absence of a showing that it affected the substantial rights of the parties.Id . (citing Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer Co. , 338 N.W.2d 64, 66 (N.D. 1983) ).Piatz v. Austin Mut. Ins. Co. , 2002 ND 115, ¶ 17, 646 N.W.2d 681.
Furthermore, this Court has expressly cautioned that the statute of frauds may not be employed to perpetrate a fraud or promote an injustice. See, e.g., Trosen v. Trosen, 2014 ND 7, ¶ 21, 841 N.W.2d 687; Ned Nastrom Motors, Inc. v. Nastrom–Peterson–Neubauer Co., 338 N.W.2d 64, 70 (N.D.1983); Nelson v. TMH, Inc., 292 N.W.2d 580, 584 (N.D.1980). [¶ 19] The district court in this case held that several of the Borgens' allegations of fraud could not be considered because they contradicted the terms of the written leases.
[¶ 32] To the extent there is a discrepancy between the earlier document and the findings of fact, the latter prevails. Adoption of Schneider, 347 N.W.2d 126, 130 (N.D. 1984); Ned Nastrom Motors v. Nastrom-Peterson-Neubauer Co., 338 N.W.2d 64, 71 n. 8 (N.D. 1983); Schmidt v. PlainsElectric, Inc., 281 N.W.2d 794, 801 (N.D. 1979). [¶ 33] The statute in effect at the time provided:
Whether or not an exhibit should have been excluded on the basis that it lacked adequate foundation is primarily within the sound discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing that it affected the substantial rights of the parties.Id. (citing Ned Nastrom Motors, Inc. v. Nastrom- Peterson-Neubauer, Co., 338 N.W.2d 64, 66 (N.D. 1983)). [¶ 18] Piatz and Johnson attempted to introduce evidence concerning Dr. Fielden's prior individual medical examinations through Austin Mutual's previous attorney who handled their claim.
The court concluded Meidingers "signed a personal guarantee," and judgment was entered for Moen. Meidingers appealed. [¶ 5] Whether or not statements constitute a personal guaranty is a question of fact. Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer Co., 338 N.W.2d 64, 69 (N.D. 1983). "Exact words of guarantee are not essential, where the words and circumstances are sufficient to clearly infer a guarantee." Baker Mfg. Co. v. Kramer Sheet Metal, 371 N.W.2d 149, 152 (N.D. 1985).
When the court affixes its signature to the findings, even though drafted by counsel, they become the findings of the court, and if they adequately explain the basis of the court's decision it will be upheld. See Kottke v. U.A.M., 446 N.W.2d 23, 26 (N.D. 1989); Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer, 338 N.W.2d 64, 71 n. 8 (N.D. 1983). Following an evidentiary hearing, the trial court issued a short memorandum opinion, stating:
Whether or not an exhibit should be excluded for lack of adequate foundation is primarily within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a showing that the exclusion affected a substantial right of the party. Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer Co., 338 N.W.2d 64 (N.D. 1983); Rule 103(a), N.D.R. Evid. The Petersons have not argued or demonstrated that the foundation for the admissibility of exhibit 36 was adequate, and we cannot say that the trial court abused its discretion in refusing to allow that exhibit into evidence. Moreover, although Dallas was not allowed to testify as to the contents of the exhibit, he was not precluded from relying upon the exhibit to form his opinion on drainage of the Petersons' land. The court's comment that an expert "needs to rely on admissible information" was made during discussions about another exhibit, which was ultimately admitted into evidence, and was qualified by its statement that "[t]he fact that it's a document that he relied on in giving his opinion does not make the document admissible."
We have previously held that when there is an inconsistency or discrepancy between a memorandum opinion and the findings of fact, the latter prevail. Ned Nastrom Motors v. Nastrom-Peterson-Neubauer, 338 N.W.2d 64, 71, n. 8 (N.D. 1983); Harwood v. Harwood, 283 N.W.2d 144, 146 (N.D. 1979); Kack v. Kack, 142 N.W.2d 754, 762 (N.D. 1966). While we do not encourage a trial court to uncritically accept proposed findings of fact drafted by counsel, we have said: "[F]indings of fact will not be found clearly erroneous on appeal merely because they were prepared by counsel for the prevailing party and thereafter adopted verbatim by the trial judge.
See also Rule 104, N.D.R.Evid.; R D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386-387 (N.D. 1986). Whether "an exhibit should have been excluded on the basis that it lacked adequate foundation is primarily within the sound discretion of the trial court, the exercise of which will not be disturbed on appeal in the absence of a showing that it affected the substantial rights of the parties." Ned Nastrom Motors, Inc. v. Nastrom-Peterson-Neubauer, 338 N.W.2d 64, 66 (N.D. 1983). Although Thomas relies on numerous cases from other jurisdictions for the proposition that medical bills cannot be admitted in evidence unless medical testimony establishes that the bills were necessitated by the accident in question, that rule has not been adopted by this court.
The cases relied on by the Bank demonstrate that an oral guaranty must be in existence before the "leading object" rule is germane. See Baker Mfg. Co. v. Kramer Sheet Metal, supra; Ned Nastrom Motors v. Nastrom-Peterson-Neubauer, 338 N.W.2d 64, 69 (N.D. 1983); State Bank of Towner, Inc. v. Rauh, 288 N.W.2d 299, 307 (N.D. 1980); Austford v. Smith, 196 N.W.2d 413, 416 (N.D. 1972). Because the trial court's finding of no oral guaranty is not clearly erroneous, the "leading object" rule is inapplicable. Section 22-01-05(2), N.D.C.C., provides: