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Ziebarth v. Kalenze

North Dakota Supreme Court
238 N.W.2d 261 (1976)


Silver Ziebarth (plaintiff) sued LeRoy Kalenze (defendant) for specific performance of a contract for the sale of cattle. At the time Ziebarth brought the suit, Kalenze knew that specific performance was impossible because Kalenze had sold his cattle. However, Kalenze never filed a demand for jury trial, even though he would be entitled to a jury trial on the issue of damages. The case was tried without a jury, and the trial court found for Ziebarth. The trial court ordered damages in lieu of specific performance. Kalenze moved for dismissal because Ziebarth had asked for specific performance, which was no longer available. The trial court denied the motion. Kalenze appealed, arguing that he had been deprived of a jury trial on the issue of damages.

Rule of Law


Holding and Reasoning (Vogel, J.)

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