 N.W.2d 485, 487, it is said that:

“It is a well established rule of law that where a party has made no request for any further or additional instructions, such party cannot upon appeal assign error for nondirection unless it amounts to misdirection.” See also Andrieux v. Kaeding, 47 N.D. 17, 28, 181 N.W. 59; Reineke v. Commonwealth Insurance Co., 52 N.D. 324, 334, 202 N.W. 657; Harmon v. Haas, 61 N. D. 772, 778, 241 N.W. 70, 80 A.L.R. 1131; Jaszkowiak v. Refling, 62 N.D. 601, 606, 245 N.W. 817; Grant v. Jacobs, 76 N.D. 1, 11, 32 N.W.2d 881; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11.

In the instant case no request was made by the defendant for more complete instructions on implied warranty. Under the rule stated in the above cases he is barred from raising any objections to the insufficiency of the charge on implied warranty. However, he is not barred on his motion for a new trial from claiming as error that the instructions the court gave on implied warranty amounted to misdirection. That he has a right to do even though he failed to ask for more complete instructions and is barred from objecting on the grounds of non-direction not amounting to misdirection.

Then the plaintiff and appellant argues “that no implied warranty was involved in the sale in question, and, therefore the instructions given on this point were prejudicial only to the plaintiff.” He claims that a general rule with respect to sale of animals for breeding purposes is that no implied warranty as to fertility is given. As authority for that claim he cites Frederickson v. Hackney, 159 Minn. 234, 198 N.W. 806, 807. In that case, however, the sale involved a bull calf only a few days old and the court found there was no evidence on which to base an express warranty. Then the court says:

“Implied warranties ordinarily speak concerning the present and give assurance only as to qualities existing at the time being. They do not ordinarily speak of the future, nor of qualities later to be developed.”

For that reason the court held that in that particular case no implied warranty existed. In McQuaid v. Ross, 85 Wis. 492, 55 N.W. 705, 22 L.R.A. 187, also cited by plaintiff the court found no evidence to warrant the finding of any express or implied warranty and therefore the rule of caveat emptor applied. The plaintiff further cites the case of White v. Stelloh, 74 Wis. 435, 43 N.W. 99, as authority for that rule but that case involved a three months old Holstein bull calf and the court held that “it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale, and that there was an implied warranty that he would possess the power of procreation at maturity.” These cases are not in point under the facts in the case at bar. The bull here involved was a mature bull and was intended for immediate service.

The plaintiff-appellant also claims that the situation arising at the sale of an animal for breeding purposes is similar to that of a sale of an article with latent defect and does not apply in the sale of an animal in apparent good health when the buyer has an opportunity to inspect and the seller is not aware of the defect and the buyer is not relying on the seller’s skill and judgment. The facts in all the cases cited, however, differentiate those cases from the case at bar. That rule does not apply under the facts in this case.

Implied warranty is clearly raised in the evidence. Plaintiff testified that he was and had been all his life engaged in the business of raising registered, Hereford cattle and was now engaged in selling pure bred bulls. He admitted that he knew defendant was purchasing a bull intending to use him for breeding purposes and that he sold him a bull for that purpose, giving assurance that the bull was fit for the purpose for which it was purchased. Defendant testified with more force on the same subject and that on the strength of what plaintiff said he bought the bull.

Section 51-0116, Sub. Section 1, NDRC 1943, provides that:

“Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he is the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for that purpose”.

In accordance with this section the evidence in the case at bar clearly warranted an instruction on implied warranty.

In 77 C.J.S., Sales, § 330, page 1189, the principle of implied warranty in sale of animals for breeding purposes is laid down as follows:

“Where any seller sells an animal for breeding purposes, knowing that the purchaser is buying an animal for that purpose, there is an implied warranty of its reasonable fitness therefor, and against sterility, and that is not affected with a disease which destroys its value for such purposes”.

In Dale v. Pierson-Brewen Commission Co., 160 Mo.App. 314, 142 S.W. 745, the court holds:

“The rule that property purchased for a special purpose is impliedly warranted to be fit therefor applies to live stock, and such an implied warranty is breached where ewes sold for breeding purposes were afflicted with a mouth and foot disease dangerous and contagious.”

In the case of Petersen v. Dreher, 196 Iowa 178, 194 N.W. 53, 54, the plaintiff bought a brood sow from the defendant. The court says: “The record leaves no doubt that the sow was purchased as a brood sow, and that the seller knew, as well as the buyer, that the sow was purchased for breeding purposes. Plaintiff introduced evidence to show that the sow was sterile. * * * The general rule announced by the courts is that in sales such as in the instant case, there is an implied warranty, available as a basis of an action, that the thing purchased is reasonably suitable for the purpose for which it is to be used, unless excluded by the terms of an express warranty. (Citing many cases.)”

After abstracting the claims of the parties from the pleadings, the court charged on the issue of warranties as follows:

“The question of whether such agreement was entered into is for the jury to decide. In this connection you are instructed that any positive statement or affirmation of fact, and not of opinion, as to the quality and condition of the bull sold by the plaintiff to the defendant, which was made by the seller to the defendant, in the course of negotiations for the purchase of said animal, and which statements naturally and fairly imported that he intended to bind himself to their truth, and which were so understood and relied upon by the buyer, the defendant herein, would constitute a warranty. The foregoing is an express warranty.”
“Our law further provides that there may be under certain circumstances, an implied warranty. That rule is as follows: ‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he is the grower or manufacturer, or not, there is an implied warranty that the goods shall be reasonably fit for that purpose.’
“Our law further provides: ‘An' express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.’ In other words there may be both an express and an implied warranty in a sale.”

Then after saying that there is no dispute as to the $2,000 check being given by the defendant to the plaintiff as a part of the purchase price of the bull in question, the court says: '

■ “Therefore, the plaintiff is entitled to recover a verdict at your hands unless you find that the allegations of defendant’s Counterclaim to the effect that there was a warranty of said bull, are true and that the bull did not comply with the warranty, either express or implied, and further find that the bull was worthless fpr breeding purposes.

Immediately following that the court elaborates on the express contract. The court says:

“If you find that the defendant purchased a bull from the plaintiff, and the plaintiff sold the .bull to defendant, in the first instance, then that would constitute a contract, along with all of the agreements which were a part of the same. It is essential to the existence of a contract that there should be a consent of the parties, which consent must be:
“1. Free;
“2. Mutual; and
“3. Communicated by each to the other.
“Consent is not mutual unless the parties all agree upon the same thing in the same sense. There must-be a ‘meeting of the minds.’ It is not for the jury to make contracts for the parties. It is the duty of the jury in this case to determine from all of the evidence in the case whether a -contract was made • between the plaintiff and defendant,- and what that contract was, and whether either party has breached the contract.”

This instruction might well mislead, the jury to think, that these were the requirements necessary to find any contract between the parties. It does not include implied warranty. In Deere & Webber Company v. Moch, 71 N.D. 649, 655, 3 N\W.2d 471, 474, 139 A.L.R. 1270, it is said: “An implied warranty is not essentially a part of the agreement made by the parties.themselves. It is imposed by operation of law and becomes a part of the contract by virtue of the statute.” In Bekkevold v. Potts, 173 Minn. 87, 216 N.W. 790, 791, 59 A.L.R. 1164, it is said:

“An implied warranty is not one of the contractual elements of an agreement. It is not one of the essential elements to be stated in the contract, nor does its application- or effective existence rest or depend upon the affirmative intention of the parties. It is a child of the law. It, because of the acts of the parties, is imposed by the law. It arises independently and outside of the contract. The law annexes it to the contract. - It writes it, by implication, into the contract which the parties have made. Its origin and use are to promote high standards in business and to discourage sharp dealings. It rests upon the'principle, that ‘hones- ' ty is the best policy,’ and it contemplates business transactions in "which both parties may profit.” '

Then the court goes on to instruct on damages if a breach of the contract is found.

The court places the burden of proof on the defendant to prove “that there ■ was a warranty as .to the quality of the bull sold to him by the plaintiff, and that such warranty of quality was to the effect that the bull was a good calf getter and was reasonably satisfactory for breeding purposes.” The court tells the jury that if the defendant has sustained his burden of proof “that the plaintiff did at the time of making said ■sale warrant to the defendant that the said hull was an efficient bull for the purpose of breeding cows * * * that said bull was not as represented * * *. In that case the jury should return its verdict in favor of the defendant in the amount of his loss and detriment. * * * ”

“If the jury finds from all of the evidence in this case, under these instructions, that the defendant has sustained the burden of proof resting upon him to prove the allegations and claims ■set up in his Answer and Counter-, claim, and that the plaintiff did at the time .of making said sale warrant to the ■defendant that the said bull was an ■efficient bull for the purpose of breed-, ing cows and would effectually cause cows to be pregnant and to bear calves, and further find from the whole evidence in the case that the said bull was not as represented and was not an efficient bull for breeding purposes and ■did not produce calves in a normal and reasonable amount or percentage of ■cows so bred, then and in that case the Jury should return its verdict in favor of the defendant. * * *”

It will be noticed that all the instructions as to the effect of the facts upon the kind of contract involved referred to express contract. All that the court instructed the jury as to an implied contract is the statutory definition thereof. There is no statement in the instructions upon what facts the jury could find implied warranty. There is no instruction to the effect that if the ■defendant made known to the plaintiff the particular purpose for which the bull was required and if it appeared that the defendant relied on the plaintiff’s skill and judgment that would constitute implied warranty that the animal was reasonably fit for 'that purpose the issues of both express and •implied warranty should have been clearly set out for the jury in the instructions, in.stead the court dealt at length with the subject of express warranty and merely quoted the technical words of the statute as to implied warranty. As the court says in its memorandum “A careful reading of the instruction * * * rather impressively tells the jury that any warranty requiring their consideration must be found in the contract of the parties.” There is no attempt to apply the law to the facts as respects implied warranty. The jury could easily have been- misled by the instructions to think that an express warranty was necessary b.efore they could find for the defendant. Yet there actually was evidence from which, if the jury believed the testimony thereon, they could find an implied warranty.

On the applicability of the instructions the rule is laid down in 53 Am.Jur., Trial, Section 573, p. 451, that:

“The general principle is that instructions given by the trial court, * * * should state the law as applicable to the particular facts in issue in the case at bar, which the evidence in the case tends to prove; mere abstract propositions of law applicable to , any case, or mere statements of law in general terms, even though correct, ■should not, be given unless they are made .applicable to the issue in the case .at bar.”

In the instant case the court gave the statutory definition of implied warranty without making it applicable to the issues in the case.

In Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375, 378, the court says:

“To declare and explain the law arising upon the evidence in a case means to declare and explain it as it relates to the various aspects of the testimony offered. While no general formula is or should be prescribed, something substantially more than a general definition or an abstract discussion is required. The judge should at least givé a résumé of the facts upon which plaintiff relies, and as to which she has offered evidence, and instruct them as to the law arising thereon. He should do likewise as to the evidence offered by the defendant. That is, it is the duty of the judge to instruct the jury as to the circumstances under which the issue should be answered in the affirmative and under which it should be answered in the negative.”

Instructions should be clear, accurate and concise. They should fully cover the claim made by both sides of the case. Instructions of the trial court must be viewed in the light of the evidence on which they operate. If it appears that an instruction tended to mislead and confuse the jury and have adverse effect on the substantial rights of the complaining party it is prejudicial and ground for granting a new trial. Delaloye v. Kaisershot, 72 N.D. 637, 10 N.W.2d 593; Rott v. Provident Life Ins., Co., 69 N.D. 335, 340, 286 N.W. 393; Welter v. Leistikow, 9 N.D. 283, 83 N.W. 9; 3 Am.Jur., Appeal and Error, 643.

The motion for a new trial is addressed to the sound discretion of the trial court and the presumption is that the order thereon was properly granted. The burden is upon the appellant to show that the grounds urged for a new trial are not sufficient. The order granting a new trial will not be reversed unless the trial court abused its discretion. State v. Hummel, 73 N.D. 308, 14 N.W.2d 368. The memorandum decision of the trial court shows careful consideration of the instructions and the court concludes that the instructions were “incomplete, misleading and amount to misdirection.” We have come to the conclusion that the trial court did not abuse its discretion in granting a new trial.

The judgment entered thereon is affirmed.

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


author: MORRIS, Judge.

text:
    William COVERSTON, Plaintiff and Respondent, v. Harry EGELAND, Defendant and Appellant.
    No. 7502.
    Supreme Court of North Dakota.
    April 18, 1955.

      Daniel S. Letnes and H. G. Ruemmele, Grand Forks, for defendant-appellant.
    Day, Stokes, Vaaler & Gilligj Grand Forks, for plaintiff-respondent.
   MORRIS, Judge.

This is' an action for damages for breach of contract wherein the plaintiff seeks to recover on the allegation that on April 16, 1952, the parties entered into a written agreement whereby the plaintiff sold and the defendant agreed to purchase Lot 11, Block 7, Dacotah Place Addition, Grand Forks, North Dakota, for the sum of one thousand dollars and that the defendant breached the contract by refusing to make the payments therein provided. The defendant in answer to plaintiff’s claim sets up that the plaintiff failed to make a tender of marketable title to the premises involved in accordance with the provisions of the contract within thirty days and has never since made a tender of a marketable title and that the plaintiff is in default under his agreements and covenants.

The written contract involved herein is designated “Earnest Money Receipt.” It is dated April 16, 1952, and acknowledges the receipt from Harry Egeland of one hundred dollars as earnest money in part payment of the purchase price of the lot involved in this action which was sold to Harry Egeland for the sum of one thousand dollars, one hundred dollars being paid in cash and nine hundred dollars payable on or before thirty days. The receipt further states: “We agree that the title to said premises is marketable and that conveyance will be made clear of all encumbrances, * * It is signed by the R. H. Sutton Real Estate Company. Attached to the receipt is an agreement signed by Harry Egeland to purchase the premises described above at the price and on the terms stipulated therein. Also attached is this statement : “I hereby approve and accept above offer to purchase and authorize R. H. Sutton Real Estate Co. to close sale and act as my agent in this transaction.” which is signed by the plaintiff.

The plaintiff promptly furnished to the defendant an abstract of title which the defendant submitted to an attorney for examination. That attorney’s opinion, dated April 18, 1952, recites the following:

“From this examination I am of the opinion that W. M. Coverston, of Grand Forks, N. D. is the owner in fee simple of said Lot, but that his title is not merchantable, because
“(1) Title was acquired by W. M. Coverston, by Tax Deed on October 2, 1945, as shown at entry #60 of the abstract. The record title owner prior to the time when the County took title, as shown at entry #59 and on October 2, 1940, was the First National Bank of Grand Forks, North Dakota, a corporation, as Trustee, pursuant to a certain written Trust Agreement dated September 17, 1926, as set out at entry #55 of the abstract.
“(2) At entry #61 there is a Judgment in an action wherein W. M. Co-verston is the Plaintiff against various defendants, which Judgment is dated May 4, 1946. In my opinion this action did not make the title merchantable. An examination of the records of the Office of the Clerk of District Court, Grand Forks County, North Dakota, discloses the Receiver of the First National Bank of Grand Forks placed the jurisdiction over the Trust in the District Court in the year 1936, and that the First National Bank of Grand Forks was discharged as Trustee on November 5, 1936, when the First National Bank in Grand Forks consented to act and became the acting Trustee of the Trust until July 13, 1949, when they were discharged by Order of the Court.
“The file discloses that Lot 11, in Block 7, Dacotah Place Addition to Grand Forks, was sold to Charles Breen, also known as Chas. A. Breen, of Grand Forks, on or about June 26, 1930, and that most likely a deed was issued to said Breen.
“It would be my opinion that the First National Bank in Grand Forks, as Trustee of the said Trust should have been named a Party Defendant, and that Charles Breen, also known as Chas. A. Breen, should also have been named a Party Defendant, and that neither of these parties are included in the designation of ‘unknown persons’ and that so far as their interests are concerned at the time of the action the Court acquired no jurisdiction over them and could not adjudicate their interests. This file also shows that Canada North Dakota Land Company, Ltd., Caroline W. Fraser, and Grace A. Fraser, the Trustors in the Trust Agreement, had no further interest in the trust or the property of the trust in 1936, and that the Home Builders Investment Company was entitled to all interest in the trust.”

The plaintiff was promptly notified of the objections to the title and about a week later he, together with Mr. Sutton of the real estate firm, went to see the defendant. The plaintiff told the defendant that he would get the title fixed up and would have the title quieted a second time. The testimony is sharply conflicting as to what happened next. The plaintiff testified that he told the defendant that he would have title quieted a second time and the defendant agreed to wait until the second action was completed and would take the property. The defendant testified that he told the plaintiff that if the title was not cleared in thirty days the defendant could not use the lot. Sutton corroborates the defendant’s testimony with respect to that conversation. There apparently were some further negotiations regarding the matter, for on December 22, 1952, defendant’s counsel receipted to plaintiff’s counsel for the abstract of title.

The one hundred dollar payment referred to in the earnest money receipt was in the form of a check signed by the defendant, dated April 14, 1952, and payable to the Sutton Real Estate Company. Mr. Sutton retained the check, refused to deliver it to the plaintiff, and later returned it to the defendant. On May 9, 1952, the plaintiff instituted a second action to quiet title to the lot in question. Proceedings in this action were conducted with dispatch and a second judgment quieting title in the plaintiff was rendered on July 8, 1952. This judgment obviated all of the objections to the marketability of the title raised by the examining attorney in his opinion of April 18, 1952.

The defendant refused to accept conveyance of the property on the ground that marketable title had not been perfected within thirty days from the date of the earnest money receipt and he was no longer bound thereby. In May 1953 the plaintiff sold the lot for five hundred dollars. In this action plaintiff asks damages in the sum of five hundred dollars, which is the difference between what the defendant had agreed to pay and what the plaintiff was finally able to sell the lot for. The case was tried to the court without a jury and the court found that the plaintiff and the defendant entered into a subsequent agreement wherein the plaintiff agreed to quiet title to the property to satisfy the objections of the examining attorney and that in compliance with this agreement the second action to quiet title was brought and additional tender of title made. He also found that the defendant refused to perform pursuant to the written agreement or the subsequent oral agreement and that plaintiff thereafter sold the property for five hundred dollars, which was the 'best price then obtainable. On the basis of these findings the trial court rendered judgment in favor of the plaintiff for five hundred dollars, together with interest and costs. From this judgment the defendant appeals and demands a trial de novo.

Although deciding the case on the ground of a subsequent oral agreement by which the defendant agreed to accept the lot after the second action to quiet title, the court observed in his memorandum opinion that the objections of the examining attorney appeared to be more technical than substantial. In view of the conflicting and unsatisfactory condition of the evidence with respect to the subsequent agreement, we consider the record with respect to the objections to the title raised by the examining attorney to determine whether the title was marketable at the time it was first refused by the defendant.

It should be noted that the controlling question is whether at the time the title was first rejected it was marketable in fact. We are not interested directly in whether the abstract that was furnished showed a marketable title. The rejection was based upon matters other than those shown by the abstract.

The title held by the plaintiff, W. M. Coverston, was evidenced by a deed from Grand Forks County recorded in the office of the register of deeds of Grand Forks County on October 25, 1945.

The title of plaintiff’s grantor is evidenced by a tax deed dated May 24, 1940, purporting to convey the lot in question from the State of North Dakota to the County of Grand Forks. This deed is regular and valid on its face and was recorded in the office of the register of deeds of Grand Forks County on January 20, 1941. A valid tax deed clothes the grantee with a new and complete title under an independent grant from the sovereign authority of the state. Conlin v. Metzger, 77 N.D. 620, 44 N.W.2d 617; Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837; Northwestern Mutual Savings & Loan Association v. Hanson, 72 N.D. 629, 10 N.W.2d 599; Nelson v. Murton, 68 N.D. 108, 277 N.W. 390; Peterson v. Reishus, 66 N.D. 436, 266 N.W. 417, 105 A.L.R. 724; Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 65 A.L.R. 1009.

Whether such a deed appearing in a chain of title renders the title unmarketable, where under the law it purports to convey a new and paramount title from the sovereign and is regular on its face, is a question upon which the courts are not agreed. See 55 Am.Jur., Vendor and Purchaser, Section 224; Annotation 115 A.L.R. 140. This court has not passed upon the question. We need not pass upon it here for the parties tried the case on the theory that the tax deed standing alone in the chain of title rendered the title unmarketable.

On February 2, 1946, the plaintiff instituted an action to quiet title in statutory form covering sixteen lots in blocks 6 and 7, Dacotah Place Addition to the City of Grand Forks. Included among these lots was Lot 11 in Block 7. Certain named defendants were made parties, together with “all other persons unknown claiming any estate or interest in, or lien or incumbrance upon the property described in the Complaint.” Judgment was entered quieting title in the plaintiff on May 4, 1946. Service upon unknown defendants was had by publication. Publication was based upon an affidavit by plaintiff’s counsel in the form prescribed by Section 32-1707 NDRC 1943. The affidavit among other things recited :

“That the interests of the unknown persons Defendant in the above entitled action in the land described in the Complaint are not shown of record in the Office of the Register of Deeds, the Clerk of the District Court, or the County Auditor’s Office of the County in which said land lies, and that Affiant does not know, and is unable to ascertain the names, residences, or Post Office addresses of any such persons who are proceeded against as unknown persons Defendant in this action.”

Defendant contends that despite the recitals of the affidavit for publication the affiant thereof could have and should have ascertained the names of three parties who had possible interests in the lot and that their interests are not determined by an adjudication of the interests of unknown persons. Those parties are the First National Bank in Grand Forks, Charles Breen, and Home Builders Investment Company. The defendant argues that the existence of the interests of these three parties are disclosed by the following facts and the knowledge of those interests could have been obtained by the affiant of the affidavit for publication. On September 15, 1926, the Canada North Dakota Land Company, Ltd., executed a trust deed covering the property involved to the First National Bank of Grand Forks which was recorded in the office of the register of deeds of Grand Forks County on September 28, 1926. The files in the office of the clerk of the district court of Grand Forks County disclosed that on October 20, 1936, the court heard a petition of the receiver of the First National Bank of Grand Forks pursuant to which the court on that date entered an order that all future proceedings in the supervision of the administration of the trust be had in the district court. The order also provided that the First National Bank in Grand Forks be appointed trustee and directed the receiver of the First National Bank of Grand Forks to turn over all assets of the trust to the new trustee. This order being complied with, a further order was entered on November 5, 1936, by which the First National Bank of Grand Forks and the receiver of that bank were released and discharged from their obligations as trustee.

On July 13, 1949, the substituted trustee filed a report and petition praying that the report be approved and that the petitioner be discharged from the trust and the trust closed. The report stated:

“That the amounts due Canada North Dakota Land Company, a corporation, Ltd., Caroline W. Fraser and Grace A. Fraser and Home Builders Investment Company under said Trust Agreement were paid in full before the Trust was turned over to your petitioner and said individuals have died and said corporations have become defunct leaving no one on whom process may be served.”

On July 13, 1949, the court entered an order approving the report of and discharging the First National Bank in Grand Forks as trustee. This order recited:

“It duly and satisfactorily appearing from the petition of First National Bank in Grand Forks, Trustee, that said Trust has been dormant since prior to 1936 and that all property in the Trust was either sold or abandoned prior to 1936 and that all monies for lots sold were delivered up to the persons entitled thereto and such persons have since died or if corporations have become defunct, and that the present Trustee has not taken any money or paid out any and that all lots sold were conveyed and the remaining lots abandoned and those have gone to tax deed and there is no property or money in. the hands of the Trustee of any value.”'

From the documents in the trust file toi which we have referred, or will refer, it clearly appears that neither the First National Bank in Grand Forks nor the Home Builders Investment Company has any interest in or claim to the lot in question. The situation is different with respect to the possible interest of Charles Breen,, which we will consider in some detail.

In the petition of the receiver of the First National Bank of Grand Forks, praying for the supervision of the administration of the trust by the district court it is alleged:

“That pursuant to said Trust Deed and said Declaration of Trust said First National Bank of Grand Forks, thereafter sold the following lots to the following named purchasers and received therefrom the amount hereinafter mentioned: * *

Then follows a list showing lot, block, purchaser, and amount. In this list appears Lot 11, Block 7, Charles Breen, Grand Forks, $348.61. In the order granting the petition it is stated: “that the following lots were sold by said Trustee and deeds given therefor” and describing among others Lot 11, Block 7. Charles Breen not being a named defendant in the action to quiet title, the question arises whether he falls within the category of “ ‘All other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint.’ ” Section 32-1705 NDRC 1943.

That petition containing the name of Charles Breen is one of many documents contained in the trust file. It does not appear to have been either indexed or docketed in that office under the name of Charles Breen or against the description of the lot involved in this action. See Section 11-1701 NDRC 1943. From the mere fact that the name of Charles Breen appears in the trust file it cánnot be said that his interest in the lot is “shown of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which such land lies, * * *.” Section 32-1707 NDRC 1943. But our problem is not yet solved. This section also requires the affidavit for publication to state that “the affiant does not know and is unable to ascertain the names, residences, or post office addresses of any of the persons who are proceeded against as unknown persons defendant.” (Italics supplied.) . The question now is whether the affiant of the affidavit of publication was, with reasonable diligence, able to ascertain the name of Charles Breen as a person having an interest in Lot 11, Block 7. An affirmative answer to that question removes Charles Breen from the class of persons who might be proceeded against as unknown persons.

The record title contains a trust deed to the First National Bank of Grand Forks and therefore- gave notice of the existence of the trust. The order entered on October 20, 1936, assuming -the supervision of the trust by the district court had the effect of a judgment of broad, binding import. Section 59-0410 NDRC 1943 provides:

“Every order entered in trust proceedings, upon the notice, prescribed in section 59-0405, shall have the force, and effect of a judgment. It shall be subject to appeal as provided by the terms of section 59-0425 and shall be binding upon all persons in interest resident within or without the state, known or unknown, ascertained and in being, or otherwise.”

The order, while not mentioning the name of Charles Breen, contained the statement that Lot 11, Block 7 had been sold by the trustee and a deed given therefor. Reference to the petition on which the order was based would have disclosed his name.

It may be asserted that Section 32-1707 NDRC 1943 does not mention diligence in connection with' the affidavit for publication. That section does, however, require the affiant to state that he is unable to ascertain the names, residences, or post office. addresses of any of the persons who are proceeded against as unknown persons. Whether the affiant is unable to obtain this information is a question of fact. The statute does not purport to make the statement in the affidavit conclusive as to affiant’s ability to obtain the information. In this case the court made no finding whatever with respect to the affiant’s ability to do so. If it appears, as the defendant contends, that the affiant with reasonable diligence was able to ascertain the name of Charles Breen as a person having an interest in the property, the court had no jurisdiction to proceed against Charles Breen and decree his exclusion from any interest in the property as an unknown person.

After carefully considering the entire record, we - have reached the conclusion that the name of Charles Breen was reasonably ascertainable and he was not a person dyer whom jurisdiction in the action to quiet title was obtained as an unknown person; that he was not named as a known defendant; and that the first action to quiet title did not effectively adjudicate such interest as he may have had in the lot in question.

We now reach the question of whether the failure to obtain jurisdiction over Charles Breen and thus bind him by the judgment in the first action to quiet title rendered the title of W. M. Coverston unmarketable. The examining attorney has used the term “merchantable” in his opinion but this term is ordinarily equivalent to “marketable” when used in connection with real estate titles. Dalton v. Lybarger, 152 Ark. 192, 237 S.W. 694; Bliss v. Schlund, 123 Neb. 253, 242 N.W. 436. In Kennedy v. Dennstadt, 31 N.D. 422, 154 N.W. 271, 274, this court said:

“A ‘good and merchantable title’ means a title in fee simple, free from litigation, palpable defects, and .grave doubts, which will enable the purchaser not only to hold the land in peace, but which will also enable him, whenever he may desire to so do, to sell or mortgage it to a person of reasonable prudence and caution.”

Section 32-0415 NDRC 1943provides:

“An agreement for the sale of property cannot be enforced specifically in favor of a seller who cannot give to the buyer a title free from reasonable doubt.”

See Bruegger v. Cartier, 29 N.D. 575, 151 N.W. 34.

In order to determine whether this title is free from reasonable doubt that would affect its marketability we refer again to the facts disclosed by the record. Title originates with the tax deed conveying the property to the County of Grand Forks. This deed is regular and valid on its face. It presumptively clothes the grantee with a new, complete, and paramount title. After the plaintiff secured a deed from the county he instituted an action to quiet title. In that action the court had jurisdiction of the subject matter and jurisdiction of all interested parties with the exception of Charles Breen whose possible interest we have already discussed. In that action the court, among ■other things, found :

“That tax deed proceedings vesting title to said property in Grand Forks County, Plaintiff Grantor, are in all things regular according to statute in said case made and provided for tax deed proceedings.”

The action to quiet title covered sixteen lots, title to all of them being obtained from Grand Forks County that had acquired them through tax deed proceedings. The plaintiff built eight houses on them and made loans on each. Loans were obtained from six loan companies or banks. All of the houses were sold. No objections were made to any of the titles except this one.

The defendant asked the trial court to take judicial notice of the files in the first action to quiet title. While the judgment in that action is not binding on Charles Breen or determinative of his interests, if any, in the lot in question, the judgment and findings upon which it is based may be considered in this action as evidence bearing on the marketability of plaintiff’s title. Mathews v. Hanson, 19 N.D. 692, 124 N.W. 1116; Freeman on Judgments, Fifth Edition, Section 1040 ; 32 C.J.S., Evidence, § 765. The judgment in that action was .entered on May 4, 1946. Almost six years had elapsed between the time of entry of judgment and the sale of the lot to Egc-land. No defendant, either known or unknown, over whom the court obtained jurisdiction could successfully seek to be permitted to defend after one year from entry of judgment. Section 32-1713 NDRC 1943. The record clearly shows that the interest of Charles Breen, if any, is the only interest that could possibly be asserted as against the judgment quieting title.

In favor of the title we have a tax deed, fair and valid on its face, against which no breath of suspicion has been directed. The deed discloses that taxes on the property were not paid for the years 1930 to 1935 inclusive. This deed is prima facie evidence of the truth of the facts recited in the deed. Strom v. Giske, N.D., 68 N.W. 2d 838. The plaintiff caused proceedings to be instituted quieting title in him. In the course of those proceedings the court found that the proceedings resulting in the tax deed were in all things regular and according to the provisions of the statute applicable to the tax deed proceedings. Over one year has elapsed since the judgment was rendered. The marketability of eight similar titles was not questioned.

Against the title we have evidence of a purchase of the lot by Charles Breen sometime prior to August 27, 1936. There is no evidence that he acquired an interest in or asserted dominion over the property other than that disclosed by the trust file.

Our diligent search has not revealed a case presenting the combination of facts with which we are confronted. The attack is directed at the first judgment quieting title in the plaintiff. On that point some assistance may be derived from Campbell v. Doherty, S3 N.M. 280, 206 P.2d 1145, 9 A.L.R.2d 699. That case involved a suit to enforce specific performance of a contract for the sale of real estate. The proffered title was challenged on the ground that the chain of title included a decree quieting title which it was claimed was based in part on defective service of process on certain unknown heirs. The court held the title to be marketable. An annotation following the case sums up the holding of the court in these words:

“although decrees to quiet title, like other judgments and decrees, may be directly attacked because of a claim of lack of due process or other fraud on the court or adverse party, it does not necessarily follow that a title is unmarketable, unless there is more than a remote probability that such attack will be made, and that if made it would be successful.”

This annotation also states:

“An examination of the few cases falling within the subject of the annotation reveals that whether a title dependent upon a decree or judgment, subject to direct attack, will be considered merchantable or unmerchantable depends on the probability of such an attack and the likelihood of a successful attack.”

When we consider the unchallenged tax deed proceedings and the subsequent finding of the court in the first action to quiet title that the tax deed proceedings were regular and conducted according to statute, we have strong evidence of the validity and marketability of the title. To that may be added the practical fact that eight other similar titles were accepted by purchasers and loan companies. We are satisfied that at the time the title was rejected the probability was-very remote that Charles Breen would assert any claim to the property. This record is devoid of evidence that any attack by Charles Breen would have been successful. The remote possibilities charged as defects-against this title are not sufficiently substantial to raise a reasonable doubt as to its-validity. The title was therefore marketable.

The defendant further challenges the judgment on the ground that the plaintiff failed to adequately prove any damages for breach of contract by the defendant. The record in this respect is unsatisfactory but it does not warrant a reversal of the judgment. The contract price for the lot was one thousand dollars and after the-defendant refused to take title to the lot he-sold it for five hundred dollars.

Without objection the plaintiff was permitted to testify that he sold the lot for five-hundred dollars and took a loss of that amount and that five hundred dollars was as-high a price as he could get for the lot, although he would have liked to have gotten, more. The court sustained an objection to-an inquiry as to whether the amount obtained was a fair value for the lot and in an exchange of comment between the court and', counsel the court stated that the damages-would be the value of the property as contracted for less what the plaintiff got for it. Defendant’s counsel remained silent during, this colloquy. It is clearly apparent that the court’s announced theory of damages was-the value of the property less what it sold for.

“Where a certain theory as to the measure of damages or the amount of recovery is accepted or acted upon by the parties in the trial court as the proper one, it must be adhered to in the appellate court, whether it is correct or not.” Warae v. Finseth, 501 N.D. 347, 195 N.W. 573.

The defendant having made no objection to the testimony and having remained silent when the court stated what the damages would be cannot challenge the finding of damages based on that testimony for the first time in this court. The judgment appealed from is affirmed.

BURKE, C. J., and SATHRE, JOHNSON and GRIMSON, JJ., concur.


author: SATHRE, Judge.

text:
    Alta E. LOVIG, Plaintiff and Respondent, v. Olene GROVOM, as Executrix of the Last Will and Testament of Nels G. Grovom, Deceased, on behalf of Olena Grovom, individually, Dorothy C. Grovom, and Evelyn L. Grovom, and all other persons unknown claiming any estate or Interest, or lien or encumbrance upon, the property described in the Complaint, Defendants and Appellants.
    No. 7427.
    Supreme Court of North Dakota.
    April 18, 1955.
    Rehearing Denied May 6, 1955.

      Dahl & Dahl, Grafton, for defendant-appellant.
    W. R. Spaulding, Towner, for plaintiff-respondent.
   SATHRE, Judge.

The plaintiff brought this action to determine adverse claim to the following described real property situated in the county of McHenry and State of North Dakota:

“Southeast quarter of the Northwest quarter (SE14NW14) West half of the Northwest quarter (Wj/^NW^i) of Section Twenty-two (22) Township One Hundred Fifty-eight (158) Range Fifty-seven (57)”

The complaint is in the statutory form. It has an additional paragraph alleging that the plaintiff and those under whom she claims title have continuously been in the actual, open, adverse and undisputed possession of said premises and had, for more than ten years prior to the commencement of the action, paid the taxes thereon.

Neis G. Grovom is the- only defendant named in the summons. He died after the' case was tried but before a decision was handed down by the trial court. It was stipulated therefore that the defendant as executrix of the last will and testament of Neis G. Grovom, deceased, and .all other persons unknown claiming any interest or estate or incumbrance upon the property described in the complaint be substituted as the defendants. The answer is in the form of a general denial and it further alleges that one Lars Lovig was the husband of the plaintiff; that the defendant rented the land to Lovig for many years prior to the time it was sold for taxes to McHenry County; that Lovig retained all the crops and income from the land; failed to account to the defendant therefor, and failed to pay the taxes on the land; permitted it to be sold to the county for taxes; later purchased the land from the county and retained all of the income therefrom; that the defendant was ready and willing to pay all amounts plaintiff and her predecessor in interest paid in taxes,' less any amount that might be due the defendant from the crops. The answer further alleges that plaintiff agreed in writing to convey the premises to defendant if he would repay the plaintiff the taxes she and her husband had paid on the land and that he accepted said offer in writing, but ’that plaintiff refused to convey under said agreement. By reply plaintiff denied all of the affirmative allegations of the answer.

The case was tried before Hon. Harold B. Nelson, Judge of the district court without a jury. Judgment was rendered in fav- or of the plaintiff and the defendant appealed and demanded a trial de novo.

The main contention of the defendant on this appeal is that the trial court erred in finding that there was no valid rental contract between the defendant and Lars Lov-ig, and that there was no valid offer of sale of the land involved, by the plaintiff and acceptance thereof by the defendant.

A written stipulation of facts was agreed upon by the parties and briefly stated they are as follows:

That the defendant Neis G. Grovom, received a United States Patent to the real estate involved in this action in May 1906; that the said land was sold for the taxes for the year 1928 to McHenry County at the annual tax sale in the year 1938; that Lars Lovig rented the land from McHenry County for the farming season of 1941 and that on June 25, 1941 McHenry County entered into a contract with him for the sale of said real estate, and that said Lars Lovig being then in possession of said real estate as tenant of the county remained in possession thereof under said contract for deed until the 25th day of October 1950; that he made all payments due under said contract and paid all taxes and assessments legally levied on said land subsequent to the 25th day of June 1941 and that on the 21st day of June 1944 a county deed was issued to him, in fulfillment of said contract for deed.

That on the 25th day of October 1950, the said Lars Lovig sold and conveyed the said land for good and valuable consideration to the plaintiff Alta E. Lovig, by quitclaim deed dated on said date; that the said plaintiff Alta E. Lovig went into possession of said real estate upon issuance to her of said quitclaim deed and that she has remained and now is in possession thereof under and by virtue of said quitclaim deed and has paid all taxes and assessments legally levied thereon since said date.

The stipulation further recites that on the 24th day of September 1951 the plaintiff Alta E. Lovig wrote a letter to the defendant Neis G. Grovom; that on the 1st day of October 1951 the defendant Neis G. Grovom wrote to the plaintiff in reply to said letter and that on October 2, 1951 the plaintiff wrote a letter to the defendant Neis G. Grovom in reply to his letter dated October 1, 1951. The said letters are in evidence respectively as exhibits 1, 2, and 3. From the stipulated facts and the testimony taken at the trial it appears that the defendant Neis G. Grovom paid the taxes upon the land in question to and including the year 1927; that the land was sold to Mc-Henry County in 1938 for the taxes for the year 1928.

The defendant Neis G. Grovom contends that these letters constitute an offer by the plaintiff to sell and an acceptance by him to buy the land in question. It is not necessary to set out the contents of this correspondence between the parties in detail. In the letter dated September 24, 1941 plaintiff advised defendant that her husband had died and that she had found that he had paid the taxes on the land in question and that it could not be cleared up without the signature of the defendant Grovom. She said “could you please do that”. She stated further, “I am asking you to do this for me or if you want to pay me all Lars has paid out in taxes since 1928, the abstract cost me $25. Lars has a county deed so I would thank you most sincerely if you will write me a line at once.” The defendant replied to this letter October 1st in which he said: “I will take a trip out there as soon as I have finished some 50 acres of combining, and I hope that the weather will hold so that I will be through this week. I will ‘except’ to pay taxes if I find everything else proper and satisfactory. I will be out there to see you and we will talk things over.” In her second letter to the defendant written October 2, the plaintiff stated,

“so all I have to depend on is my land. On second thought I wrote you I remembered Lars had offered you the land back for the taxes and you had wrote it wasn’t worth it or something to that effect. Anyway since I had to buy that abstract and lawyers fees and so on and that 120 joins our land, don’t you think it would be all fair and justice to sign that abstract and let me keep it. In line it is ? I would be very greatful to you if you would.”

The defendant contends that these letters constitute an offer by the plaintiff to sell to him the land in question in consideration of payment to her of the taxes that had been paid thereon by her husband Lovig, and that his letter constitutes an acceptance by him of the offer, and that the correspondence resulted in a valid contract of sale of the land.

At the trial, on cross-examination, the defendant testified that in October sometime after the correspondence referred to between him and the plaintiff he made a trip to Minot and contacted the plaintiff and with reference to the conversation with her we quote from his testimony:

“Q. And did you talk with Mrs. Lovig at Minot? A. I did.
“Q. Did you at that time offer to repurchase the land by paying all the taxes, which had been paid at that time? A. I asked her if she received my letter. She said yes and it stated in my letter that I would accept the proposition.
“Q. And did you make any deal with her at that time when you were in Minot? A. I did. We was supposed to come down to Towner here. She could get a ride with me down and we would settle it and come down to Towner the next day but she wouldn’t come.
“Q. And you called at my office at that time. A. I did.
“Q. And at that time did you tell me that Mrs. Lovig had refused to accept the amount of taxes in exchange for a deed? A. She said she had changed her mind so I couldn’t say. That is to come along down.”

He stated further that he then went to Towner where he called on the attorney for the plaintiff and stated to him that he would accept a deed to one half of the mineral rights in the land in question in settlement of his claim against plaintiff but that she refused to give such deed.

While the letters written by Mrs. Lovig to Grovom could probably be considered as an offer to sell the land to him, there is no evidence that he accepted the offer. He wrote plaintiff that:

“I will take a trip out there as soon as I have finished some 50 acres of combining * * * I will except (expect) to pay taxes if I find everything proper and satisfactory. I will be out there to see you and we will talk things over.”

It is clear that his letter does not constitute an acceptance because, before accepting the offer he first wanted to “find out if everything was proper and satisfactory”; and as he said when he went out to talk the matter over with her, “she had changed her mind.”

The defendant testified that he resided in Walsh County since he proved up the land in controversy in May 1906 and that in 1932 he visited the land and that he made arrangements with Lovig that he could use the land “but to be sure and pay the taxes”. He testified that nothing was said as to how long the arrangements would continue, but he thought it would continue “as long as these times was”.

The defendant contends that under said arrangements the relationship of landlord and tenant was established and that Lovig wás his tenant and therefore was estopped from denying the title of his landlord and from availing himself of any acts of his own hostile to his landlord’s title as grounds for setting up title in himself. The defendant further contends that the acquisition by Lovig of the title resulted in an implied trust in favor of the defendant. In support of his contention defendant cites the case of Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278. However the facts in the Wood case are materially different from the facts in the case at bar. In the Wood case the defendant Homelvig wrote letters to the owner Wood recognizing him as owner of the land, offered to pay the taxes for the use thereof. The plaintiff owner accepted the offer and the defendant went into possession under the agreement, but failed to pay the taxes, permitted the land to be sold for taxes and then bought the land from the county. There is no evidence in the instant case that Lars Lovig agreed to pay the taxes for the years 1928, 1929, 1930 and 1931 or for any specified year. Two witnesses testifying for the defendant stated that Lars Lovig farmed and “hayed” the land from 1934, but they did not purport to know on what terms Lovig farmed and “hayed” the land.

The record shows that in the spring of 1941 Lars Lovig leased the land from Mc-Henry County and that in June of the same year he entered into a contract with the county for the purchase of said land; that thereafter he paid the taxes thereon and paid the installments on the contract and that in June 1944 he obtained from the county a county deed to the premises.

He continued in possession of the land and paid the taxes thereon until October 1950 when he conveyed the land to his wife the plaintiff. She went into possession upon receipt of the deed from her husband and paid the taxes thereon.

The burden was on the defendant to establish a valid rental contract between her husband Grovom and Lars Lovig. In this she has failed. She is therefore not in position to contend that Lovig could not acquire a title adverse to that of Grovom as his landlord. Grovom admitted that he had received notice of the tax deed proceedings instituted by McHenry County, but he took no action cither by contacting Mr. Lovig or the county officers. The first time that he showed any interest in the land appeared to be when he received the letter written by the plaintiff in September 1951. More than twenty years had elapsed since he paid taxes on the land and to all intents and purposes he had abandoned it.

The judgment of the district court is affirmed.

BURKE, C. J., and MORRIS, CRIMSON and JOHNSON, JJ., concur.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Brian Matthew McCONNELEE, Appellant.
    No. 03-0989.
    Supreme Court of Iowa.
    Dec. 10, 2004.

      John J. Hines of Dutton, Braun, Staack, Heilman, P.L.C., Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Cris Odell Douglass, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Brian McConnelee, appeals from his conviction of various drug charges, alleging trial court error in several particulars. Because our resolution of MeConnelee’s challenge to the district court’s ruling on his motion to suppress is dispositive, we limit our decision to a discussion of that issue.

I. Background Facts and Proceedings.

While driving a friend’s car on the afternoon of February 9, 2002, McConnelee was stopped by an Evansdale police officer who noticed some minor equipment violations. At the time of the stop, the officer activated a video camera located on his patrol vehicle. Conversations were recorded through the officer’s body microphone and a squad car microphone.

While talking to the defendant, the officer noted a small quantity of leafy-like material on top of the car stereo. When questioned, McConnelee maintained the substance was tobacco, and he began to sweep it off the stereo. The officer then asked McConnelee to get out of the vehicle, and the defendant complied.

After a pat-down search of the defendant accompanied by a brief conversation (the content of which was later disputed), the officer returned to the defendant’s car. The officer first determined the substance on top of the stereo was in fact tobacco; he then began to search the vehicle. After finding a marijuana pipe in the console between the front seats, the officer placed the defendant in the squad car and expanded his search of the car. Upon opening a black bag that was on the front passenger seat, the officer discovered baggies containing green, leafy plant material, baggies containing a white powdery substance, a baggy containing a white powder residue, a large digital scale, and other drug paraphernalia. The substances in the baggies were later confirmed to be marijuana and methamphetamine.

The State charged McConnelee with possession of more than five grams of methamphetamine with the intent to deliver in violation of Iowa Code section 124.401(1)(6)(7) (2001); failure to affix a drug tax stamp in violation of Iowa Code section 453B.12; possession of marijuana in violation of Iowa Code section 124.401(5); and possession of drug paraphernalia in violation of Iowa Code section 124.414. The defendant filed a motion to suppress the evidence discovered in the search of his vehicle. He claimed the search was not consensual, the contraband was not in plain view, and there was no other basis upon which the officer could constitutionally search the car. After a hearing, the district court overruled the defendant’s motion, concluding a gesture made by the defendant toward his car at the time of the pat-down search was sufficient to grant consent to search his vehicle. The court supported its conclusion with the fact the defendant did not question the extent of the officer’s subsequent search or lodge any objection to the officer’s actions.

The case against the defendant proceeded to trial and a jury found him guilty of all charges. After sentencing, McConne-lee filed this appeal, raising several issues. We address only one: whether the district court erred in failing to suppress evidence obtained as a result of the search of McConnelee’s vehicle.

II. General Principles.

Because the defendant’s suppression motion was based on a claimed constitutional violation, our review “is de novo in light of the totality of the circumstances.” State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

The defendant’s motion to suppress was based on an alleged violation of his right under the federal and state constitutions to be free of unreasonable searches and seizures. See U.S. Const, amend. IV; Iowa Const, art. I, § 8. He relies on the exclusionary rule, which provides that evidence obtained in violation of this constitutional protection is inadmissible at trial. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). Because McConnelee makes no argument that the federal and state constitutions should be interpreted or applied differently for purposes of his motion, our discussion applies to both constitutional claims. See In re Detention of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000).

A warrantless search violates the Fourth Amendment “unless it falls within a recognized exception.” State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000), overruled on other grounds by Turner, 630 N.W.2d at 606 n. 2. Exceptions include: “(1) consent to search; (2) the presence of probable cause and exigent circumstances; (3) objects in plain view; or (4) search conducted incident to a lawful arrest.” State v. Bergmann, 633 N.W.2d 328, 338 (Iowa 2001). “The State has the burden to prove by a preponderance of the evidence that the search falls within an exception.” Cline, 617 N.W.2d at 282. The State relies on the consent and exigent circumstances exceptions to support the trial court’s suppression ruling in this case.

III. Consent.

Consent may be express or implied. State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001). It may take a verbal form, or be found in gestures or other non-verbal conduct. Id. at 467. In addition, consent to a search may be limited or qualified. United States v. Ho, 94 F.3d 932, 936 n. 5 (5th Cir.1996); State v. Myer, 441 N.W.2d 762, 765 (Iowa 1989). Law enforcement authorities conducting the search are constrained by such limitations or qualifications. Myer, 441 N.W.2d at 765; State v. Kelly, 284 N.W.2d 236, 238 (Iowa 1979) (stating officers’ right to search is only coextensive with consent given). The scope of consent is determined by what a “typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297, 302 (1991).

In the matter before us, the defendant does not dispute that he gave some form of consent to the officer to search his car; it is the breadth of that consent that is at issue. Although it would seem the videotape would establish the precise contours of the defendant’s consent, the conversation between the defendant and the police officer is difficult to hear at times. In addition, the parties disagree on the meaning to be attached to a gesture made by the defendant in giving consent to search.

The defendant claims that after he exited the vehicle, the officer referred to “the leafy stuff,” and the defendant responded that “it was nothing, just tobacco and he [the officer] could check it to see.” The defendant then gestured toward the front of the car with his left arm. He claims the scope of his consent was limited to checking the nature of the leafy substance that had caught the officer’s attention. Once the officer confirmed the substance was tobacco, asserts the defendant, the officer had no authority to continue to search the vehicle.

The State claims the videotape confirms a broader consent. The State argues that when the officer and the defendant were standing at the rear of the vehicle, the officer asked the defendant whether the defendant had “anything he shouldn’t have.” According to the State, the defendant then gestured toward the front of the car, stating the officer can search it. The State’s interpretation of the videotape was bolstered at the suppression hearing by the police officer’s testimony. The officer testified the defendant consented to the search. The officer stated that when he— the officer — referred to the “leafy substance,” the defendant began speaking at the same time and said, “it’s nothing, check the whole car,” extending his arm toward the front of the car. The defendant took the stand at the suppression hearing and repeatedly denied that he gave the officer permission to search the whole car.

On our de novo review, we do not think the State has carried its burden to prove consent. The court has viewed the videotape made of the conversation at issue and concludes it is most consistent with the defendant’s version of what occurred. While it is certainly possible that the recording did not pick up the entire conversation between the defendant and the officer, we are not persuaded that the officer’s recollection of what the defendant said is consistent with what can be confirmed by the videotape or with our understanding of human behavior.

It appears from the videotape that the defendant, in response to the officer’s reference to the “leafy substance,” said that it was nothing and then, gesturing toward the open car door, added that the officer could “check it.” Even when considered in combination with the defendant’s gesture toward the front of the car, McConnelee’s statement did not give the officer unrestricted permission to search the entire vehicle. Cf. United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996) (holding while defendant’s gesture was sufficient to indicate consent to enter defendant’s home, “inviting someone into the foyer of one’s home is not an invitation or a consent to search the house”). Moreover, it is clear from the tape, and the officer admitted, that the officer did not directly ask the defendant for permission to search the entire car. Considering their conversation was limited to the nature of the leafy substance that was in plain view, we think it unlikely that the defendant would respond to the officer’s comments with an unsolicited invitation to the officer to “search the whole car.” See Reinier, 628 N.W.2d at 467 (relying on unlikelihood that occupant would invite strangers into home in concluding defendant had not consented to plainclothes officers’ entry into enclosed porch); State v. Ege, 274 N.W.2d 350, 353 (Iowa 1979) (stating court should consider the totality of the circumstances in evaluating consent). Even though the defendant’s failure to object to the scope of the officer’s search is an indication the search was within the initial consent, the natural reluctance of a citizen to interfere with an officer is an equally likely explanation for the defendant’s silence. See generally United States v. McSween, 53 F.3d 684, 688 (5th Cir.1995) (considering defendant’s failure to object to breadth of search as indication that search was within scope of initial consent). Therefore, we conclude from the totality of the circumstances a reasonable person would have understood that McConnelee’s consent was limited to the officer’s examination of the leafy substance on the stereo.

Given the limited nature of the defendant’s consent to the search of his vehicle, the police officer had no authority to go beyond an examination of the leafy material on the car stereo. See Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804, 114 L.Ed.2d at 303 (“The scope of a search is generally defined by its expressed object.”); United States v. Zertuche-Tobias, 953 F.Supp. 803, 825 (S.D.Tex.1996) (holding consent to search inside of envelope could not be implied from defendant’s failure to object to officer’s search of envelope when initial consent extended only to retrieving envelope from car). Once the officer had confirmed this substance was indeed tobacco, he could not constitutionally expand the search into other areas of the vehicle unless another exception to the warrant requirement applied. See Bergmann, 633 N.W.2d at 337-38 (holding once purpose of initial stop was satisfied, there must be additional basis to expand the search). This conclusion brings us to the State’s fallback position — that the search is supportable by probable cause and exigent circumstances.

IV. Probable Cause and Exigent Circumstances.

Law enforcement may dispense with the warrant requirement “when there is probable cause for the search, and exigent circumstances necessitate an immediate search.” State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000), overruled on other grounds by Turner, 630 N.W.2d at 606 n. 2. “A police officer has probable cause to search an automobile ‘when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband.’ ” Id. at 351 (citation omitted).

The record here shows the defendant was cooperative when stopped and questioned by the police officer and was not evasive in his answers. Moreover, there was no evidence that he acted nervous or appeared to be under the influence of an intoxicant or drug. The only circumstances cited by the State to support its contention probable cause existed were the presence of the suspicious leafy substance on the car stereo and the defendant’s “evasive action” in trying to sweep it away. While these facts may have justified an examination of the substance on the stereo, they do not support an expansion of the officer’s search to the console between the front seats and beyond. As the United States Supreme Court has said, “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619, 634 (1991) (emphasis added). Here, once the officer confirmed the leafy substance was exactly what the defendant said it was — -tobacco—there were no circumstances to indicate the presence of contraband in the console or in the vehicle in general. Any search beyond this point in time was not supported by probable cause.

V. Conclusion and Disposition.

We conclude the State has not met its burden to prove the defendant consented to a search of the entire vehicle. In addition, there was not probable cause to extend the search beyond an examination of the leafy material observed by the police officer. Therefore, the officer’s search of the console and other containers in the vehicle violated the defendant’s constitutional right to be free of unreasonable searches and seizures. Consequently, the evidence obtained in the officer’s search of the vehicle should have been excluded by the trial court.

This constitutional error does not require reversal if the State establishes beyond a reasonable doubt that the error in admitting the evidence obtained from the unlawful search was harmless. State v. Canas, 597 N.W.2d 488, 493 (Iowa 1999), overruled on other grounds by Turner, 630 N.W.2d at 606 n. 2.

There are two steps in the harmless error analysis. We first consider all of the evidence the jury actually considered, and then we weigh the probative force of that evidence against the erroneously admitted evidence. The inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

Id. at 494 (emphasis and citations omitted). Here the only evidence of the defendant’s possession of marijuana, methamphetamine, and drug paraphernalia were those items seized from the defendant’s vehicle as a result of the unconstitutional search. Given the State’s lack of other evidence to support the defendant’s conviction, we cannot say the error in admitting the illegally seized evidence was harmless.

We reverse the judgment of conviction and remand for a new trial in which the evidence seized from the defendant’s vehicle is excluded.

REVERSED AND REMANDED.