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Narum v. Faxx Foods Inc.3/18/1999
ause the plaintiffs timely accepted the offer within 30 days, there was no need to bring suit within one year of obtaining knowledge of Faxx's problems to have their stock purchases declared void. We reject the plaintiffs' interpretation of the statute.
[ ] Subsections 1 and 2 of the statute are separated by the term "and." Unlike the term "or," which is disjunctive in nature and ordinarily indicates an alternative between different things or actions, see State v. Eldred, 1997 ND 112, 21, 564 N.W.2d 283; State v. Silseth, 399 N.W.2d 868, 870 (N.D. 1987), the term "and" is conjunctive in nature and ordinarily means in addition to. See City of LaMoure v. State Health Council, 213 N.W.2d 869, 873 (N.D. 1973); McCaull-Webster Elevator Co. v. Adams, 39 N.D. 259, 266, 167 N.W. 330, 332 (1918). The use of the term "and" strongly suggests the Legislature intended a potential plaintiff must avoid the limitations in both subsections 1 and 2 to successfully use the statutory civil remedy.
[ ] Moreover, the plaintiffs' argument would lead to a highly unusual and unintended result. The public policy behind statutes of limitation is to prevent the litigation of stale claims when, through the lapse of time, evidence regarding the claim has become difficult to procure or even lost entirely. See Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D. 1990). Under the plaintiffs' construction of the statute, if a seller made a rescission offer which was accepted and later withdrawn, there would be no limitation period for the purchaser who accepted the offer to bring an action to recover under N.D.C.C. § 10-04-17. In effect, the Legislature would have created an action for which there is no limitation period. If the Legislature intended to permit purchasers who received rescission offers to bring an action at any time, it could have included language to that effect. The statute, when its parts are read together in a reasonable manner, does not allow plaintiffs an unlimited amount of time to bring suit.
[ ] Subsection 1, which emphasizes "no action shall be brought," establishes a clear limitation period. Subsection 2 additionally precludes a plaintiff from bringing suit if the plaintiff fails to timely accept a rescission offer. Thus, a claim may not be pursued even if commenced within the limitation period if a proper rescission offer was earlier declined. We conclude the trial court correctly rejected the plaintiffs' construction of the statute in concluding the one-year time bar was applicable in this case.
B.
[ ] The plaintiffs assert the trial court erred in ruling the defendants were not equitably estopped from relying on the one-year time limitation.
[ ] The doctrine of equitable estoppel may operate to preclude application of a statute of limitations as a defense by one whose actions mislead another, thereby inducing that person to not file a claim within the statute of limitations. Szarkowski v. Reliance Ins. Co., 404 N.W.2d 502, 507 (N.D. 1987). A delay may be excusable if it is not unreasonably protracted, but is induced by the defendant's promises, suggestions, or assurances which, if carried into effect, would result in a solution or adjustment without litigation. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 129 (N.D. 1990). To successfully implement the doctrine of equitable estoppel under N.D.C.C. § 31-11-06, the plaintiff must carry the burden of proving three elements:
"First, the plaintiff must prove that the defendant made statements and "from the nature of defendant's statements and all of the surrounding facts and circumstances that the statements were made with the idea that plaintiff would rely thereon.". . . Secon
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