Sheyenne Valley Lumber Co. v. Nokleberg

319 N.W.2d 120, 1982 N.D. LEXIS 248
CourtNorth Dakota Supreme Court
DecidedApril 29, 1982
DocketCiv. 10099
StatusPublished
Cited by5 cases

This text of 319 N.W.2d 120 (Sheyenne Valley Lumber Co. v. Nokleberg) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheyenne Valley Lumber Co. v. Nokleberg, 319 N.W.2d 120, 1982 N.D. LEXIS 248 (N.D. 1982).

Opinions

PAULSON, Justice.

This is an appeal by the defendant, Jor-gen Nokleberg [Nokleberg], from a judgment dated August 8, 1981, by the District Court of Cass County in the sum of $10,-447.99. The plaintiff, Sheyenne Valley Lumber Company [Sheyenne], has cross-appealed from the judgment. We modify the judgment and, as modified, we affirm.

Sheyenne commenced an action alleging that certain lumber and materials were delivered by Sheyenne to Nokleberg of the value of $23,637.31, that Nokleberg had performed services for Sheyenne in the sum of $10,334.00, and, accordingly, was indebted to Sheyenne in the sum of $13,303.31, together with interest, costs, and disbursements.

Nokleberg interposed an answer and counterclaim denying the total amount due on the purchases, alleging that some of the claims for purchases were barred by the statute of limitations; that there were excess charges as well as overcharges; that there was an agreement whereby Nokle-berg would receive certain setoffs from Sheyenne; that Nokleberg further counterclaimed for services rendered by him in the sum of $26,587.00, including the storage of insulation for Sheyenne in the sum of $1,200.00; that Sheyenne agreed to furnish lumber and materials for a 12-plex for $27,-000.00, but Nokleberg was over-billed in the [122]*122sum of $7,944.00; and that Nokleberg returned certain materials to Sheyenne from the site of the 12-plex, for which he was not credited by Sheyenne. Sheyenne filed a timely reply which denied the counterclaim.

Sheyenne is located in Leonard, North Dakota, and Nokleberg is a carpenter and contractor who also resides in Leonard. Sheyenne often contracted with some of its customers for the construction of homes and buildings. Nokleberg, as a carpenter and a contractor, constructed some of these buildings for Sheyenne. After each such construction contract was completed, Shey-enne paid for Nokleberg’s services by either issuing checks to Nokleberg or by crediting Nokleberg’s account for materials which Nokleberg had purchased from Sheyenne as an independent contractor. This particular course of conducting business was commenced in September of 1970 and continued through August of 1975.

The oral agreement between Sheyenne and Nokleberg for the purchase of materials and the furnishing of labor was informal. The invoices for the merchandise purchased by Nokleberg were not always delivered to him at the various times of purchase. Harold Harris, who is the owner of Sheyenne, was permitted by Nokleberg to use his own discretion when paying accounts incurred by Nokleberg. Harris also did not refuse to accept Nokleberg’s oral statements with reference to the number of hours Nokleberg was employed on Sheyenne contracts. Nokleberg’s work hours were not supported by written time sheets, nor did Harris make any request for such written statements to verify the hours worked by Nokleberg. Sheyenne’s forwarding of the monthly statements showing the purchases and credits with reference to Nokleberg’s account with Sheyenne, as well as the times payments were made by Nokleberg or credits were given by Sheyenne, varied because of Nokleberg’s acting in the dual capacity of both a carpenter for Sheyenne and as an independent contractor.

In August of 1975, when the business relationship between Sheyenne and Nokle-berg terminated, there were disputes with reference to the accounts between Shey-enne and Nokleberg concerning materials and labor. Sheyenne and Nokleberg were unable to amicably settle their disputes and subsequently Sheyenne commenced this action.

Thereafter Sheyenne filed a motion and notice of motion for the appointment of a special master to determine matters of auditing and accounting between the parties and, further, to determine the status of the accounts between Sheyenne and Nokleberg. Sheyenne and Nokleberg both agreed that a special master be appointed for these purposes. The district court then, by an order dated February 8,1979, appointed Darrel K. Grande as special master. On April 1, 1980, the special master submitted his report to the court, which showed that the total charges incurred by Nokleberg to Sheyenne from September 29, 1970, through August 1975 totaled $161,757.57; and total credits given Nokleberg by Sheyenne were $139,-843.31, leaving a balance of $21,914.26. Sheyenne, shortly thereafter, by letter conceded that Nokleberg was entitled to an additional credit of $6,880.00, thereby reducing the amount owed Sheyenne by No-kleberg to $15,034.26. The master’s reports are based upon examination of the records which pertain to the business transactions between Sheyenne and Nokleberg.

The special master on June 9, 1980, submitted an additional report listing the invoices that were missing from the statements, which totaled $5,545.83, a listing of invoices which were posted in error, totaling $23.50, a listing of invoices which were not posted to the statements, totaling $249.23, as well as credits on the Sprunk job, in the sum of $6,000.00.

A bench trial was held and the court awarded Sheyenne a judgment of $10,-447.99. Sheyenne and Nokleberg both appealed from the judgment.

Nokleberg has raised the following issues in his appeal:

1. Were the trial court’s findings of fact clearly erroneous in finding that Nokle-berg failed to establish that Sheyenne owed him for the following:
[123]*123A. Labor on Alvin Wahl machine shed;
B. Labor on Alan Brown pole barn;
C. Concrete forms, ties, and oil;
D. Labor for painting of 4-H building;
E. Return of plywood from Bernie Anderson house;
F. Storage of insulation in Nokle-berg’s barn?

2. Are the trial court’s findings clearly erroneous with reference to the amounts awarded to Sheyenne against Nokleberg for the amounts shown on the invoices missing from Sheyenne’s records; and did the court commit error in admitting evidence of the missing invoices under the business records exception, pursuant to Rule 803(6), (7), North Dakota Rules of Evidence?

3. Were the trial court’s findings clearly erroneous with reference to the construction of the 12-plex

a. In failing to rule on Nokleberg’s claim for an overcharge on doors by Sheyenne;
b. In finding Sheyenne did not make a bid of $27,000.00 for materials for such 12-plex;
c. In finding Nokleberg failed to establish a credit for returned materials?

Sheyenne raises the following issues on its cross-appeal:

1. Did the trial court make a clearly erroneous finding in deciding that No-kleberg was entitled to a credit of $1,075.00 for labor he performed on the Harry Wadeson garage?
2. Did the trial court make a clearly erroneous finding of fact in deciding that Nokleberg was entitled to a credit of $337.20?

The scope of review of this court should be governed by Rule 52(a), of the North Dakota Rules of Civil Procedure, wherein it states, in pertinent part:

“RULE 52 — FINDINGS BY THE COURT
“(a) Effect. . .. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

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Sheyenne Valley Lumber Co. v. Nokleberg
319 N.W.2d 120 (North Dakota Supreme Court, 1982)

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Bluebook (online)
319 N.W.2d 120, 1982 N.D. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheyenne-valley-lumber-co-v-nokleberg-nd-1982.