Mattco, Inc. v. Mandan Radio Ass'n, Inc.

8 Citing cases

  1. Evenson v. Hlebechuk

    305 N.W.2d 13 (N.D. 1981)   Cited 8 times

    A condition precedent cannot be used to contradict express terms of a written contract. Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222, 228 (N.D. 1976). It is also the established law in North Dakota that promissory notes may be subject to conditions precedent.

  2. Hoge v. Burleigh County Water Management District

    311 N.W.2d 23 (N.D. 1981)   Cited 39 times
    Allowing attorneys' fees in an indemnification agreement related to a water project

    We are limited by Rule 52(a), N.D.R.Civ.P., to setting aside a finding of fact only when it is clearly erroneous. . . . "We have often stated that a finding of fact is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made; and that the mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court. E. g., Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222 (N.D. 1976); Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126 (N.D. 1976); Larson v. Larson, 234 N.W.2d 861 (N.D. 1975)." The trial court's findings are to be given the same weight as a jury verdict and, in reviewing those findings, the evidence must be viewed in a light most favorable to the findings.

  3. Chavez v. State

    604 P.2d 1341 (Wyo. 1980)   Cited 44 times
    Ruling that authenticated copies of prior judgments bearing same name as defendant were not sufficient to establish prima facie evidence of identity for purpose of habitual offender sentencing enhancement

    Whether the relationship exists depends on the facts and circumstances of each case. Kurtenbach v. TeKippe, Iowa, 260 N.W.2d 53 (1977); Westinghouse Electric Corporation v. Rio Algom Limited, D.C.N.D.Ill., 448 F. Supp. 1284 (1978); Mattco, Inc. v. Mandan Radio Association, Inc., N.D., 246 N.W.2d 222 (1976); Nicholson v. Shockey, 192 Va. 270, 64 S.E.2d 813 (1951); Delta Equipment and Construction Co. v. Royal Indemnity Co., La. App., 186 So.2d 454 (1966); Crest Investment Trust, Inc. v. Comstock, 23 Md. App. 280, 327 A.2d 891 (1974). The statute relative to the representation of a needy person is not conclusive with respect to the commencement of the relationship.

  4. Vetter v. Vetter

    267 N.W.2d 790 (N.D. 1978)   Cited 19 times
    In Vetter v. Vetter, supra, 267 N.W.2d at 792, our court held that a party seeking modification of a divorce decree awarding custody must show a change of circumstances or new facts which were unknown to the moving party at the time the decree was entered.

    See, also, Struchynski v. Decker, 194 N.W.2d 741 (N.D. 1972). My views, to the extent that they apparently differ from the views of my colleagues on how Rule 52(a), N.D.R.Civ.P., should work and how it was intended to operate, have been reflected in a series of cases starting with Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519 (N.D. 1976), followed by Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222 (N.D. 1976); Fortman v. Manthey, 248 N.W.2d 821 (N.D. 1976); Fine v. Fine, 248 N.W.2d 838 (N.D. 1976); Peoples Bank and Trust v. Reiff, 256 N.W.2d 336 (N.D. 1977); Haugeberg v. Haugeberg, 258 N.W.2d 657 (N.D. 1977); Matter of Estate of Koch, 259 N.W.2d 655 (N.D. 1977); Becker v. Becker, 262 N.W.2d 478 (N.D. 1978); and Rummel v. Rummel, 265 N.W.2d 230 (N.D. 1978). I began to see little purpose in repeating myself.

  5. Schmidt v. Schmidt

    254 N.W.2d 102 (N.D. 1977)   Cited 3 times

    As trial de novo has been abolished by the Legislature and the trial court in the instant case found that there is no evidence of fraudulent intent on the part of Peter Schmidt in transferring the real property to himself and Martha as joint tenants, our standard of review is the "clearly erroneous" rule set forth in Rule 52(a), N.D.R.Civ.P. This court has stated repeatedly that a finding will be determined clearly erroneous only when, although there is some evidence to support it, this court on the entire evidence is left with a definite and firm conviction that a mistake has been made. E.g., George v. Compson, 251 N.W.2d 743 (N.D. 1977); Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222 (N.D. 1976); In re Estate of Elmer, 210 N.W.2d 815 (N.D. 1973). It is with this test in mind that we must review the record. Hildegard, in her brief, argues the fraudulent nature of the conveyance in that Peter "defaulted continuously thereafter in the payments required to be made. . . ."

  6. George v. Compson

    251 N.W.2d 743 (N.D. 1977)   Cited 8 times

    A reading of that Rule, which begins "In all actions tried upon the facts without a jury . . .," indicates to us that it should apply to an order directed to the State Treasurer requiring him to pay the amount of the judgment out of the Unsatisfied Judgment Fund pursuant to Section 39-17-05, N.D.C.C. See 5A Moore's Federal Practice ¶ 52.03[3], at 2665-2672 (2d ed. 1975). We have often stated that a finding of fact is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made; and that the mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court. E.g., Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222 (N.D. 1976); Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126 (N.D. 1976); Larson v. Larson, 234 N.W.2d 861 (N.D. 1975). We conclude that the findings of the trial court are not clearly erroneous and accordingly that the claimant proved sufficient union of act and intent to establish his residence for the purposes of applying the Unsatisfied Judgment Fund to his claim.

  7. Bladow v. Bladow

    249 N.W.2d 917 (N.D. 1977)   Cited 12 times

    Findings of fact by the trial court, in a case tried upon the facts without a jury, will not be set aside by this court unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Mattco, Inc. v. Mandan Radio Ass'n, Inc., 246 N.W.2d 222, Syll. ¶ 2 (N.D. 1976); Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126, Syll. ¶ 1 (N.D. 1976); Eakman v. Robb, 237 N.W.2d 423, Syll. ¶ 2 (N.D. 1975), and Kleinjan v. Knutson, 207 N.W.2d 247, 249 (N.D. 1973). Furthermore, in Eakman v. Robb, supra 237 N.W.2d at 424, in paragraphs 4 and 5 of the syllabus, we held: "4. A finding is `clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

  8. Schneidt v. Absey Motors, Inc.

    248 N.W.2d 792 (N.D. 1976)   Cited 24 times
    In Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 799 (N.D. 1976), this court recognized that § 41-02-94, N.D.C.C. [2-715 (UCC)], limits damages for breach of a contract to those reasonably foreseeable in consequence of the breach.

    Since we will not set aside a finding of a trial court on an issue of fact unless the finding is clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure, we decline to find in this instance that the trial court erred. Mattco, Inc. v. Mandan Radio Association, Inc., 246 N.W.2d 222 (N.D. 1976); Schwartzenberger v. Hunt Trust Estate, 244 N.W.2d 711 (N.D. 1976). From our analysis of the transcript, it appears that the trial court could have concluded that Mr. Halvorson, a representative of Tri-State, communicated the title problem to one of the officers of Absey Motors shortly after he was notified of the problem in August of 1973, and that Absey failed to do anything to defend Schneidt's title in accordance with the express written warranty of title.