Erickson v. BrownNo. 20070044

VandeWalle, Chief Justice.

[¶1] John D. Erickson, Richard B. Dregseth, and Jon A. Ramsey (collectively "plaintiffs") appealed from a district court judgment dismissing before trial some of their claims against Randy Brown and Capital Harvest, Inc., and dismissing their remaining claims after a jury verdict in an action to determine the plaintiffs' right to an ownership interest in Capital Harvest. The plaintiffs claim that Erickson and Dregseth left a prior employer to help Brown start Capital Harvest after Brown promised to "give" them an ownership interest in Capital Harvest and Brown thereafter unilaterally required them to "earn" an ownership interest in the company and that Ramsey subsequently left a prior employer to work at Capital Harvest as part of an agreement to "earn" an interest in Capital Harvest. The plaintiffs assert Brown breached his promises and made misrepresentations to them, which prevented them from receiving or earning an ownership interest in Capital Harvest. They argue the district court erred in dismissing most of their claims before trial for failure to state a claim or by summary judgment, the court erred in refusing to instruct the jury on accord and on good faith, and the court erred in refusing to allow the jury to hear evidence about Brown's accounting practices.

[¶2] We conclude the district court did not err in refusing to instruct the jury on accord and on good faith, and the court did not abuse its discretion in excluding the plaintiffs' proffered evidence. We further hold that although the court erred in dismissing Capital Harvest under N.D.R.Civ.P. 12(b)(vi) and in granting summary judgment on some of the plaintiffs' claims relating to earning an interest in Capital Harvest, the error was not prejudicial in view of the jury's finding that Brown did not breach his contract with Erickson to earn an interest in Capital Harvest. We also conclude that some of Dregseth's claims relating to whether or not Brown agreed to give him an interest in Capital Harvest raise issues of material fact, and we reverse those claims and remand for further proceedings.

I

Facts

[¶3] Brown was the sole owner of AGSCO, Inc., a family business in Grand Forks that sold farm seed and chemicals on credit to customers in North Dakota, South Dakota, Minnesota, and Montana. In the late 1990s, Erickson and Dregseth both worked at Bremer Bank in Grand Forks, which provided operating capital to AGSCO, and Erickson provided banking services to Brown and AGSCO. According to Erickson, Brown approached him in 1999 with a plan to create Capital Harvest as a captive finance company for AGSCO. Erickson claimed Brown orally agreed to "give" him a 25 percent interest in Capital Harvest as part of a compensation package to induce him to leave Bremer Bank and help start Capital Harvest. Erickson asserted he and Brown also discussed hiring Dregseth, and Brown authorized Erickson to negotiate a salary and stock ownership agreement with Dregseth, which included giving Dregseth a separate 8 percent ownership interest in Capital Harvest as part of his compensation package to work for Capital Harvest.

[¶4] Erickson left his job with Bremer Bank, and he started working for Brown and the yet-to-be formed Capital Harvest on September 13, 1999. According to Erickson, on that date, Brown told him that Brown could not "give" him a 25 percent interest in Capital Harvest, but he could "earn" up to a 25 percent interest under a written schedule that outlined his earned ownership interest based upon Capital Harvest's profits. The written schedule required Erickson to be vice president of Capital Harvest and authorized him to transfer any portion of his earned interest to other Capital Harvest employees. Erickson claimed Brown also told him that Dregseth's 8 percent interest in Capital Harvest would now come out of Erickson's 25 percent interest.

[¶5] Brown incorporated Capital Harvest on October 13, 1999, with himself as the sole shareholder of the corporation. Erickson asserted he did not tell Dregseth about the new arrangement to earn an ownership interest until after Dregseth began working at Capital Harvest on October 18, 1999. Erickson and Dregseth both claimed that because they had quit their jobs at Bremer Bank, they had no leverage to object to the new arrangement and they both decided to work for Capital Harvest under the new arrangement.

[¶6] Erickson and Dregseth asserted they subsequently became involved in the management of AGSCO and Brown's affiliated companies, and in 2000, they approached Ramsey, who was then working at Bremer Bank, about managing Capital Harvest for a salary and an opportunity to earn a 4 percent ownership interest in Capital Harvest, which would come out of the 25 percent interest earned by Erickson and Dregseth. The plaintiffs claimed Brown participated in and consented to the agreement with Ramsey.

[¶7] Erickson and Dregseth asserted their initial income projections for Capital Harvest were based on Capital Harvest making money on the "spread," which they described as the difference between the rate at which Capital Harvest could borrow money and the rate at which it would loan those funds, and they did not consider charging AGSCO a discount fee, which is a fee charged by credit card companies when they buy credit card debt from a business and assume the risk that the business's debtors will not pay that debt. Erickson and Dregseth claimed they subsequently realized Capital Harvest could not make a profit without charging AGSCO a discount fee. In 2000, they suggested AGSCO should pay Capital Harvest a discount fee for financing AGSCO's sales, but Brown declined to authorize a discount fee because he claimed Capital Harvest's financing arrangement with AGSCO customers did not require Capital Harvest assume the risk that those customers would not pay their debt.

[¶8] The plaintiffs asserted Capital Harvest's profits were adversely affected by Brown's accounting practices and his refusal to authorize Capital Harvest to charge AGSCO a discount fee. The plaintiffs claimed that, at an October 2002, meeting, Brown said he was not going to honor any of his promises or agreements to the plaintiffs regarding their potential ownership interests in Capital Harvest. Shortly thereafter, Erickson and Ramsey terminated their employment with Capital Harvest, and Dregseth terminated his employment in July 2003. According to Brown, he did not transfer any shares of Capital Harvest to the plaintiffs because Capital Harvest never made the profits required by the written schedule.

[¶9] The plaintiffs sued Brown and Capital Harvest for breach of contract, fraud, deceit, promissory estoppel, equitable estoppel, unjust enrichment, and breach of a fiduciary duty. Except for unjust enrichment, the district court dismissed all the plaintiffs' claims against Capital Harvest for failure to state a claim under N.D.R.Civ.P. 12(b)(vi). The court also dismissed Ramsey's breach of contract claims against Brown under N.D.R.Civ.P. 12(b)(vi), concluding that, when Brown contracted with Erickson and Dregseth, Ramsey was not an intended beneficiary of that contract.

[¶10] The court thereafter granted summary-judgment dismissal of Ramsey's fraud claim against Brown and all the plaintiffs' claims against Brown for deceit, promissory estoppel, equitable estoppel, unjust enrichment, and breach of a fiduciary duty. As a result of the court's pretrial rulings, the plaintiffs' claims remaining for trial were Erickson's and Dregseth's claims against Brown for breach of contract and for fraud.

[¶11] A jury subsequently returned a special verdict, finding Brown entered into an oral contract with Erickson to give him an ownership interest in Capital Harvest, but Brown and Erickson intended that the written schedule for Erickson to earn an ownership interest in Capital Harvest was a novation. The jury found Brown and Erickson entered into a contract for Erickson to earn an interest in Capital Harvest, Brown did not breach that contract for Erickson to earn an interest in Capital Harvest, and Brown's conduct toward Erickson did not constitute actual fraud. The jury also found Brown did not enter an oral contract with Dregseth to give him an ownership interest in Capital Harvest and Brown also did not enter into a contract with Dregseth for him to earn an ownership interest in Capital Harvest. The court entered a final judgment dismissing all the plaintiffs' claims against Capital Harvest and Brown.

II

Claims Against Capital Harvest

[¶12] The plaintiffs argue the district court erred in dismissing their claims against Capital Harvest before trial for failure to state a claim and by summary judgment.

[¶13] In dismissing all but the plaintiffs' unjust enrichment claim against Capital Harvest under N.D.R.Civ.P. 12(b)(vi), the district court said that under promoter liability, Brown's pre-incorporation agreements could be imputed to Capital Harvest if Capital Harvest ratified those agreements. The court decided, however, that even if Brown agreed to "give" Erickson and Dregseth an ownership interest in Capital Harvest, Brown rescinded that agreement before Capital Harvest was formed and Capital Harvest could not ratify that agreement. The court also said Ramsey did not have a claim based on the alleged agreement to "give" stock, because that agreement was rescinded before Ramsey left Bremer Bank and started working for Capital Harvest. In considering the plaintiffs' claims against Capital Harvest regarding the alleged agreement to "earn" an interest in Capital Harvest, the court said Brown owned all of the shares of Capital Harvest and any earned ownership interest would have to come from him personally. The court decided that because Capital Harvest owned no stock, it could not enter into a contract with the plaintiffs to earn stock and could not be subjected to the burdens that went with that contract. The court thus concluded the plaintiffs failed to state claims against Capital Harvest for breach of contract, fraud, estoppel, deceit, and breach of a fiduciary duty.

[¶14] The plaintiffs contend the district court's decision was based on an erroneous interpretation of corporate law, because Capital Harvest could have issued stock directly to Erickson, Dregseth, and Ramsey and could be liable for breach of contract or for equitable claims based on Brown's promise to allow Erickson and Dregseth to earn an interest in Capital Harvest. The plaintiffs argue Brown was personally liable for his pre-incorporation promises, and by accepting the benefits of Brown's promises, Capital Harvest was also liable because Capital Harvest had authorized, but unissued, shares of stock that could have been issued directly to Erickson, Dregseth, and Ramsey. They also argue that because Brown held all the authorized shares of Capital Harvest, he controlled the corporation and could have amended the articles of incorporation to authorize additional shares that could have been issued directly from Capital Harvest to Erickson, Dregseth, and Ramsey. The plaintiffs also claim Ramsey has valid claims against Capital Harvest, because Erickson, Dregseth, and Brown were acting as agents of Capital Harvest in promising Ramsey an opportunity to earn a 4 percent ownership interest in Capital Harvest.

[¶15] In Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556 (citations omitted), we outlined our standard of review of a dismissal under N.D.R.Civ.P. 12(b)(vi):

The purpose of a N.D.R.Civ.P. 12(b)(vi) motion is to test the legal sufficiency of the statement of the claim presented in the complaint. In reviewing an appeal from a Rule 12(b) dismissal, we construe the complaint in the light most favorable to the plaintiff, taking as true the well-pleaded allegations in the complaint. Because determinations on the merits are generally preferred to dismissal on the pleadings, Rule 12(b)(vi) motions are viewed with disfavor. Accordingly, a court's scrutiny of the pleadings should be deferential to the plaintiff, and the complaint should not be dismissed unless "it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted." We will affirm a judgment dismissing a complaint for failure to state a claim if we cannot "discern a potential for proof to support it."

[¶16] Under N.D.R.Civ.P. 8(a), a pleading must contain a short and plain statement of the claim showing the pleader is entitled to relief and a demand for judgment for the relief the pleader seeks. The purpose of N.D.R.Civ.P. 8(a) is to put a defendant on notice as to the nature of the plaintiff's claim. Williams v. State, 405 N.W.2d 615, 621 (N.D. 1987). Pleadings that generally indicate the type of claim involved satisfy N.D.R.Civ.P. 8(a). Williams, at 621. Although a concise and non-technical complaint is all that is required by N.D.R.Civ.P. 8(a), a complaint nevertheless must be sufficient to inform and notify the adversary and the court of the pleader's claim. Brakke v. Rudnick, 409 N.W.2d 326, 332 (N.D. 1987).

[¶17] To the extent the district court dismissed the plaintiffs' claims against Capital Harvest because the court concluded Brown owned all the stock in Capital Harvest and any stock ownership would have to come from him, we conclude the court erred. A corporation is an artificial person that acts through its agents. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 11, 705 N.W.2d 836; Dewey v. Lutz, 462 N.W.2d 435, 443 (N.D. 1990). A corporation that knowingly accepts the benefits of a pre-incorporation contract it might itself make does so subject to the burdens that go with the contract. Federal Savs. and Loan Ins. Corp. v. Morque, 372 N.W.2d 872, 876 (N.D. 1985). Knowledge of the board of directors, officers, or agents of a corporation is imputed to the corporation. Bourgois v. Montana-Dakota Utils. Co., 466 N.W.2d 813, 817 (N.D. 1991); Morque, at 876. The knowledge of the promoters of a corporation generally cannot be imputed to the corporation unless the promoters become directors and stockholders of the corporation or are the controlling shareholders. Morque, at 876. Fraud and deceit may be imputed from an agent to a principal. Dewey, at 443-44 (instructions that prohibited imputation of fraud and deceit from agent of corporation to corporation were erroneous statements of law).

[¶18] A corporation's articles of incorporation must state the number of shares a corporation has authority to issue. N.D.C.C. § 10-19.1-10(1)(c). A corporation may retain authorized, but unissued shares. See 11 Fletcher Cyclopedia Corporations § 5084 (2003 Rev. Perm. Ed.). A corporation may acquire its own shares and either reissue those shares or hold them. N.D.C.C. §§ 10-19.1-10(3)(n) and 10-19.1-93. A corporation may also amend its articles of incorporation to increase the number of authorized shares and a corporation may then issue those additional shares. See N.D.C.C. §§ 10-19.1-10(1)(c) and 10-19.1-17.

[¶19] Under our law, both Brown, as the sole shareholder of Capital Harvest, and Capital Harvest, through its sole shareholder, could be ordered to satisfy any necessary transfer of shares of stock. Although the plaintiffs' complaint does not specifically allege promoter liability or that Capital Harvest caused the plaintiffs' harm, the complaint, viewed in the light most favorable to the plaintiffs, alleges that Brown made pre-incorporation promises and representations on behalf of Capital Harvest. Moreover, the complaint, viewed in the light most favorable to the plaintiffs, also alleges that Brown, Erickson, and Dregseth were acting as agents for Capital Harvest after its incorporation. Although the plaintiffs' complaint could have been more specific, we conclude it was sufficient to state claims against Capital Harvest under agency and promoter principles and the district court erred in dismissing the plaintiffs' claims against Capital Harvest because the court decided any stock ownership would have to come from Brown.

[¶20] We further conclude, however, that any liability imposed upon Capital Harvest is imputed from Brown's alleged promises or misrepresentations and may be imposed directly against Brown by requiring him to transfer shares of stock of Capital Harvest, if necessary. See Dewey, 462 N.W.2d at 443-44 (jury's failure to follow erroneous instruction that prohibited imputation of fraud and deceit from agent to principal was harmless error where jury nevertheless awarded actual and punitive damages against principal). "'Nonprejudicial mistakes by the district court constitute harmless error and are not grounds for reversal.'" Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 26, 643 N.W.2d 29 (quoting Peters-Riemers v. Riemers, 2001 ND 62, ¶ 10, 624 N.W.2d 83). On this record, we conclude the plaintiffs have not established they were prejudiced by the dismissal of their claims against Capital Harvest under N.D.R.Civ.P. 12(b)(vi). Moreover, for the same reason, we conclude the plaintiffs' unjust enrichment claims against Capital Harvest, which were dismissed by summary judgment with their unjust enrichment claims against Brown, are dependent on Brown's ultimate liability for his promises or representations and are governed by the same analysis.

III

Claims Against Brown

[¶21] The plaintiffs' argue the district court erred in granting summary judgment dismissal of Dregseth's and Ramsey's deceit and equitable claims against Brown.

[¶22] Under N.D.R.Civ.P. 56, summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Hasper v. Center Mut. Ins. Co., 2006 ND 220, ¶ 5, 723 N.W.2d 409. The party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Trinity Hosps. v. Mattson, 2006 ND 231, ¶ 10, 723 N.W.2d 684. A district court's decision on a motion for summary judgment is a question of law that we review de novo on the record. Id. In determining whether summary judgment was appropriately granted, we view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. Hasper, at ¶ 5.

A

Deceit

[¶23] "One who willfully deceives another with intent to induce that person to alter that person's position to that person's injury or risk is liable for any damage which that person thereby suffers." N.D.C.C. § 9-10-03. As used in N.D.C.C. § 9-10-03, "deceit" means:

1. The suggestion as a fact of that which is not true by one who does not believe it to be true;

2. The assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;

3. The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or

4. A promise made without any intention of performing. N.D.C.C. § 9-10-02.

[¶24] This Court has recognized that under the statutory definitions for deceit and fraud, the same conduct, a promise made without any intention of performing, may constitute both deceit and fraud. Delzer v. United Bank, 527 N.W.2d 650, 653 (N.D. 1995) (Delzer I) (comparing N.D.C.C. § 9-03-08(4) with § 9-10-02(4)). Under those statutes, we have said that although the same conduct can constitute both deceit and fraud and those terms are often used interchangeably, fraud under N.D.C.C. § 9-03-08 applies to parties to a contract, while deceit under N.D.C.C. § 9-10-02 applies where there is no contract between the parties. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 25, 730 N.W.2d 841; Grandbois and Grandbois, Inc. v. City of Watford City, 2004 ND 162, ¶ 19, 685 N.W.2d 129; Delzer v. United Bank, 1997 ND 3, ¶ 5 n.2, 559 N.W.2d 531 (Delzer II); Delzer I, at 653; Dvorak v. American Family Mut. Ins. Co., 508 N.W.2d 329, 332 (N.D. 1993); State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474 (N.D. 1991); Bourgois, 466 N.W.2d at 818 n.5; Dewey, 462 N.W.2d at 439; West v. Carlson, 454 N.W.2d 307, 310 n.1 (N.D. 1990); Olson v. Fraase, 421 N.W.2d 820, 827 n.3 (N.D. 1988); Ostlund Chem. Co. v. Norwest Bank, 417 N.W.2d 833, 835-36 (N.D. 1988); Hellman v. Thiele, 413 N.W.2d 321, 326 (N.D. 1987).

[¶25] In Delzer I, 527 N.W.2d at 653, we explained:

Under Chapter 9-03, N.D.C.C., "[a] promise made without any intention of performing it" and with intent to deceive or to induce another to enter into a contract is "actual fraud" for purposes of nullifying apparent free consent to the contract. N.D.C.C. §§ 9-03-01, 9-03-03, and 9-03-08(4). If there is a contract between the parties and a party's apparent free consent to the contract is obtained by fraud, N.D.C.C. § 9-03-02 authorizes the defrauded party to rescind the contract in the manner prescribed by Chapter 9-09, N.D.C.C. The defrauded party may also affirm the contract and recover damages. Schaff v. Kennelly, 61 N.W.2d 538 (N.D. 1953); Beare v. Wright, 14 N.D. 26, 103 N.W. 632 (1905); see Restatement (Second) of Torts § 549 (1977); Calamari and Perillo, Contracts § 9-23 (3rd ed. 1987); Dobbs, Remedies § 9.1 et seq. (1973); Prosser and Keeton on Torts § 110 (5th ed. 1984); 37 Am.Jur.2d, Fraud and Deceit § 327 (1968).

Under Chapter 9-10, N.D.C.C., if there is no contract between the parties, "[o]ne who willfully deceives another with intent to induce him to alter his position to his injury or risk is liable for any damage which he thereby suffers," and "deceit" is defined as "[a] promise made without any intention of performing." N.D.C.C. §§ 9-10-01, 9-10-02(4), and 9-10-03. Under those statutes, a promise made without any intention of performing it which does not meet the requirements of a contract between the parties may nevertheless satisfy the requirements of deceit, and the victim of that deceit may recover for any damage suffered.

. . . .

Pioneer Fuels [, Inc. v. Montana-Dakota Utils. Co., 474 N.W.2d 706 (N.D. 1991)] stands for the principle that, where there is a breach of contract, there must be some additional, independent facts not connected to the manner of the breach of contract to support tort and exemplary damage claims. See 22 Am.Jur.2d, Damages § 752 (1988) (exemplary damages ordinarily not recoverable in action for breach of contract, unless breach amounts to an independent, willful tort). However, when the parties' actions do not meet the requirements for a contract, Pioneer Fuels does not preclude tort recovery for deceit, if the elements of deceit under Chapter 9-10, N.D.C.C., are established. See Dewey v. Lutz, supra (even if some defendants were not parties to contract, there was sufficient evidence to support jury's alternative findings of deceit by those defendants); State Bank of Kenmare v. Lindberg, 471 N.W.2d 470 (N.D. 1991) (allegations of extra-contractual statements by lender which induced borrower to alter position sounds in tort).

Here, the jury found there was no oral contract to lend Delzers an additional $150,000, but that United knowingly deceived the Delzers. Pioneer Fuels is not controlling because the jury found that the elements of an oral contract to loan an additional $150,000 had not been met, but that United's actions regarding the alleged additional $150,000 loan satisfied the requirements for deceit. When there is no contract between the parties, Pioneer Fuels and our statutory provisions for deceit do not preclude tort recovery if the separate elements of deceit are established. See Dewey v. Lutz, supra. The problem present in Pioneer Fuels—the only evidence presented to support the tort claim was evidence of the breach of a contract—is not present here.

[¶26] Allegations of fraud and deceit generally raise questions of fact which must be proved by clear and convincing evidence. WFND, 2007 ND 67, ¶ 25, 730 N.W.2d 841; Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555; State Bank of Kenmare, 471 N.W.2d at 474.

[¶27] The separate concurrence and dissent recognizes neither party has asked us to address the confusion between fraud and deceit. Rather, the appellants' argument about deceit states the district court "correctly not[ed] the technical distinction that fraud is the proper claim where a contract exists between the parties, whereas deceit is the proper claim where there is no contract." Our caselaw has consistently recognized "[t]he 'law of the case' doctrine and the scope of the parties' appeal define the parameters or our review." Hopfauf v. Hieb, 2006 ND 72, ¶ 11 n.2, 712 N.W.2d 333 (citing Tom Beuchler Constr. v. City of Williston, 413 N.W.2d 336, 339 (N.D. 1987)). E.g. State v. Duchene, 2007 ND 31, ¶ 10, 727 N.W.2d 769 ("Issues not briefed by an appellant are deemed abandoned, and thereby become the law of the case and will not be considered on appeal"); Estate of Murphy v. Maus, 2001 ND 87, ¶ 13 n.1, 626 N.W.2d 281 (same). The analysis of fraud and deceit in the separate concurrence and dissent represents an argument for clarifying or overruling caselaw interpreting our statutes for fraud and deceit. The adversarial process necessitates and benefits by thorough development of arguments for a change in existing law. On this record, the law of the case and the posture of the issues raised by the parties in this appeal militate against any such change in the law in this proceeding.

1

Ramsey

[¶28] In granting Brown summary judgment on Ramsey's deceit claim, the district court said there were no allegations that Brown made any willful misrepresentations to Ramsey. The plaintiffs argue Brown failed to disclose to Ramsey that he had no intention of transferring any ownership interest in Capital Harvest and Brown's failure to disclose that material fact constituted deceit. Brown counters that the district court properly dismissed Ramsey's deceit claim because the plaintiffs' complaint does not allege Brown deceived Ramsey; rather, the complaint alleges Brown made promises or misrepresentations to Erickson and Dregseth that they would receive an interest in Capital Harvest. Brown claims Ramsey was not affected by those alleged promises or misrepresentations because Ramsey had not yet started working for Capital Harvest. Brown also claims that as Capital Harvest's banker, Ramsey knew Capital Harvest was not charging AGSCO a discount fee when Ramsey agreed to work for Capital Harvest and the issue of whether Brown breached a contract by failing to authorize a discount fee was tried to the jury, which rejected the very means by which the plaintiffs attempted to show that Brown never intended to transfer an ownership interest in Capital Harvest. Brown thus claims Ramsey was not prejudiced by the dismissal of his deceit claim.

[¶29] Deceit can be based on promises made without any intention of performing. N.D.C.C. § 9-10-02(4). In Dewey, 462 N.W.2d at 440-41, we said two parties who were involved with a buyer in a real estate sale, but were not parties to the contract, could be liable for failing to fully disclose important facts regarding their involvement in the transaction. In Delzer I, 527 N.W.2d at 653-54, we said that when the parties' actions did not meet the requirements for a contract, our statutory provisions for deceit did not preclude recovery if the separate elements of deceit were established.

[¶30] Here, the plaintiffs claimed Brown was aware of the promise for Ramsey to earn a 4 percent ownership interest in Capital Harvest and Brown failed to disclose to Ramsey that he was not going to allow anyone to earn an interest in Capital Harvest. Viewing the evidence in the light most favorable to Ramsey, there is some evidence to support Ramsey's deceit claim. However, the jury decided Brown did not breach his contract with Erickson to earn an ownership interest in Capital Harvest. Ramsey's argument is not based on the plaintiffs' claim about an agreement to give an ownership interest in Capital Harvest. Rather, his argument about deceit is based on Erickson's contract with Brown to earn an interest in Capital Harvest and Ramsey's claim is derived from Erickson's claim that Brown breached the contract for Erickson to earn an interest in Capital Harvest. Although deceit is ordinarily a question of fact, it must be established by clear and convincing evidence. WFND, 2007 ND 67, ¶ 25, 730 N.W.2d 841. In analyzing the propriety of summary judgment in a fraud or deceit case, it is appropriate to consider the quantum of proof necessary to support liability. See Smith v. Land O'Lakes, Inc., 1998 ND 219, ¶ 12, 587 N.W.2d 173. On this record and the jury's ultimate finding that Brown did not breach his contract with Erickson to earn an interest in Capital Harvest, we conclude Ramsey has not established he was prejudiced by the summary judgment dismissal of his deceit claim. See Olander Contracting Co., 2002 ND 65, ¶ 26, 643 N.W.2d 29 (nonprejudicial mistakes constitute harmless error and are not grounds for reversal).

2

Dregseth

[¶31] In granting summary judgment on Dregseth's deceit claim against Brown, the district court said deceit was only applicable when there was no contract and the plaintiffs and Brown both claimed a contract existed between Brown and Dregseth but disputed the terms of the contract and whether Brown fraudulently induced Dregseth to enter the contract. The plaintiffs argue the district court erred in dismissing Dregseth's deceit claim against Brown because the jury ultimately found Dregseth had no contract with Brown regarding ownership of Capital Harvest and deceit was therefore a proper claim. Brown responds that Dregseth's deceit claim was properly dismissed, because the alleged deceit was a promise to induce him to enter into a contract to work for Capital Harvest, which constitutes an action for fraud. Brown argues that although the jury decided there was no contract to either give shares to Dregseth or for Dregseth to earn an interest in Capital Harvest, the jury did not decide Brown and Dregseth had no contract. Brown asserts there was a contract for Dregseth to work for a salary. Brown also asserts the basis for Erickson's fraud claim against Brown was identical to Dregseth's deceit claim and it would be a "stretch to suggest that Brown did not lie to Erickson [under the jury's determination that Brown did not defraud Erickson] yet lied to Dregseth." Brown further argues the district court correctly understood that Dregseth's allegation was an action for fraud and because the jury found there was no contract promising Dregseth an interest in Capital Harvest, the basis for the fraud and any deceit was absent.

[¶32] Dregseth's deceit claims stem from two alleged promises—the initial promise to give him an ownership interest in Capital Harvest and the second promise for him to earn an interest in Capital Harvest, which was derived from Erickson's earned interest. For reasons similar to our analysis of Ramsey's deceit claim and to the extent Dregseth's deceit claim also stems from the promise to earn an interest in Capital Harvest, we conclude Dregseth has not established he was prejudiced by the summary judgment dismissal of his deceit claim because the jury ultimately decided Brown did not breach the contract with Erickson to earn an interest in Capital Harvest.

[¶33] To the extent Dregseth's deceit claim stems from Brown's alleged promise to give him an interest in Capital Harvest as part of his compensation package, the analysis is different. The jury's determination that there was no enforceable contract between Brown and Dregseth to give Dregseth an interest in Capital Harvest does not mean that Brown did not make misrepresentations that resulted in Dregseth leaving Bremer Bank to work for Capital Harvest. See Delzer I, 527 N.W.2d 653-54 (under deceit statutes, a promise made without any intention of performing it which does not meet the requirements of a contract between the parties may nevertheless satisfy the requirements of deceit). Although the jury found no enforceable contract had been breached between Brown and Dregseth regarding ownership of Capital Harvest, the jury did not find that no misrepresentations were made and Dregseth's deceit claim was dismissed before trial. Moreover, the jury's rejection of Erickson's fraud claim is not dispositive of Dregseth's deceit claim because the jury instructions for the fraud claim required a contract and the jury decided Brown did not enter into a contract with Dregseth to give him an ownership interest in Capital Harvest. Viewing the evidence in the light most favorable to Dregseth, we conclude there are disputed issues of material fact about his deceit claim and the district court improperly dismissed that claim by summary judgment.

B

Equitable Relief

[¶34] The plaintiffs argue the district court erred in granting summary judgment dismissal of Ramsey's and Dregseth's claims for equitable relief.

1

Equitable Estoppel

[¶35] The plaintiffs argue the district court erred in granting summary judgment dismissal of Ramsey's claim for equitable estoppel. A plaintiff alleging equitable estoppel must show: (1) the defendant engaged in conduct that amounts to a false representation or concealment of a material fact or conduct that is calculated to convey the impression that the facts are other than those which the defendant subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the plaintiff; and (3) knowledge, actual, or constructive, of the real facts by the defendant. Dalan v. Paracelsus Healthcare Corp., 2002 ND 46, ¶ 19, 640 N.W.2d 726.

[¶36] In granting summary judgment dismissal of Ramsey's claim for equitable estoppel, the district court said it was undisputed that Brown made no promises to Ramsey except for a signing bonus and Brown fulfilled that promise. The plaintiffs argue Brown knew Ramsey was accepting employment at Capital Harvest because of the opportunity to earn a 4 percent ownership interest in the company and Brown's conduct toward Ramsey amounted to a concealment of the fact that Brown had no intention of transferring an ownership interest in Capital Harvest to Erickson, which could then be transferred to Ramsey. The plaintiffs claim Brown had a duty to disclose to Ramsey that he would not be able to earn an ownership interest because Brown had no intent to transfer ownership to anyone. The plaintiffs argue that, viewing the evidence in Ramsey's favor, a question of fact remained about whether Brown concealed material information from Ramsey regarding the potential ownership in Capital Harvest knowing that Ramsey was leaving his banking career based on that concealed information.

[¶37] For the same reasons as our disposition of Ramsey's deceit claim, however, we conclude that, in view of the jury's finding that Brown did not breach the contract for Erickson to earn an ownership interest in Capital Harvest, Ramsey has not established he was prejudiced by summary judgment dismissal of his equitable estoppel claim.

2

Other Equitable Claims

[¶38] In granting summary judgment dismissal of the plaintiffs' unjust enrichment claims against Brown and Capital Harvest, the district court decided all three plaintiffs had adequate remedies at law that precluded the granting of equitable relief, because all three plaintiffs had enforceable employment contracts with either Brown or Capital Harvest. In dismissing Ramsey's and Dregseth's other equitable claims by summary judgment, the district court also said Ramsey and Dregseth had adequate remedies at law that precluded equitable relief.

[¶39] A party with an adequate remedy at law generally is not entitled to an equitable remedy. See Lochthowe v. C.F. Peterson Estate, 2005 ND 40, ¶ 9, 692 N.W.2d 120; Matter of Estate of Hill, 492 N.W.2d 288, 295-96 (N.D. 1992); D.C. Trautman Co. v. Fargo Excavating Co., Inc., 380 N.W.2d 644, 645-46 (N.D. 1986). Here, the district court's analysis of the plaintiffs' other equitable claims was based solely on the court's conclusion that they had an adequate remedy at law.

[¶40] The plaintiffs argue Ramsey had no legal remedy to enforce the promise of ownership after the district court dismissed his contract claim under N.D.R.Civ.P. 12(b)(vi), and Dregseth was entitled to assert an alternate claim for unjust enrichment because the jury found he had no contract to enforce his claim for ownership of Capital Harvest. The plaintiffs also argue that in view of the ultimate disposition of their legal claims, Ramsey and Dregseth had no legal remedy and were entitled to assert their other equitable claims against Brown.

[¶41] Ramsey's equitable claims are predicated on the agreement to earn an interest in Capital Harvest. For the same reasons as our disposition of Ramsey's deceit and equitable estoppel claims, we conclude Ramsey has not established he was prejudiced by summary judgment dismissal of his other equitable claims. To the extent Dregseth's other equitable claims are based on the alleged promise to earn an ownership interest in Capital Harvest, we also conclude he has not established he was prejudiced by the summary judgment dismissal of those claims.

[¶42] To the extent Dregseth's other equitable claims against Brown are based on the alleged promise to give him an interest in Capital Harvest as part of his compensation package to work at Capital Harvest, we conclude the district court erred in basing its decision solely on its conclusion that Dregseth had adequate remedies at law and dismissing those claims by summary judgment before disposition of his legal claims.

[¶43] In Landers v. Goetz, 264 N.W.2d 459, 463 (N.D. 1978), this Court explained the procedure for resolving legal and equitable claims in the same case:

It is the general rule that legal issues entitling a party to a jury trial should be tried to the jury prior to the disposition of the equitable issues triable to the court. Whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion is to be tried first, since otherwise the party entitled to the jury trial would be deprived of part or all of his right to a jury trial. See also Ask, Inc. v. Wegerle, 286 N.W.2d 290, 295-96 (N.D. 1979).

[¶44] Here, during the hearing on the motion for summary judgment, the plaintiffs asked the district court to follow that procedure. However, the district court granted Brown summary judgment. We remand to the district court for consideration of Dregseth's equitable claims relating to the alleged agreement to give him an interest in Capital Harvest in accordance with Landers and Ask.

IV

Jury Instructions

[¶45] The plaintiffs argue the district court erred in not instructing the jury regarding accord and the duty of good faith.

[¶46] Jury instructions must fairly inform the jury of the applicable law. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 413 (N.D. 1994). On appeal, we review jury instructions as a whole and if they correctly advise the jury of the law, they are sufficient although parts of the instructions, standing alone, may be erroneous and insufficient. Id.

A

Accord

[¶47] The plaintiffs argue they were entitled to a jury instruction defining accord under N.D.C.C. § 9-13-04, which provides that an accord is "an agreement to accept in extinction of an obligation something different from or less than that to which the person agreeing to accept is entitled." The plaintiffs claim the evidence at trial supported their requested jury instruction on accord:

An accord is an agreement to accept as extinction of an obligation something different from or less than that to which the person agreeing to accept is entitled. With an accord, the parties intend that the original contract obligation remains viable but that it is suspended pending performance by the parties of the modification. If one party breaches the modification, the other party may sue on the original contract or on the modification.

[¶48] The jury found that Brown entered into a contract with Erickson to "give" Erickson an ownership interest in Capital Harvest and that Brown and Erickson intended the agreement to "earn" an interest in Capital Harvest to be a novation. The plaintiffs argue that based on the statutory definition of accord and the evidence at trial, the jury could have decided the second agreement between Erickson and Brown was an accord rather than a novation. They claim the district court's failure to give an instruction on accord prejudiced Erickson, because if the jury had found an accord rather than a novation, the original agreement would not have been extinguished, Erickson would have been entitled to enforce the original agreement if Brown breached the conditions of the accord, and the jury could have found that Brown breached the agreement to give Erickson a 25 percent interest in Capital Harvest.

[¶49] In Herb Hill Ins., Inc. v. Radtke, 380 N.W.2d 651, 652 n.1 (N.D. 1986) (quoting Sergeant v. Leonard, 312 N.W.2d 541, 545-46 (Iowa 1981)), this Court explained the difference between an accord and a novation:

Two principal legal situations may arise when a contract obligation is modified, an accord or a substituted contract [novation]. With an accord the parties intend that the original contract obligation remains viable but that it is suspended pending performance by the debtor of the modification. If the debtor breaches the modification, the creditor may sue on the original contract or on the modification. . . .

With a substituted contract [novation] the parties intend to terminate the original contract obligation and to substitute the modification. If the debtor breaches the modification, the creditor may sue only on that agreement.

[¶50] Under that framework, the issue is whether Brown and Erickson intended to suspend the agreement to give Erickson 25 percent of Capital Harvest pending performance of the agreement to earn an ownership interest in Capital Harvest, or whether they intended to nullify the agreement to give Erickson 25 percent of Capital Harvest and substitute the agreement to earn. The plaintiffs have cited no evidence tending to show the parties intended to suspend their agreement to give an ownership interest in Capital Harvest pending performance of any agreement to earn an interest in Capital Harvest. Rather, the evidence in this record shows only a substituted agreement, and on this record, we conclude the plaintiffs were not entitled to an instruction on accord.

B

Good Faith

[¶51] The plaintiffs argue N.D.C.C. § 41-08-03 of the Uniform Commercial Code ("U.C.C.") defines a security as "a share or similar equity interest issued by a corporation," which imposes an obligation of good faith under the U.C.C. on every contract involving securities. They claim they were entitled to their requested instruction on good faith:

In every contract for the transfer of stock in a corporation, there is an implied duty of good faith. "Good faith" means honesty in fact and the observance of reasonable commercial standards of fair dealing. The plaintiffs argue the district court refused to give their requested instruction based on its erroneous conclusion that the U.C.C. did not apply to Brown's agreement with Erickson and Dregseth to transfer shares of stock in Capital Harvest. They claim the district court's failure to give their requested instruction on good faith prejudiced Erickson's breach of contract claim, because they introduced expert testimony that discount fees are customary and necessary for a finance company to show a profit and one of their main arguments was that Brown breached the agreement to "earn" stock in Capital Harvest by intentionally refusing to allow Capital Harvest to charge AGSCO a discount fee to compensate Capital Harvest for financing millions of dollars of sales of AGSCO products. They claim an instruction on good faith could have allowed the jury to find Brown breached the agreement with Erickson by not observing reasonable commercial standards of fair dealing.

[¶52] The U.C.C. generally applies to simplify, clarify, and modernize the law governing commercial transactions. N.D.C.C. § 41-01-02(2)(a). The U.C.C. has specific chapters dealing with sales of goods, leases, negotiable instruments, bank deposits and collections, funds transfers, letters of credit, documents of title, investment securities, and secured transactions. N.D.C.C. tit. 41. Chapter 41-08, N.D.C.C., generally provides commercial rules for investment securities and the law governing securities or transactions in securities. Although the definition of security in N.D.C.C. ch. 41-08 is broad enough to include shares in a closely-held corporation in the commercial context, this case is about an employment contract and the plaintiffs have cited no authority extending any of the U.C.C.'s good faith requirements to employment contracts. This Court has consistently rejected arguments to inject an implied covenant of good faith and fair dealing into the employment context. E.g. Jose v. Norwest Bank, 1999 ND 175, ¶ 14, 599 N.W.2d 293. We reject the plaintiffs' argument that good faith and fair dealing applies to what is essentially an employment contract. We conclude the district court did not err in denying the plaintiffs' request for a good faith instruction.

V

Admissibility of Evidence

[¶53] The plaintiffs argue the district court erred in not allowing the jury to hear evidence about Brown's accounting practices. The plaintiffs argue the court erred in excluding evidence of Brown's practice of using merchandise stored at AGSCO as an accounting practice to artificially inflate AGSCO's sales. They claim they were precluded from offering several exhibits and additional testimony on this issue and the court then allowed Brown to testify regarding AGSCO's sales figures, which they contend are inaccurate and misleading without being adjusted to account for Brown's improper accounting practices. They argue the evidence was highly relevant to Brown's credibility and their assertion that Brown intentionally prevented Capital Harvest from charging a discount fee and showing a profit, which prevented them from earning their ownership interest in Capital Harvest. They claim the evidence was directly relevant to establish Brown was willing to use improper business practices to further his interest, just as he did in not authorizing a discount fee to prevent the plaintiffs from earning their interest in Capital Harvest. The plaintiffs argue the court abused its discretion in excluding their proffered evidence under N.D.R.Ev. 403.

[¶54] In Williston Farm Equip. v. Steiger Tractor, Inc., 504 N.W.2d 545, 548-49 (N.D. 1993) (citations omitted), we summarized our standard for reviewing issues involving the admission of evidence under N.D.R.Ev. 403:

Relevant evidence means evidence that would reasonably and actually tend to prove or disprove any fact that is of consequence to the determination of an action. Relevant evidence is generally admissible. A trial court has discretion to determine whether evidence is relevant, and its decision will not be reversed on appeal absent an abuse of discretion. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." A trial court has discretion to balance the probative value of the proffered evidence against the dangers enumerated in Rule 403, N.D.R.Ev., and we also review that determination under the abuse-of-discretion standard.

[¶55] A district court abuses its discretion in evidentiary rulings if it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Manning, 2006 ND 125, ¶ 7, 716 N.W.2d 466. On this record, we are not persuaded the district court's decision to exclude the plaintiffs' proffered evidence was arbitrary, capricious, or unreasonable, or a misapplication of the law. We therefore conclude the district court did not abuse its discretion in refusing to admit that evidence.

VI

[¶56] For reasons stated herein, we affirm in part, reverse in part, and remand for further proceedings on Dregseth's deceit and equitable claims regarding the alleged promise to give him an ownership interest in Capital Harvest.

[¶57]

Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Mary Muehlen Maring
Everett Nels Olson, S.J.

[¶58] The Honorable Everett Nels Olson, S.J., sitting in place of Kapsner, J., disqualified.

Crothers, Justice, concurring in part and dissenting in part.

[¶59] I concur with that part of the majority opinion remanding the case for consideration of Dregseth's deceit and equitable claims. I also concur with Parts IV and V of the majority opinion regarding jury instructions and admissibility of evidence. I respectfully dissent from those portions of the majority opinion affirming dismissal of Ramsey's deceit and equitable claims and affirming dismissal of the action against Capital Harvest.

FRAUD OR DECEIT

[¶60] Many of the problems in this case arise because of a legal error that treats fraud and deceit as the same. They are not. Nor are these claims "substantially identical." Unfortunately, the error of law has been developing over time and now appears to have adversely affected this case.

[¶61] This case proceeded below on the mistaken notion fraud and deceit claims are identical means of recovering money damages save the requirement that fraud applies to parties to a contract and deceit does not. I agree with the majority that, absent an objection on appeal, we must accept this posture as law of the case. See Majority opinion at ¶ 27. However, fraud and deceit are very different legal theories with very different results in litigation. I therefore write separately to invite an appeal by a party who has not acquiesced in treating fraud and deceit as the same, so that this Court can have a vehicle for restoring some clarity and certainty to this area of the law.

[¶62] Fraud is a claim arising in contract and relates to the lack of consent. One asserting fraud seeks to avoid a contract by showing consent is lacking due to misrepresentation. Fraud, and its remedy of rescission, requires placement of the parties back to their original positions. In fraud, a plaintiff may sue to recover what he has parted with or for its value. Conversely, deceit sounds in tort and allows recovery of damages upon proof of an affirmative representation or suppression of material facts. A deceit claim can be brought within a contractual relationship by a person who ratifies a contract after learning of the fraud of another or can be brought by parties who have no contractual relationship. In deceit, a plaintiff may sue to recover any damages proximately caused by reliance on the misrepresentation.

[¶63] "In this state there is no common law in any case in which the law is declared by the code." N.D.C.C. § 1-01-06. Because the Legislature has spoken through the Code, actions for fraud and deceit are controlled by the statutory distinctions between the claims. Understanding and appreciating the differences between fraud and deceit starts with consideration of the applicable statutes, the statutory framework, and the structure of the Century Code.

[¶64] As to fraud, the Code provides:

Title 9: CONTRACTS AND OBLIGATIONS

CHAPTER 9-01: GENERAL PROVISIONS

Section 9-01-02. Requisites of contract. It is essential to the existence of a contract that there should be:

1. Parties capable of contracting;

2. The consent of the parties;

3. A lawful object; and

4. Sufficient cause or consideration. (Emphasis added.)

CHAPTER 9-03: CONSENT

Section 9-03-01. Requisites of consent. The consent of the parties to a contract must be:

1. Free;

2. Mutual; and

3. Communicated by each to the other. (Emphasis added.)

Section 9-03-02. Absence of free consent -- Effect. A consent which is not free is not absolutely void, but may be rescinded by the parties in the manner prescribed by chapter 9-09. (Emphasis added.)

Section 9-03-03. What renders apparent consent not free. An apparent consent is not real or free when obtained through:

1. Duress;

2. Menace;

3. Fraud;

4. Undue influence; or

5. Mistake. (Emphasis added.)

Section 9-03-04. When consent deemed voidable. Consent is deemed to have been obtained through duress, menace, fraud, undue influence, or mistake only when it would not have been given except for one or more of them. (Emphasis added.)

Section 9-03-07. Fraud classified. Fraud is either actual or constructive.

Section 9-03-08. Actual fraud defined. Actual fraud within the meaning of this title consists in any of the following acts committed by a party to the contract, or with the party's connivance, with intent to deceive another party thereto or to induce the other party to enter into the contract:

1. The suggestion as a fact of that which is not true by one who does not believe it to be true;

2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true though that person believes it to be true;

3. The suppression of that which is true by one having knowledge or belief of the fact;

4. A promise made without any intention of performing it; or

5. Any other act fitted to deceive.

Section 9-03-09. Constructive fraud defined. Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under that person, by misleading another to the other's prejudice or to the prejudice of anyone claiming under the other; or

2. In any such act or omission as the law specially declares to be fraudulent without respect to actual fraud.

Section 9-03-24. Ratification as consent. A contract which is voidable solely for want of due consent may be ratified by a subsequent consent.

Section 9-03-25. Acceptance of benefit equivalent to consent. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known or ought to be known to the person accepting.

CHAPTER 9-09: EXTINCTION, RESCISSION, ALTERATION, AND CANCELLATION

Section 9-09-01. Extinction of contracts. A contract may be extinguished in like manner with any other obligation and also by rescission, alteration, or cancellation to the extent and in the manner provided by this title.

Section 9-09-02. Rescission -- When permitted. A party to a contract may rescind the same in the following cases only:

1. If the consent of the party rescinding or of any party jointly contracting with the party rescinding was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or with the connivance of the party as to whom the party rescinding rescinds or of any other party to the contract jointly interested with such party; . . . (Emphasis added.)

[¶65] Pursuant to these sections, fraud relates to whether consent to a contract was freely given. N.D.C.C. §§ 9-03-01 and 9-03-03. Where consent is not free, the Legislature has provided rescission as the remedy after prompt restoration of everything of value. N.D.C.C. § 9-03-02.

[¶66] Overt affirmation of the contract, failure to seasonably restore to the other party everything of value, or conduct inconsistent with rescission is an election to ratify the contract. N.D.C.C. §§ 9-03-24 and 9-03-25. Upon ratification, the opportunity to avoid the contract is waived, an action for fraud is no longer available, and a beguiled party seeking redress must proceed in tort to recover for deceit. Upon ratification of a contract where fraud previously prevented full or free consent, or where there is an actionable misrepresentation but no contract, the following portions of the Code apply:

CHAPTER 9-10: OBLIGATIONS IMPOSED BY LAW

Section 9-10-02. Deceit -- Definition. A deceit within the meaning of section 9-10-03 is:

1. The suggestion as a fact of that which is not true by one who does not believe it to be true;

2. The assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;

3. The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or

4. A promise made without any intention of performing.

Section 9-10-03. Damages for deceit. One who willfully deceives another with intent to induce that person to alter that person's position to that person's injury or risk is liable for any damage which that person thereby suffers.

[¶67] Our law governing actions for fraud or deceit has been codified since prior to statehood. See Bourgois v. Montana-Dakota Utilities Co., 466 N.W.2d 813, 817-18 (N.D. 1991). Soon thereafter, this Court was faced with consideration of the difference between the two claims. In Beare v. Wright, 14 N.D. 26, 103 N.W. 632 (1905), this Court stated:

"And fraud, actual or constructive, renders a contract voidable for the same reason that mistake, undue influence, duress, etc., have the same effect. Sections 3941, 3942, Rev. Codes 1899 [now N.D.C.C. §§ 9-10-02 and 9-10-03], merely declare that actual fraud is a tort for which the guilty party is liable to the injured party if any damage has been suffered by the latter. In other words, actual fraud, with damage, is a good cause of action, and constitutes actionable deceit." Beare, 14 N.D. at 32, 103 N.W. at 634.

[¶68] In Sonnesyn v. Akin, 14 N.D. 248, 104 N.W. 1026 (1905), this Court further explained the fraud-deceit distinction and their respective remedies:

"If one is actually defrauded by a false statement which induced him to enter into a contract, he has his remedy for the injury. The contract thus procured is not void, but voidable. He may either rescind the contract and recover any sums paid upon it or property delivered pursuant to it, or he may affirm the contract, take such benefits as are obtainable under it, and recover damages for the injuries sustained by reason of the false statement. These alternative remedies, it will be seen, are inconsistent, and are not available in the same action; for one is based upon a rescission of the contract and the other upon an affirmance of it--one upon a contract implied by law obligating the wrongdoer to restore whatever of value he has received; the other in tort for damages for the injury done by the false statement. When the person injured elects the latter remedy, i.e., to sue for the tort, he affirms the contract, thus continuing it as a binding obligation. And 'it is the rule that the defrauded party to a contract has but one election to rescind, that he must exercise that election with reasonable promptitude after the discovery of the fraud, and that, when he once elects, he must abide by his decision.'" Id. at 256-57, 104 N.W. at 1029 (citations omitted) (emphasis added).

[¶69] The Court in Gunderson v. Havana-Clyde Mining Co., 22 N.D. 329, 133 N.W. 554 (1911), further explained:

"This is an action for deceit, not for rescission. There is a vast difference between the actions, and this difference must be constantly kept in mind in considering this case. When the plaintiff had reached the conclusion that he had been defrauded, he had his election of two remedies: First, he could rescind upon the grounds that his assent to the contract had never been freely given, and return his stock and recover the money paid by him; or, second, he could ratify the sale, accept his stock with its consequential profits or losses, and maintain an action for damages against his deceivers. In the second case he refuses to rescind, in effect, and demands that the representations of the sellers be made good in damages. He, the purchaser, assumes all of the risks of the speculation, as he has in effect affirmed the contract of sale. Therefore his damages for the deceit must not include damages occasioned by the failure of the speculation. In this case Gunderson, having elected to ratify the sale instead of repudiating it as he might, assumed the speculation, and would be the winner if the mine made good, and the loser, if the mine failed. His damages would be the difference between what his stock would have been worth at the time of the sale if as represented, and what it was actually worth at that time. Or stated a little differently, he can compel the sellers to make good their representations by paying damages for those things they have misrepresented. We must go back to the day the stock was sold, and determine how much more plaintiff's stock would have been worth had the statements made to him been true. At such time both the buyer and seller believed, or at least hoped, that the mine would be a success. How much less would the plaintiff have been obliged to pay for the stock had he known the truth. . . . It may be said that, had the plaintiff known that the ore was of such little value, he would not have bought the stock. The complete answer to that proposition is that the plaintiff by bringing an action for deceit elected to ratify the contract, and did, in effect, buy the stock after he knew the value of the ore. . . . If it seems a hardship upon the buyers of the stock, we can only reply that they had a chance to repudiate the sales if fraudulent, and recover back their money. This they refused to do, but, on the contrary, kept their stock until further developments proved it worthless, and then demanded that the defendants pay them six times the amount plaintiffs had paid for it. They wished to keep the stock and take all the chances there were of the mine paying out, and then, in case of failure, compel the defendants to make good Canan's representation that the stock was worth par. Only their modesty, probably, prevented them from demanding that they all be 'made independent' according to the promise of Canan. The purchasers' losses were occasioned by sticking to a bad bargain after they knew they had been deceived. For this poor judgment the defendants are not liable. Neither are they liable for the unkindness of nature in placing the mother vein outside of the defendants' property." Gunderson, 22 N.D. at 332-35, 133 N.W. at 555-56 (emphasis added).

[¶70] The distinction between fraud and deceit claims was further explained in Guild v. More, 32 N.D. 432, 155 N.W. 44 (1915):

"A contract thus entered into