## Facts

- Silver Ziebarth, a cattle buyer, and LeRoy Kalenze, a rancher who sold cattle, entered a written contract dated June 16, 1971.
- Under the agreement (on a form supplied by Ziebarth), Ziebarth would furnish Simmental semen, and Kalenze would artificially inseminate his cows and sell Ziebarth the resulting Simmental heifer calves.
- A dispute developed over when the heifer calves were due to be delivered and whether the parties later agreed to extend the delivery time.
- Before Ziebarth filed suit, Kalenze had sold the calves to a third party, making delivery to Ziebarth impossible; Kalenze knew this when the action was filed.
- Ziebarth sued in district court seeking specific performance of the contract.
- The case was tried to the court without a jury; Kalenze did not file a written demand for jury trial.
- After Ziebarth presented his case, Kalenze moved to dismiss under Rule 41(b), N.D.R.Civ.P., arguing dismissal was required because the complaint sought specific performance and specific performance could not be granted.
- The trial court denied dismissal, found that the delivery time had been extended and that Kalenze breached by selling to a third party, and awarded Ziebarth $4,589 plus costs as damages in lieu of specific performance.

## Issues

1. Did the trial court err by denying Kalenze’s Rule 41(b) motion to dismiss once it was apparent that specific performance was impossible?
2. Was the trial court clearly erroneous in finding that the parties extended the time for delivery of the calves?
3. Was the trial court clearly erroneous in finding that Kalenze breached the contract by selling the calves to a third party?
4. Was Kalenze deprived of a right to jury trial on damages when the court awarded damages in an action pleaded as one for specific performance, where Kalenze made no timely jury demand?

## Decision

- The Supreme Court of North Dakota affirmed the judgment and the order denying dismissal.
- The district court did not err in denying the Rule 41(b) motion; the impossibility of specific performance did not require dismissal where the court could grant damages in lieu of specific performance.
- The findings that the parties extended the delivery time and that Kalenze breached by selling the calves to a third party were not clearly erroneous.
- Kalenze was not denied a jury trial on damages because he did not timely demand a jury, and the matter proceeded as a court-tried equity action.

## Legal Principles

- A court sitting in equity on a claim for specific performance may award money damages in lieu of specific performance when performance becomes impossible.
- The unavailability of the precise equitable remedy requested does not, by itself, require dismissal under Rule 41(b) when the plaintiff has shown a right to relief and another appropriate remedy is available.
- In a bench trial, findings of fact are reviewed under the “clearly erroneous” standard; if supported by evidence, they will not be set aside on appeal.
- Any jury-trial right on damages is waived if no timely jury demand is made under the applicable civil rules, even if the court ultimately grants monetary relief.

## Conclusion

Ziebarth v. Kalenze holds that when a plaintiff sues for specific performance of a cattle contract and the seller has already made performance impossible by selling the cattle, the equity court may deny a Rule 41(b) dismissal motion and award damages in place of specific performance; factual findings on extension of delivery time and breach will stand unless clearly erroneous, and a defendant who never demanded a jury cannot later claim error because the court, sitting without a jury, fixed damages.


Ziebarth v. Kalenze, 238 N.W.2d 261 (1976)