Stout v. Fisher Industries12/1/1999
for Fisher Industries, Inc., prevents a factual finding that the `Summary of Employment Agreement' was a final contract between the parties." Furthermore, Stout said in a deposition the purpose of the September 2, 1995, contract "was basically just to cover me while we worked out the details of the long-term contract."
[ ] Stout contends: "The agreement between the parties should be found to be an oral contract for three years of severance pay. In the alternative, there should be found to be an oral contract of which the jury can determine the terms." Any oral agreements or understandings the parties had before they executed the written contract of September 2, 1995, were superseded under N.D.C.C. § 9-06-07, which provides "execution of a contract in writing . . . supersedes all the oral negotiations or stipulations . . . which preceded or accompanied the execution of the instrument." Stout contends the September 2, 1995, contract is a "memorandum in support of an oral contract," which is recognized and enforceable under Johnson v. Auran, 214 N.W.2d 641 (N.D. 1974). However, to satisfy the statute of frauds, N.D.C.C. § 9-06-04, a written memorandum evidencing an alleged oral contract "must contain all the essential or material conditions and terms of the contract." Id. at 649-50.
[ ] "Intent and the existence of an oral contract are questions of fact." Ehrman v. Feist, 1997 ND 180, 12, 568 N.W.2d 747. A contract requires parties capable of contracting, consent of the parties, a lawful object, and sufficient consideration. N.D.C.C. § 9-01-02. The parties' consent must be free, mutual, and communicated to each other. N.D.C.C. § 9-03-01. "Consent is not mutual unless the parties all agree upon the same thing in the same sense." N.D.C.C. § 9-03-16. " courts will not enforce a contract which is vague, indefinite, or uncertain, nor will they make a new contract for the parties." Tobias v. North Dakota Dep't of Human Svcs., 448 N.W.2d 175, 179 (N.D. 1989). To be valid and enforceable, a contract must be reasonably definite and certain in its terms, Delzer v. United Bank, 459 N.W.2d 752, 758 (N.D. 1990), "so as to ascertain what is required of the parties," In re Estate of Hill, 492 N.W.2d 288, 293 (N.D. 1992). An agreement which is so uncertain and incomplete as to any of its essential terms that it cannot be carried into effect without new and additional stipulations between the parties is not enforceable. Mag Constr. Co. v. McLean County, 181 N.W.2d 718, 721 (N.D. 1970).
[ ] Generally, an agreement to agree is unenforceable because its terms are so indefinite it fails to show a mutual intent to create an enforceable obligation. Kuntz v. Kuntz, 1999 ND 114, 14, 595 N.W.2d 292. "An agreement to agree in the future which is not sufficiently definite to enable a court to give it an exact meaning is not an enforceable obligation." Bergquist -Walker Real Estate, Inc. v. William Clairmont, Inc., 353 N.W.2d 766, 772 (N.D. 1984). However, an agreement to agree is enforceable if its terms are reasonably certain and definite. Kuntz, at 14.
[ ] Use of the phrases " n incentive bonus program will be entered into . . . satisfactory to both parties," " salary deferral program will be investigated," and " severance pay package will be included," in their written contract clearly indicates Stout and Fisher contemplated further negotiation and investigation before reaching an agreement in the future. As we noted, Stout said in a deposition the September 2, 1995, written contract "was basically just to cover me while we worked out the details of the long-term contract." Stout said in his deposition that paragraph 3 did not reflect his understanding of the parties' agreement. As to the
Page 1 2 3 4 North Dakota Employee Leasing Services
Employee Leasing Services
|