nevada reports 1963 (79 nev.).pdf

79 Nev. 1, 1 (1963)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

VOLUME 79_____________

79 Nev. 1, 1 (1963) Kelly v. Murphy

JOHN E. KELLY, Petitioner, v. EUDORA V. MURPHY, County Clerk of Nye County;ANDREW M. EASON, Chairman, Nye County Commissioners; NICK G. BANOVICH, Nye

County Commissioner; and RALPH LISLE, Nye County Commissioner, Respondents.

No. 4587

January 2, 1963 377 P.2d 177

Original proceedings in mandamus.

Proceedings to compel county clerk to issue petitioner a certificate of election as districtattorney. The county clerk and county commissioners moved to dismiss the petition. TheSupreme Court held that under statute requiring Secretary of State to promulgate rules andregulations for conduct of elections in all counties, telephone directions from the Secretary ofState as to the


manner of conducting a recount was not a promulgation, and hence subsequent recount wasa futile act undertaken without lawful authorization. On motion to dismiss; motion granted. [Rehearing denied January 16, 1963]

Harry E. Claiborne and John E. Kelly, of Las Vegas, In Propria Persona, for Appellant.

William P. Beko, District Attorney, Nye County and John C. Bartlett, Deputy DistrictAttorney, Nye County, for Respondents.

1. Elections. Under statute requiring Secretary of State to promulgate rules and regulations for conduct of elections inall counties, telephone directions from Secretary of State as to manner of conducting recount for election ofdistrict attorney was not a promulgation, and hence subsequent recount was a futile act undertakenwithout lawful authorization. NRS 34.160, 293.247, 293.393, subd. 3.

2. Officers. A promulgation usually connotes an official public declaration.

OPINION

Per Curiam:

This mandamus proceeding involves the November 6, 1962 election for the office of NyeCounty District Attorney. Kelly, the petitioner, seeks to compel the Nye County Clerk to issuehim a certificate of election (NRS 293.393(3)); annul the certificate of election heretoforeissued Beko, petitioner's election opponent, and asks that the Nye County Commissioners bedirected to declare Kelly the elected Nye County District Attorney. The Nye County Clerkand Commissioners have moved to dismiss the petition, primarily because of this court'sopinion in Beko v. Kelly, 78 Nev. 489, 376 P.2d 429, regarding the same candidates andelection. We believe that their motion to dismiss must be granted. The returns of the election, showing Beko to be the winner, were canvassed by the CountyCommissioners,


the results declared, and an abstract of votes duly transmitted to the Secretary of State.Thereafter, and pursuant to Kelly's demand, a recount was had during which certain ballotswere rejected, resulting in a majority for Kelly. Subsequently, the County Commissionersdisapproved the rejection of such ballots by the recount board, and again declared Beko to bethe duly elected Nye County District Attorney. 1 It is Kelly's position that the recount board

was regularly and lawfully constituted; and that its determination that he won is final; that theCounty Clerk, therefore, must issue a certificate of election to him as an act which the lawespecially enjoins as a duty resulting from office. NRS 34.160.

[Headnotes 1, 2] In Beko v. Kelly, supra, we said, inter alia: The so-called recount board in the presentcase was appointed without statutory authorization of any kind whatsoever. The number of members constituting the board, its organization, its duties, its meetings,the manner of its appointment, are all unprovided for in the election law. Notwithstandingsuch language, Kelly urges that NRS 293.247 requiring the Secretary of State to promulgaterules and regulations for the conduct of primary and general elections in all counties hasapplication here, and that the telephone directions from the Secretary of State as to themanner of conducting the recount was a promulgation of rules and regulations within themeaning of the statute. 2 We cannot agree. In May 1962, the Secretary of State issued aprinted pamphlet entitled !"# $%$&'(&)*

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1 The recount proceeding is more particularly set forth in Beko v. Kelly, supra, and need not here be repeated.

2 According to the petition herein, the Secretary of State, by telephone, advised the County Clerk that the

recount board was to be composed of five members who need not be registered voters of Nye County; that theClerk and Commissioners were to be present as non-members; that the candidates were to be present; that theCounty Clerk was to administer an oath of office; that the counting should be commenced within three days afterdemand, and completed within three days after it is begun; and that the recount board should be appointed by theCounty Clerk, and that the candidates should stipulate, if possible, to such members as the Clerk anticipatedappointing.


Rules and Regulations for the Conduct of Primary and General Elections in all Counties ofthe State of Nevada, for the express purpose of complying with the provisions of NRS293.247 requiring that such be done. There is nothing in the rules and regulations thuspromulgated governing recount. The oral communication from the Secretary of State was notthe promulgation of a rule and regulation within the contemplation of NRS 293.247. Thepromulgation occurred in May 1962 when the Secretary of State issued the printedpamphlet which was thereafter conveniently available to all members of the public wishing toread its provisions. A promulgation usually connotes an official public declaration. Black'sLaw Dictionary, 4th ed. A private telephone conversation does not suffice. We conclude that the so-called recount was a futile act, undertaken without lawfulauthorization. Accordingly, no duty devolved upon the Nye County Clerk by reason of saidrecount, and mandamus will not lie. The respondents' motion to dismiss Kelly's application

for mandamus must be, and is, granted.

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79 Nev. 4, 4 (1963) Harmon v. Tanner Motor Tours

HARLEY E. HARMON, ARTHUR OLSEN, LOU F. LaPORTA, ROBERT T. BASKIN andNORMAN WHITE, Successors by Election to HARLEY E. HARMON, ARTHUR OLSENand CLESSE M. TURNER, as the BOARD OF CLARK COUNTY COMMISSIONERS, the

Governing Body of Clark County, Nevada, and LAS VEGAS-TONOPAH-RENO STAGELINES, INC., a Nevada Corporation, and SEBASTIAN F. MIKULICH, Appellants, v.TANNER MOTOR TOURS OF NEVADA, LTD., a Nevada Corporation, Respondent.

No. 4531

January 8, 1963 377 P.2d 622

Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,Judge.


Action by motor carrier to enjoin interference with exclusive franchise granted to it byboard of county commissioners and for specific performance of agreement. The lower courtentered a judgment in favor of the plaintiff motor carrier and the defendants appealed. TheSupreme Court, Thompson, J., held that the agreement between board and plaintiff carrier,arising from board's acceptance of plaintiff carrier's bid for providing limousine service forairport, was capable of being specifically enforced. Judgment affirmed. [Rehearing denied February 13, 1963]

Foley Brothers, of Las Vegas; Richard Hanna and Robert F. List, of Carson City, forAppellants Las Vegas-Tonopah-Reno Stage Lines, Inc., and Sebastian F. Mikulich.

John F. Mendoza, District Attorney, Clark County, for Appellants County Commissioners.

George Rudiak, of Las Vegas, for Respondent.

1. Appeal and Error. Where coappellant had duly perfected its appeal and within time designated by appeal all parties hadstipulated that appeals of both appellants could be consolidated, effect of one appellant's notice of appealwould be deemed to be an irregularity which was not jurisdictional in nature, and motion to dismiss appeal

of appellant which filed defective notice of appeal would be denied and its motion to adopt briefs ofcoappellant would be granted.

2. Statutes. Statute requiring county commissioners to advertise for bids in letting contracts which exceed $1,000 andto let the same to the lowest responsible bidder is inconsistent with statute permitting countycommissioners, in operating airport, to enter into contracts and leases for services which shall bereasonable and uniform, and the statutes may not be read in pari materia. NRS 244.315 and subd. 3,496.090.

3. Aviation. Contract to supply ground transportation service to municipal airport is governed by provisions ofMunicipal Airports Act and excluded from statute requiring county commissioners to advertise for bids inletting contracts which exceed $1,000 and to let the same to the lowest responsible bidder. NRS 244.315and subd. 3, 496.090.


4. Aviation. Board of county commissioners may use bidding process to consummate contract for airport groundtransportation service without regard to statute requiring county commissioners, in case of ordinarycontracts exceeding $1,000, to advertise for bids and to let the same to the lowest responsible bidder. NRS244.315.

5. Aviation; Frauds, Statute of. Where board of county commissioners advertised for bids for furnishing of ground transportation atairport and motor carrier submitted proposal which was accepted by the board, advertisement, proposal andacceptance established meeting of minds as to parties, subject matter, consideration and contract terms, andwas legally sufficient to satisfy statute of frauds, as other relevant provisions would be supplied byreference to written agreements under which motor carrier had been furnishing transportation.

6. Aviation. Finding that board of county commissioners contemplated that formal contract for exclusive limousineservice at airport would contain all of terms of old contract between successful bidder and the board,except to the extent that it would be modified by bid, was supported by substantial evidence.

7. Aviation. Conduct of airport manager, as agent of board of county commissioners, in accepting payment ofguaranteed annual sum by motor carrier whose bid for providing limousine service for airport had beenaccepted, and county's acceptance of payment could be deemed to be conduct of board even though it hadbeen negotiating with another carrier for such service.

8. Frauds, Statute of. Party who was stranger to agreement between board of county commissioners and motor carrier waswithout standing to seek declaration that agreement did not satisfy statute of frauds, which was a personaldefense that was available only to contracting parties or their successors in interest. NRS 111.220, subd.1.

9. Estoppel. Board of county commissioners, which had accepted motor carrier's bid for providing limousine servicefor airport and which had assured carrier that a formal written agreement would be prepared for signature,was estopped to assert statute of frauds as defense against carrier which, in reliance on board's statement,continued to provide service, and paid minimum guarantee under accepted bid and purchased new

equipment. NRS 111.220, subd. 1.10. Frauds, Statute of.

Generally, in absence of fraud, a promise to reduce agreement to writing is not, standing alone, basis forinvoking an


estoppel against raising statute of frauds in defense. NRS 111.220, subd. 1.11. Frauds, Statute of.

Generally, part performance of an agreement within one year provision of statute of frauds, without more,will not preclude bar of statute. NRS 111.220, subd. 1.

12. Frauds, Statute of. Where there is both a promise to reduce a writing to agreement and a part performance by promisee,estoppel is properly invoked against raising defense of statute of frauds and main agreement is enforced.NRS 111.220. subd. 1.

13. Equity. Legal remedy of action for breach of contract was not adequate for motor carrier whose bid for a 10-yearexclusive franchise for providing limousine service for airport had been accepted by board of countycommissioners which was to receive payment predicated upon gross receipts.

14. Specific Performance. Where specific performance is sought, a clear understanding of terms of contract is normally required,and contract must be reasonably certain as to subject matter, its stipulations, its purposes, its parties andcircumstances under which it was made.

15. Specific Performance. Agreement between motor carrier and board of county commissioners, arising on board's acceptance ofcarrier's bid to provide limousine service for airport, was sufficiently precise to be specifically enforced.

16. Specific Performance. If agreed exchange can, with substantial certainty, be guaranteed to both parties, unavailability of remedyof specific performance to one of the parties is not basis for denying it to the other.

17. Specific Performance. Finding that agreed exchange, that is motor carrier's payment and service at airport in return for exclusivefranchise from board of county commissioners, could be guaranteed by each party with substantial certaintywas supported by evidence in carrier's action for specific performance.

18. Injunction. Injunctive relief was available to prohibit interference with motor carrier's exclusive franchise which wasa property right.

19. Jury; Trial. Board of county commissioners and competing motor carrier, against whom plaintiff motor carrier soughtequitable relief of injunction and specific performance, were not entitled to jury trial as matter of right, andtrial court did not abuse discretion in refusing request for advisory jury. NRCP 39(c).


20. Trial. Request for advisory jury as to issues to which parties are not entitled to jury as matter of right isaddressed to trial court's discretion. NRCP 39(c).

OPINION

By the Court, Thompson, J.:

This litigation came about as the result of a dispute over which one of two competingcommon carriers has the exclusive limousine ground transportation franchise for servicing theLas Vegas airport. Las Vegas-Tonopah-Reno Stage Lines, Inc. (LTR) and Tanner MotorTours of Nevada, Ltd. (Tanner) each claim such franchise because of certain action taken bythe Board of Clark County Commissioners (Board) as the governing authority of the LasVegas airport. Tanner's claim is based upon a bid submitted pursuant to invitation, and theBoard's acceptance thereof on November 9, 1959. LTR's claim is based upon a writtenagreement with the Board, made April 1, 1960, despite its prior acceptance of the Tannerproposal. The lower court found in favor of Tanner. The judgment entered directed the Boardto execute and specifically perform a written contract with Tanner; nullified the writtencontract which the Board had made with LTR; and enjoined LTR from interfering with theexclusive franchise in Tanner thus adjudged. LTR and the Board appeal. Before consideringthe merits we must dispose of a preliminary motion.

[Headnote 1] I. Tanner's motion to dismiss the Board's appeal. The Board's notice of appeal wasdefective under NRCP 72(b) and 73(b) in that it did not purport to appeal from anyappealable order or judgment. The appeal was taken from the findings of fact and conclusionsof law. Such defect is the basis for Tanner's motion to dismiss the Board's appeal. Were theBoard the sole appellant, and the record otherwise silent, we would grant the motion.However, such is not the case before us. The +,-

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coappellant LTR properly perfected its appeal. In addition, the record discloses that, withinthe time designated by NRCP 73(a) for taking an appeal, all parties, i.e., Tanner, LTR and theBoard, stipulated that the appeals of LTR and the Board could be consolidated. Cf.Commercial Credit v. Matthews, 77 Nev. 377, 365 P.2d 303. As the jurisdiction of this courtover the subject matter of the case was properly invoked by the appeal of LTR, we shall deemthe defect of the Board's notice of appeal to be an irregularity, not jurisdictional in nature.Misner v. Stange, 208 Mich. 680, 176 N.W. 417. We therefore deny Tanner's motion to

dismiss the Board's appeal. Having thus concluded to entertain the Board's appeal, we shallalso grant its motion to adopt the briefs of its coappellant LTR. II. Basic questions to be resolved. We believe that the judgment below must be affirmed.There are multiple issues. For clarity, the factual information necessary to the determinationof each issue will be related as that issue is discussed. Five major and numerous subsidiarypoints are raised, the major ones being: First, does NRS 244.315, requiring the Board (CountyCommissioners) to advertise for bids in letting contracts where the aggregate thereof exceeds$1,000, apply to an exclusive franchise to furnish ground transportation service to the LasVegas airportor, is this subject governed by the Municipal Airports Act, NRS496.010-496.290? Second, was an exclusive franchise granted Tanner by the Board, i.e., didthose parties enter into an agreement? Third, was the memorandum of agreement,expressing the consideration, legally sufficient to satisfy the statute of frauds, NRS 111.220?Fourth, was the agreement properly the subject of a judgment directing its specificperformance? Fifth, were the Board and LTR entitled to a jury trial as a matter of right? Weturn to discuss these questions. 1. The Municipal Airports Act governs. From January 1, 1949 through October 20, 1959,Tanner, pursuant to a written agreement with the Board granting it an exclusive franchise, hadprovided all forms of ground transportation service to the Las Vegas airport.


On September 21, 1959, the Board directed its clerk to publish an invitation for bids for thelimousine franchise at said airport, such bids to be opened on October 20, 1959. In responseto such invitation LTR and Tanner (and one other with whom we are not concerned)submitted written bids. LTR proposed to supply such service for a period of ten years, andpay therefor a 15 percent commission on the moneys received to and from the airport. Tanneroffered to supply the service for a like period and pay for the franchise $3,600 per year, inadvance, or 10 percent of the gross proceeds, whichever is greater, to be adjusted annually onthe anniversary date of the contract. On October 29, 1959, the airport manager recommendedthe Board's acceptance of the Tanner proposal. On November 9, 1959, the Board, byresolution, and pursuant to the recommendation of the airport manager, accepted the Tannerbid because it was the highest qualified bidder due to the fact that a minimum guarantee wasoffered. What thereafter occurred will be subsequently referred to. For the purpose ofresolving the first question, the foregoing facts supply a sufficient background. The Board and LTR contend that the Tanner bid was not submitted by the highestresponsible bidder within NRS 244.315(3) [requiring the contract to be let to the lowestresponsible bidder] believing that the term lowest responsible bidder must be construed tomean the highest responsible bidder when the Board is receiving rather than paying outmoney; that the bid of LTR would, in fact, produce more revenue, as indicated by the grossproceeds of prior years; that there was no question as to the responsibility of the twocompetitors, each being responsible, and concluding that the Board, as a matter of statutorymandate, was required to accept the LTR bid. We need not determine such contentions for we

agree with the lower court and Tanner that the provisions of NRS 244.315 do not apply tothis case. In Tanner Motor Tours v. Brown, 71 Nev. 73, 280 P.2d 291, we held that 1973, NCL1929, prohibiting any member of a board of county commissioners from voting on a contractextending beyond his term of office, was 1223

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repealed by the Municipal Airports Act insofar as it concerned activities covered by that act,and that a five-year contract to furnish ground transportation service for the Las Vegas airportwas, therefore, lawful. 1 The Tanner Motor Tours v. Brown decision is persuasive, thoughnot absolute authority, for our view herein that NRS 244.315 has no application. The Boardand LTR insist that NRS 496.090 of the Municipal Airports Act and NRS 244.315 can beread together, and each be given full effect without doing violence to either; that such was notthe case in Tanner Motor Tours v. Brown. We do not agree that the mentioned sections canbe read together. They are basically inconsistent.

[Headnotes 2-4] NRS 496.090 permits the Board, in operating an airport, to enter into contracts and leasesand establish the terms and conditions and fix the charges, rentals or fees for the privilegesor services, which shall be reasonable and uniform for the same class of privilege or serviceand shall be established with due regard to the property and improvements used and theexpenses of operation. Such is the statutory standard established to guide the Board inmaking a contract or lease concerned with the operation of an airport. A simple example willserve to prove that such standard is not compatible with the lowest responsible biddermandate of NRS 244.315(3). Suppose the limousine ground transportation service wasgranted to more than one carrier, i.e., on a nonexclusive basis, the Board (though it chose notto do so here) could lawfully enter into more than one contract for the supplying of suchservice, if the fees fixed therefor were reasonable and uniform. Is it not apparent that, in suchsupposed circumstance, the bidding provisions of NRS 244.315(3) could not apply? We thinkso. The incompatibility of NRS 244.315 with NRS 496.090 is thus revealed, causing us toconclude that they may not be read in pari materia. Indeed, NRS 224.315 applies to the lettingof all contracts except as

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1 The ruling in Tanner Motor Tour's v. Brown his since been codified. See NRS 495.050 and 495.060.


otherwise provided by law. We believe that a contract to supply ground transportationservice to a municipal airport is squarely within the applicable provisions of the MunicipalAirports Act, and consequently excluded from NRS 244.315 by the express terms of thelatter. Accordingly, we hold that NRS 244.315 requiring the Board (County Commissioners)to advertise for bids in letting contracts where the aggregate thereof exceeds $1,000, does notapply to a contract to furnish ground transportation service to the Las Vegas airport. 2

2. The Board made an agreement with Tanner. Having initially decided to entertain theBoard's appeal (discussion, point 1, supra) we are compelled to resolve the questions as towhether an agreement was made with Tanner and, if one was made, whether it satisfies thestatute of frauds and is properly the subject of a judgment directing its specific performance.

[Headnote 5] We have related that the Board advertised for bids; that Tanner submitted its proposal andthat the Board, by resolution, accepted Tanner's offer on November 9, 1959. Theadvertisement, proposal and acceptance established a meeting of the minds on the followingelementsthe parties, the subject matter, the consideration and the contract term.Notwithstanding this fact, the Board urges that the so-called agreement is fatally deficient inthat it contains no reference to, nor provisions for, many essential and additional elementsnecessary to a ground transportation franchise. 3 It directs our attention to the total absence ofprovisions regarding the terminal points of service, maintenance of vehicles, the furnishing ofcompetent drivers, space at the terminal building, the keeping of books and records,indemnification, assignability and sundry other items. The ,

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2 Use of the bidding process as a means for consummating a contract for airport ground transportation service

is not precluded. Such a procedure may be selected by the Board without regard to NRS 244.315.

3 Had LTR alone appealed, its standing to raise the mentioned issue might be subject to question. However,

we do not decide the matter because the Board, as the other party to the alleged agreement with Tanner, mayproperly raise all issues regarding the making and the enforceability thereof.


lower court supplied such absent provisions by reference to the written agreement, as

amended from time to time, under which Tanner had been furnishing the groundtransportation for many years. Whether it properly did so depends upon whether the evidencewill support a conclusion that the contracting parties (Board and Tanner) on November 9,1959 (the date of the acceptance of Tanner's bid), intended to incorporate such provisions.See: Reno Club v. Young Investment Co., 64 Nev. 312, 182 P.2d 1011, 173 A.L.R. 1145. Webelieve that it does. The resident manager of Tanner testified that, through conversations with the countycommissioners before November 9, 1959, he was led to believe that the new agreementwould be the same as the old agreement, except as modified by the terms of the invitation forbids, and the bid submitted. One of the county commissioners testified that the advertisementfor bids was under the old contract. Some time after the acceptance of Tanner's bid by theBoard on November 9, 1959, the district attorney was instructed to prepare a writtenagreement. During the course of a conversation with the commissioners about such writtenagreement and when it would be ready for signing, the resident manager of Tanner was againadvised that the new contract would be the same as the old except as modified by the biditself. The foregoing evidence, without more, supplies a sufficient base for the followingfinding of fact made by the lower court: It is a fact that both Plaintiff and Defendants HarleyE. Harmon, Arthur Olsen and Clesse M. Turner, as the Board of Clark CountyCommissioners, contemplated that the formal contract for the exclusive limousine service atsaid airport would contain therein all the terms of the old contract between said parties datedDecember 28, 1948, except to the extent that the same should be modified by the bid of thePlaintiff which was accepted by said Defendant on the 9th day of November 1959.

[Headnote 6] Despite such finding, supported by substantial evidence, the Board direct our attentionto the paramount %,,:


fact that it never executed a formal contract with Tanner, and argues that it never intended tobe bound by its resolution accepting Tanner's bid. Heavy reliance is placed upon Dolge v.Masek, 70 Nev. 314, 268 P.2d 919, wherein we held that the parties were not bound by anoral agreement because the record disclosed an intention that there would be no contract untila written document was finally signed. We cannot agree that Dolge is applicable here. Theresolution of acceptance of the bid must be deemed evidence of an intent by the Board to bebound thereby. To hold otherwise would render the proceedings (invitation for bids, theirreception, and the acceptance of one) meaningless and a sham. We hold, therefore, thatbinding obligations arose from Tanner's bid and its acceptance by the Board, notwithstandingthe subsequent failure to prepare and sign the contemplated formal agreement. Garfielde v.United States, 93 U.S. 242, 23 L.Ed. 779; L. G. Arnold, Inc. v. City of Hudson, 215 Wis. 5,254 N.W. 108; cf. Micheletti v. Fugitt, 61 Nev. 478, 134 P.2d 99.

[Headnote 7] We must consider one additional contention before leaving this topic and turning to thenext. The Board points out that the commencement date of the new agreement is notmentioned in either the invitation for bids, the bid, the resolution of acceptance, nor, ofcourse, in the old agreement between the Board and Tanner. The absence of this provision isurged as a bar to the existence of the claimed new agreement. Tanner concedes that acommencement date is an essential term. However, it argues that subsequent conduct of theparties is relevant to establish their intention as of November 9, 1959 regarding thecommencement date, and that such conduct determined that date to be December 1, 1959. Weagree with Tanner. On December 16, 1959, Tanner, by check, paid the County $3,600 as theguaranteed annual payment under the new agreement covering limousine service for theairport from December 1, 1959 to November 30, 1960. The check was delivered to the airportmanager who deposited it to the account of Clark County. Said payment was accepted andretained by the


County. Thereafter Tanner changed its mode of payment to conform with its bid, and withoutprotest from the Board. Though the record contains evidence indicating that the Board wasnot aware of such payment until April 1960, and that such payment was made at a time whenTanner knew that the Board was negotiating with LTR (despite its acceptance of the Tannerbid), such evidence serves only to create a conflict which the trial court resolved against theBoard. The conduct of the airport manager, as an agent of the Board, in accepting payment inadvance of the guaranteed annual sum as provided for in Tanner's bid and the County'sacceptance thereof may be deemed to be conduct of the Board. 4 Cf. Maurice L. Bein, Inc. v.Housing Authority, 157 Cal. App.2d 670, 321 P.2d 753; County of Lincoln v. Fischer, 216Or. 421, 339 P.2d 1084. 3. The statute of frauds problem. NRS 111.220(1) provides that every agreement which, byits terms, is not to be performed within one year from the making thereof, shall be void,unless such agreement, or some note or memorandum thereof, expressing the consideration,be in writing and subscribed by the party charged therewith. The Tanner proposal which theBoard accepted was to provide limousine airport transportation service over a 10-year period.It could not be performed within one year and is, therefore, squarely within the mentionedstatute. Cf. Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047, 158 A.L.R. 76.

[Headnotes 8, 9] The Board and LTR ask us to declare that the request for bids, the bid of Tanner submittedin response thereto, and the Board's acceptance of the Tanner proposal, when consideredtogether, are not legally sufficient as a note or memorandum expressing the considerationof the alleged agreement to satisfy the statute of frauds. LTR, as a stranger to the allegedagreement between the Board and Tanner, is without standing to

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4 The airport manager was, in a very real sense, the right arm of the Board in supervising the airport. Books

and records regarding all fares received were to be made available for his inspection; he had authority to adoptand enforce rules re parking, solicitation by taxis, etc.


seek such a declaration. The defense of the statute of frauds is personal, and available only tothe contracting parties or their successors in interest. Stitt v. Ward, 142 App.Div. 626, 127N.Y.S. 351; Schuster v. Pennsylvania Turnpike Commission, 395 Pa. 441, 149 A.2d 447. Norshall we honor the Board's request in this regard, for the record contains substantial evidenceupon which to base an estoppel against the Board to assert such a claim.

[Headnotes 10-12] Following acceptance of the Tanner bid, the Board assured Tanner that a formal writtenagreement would be prepared for signature. In reliance, Tanner continued to providelimousine service at the airport, paid $3,600 as the minimum guarantee for the ensuing year,and purchased two new 1960 model limousines at the cost of about $9,000. We acknowledgethe general rule that, in the absence of fraud, a promise to reduce an agreement to writing isnot, standing alone, a basis for invoking an estoppel against raising the statute of frauds indefense. Union Car Advertising Co. v. Boston Elevated Ry. Co., 26 F.2d 755, 58 A.L.R.1007; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721. It is likewisetrue, as a general rule, that part performance of an agreement within the one year provisionof the statute of frauds, without more, will not preclude the bar of the statute. Nehls v.William Stock Farming Co., 43 Nev. 253, 184 P. 212, 185 P. 563. However, where bothoccur, i.e., a promise to reduce an agreement to writing and part performance by thepromisee, an estoppel is properly invoked and the main agreement enforced. Seymour v.Oelrichs, 156 Cal. 782, 106 P. 88; Alaska Airlines v. Stephenson, 217 F.2d 295, 15 Alaska272; Interstate Co. v. Bry-Block Mercantile Co., 6 Cir., 30 F.2d 172; annot., 6 A.L.R.2d1053. We conclude, therefore, that the Board, in the instant case, is estopped to rely uponNRS 111.220 as a defense to this action. 4. Specific performance was proper. It is next urged upon us that the remedy of specificperformance is not available to Tanner because: there exists an adequate remedy at law forbreach of contract and damages; the alleged agreement between the Board and Tanner is too9


uncertain to be specifically enforced; and, there is absent mutuality of remedy. We do not

agree that the lower court erred in directing the Board to execute a formal contract withTanner and thereafter specifically perform the same. 5

[Headnote 13] A. The legal remedy is not adequate. Equity has recognized that a contract awarding anexclusive franchise is subject to specific performance at the instance of the franchise holder.Fraser v. Cohen, 159 Fla. 253, 31 So.2d 463; Turner v. Hampton, 30 Ky.L. 179, 97 S.W. 761.The legal remedy is deemed inadequate primarily because of the difficulty in fairlydetermining damage. The case before us is exemplary in this respect. The franchise covers a10-year period. The money to be paid the Board yearly is predicated upon gross receipts (witha guaranteed minimum payment). What the future will reveal in this respect must await theevent; it cannot be forecast with any degree of certainty. Fleischer v. James Drug Stores, 1N.J. 138, 62 A.2d 383. The inability of any court to make an appropriate damage award forbreach of contract, had Tanner requested same, is evident.

[Headnotes 14, 15] B. The agreement is not uncertain. As this suit in equity is an affirmative proceeding toprocure the performance of obligations, a clear and precise understanding of the terms of thecontract is normally required. Annot., 65 A.L.R. 7, 102. The contract must be reasonablycertain as to its subject matter, its stipulations, its purposes, its parties and the circumstancesunder which it was made. 4 Pomeroy, Equity Jurisprudence, p. 1042; cf. Dodge Bros. Inc. v.Williams Estate Co., 52 Nev. 364, 287 P. 282. In our discussion under point two of thisopinion, relating to the terms of the agreement in question, it was pointed out wherein theevidence supported the finding made below that the contracting parties

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5 Again we doubt LTR's standing as a stranger to the contract, to raise this issue, but do not decide the point

because the coappellant Board does have standing.


intended to incorporate the provisions of their prior written agreement, as amended from timeto time. That agreement is specific, detailed and certain. Hence, there can be no problem inthis regard. C. Regarding mutuality. In Turley v. Thomas, 31 Nev. 181, 101 P. 568, involving differentcircumstances, we considered whether mutuality of remedy need exist as a condition togranting specific performance. In that case, specific performance was decreed even thoughmutuality was not present. The rule of mutuality of remedy as declared in Fry on SpecificPerformance 286 (3d ed.), to which the opinion made reference, was not followed. TheTurley decision reflects one of the many exceptions to the mutuality of remedy rule.

Whether that rule has validity today is doubtful. Justice Cardozo, in Epstein v. Gluckin, 233N.Y. 490, 135 N.E. 861, 862, made this observation: If there ever was a rule that mutualityof remedy existing, not merely at the time of the decree, but at the time of the formation ofthe contract, is a condition of equitable relief, it has been so qualified by exceptions that,viewed as a precept of general validity, it has ceased to be a rule today, * * *. What equityexacts today as a condition of relief is the assurance that the decree, if rendered, will operatewithout injustice or oppression either to plaintiff or defendant. * * *. Mutuality of remedy isimportant insofar only as its presence is essential to the attainment of that end. The formulahad its origin in an attempt to fit the equitable remedy to the needs of equal justice. We maynot suffer it to petrify at the cost of its animating principal.

[Headnotes 16, 17] The following authorities are in accord with Justice Cardozo's observation, and representthe modern view, which we believe sound: Fleischer v. James Drug Stores, 1 N.J. 138, 62A.2d 383; Sharpless-Hendler Ice Cream Co. v. Davis, 16 Del.Ch. 315, 147 A. 305; Driebe v.Fort Penn Realty Co., 331 Pa. 314, 200 A. 62, 117 A.L.R. 1091; Guzzi v. Czaja, 163Pa.Super. 597, 63 A.2d 426; Cities Service Oil Co. v. Kuckuck, 221 Wis. 633, 267 N.W. 322;VanZandt v. Heilman, 54 N.M. 97, 214 P.2d ;7)&&2+&)'*9,# 57)5))/9 >(*&.5'(&/


864, 22 A.L.R.2d 497; Temple Enterprises v. Combs, 164 Or. 133, 100 P.2d 613, 128 A.L.R.856; 3 Williston, Contracts, 2567 ( 1442, Rev.Ed.); Restatement, Contracts 372 (1932).We adopt the Restatement view (supra) and hold that if the agreed exchange can, withsubstantial certainty, be guaranteed to both parties, the fact that the remedy of specificperformance is not available to one of the parties is not a basis for denying it to the otherparty. 6 In the instant case, the record supports a conclusion that the agreed exchange(Tanner's payment and service in return for an exclusive franchise) can be guaranteed eachparty with substantial certainty.

[Headnote 18] Thrown in as a part of the general contention that equitable remedies were not available toTanner, is the Board's claim that injunctive relief was improper. Again, we cannot agree. Anexclusive franchise is a property right. Injunctive relief is available to prohibit interferencewith it. Conway v. Taylor, 66 U.S. (1 Black) 603 (1861), 17 L.Ed. 191; MontgomeryEnterprises v. Empire Theatre Co., 204 Ala. 566, 86 So. 880, 19 A.L.R. 987; VicksburgWaterworks Co. v. Vicksburg, 185 U.S. 65, 22 S.Ct. 585, 46 L.Ed. 808; Boise Street Car Co.v. Van Avery, 61 Idaho 502, 103 P.2d 1107. Equitable intervention is needed to protect thevitality of an exclusive franchise, for the moment the right becomes common the franchiseceases to exist.

5. The denial of a jury trial was not error. This action was commenced by Tanner seekinginjunctive relief against LTR prohibiting interference with the alleged agreement betweenTanner and the Board, and directing the Board to execute a formal agreement with Tannerand thereafter specifically perform the same. Pursuant to NRCP 39, the Board and Tannereach demanded a jury trial of all issues so triable as a matter

____________________

6 Though not expressed by brief or otherwise, the Board presumably contends that it could not have obtained

specific performance because of the difficulty encountered in supervising and enforcing performance by Tannerover a 10-year period. Because of our holding regarding the mutuality of remedy rule, we need not discusssuch presumed contention.


of right, and also of all issues not so triable. The lower court denied their demand. Suchdenial is assigned as error. In support of the claimed error, comfort is sought from the United States Supreme Courtopinion of Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44. That case is notin point, for the complaint therein sought, among other relief, a money judgment for breach ofcontract for which an adequate legal remedy existed. Because of this, the court held that ajury trial demand as to that claim for relief should have been honored, and reversed the cause.

[Headnotes 19, 20] The case before us is quite different. The complaint seeks only equitable relief. We havealready held that the necessary prerequisite to the existence of an equitable remedy, theabsence of an adequate remedy at law, is present in this case. Under such circumstances, theBoard and LTR were not entitled to a jury trial as a matter of right. Cf. Musgrave v. Casey, 68Nev. 471, 235 P.2d 729; Lake v. Tolles, 8 Nev. 285; Crosier v. McLaughlin, 1 Nev. 348.Further, the request for an advisory jury (as to all issues to which they were not entitled to ajury as a matter of right) is addressed to the trial court's discretion. NRCP 39(c). Thus, wefind no merit in this assignment of error. We have mentioned herein that on April 1, 1960 the Board and LTR executed a formalwritten agreement granting the latter the exclusive limousine ground transportation franchiseservicing the Las Vegas airport. The judgment below declared said agreement null and voidand of no effect whatever. 7 We agree that the Board-LTR agreement is not effective to grantLTR the franchise in question. However, we express no opinion as to possible liabilitiesresulting from its execution. The judgment below is affirmed.

Badt, C. J., and McNamee, J., concur.

____________________

7 The judgment relates the date of the agreement to be March 8, 1960. We find only an agreement in the

record dated April 1, 1960.

____________

79 Nev. 21, 21 (1963) Ex Parte Becker

In the Matter of the Petition of ALFRED BECKERfor Review of Bar Examination, 1962.

No. 4579

January 10, 1963 377 P.2d 631

Proceeding in the matter of the application of Alfred Becker for a license to practice law.

Original proceeding on petition for review of recommendation of the Board of BarExaminers that applicant be denied admission to the State Bar because of failure to obtain apassing grade in bar examination. The Supreme Court held that on such petition to review anexamination of all of applicant's answers to all questions in the examination would not beundertaken, and that failure to pass the examination was proper basis for determination ofacademic qualifications. Petition denied.

Petitioner in Pro. Per.

Howard L. Cunningham, Chairman, Board of Bar Examiners, and Robert R. Herz,Executive Secretary, State Bar of Nevada, of Reno, for State Bar of Nevada.

1. Attorney and Client. Embellishment of charge of improper grading of applicant's bar examination by denominating suchalleged improper grading fraud, imposition and coercion, added nothing to relief sought of regrading by theSupreme Court.

2. Attorney and Client. It would not be determined whether there was a violation of Supreme Court Rules in submitting certainquestions in a bar examination where record established that applicant for admission would have failed topass the examination even though given a grade of 100 percent on the questions of which complaint wasmade. SCR 52(2)(f).

3. Attorney and Client. Rules of the Supreme Court do not require that a model answer to a question in a bar examination beavailable for comparison purposes or otherwise.

4. Attorney and Client.

Applicant's failure to pass bar examination was a proper basis for adverse determination of his academicqualifications.

5. Attorney and Client. On a petition to review recommendation of Board of Bar Examiners that an applicant be deniedadmission to the State 0% %:%


Bar because of failure to obtain a passing grade in a bar examination, Supreme Court would not undertaketo examine all of applicant's answers to all questions in the examination.

OPINION

Per Curiam:

This is a petition for review of the recommendation of the Board of Bar Examiners thatAlfred Becker be denied admission to the State Bar of Nevada. It is alleged therein that petitioner formally prepared for the practice of law at BrooklynLaw School where he received the degrees of Bachelor of Laws and Master of Laws; that hesuccessfully passed the New York State Bar examination and is now a member in goodstanding of the Bar in that state; that he has been a bona fide resident of Nevada since April1959; that he took the 1960, 1961 and 1962 Nevada State Bar examinations and failed to passthe written examination each time; and that he received the grade of 71.36 percent in the 1962Nevada State Bar examination. All of the foregoing allegations are admitted by therespondent Board of Bar Examiners. Petitioner also alleges that he was prevented from passing the 1962 Nevada State Barexamination: (a) through the fraud and imposition of the Board of Bar Examiners in that saidBoard had arbitrarily, unjustly, and in a discriminatory manner determined in advance thenumber of applicants who should be permitted to pass the examination and selected questionsto be propounded to applicants of such a nature that, rated on an arbitrary, unreasonable andabstract scale of 100 percent, it was possible to pass or reject at will any number of applicantstaking the examination, and that the Board of Bar Examiners had thus refused to consider allthe qualifications of your petitioner for admission to the Nevada Bar; (b) through theimposition of the Board of Bar Examiners in that it appeared that two of the questionsrequired a memorized knowledge of statutes or local law in violation of Rule 52(2)(f)Supreme 95./00#%0%9./

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Court Rules; 1 (c) through the coercion of the Board of Bar Examiners in that because nomodel answer was available, petitioner could not compare his answers to any model, and forsuch reason he was coerced into accepting the abstract statement of the Board that he failed topass the written examination; (d) through the imposition and coercion of the Board in thatsome examiners graded the examination papers more severely than others and hence theexamination subjects were not graded on the same degree of difficulty or the same standardsof excellence; (e) in that the gradings of his answers in the 1962 examination were unjustlysevere and that he has been made a victim of unfairness, arbitrariness, fraud and dishonesty inthe marking and grading of his papers; and (f) through the coercion and imposition of theBoard in that the examination taken by him was not properly designed to determine hisacademic fitness to become a member of the Nevada Bar. All of the further allegationscontained in this paragraph were denied. No evidence was presented in support of theseallegations.

[Headnote 1] In essence, the complaint of petitioner is that his examination was graded improperly andhe seeks a regrading by this court. The embellishment of the charge of improper grading bydenominating it fraud, imposition and coercion adds nothing to the nature of the relief sought.Ex parte Chachas, 78 Nev. 102, 369 P.2d 455.

[Headnote 2] We need not determine whether there was a violation of Rule 52(2)(f) Supreme CourtRules, because the records on file with this court establish that petitioner would have failed topass the Bar examination even though given a grade of 100 percent on each of the twoquestions of which he complains.

____________________

1 Rule 52 delineates the type and the subjects of the Bar examination, and 2(f) thereof states in part * * *

but no questions will be asked calling for memorized knowledge of statutes or local law * * *.


[Headnote 3] Petitioner's complaint that no model answer was available is without merit, because ourrules do not require that a model answer be available for comparison purposes or otherwise.

[Headnote 4] The failure of petitioner to pass the examination was the sole basis of the Board'srecommendation that he be denied a license to practice. This is a proper basis fordetermination of the academic qualifications of an applicant. In re Myles, 64 Nev. 217, 180P.2d 99.

[Headnote 5] On a petition in this court to review the recommendation of the Board of Bar Examinersthat petitioner be denied admission to the State Bar of Nevada because he failed to obtain apassing grade in a Bar examination, we will not undertake to examine all of the petitioner'sanswers to all of the questions in the examination. Ex parte Reid, 76 Nev. 76, 349 P.2d 446;In re Hughey, 62 Nev. 498, 156 P.2d 733. The petition for review is denied.

____________

79 Nev. 24, 24 (1963) State v. Nystedt

THE STATE OF NEVADA, Appellant, v.ROBERT O. NYSTEDT, Respondent.

No. 4512

January 16, 1963 377 P.2d 929

Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.

Defendant was acquitted of charges of incest and rape. The lower court renderedjudgment, and the state appealed. The Supreme Court, McNamee, J., held, inter alia, thatexcluding evidence that previously defendant allegedly had committed other offensesinvolving a minor other than the minor involved in the offenses for which he was being triedwas not abuse of discretion, in view of the prejudicial nature of such evidence. Affirmed.


Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.

Ahlswede, Chief Deputy District Attorney, Washoe County, for Appellant.

Stanley H. Brown and Peter Echeverria, of Reno, for Respondent.

1. Criminal Law. Offer of proof should state specific purpose for which such offer is made.

2. Criminal Law. In prosecution for incest and rape, excluding evidence that previously defendant allegedly hadcontributed to delinquency of a minor, had been accomplice in act of sodomy accompanied by actcontributing to delinquency of a minor, and had committed act of sodomy, each such offense allegedlyinvolving a minor other than minor involved in offenses for which defendant was on trial, was not abuse ofdiscretion, in view of prejudicial nature of such evidence, since balance thus struck by trial judge betweenprejudice and probative weight was not manifestly wrong.

3. Criminal Law. Proof of distinct independent offense is inadmissible, except where it tends to establish motive, intent,absence of mistake or accident, common scheme or plan, or identity of person charged.

4. Criminal Law. Even where relevancy under exception to general rule may be found, fair trial demands exclusion ofevidence of distinct independent offense, where by virtue of its prejudicial nature, such evidence is morelikely to distract from essential issue than to bear upon it, and determining whether admission of suchevidence will interfere with fair trial requires exercise of judicial discretion of trial judge.

5. Costs. Attorneys appointed by trial court to defend one charged with incest and rape were entitled to additionalcompensation for legal services rendered in reviewing court upon appeal by state after acquittal, suchcompensation to be graduated on scale corresponding to sums allowed for services in trial court. NRS7.260, subd. 3, 177.065, subd. 2.

OPINION

By the Court, McNamee, J.:

Respondent was acquitted in the lower court of the charges of incest and rape under aninformation which alleged that in May 1961 he had had sexual intercourse

57


with his natural daughter of the age of 16 years. Pursuant to NRS 177.065 the State hasappealed, specifying three errors at law committed in the court below. During the trial, the lower court denied the State's offer to prove through its witness,respondent's 17 year old son, that prior to the commission of the offenses charged,respondent: (1) in April 1957 contributed to the delinquency of a minor other than the minorinvolved in the offenses with which respondent was charged; (2) in the summer of 1957respondent was an accomplice in an act of sodomy accompanied by an act contributing to the

delinquency of a minor, neither of which concerned the minor involved in the offenses withwhich he was charged; and (3) at an unspecified date respondent committed sodomy with aminor other than the minor involved in the offenses with which he was charged. The State's purpose for the offers of proof 1 and 2 does not appear in the transcript. As tooffer of proof 3, the State stated that the purpose of this offer was to show a common schemeon the part of the respondent and respondent's motive for the commission of the acts of whichhe stands charged.

[Headnotes 1, 2] Although we could sustain the action of the trial court in denying offers 1 and 2 for thereason that they failed to contain a statement of the specific purpose for which these offerswere made, 1 Wigmore, Evidence 17 (3rd ed. 1940), we hold that it was not error for thetrial court to deny the three offers of proof under our decision in the case of Nester v. State,75 Nev. 41, 334 P.2d 524.

[Headnote 3] In Nester, we stated the general rule that on the trial of a person accused of crime, proof ofa distinct independent offense is inadmissible, and then cited the five exceptions thereto, towit, when the other crime tends to establish motive, intent, the absence of mistake oraccident, a common scheme or plan embracing the commission of two or more crimes sorelated to each other


that proof of one tends to establish the others, and the identity of the person charged.

[Headnote 4] Even if we were in accord with the State's position that such proffered testimony wasadmissible under one of the exceptions to the general rule forbidding evidence of a separateand distinct offense, and if we disregarded the element of remoteness, error would not bedeclared, because of a trial court's discretionary power to preclude jury knowledge of suchprejudicial material. To state it differently: The fact that the reception of such evidence undersome cases may not be considered error does not mean that the refusal to receive it is error.All of the authorities consider only the question of whether error occurred in receiving suchevidence. As stated in Nester, 75 Nev. 41, 54, 334 P.2d 524, 531: Even where relevancyunder an exception to the general rule may be found, fair trial demands that the evidence notbe admitted in cases where, by virtue of its prejudicial nature, it is more likely to distract fromthe essential issue than to bear upon it. Whether, under the circumstances, admission of the evidence interferes with fair trial, canhardly be determined by fixed rule of law. It would seem to require, instead, the exercise of

judicial discretion of the trial judge. As in that case, we cannot say that the balance struck by the trial judge between prejudiceand probative weight was manifestly wrong.

[Headnote 5] The two attorneys for respondent were appointed by the trial court to defend respondent inthat court, and they were allowed fees for their services therein. Because of the State's appealafter acquittal, they were not compelled to follow the case to this court without compensation.They have performed satisfactorily the legal services required of them in this court. Pursuantto subsection 2 of NRS 177.065 they are entitled to further compensation.


The rulings of the lower court upon the questions of law submitted to this court areaffirmed, and the lower court is directed to give each of respondent's attorneys the certificatespecified in subsection 3 of NRS 7.260 to enable them to recover an enlarged compensationto be graduated on a scale corresponding to the sums already allowed. Affirmed.

Badt, C. J., and Thompson, J., concur.

____________

79 Nev. 28, 28 (1963) Ex Parte Kellar

In the Matter of the Petition of CHARLES L. KELLAR to Review the Recommendation ofthe Board of Bar Examiners That He Be Denied Admission to the State Bar of Nevada.

No. 4577

January 21, 1963 377 P.2d 927

On preliminary motions to disclose confidential material, to strike averments ofrespondent's answer, and for particulars.

Proceeding on petition to review recommendation of the Board of Bar Examiners thatpetitioner be denied admission. On preliminary motions of petitioner the Supreme Court heldthat where every subject of significance contained in confidential written reports concerningcharacter of petitioner had been referred to in hearing, motion to disclose confidential writtenreports would be denied by Supreme Court. Motions denied.

[Rehearing denied February 18, 1963]

Bert Goldwater, of Reno, and Howard W. Babcock, of Las Vegas, for Petitioner.

Howard L. Cunningham and Robert R. Herz, of Reno, for Respondent Board of BarExaminers.


1. Attorney and Client. Where every subject of significance contained in confidential written reports concerning character ofapplicant for admission to bar had been referred to in hearing accorded applicant, applicant's motion todisclose confidential written reports would be denied. SCR 57.

2. Attorney and Client. Motion by applicant, petitioning for review of Board of Bar Examiners' denial of application foradmission to practice law, to strike averments regarding statements applicant made to press after Board hadrecommended denial of application, would not be granted as Supreme Court preferred to have allinformation which might be relevant to issues. SCR 57.

3. Attorney and Client. Recommendation of Board of Bar Examiners that applicant be denied admission to practice of law was ofsufficient particularity to apprise applicant of reasons for Board's conclusion and his motion to requireBoard, in hearing on petition for review of recommendation, to specify with particularity facts supportingits recommendation would be denied. SCR 57.

OPINION

Per Curiam:

Charles L. Kellar, an applicant for admission to the bar of Nevada, received a passinggrade on the 1961 bar examination. He has petitioned this court to review therecommendation of the Board of Bar Examiners that he be denied admission to practice lawin Nevada for failure to meet requisite character standards. S.C.R. 57. The Board hasanswered such petition. This opinion is directed to three preliminary motions presented byKellar.

[Headnote 1] 1. The motion to disclose confidential written reports. The Board requested the NationalConference of Bar Examiners to furnish a character report regarding Kellar. It did so upon theexpress understanding that such report was confidential and for sole use by the Board and thiscourt. The record before us also contains confidential written material from other sources.Keller asks that all confidential written material be revealed to him, notwithstanding theprovision of 6*.&/

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S.C.R. 57(2) reading: If an applicant has failed to qualify in the opinion of the board of barexaminers by reason of failure to meet the character standards required by the board of barexaminers, the applicant shall be entitled to review all of the reports regarding his charactersubmitted by the board of bar examiners except confidential reports. We have examined the entire record herein with great care. Much of the confidentialinformation reflects favorably upon Keller's character and fitness to practice law. Some of itis of such a nature as to indicate the advisability of further inquiry of the applicant about thesubject matters contained therein. Such inquiry was made during the course of hearingsconducted by the local administrative committee of the Clark County Bar Association onJanuary 8 and March 21, 1962 and by the Board of Bar Examiners on July 12 and 13, 1962.Thus, Kellar has already been granted the opportunity to explain and discuss such matters andhas done so in considerable detail at said hearings. Our study of the record reveals that everysubject of significance contained in the confidential reports and touching upon Kellar'scharacter and fitness to practice law in Nevada was referred to during the mentioned hearingsand is, therefore, contained in the nonconfidential or open record of this matter. Under suchcircumstances, we deny Kellar's motion to disclose the confidential written reports. Cf.Application of Guberman, 90 Ariz. 27, 363 P.2d 617; Application of Warren, 149 Conn. 266,178 A.2d 528.

[Headnote 2] 2. Motion to strike certain averments of the Board's answer. We are requested to strikefrom the Board's verified answer the fourth and sixth defenses thereof. They relate tostatements made by Kellar to the press and during a television broadcast, which accuse theBoard of engaging in a course of conduct calculated to exclude negroes from the practice oflaw in Nevada. It is alleged that the statements were

9: &8 !#202

!#2025


misleading and false, and made at a time when the instant proceeding was pending before thiscourt; that the statements reflect unfavorably upon the applicant's character as a lawyer and aman and are in violation of Canon 20 of the Canons of Professional Ethics of the American

Bar Association as interpreted by the numerical opinions of the Standing Committee onProfessional Ethics of the American Bar Association. 1 The basis for the motion to strike is that the alleged statements were made at a timesubsequent to the Board's recommendation to this court and cannot be deemed relevant asthey played no part in the Board's conclusion. The Board has resisted the motion to strike,asserting that it should not be foreclosed from directing this court's attention to occurrencesbelieved relevant to the character of an applicant even though they happened after the Board'srecommendation was made. Cf. Application of Stone, 74 Wyo. 389, 288 P.2d 767. It isobvious that the Board's recommendation against Kellar's admission to practice law could nothave been influenced by the matters sought to be stricken. However, it is equally apparentthat occurrences may take place during the interim between Board recommendation and finalcourt determination which may bear upon an applicant's qualifications and fitness to practicelaw. As the responsibility for admission to the Bar of Nevada is ultimately ours, we prefer tohave all information which may be relevant to the issues presented. The allegations sought tobe deleted, if true, appear to be relevant. Whether they are true or false, partly correct andpartly incorrect, cannot be ascertained by us at this time. The interests of justice are bestserved by denying the motion to strike and granting Kellar an opportunity to file herein averified

%&

____________________

1 By order of this court dated January 11, 1962, effective February 12, 1962, the Canons of Professional

Ethics of the American Bar Association, as amended, and as interpreted by the numerical opinions of theStanding Committee of the American Bar Association, were adopted by reference and made additional rules ofprofessional conduct of the State Bar of Nevada. Canon 20 generally condemns publications by a lawyer as to apending court matter.


responsive pleading to the said fourth and sixth defenses. 2

[Headnote 3] 3. The motion to require the Board to specify particularly the facts supporting itsrecommendation. The report of the Board, inter alia, states: Your Board recommends that applicant CHARLES L. KELLAR (applicant No. 25) bedenied admission to the practice of law in the State of Nevada on the ground of failure tomeet character standards for admission to the bar. A considerable portion of the applicant's testimony under oath before the LocalAdministrative Committee for District No. 1 and before the Board of Bar Examiners wasevasive and inherently incredible. The applicant has practiced law in the State of Nevada inviolation of its statutes and rules of court. When questioned by the Local AdministrativeCommittee for District No. 1 and by the Board of Bar Examiners with regard to these

activities and other matters, the applicant was evasive and untruthful under oath. Theapplicant used unethical tactics to coerce settlement of a lawsuit in which he had a financialinterest. Similar tactics have been used by him in conjunction with his application foradmission to the Bar. He was uncooperative with, and contemptuous and abusive towards,both the Local Administrative Committee and the Board of Bar Examiners to such a degreeas to convince the Board that he lacks respect for law, for duly constituted authority and forthe institutions of government. In the opinion of the Board the applicant if admitted to practice would not maintain therespect ??

%

____________________

2 The second defense of the Board's answer contains a motion to strike allegations of the petition for review

that (a) petitioner is a Negro male and that his family consists of his wife and two children; (b) that the State Barof Nevada has never admitted a person of the Negro race to practice law during the 98 years of its existence. Weknow that applicant is a Negro, and the record discloses the family unit. We know when the State Bar of Nevadacame into existence. Therefore, no purpose is served in ruling on this motion to strike and we decline to do so.


due to the courts of justice and to the judicial officers, nor exhibit the fidelity, honesty,trustworthiness, integrity, candor, and fairness necessary to uphold the dignity and honor ofthe legal profession. We are requested to direct the Board to supply a bill of particulars as to each of theultimate fact conclusions quoted. The recorded nonconfidential proceedings before theAdministrative Committee and the Board relate to the subjects with which the Board's statedconclusions deal. We do not view the report as a pleading. It is the Board's recommendationand report, and is of sufficient particularity to apprise Kellar of the reasons for the Board'sconclusion that he be denied admission to practice. We presume that the briefs and oralargument upon the merits will deal with the particular facts sought to be relied upon by eachside. Accordingly, this motion is denied.

____________

79 Nev. 33, 33 (1963) Freeman v. Freeman

ALICE FREEMAN, Appellant, v.ALBERT FREEMAN, Respondent.

No. 4496

January 30, 1963 378 P.2d 264

Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,Judge.

Action by husband for divorce wherein wife filed a counterclaim for divorce. From ajudgment of the trial court granting wife a divorce, the wife appealed with respect to alimonyand the division of property. The Supreme Court, McNamee, J., held that court did not abuseits discretion in failing to award permanent alimony to wife who lived with husbandsomething less than eight months before separating and who before marriage had beenemployed as secretary and who planned to return to work after child born of the marriagereached the age of two. Affirmed.


Foley Brothers, of Las Vegas, for Appellant.

Harry E. Claiborne and John Manzonie, of Las Vegas, for Respondent.

1. Divorce. A wife who has been granted a divorce is not entitled to alimony as a matter of law. NRS 125.150,subds. 1, 5.

2. Divorce. Power to grant permanent alimony is entirely statutory. NRS 125.150, subds. 1, 5.

3. Divorce. Allowance of permanent alimony rests in sound discretion of trial court, which is to be exercised in lightof all surrounding circumstances. NRS 125.150, subds. 1, 5.

4. Divorce. Court did not abuse its discretion in failing to award permanent alimony to wife who lived with husbandsomething less than eight months before separating and who before marriage had been employed assecretary and who planned to return to work after child born of the marriage reached the age of two. NRS125.150, subds. 1, 5.

5. Divorce. Division of community property is within discretion of trial court. NRS 125.150, subd. 1.

OPINION

By the Court, McNamee, J.:

The parties hereto were married November 15, 1959. A child was born in June 1960.Before the birth of the child the parties separated. On June 17, 1960, after the child was born,

the husband commenced this action for divorce on the ground of extreme cruelty. The wifefiled a counterclaim for divorce on the ground of extreme cruelty and the trial court grantedher the divorce. 1 The appeal taken by the wife is not from that part of the judgment which grants thedivorce, 2 but from those parts thereof relating to the division of property, support for thewife and minor child, and from the denial of the wife's motion for a new trial.

____________________

1 The court found that the parties were each guilty of cruelty, each toward the other, however, the Defendant

was least at fault.

2 At the request of appellant the reporter's transcript of the testimony which forms a part of the Record on

Appeal does not contain the testimony pertaining to the grounds for divorce.


Appellant assigns as error: 1. The failure of the trial court to award alimony to the wife. 2. The trial court divided the property of the parties without considering the obligation ofthe husband to support his wife and minor child, and refunded to him sums he had expendedfor such support. 3. Respondent erroneously was awarded $2,000 as his sole and separate property when theevidence showed that he had no such separate property. 4. The trial court erroneously determined that certain items of personal property were giftsto the respondent rather than wedding gifts to the parties. Appellant contends that the failure to award alimony is clearly an abuse of the court'sdiscretion, for the reason that the only discretion vested in the court appears to be to fix theamount of alimony, and the court was compelled by law to make some award of alimony. The only Nevada case cited in support of her contention is Cunningham v. Cunningham,60 Nev. 191, 197, 102 P.2d 94, 105 P.2d 398, 400, where this court said: The right of the wife, who has been given the divorce, to such support as to the courtshall appear adequate in view of the financial conditions of the parties, cannot bequestioned.

[Headnote 1] In our opinion, these words mean simply that the action of the trial court in awardingalimony in a proper case will not be disturbed on appeal. They do not mean that in all caseswhere the wife is granted a divorce she is entitled to alimony as a matter of right.

[Headnote 2] Permanent alimony in conjunction with an absolute divorce was entirely unknown toeither the common law or the ecclesiastical law. There is no such thing as a common-law

power to grant permanent alimony in connection with a divorce. The power to awardpermanent alimony is wholly the creature of statute. Annot., 34 A.L.R.2d 313, 319 (1954). The applicable Nevada statutes are as follows: Subsection 1 of NRS 125.150 provides: In granting a divorce, the court may award suchalimony to the wife

?


and shall make such disposition of the community property of the parties as shall appear justand equitable, having regard to the respective merits of the parties and to the condition inwhich they will be left by such divorce, and to the party through whom the property wasacquired, and to the burdens, if any, imposed upon it, for the benefit of the children. Subsection 5 of NRS 125.150 states in part: In the event alimony has been awarded to thewife, or the court otherwise adjudicates the property rights of the parties * * * such alimonyso awarded, such adjudication of property rights * * * may nevertheless at any time thereafterbe modified by the court upon written stipulation * * *.

[Headnote 3] It is clear from our statutes that, contrary to appellant's contention, a court is not compelledby law in this state to make some award of alimony. The allowance of permanent alimonyrests within the sound discretion of the trial court to be exercised in the light of allsurrounding circumstances, and such allowances will not be disturbed on appeal.

[Headnote 4] As heretofore stated, we do not have before us that part of the evidence pertaining to thegrounds for divorce and, consequently, we cannot ascertain whether such evidence was of anature which would tend to influence the court in the granting or denial of alimony. We doknow from the testimony of the wife that, aside from minor difficulties, respondent was agood husband. Before her marriage to him she had previously been married to one Brodskyand had a child by that marriage. Her marriage to Brodsky lasted three years. At the time ofits dissolution she did not ask for alimony, but was awarded $100 per month for support ofthe Brodsky child. From the time of her divorce until her marriage to respondent she had beenemployed as a secretary to the head of the advertising and publicity department of the DesertInn Hotel, in Las Vegas. When the Freeman baby reaches the age of two years, appellantexpects to return to work.


In view of the circumstances and the paucity of facts presented by the record we cannotsay that the trial court abused its discretion in failing to award permanent alimony to theappellant.

[Headnote 5] There is nothing in the record to sustain appellant's contention that the court divided theproperty of the parties without considering the obligation of the husband to support his wifeand minor child. The evidence is in conflict whether the sum allotted to the husband from theassets of the parties was his separate property or constituted a reimbursement to him for sumshe had expended for the support of his wife and child, and there was no affirmative showingone way or the other whether the sums advanced by the husband constituted sums acquiredbefore marriage or were his earnings after marriage. Even if we assume that appellant iscorrect in her contention that upon the record the sum allotted to the husband was communityproperty, it was still within the sound discretion of the trial court how the communityproperty should be distributed. NRS 125.150(1). Whether the items of personal propertyawarded to the husband were personal gifts to him rather than wedding gifts to the partiesalso was in conflict. The trial court heard the testimony of the witnesses and had before itevidence not before us on appeal, and was better able to judge the facts than we are. Thedecision of the trial court relating to the matters complained of therefore will not bedisturbed. Affirmed. No costs are allowed, because appellant heretofore had been awardedpreliminary fees and expenses in this court.

Badt, C. J., and Thompson, J., concur.

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79 Nev. 38, 38 (1963) Eisentrager v. State

THOMAS ARTHUR EISENTRAGER, Appellant, v.THE STATE OF NEVADA, Respondent.

No. 4545 February 1, 1963 378 P.2d 526

Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.Mowbray, Judge.

Defendant was convicted in the trial court of second degree murder and he appealed. TheSupreme Court, Thompson, J., held that neither unreasonable search nor unreasonable seizureoccurred in constitutional sense when police officers, upon landlord's request and withoutsearch warrant, entered apartment, observed plain evidence of killing including body of

defendant's wife, who had been tenant, took control of premises and looked into closets anddrawers for implements and evidence of crime, and evidence found was admissible inprosecution of defendant who had resided in that apartment. Judgment affirmed. [Rehearing denied March 4, 1963] See also 76 Nev. 437, 357 P.2d 306.

Gordon L. Hawkins and Tad Porter, of Las Vegas, for Appellant.

Harvey Dickerson, Attorney General, of Carson City; Edward G. Marshall, DistrictAttorney, Clark County; and Charles L. Garner, Deputy District Attorney, Clark County, forRespondent.

1. Searches and Seizures. Although all evidence obtained by searches and seizures in violation of federal Constitution isinadmissible in state court, determination of whether search and seizure was unreasonable requires carefulexamination of circumstances in each case in light of nature and scope of right of privacy which FourthAmendment protects, and problem of what is reasonable or unreasonable official conduct is one of degree.U.S.C.A. Const. Amend. 4.

2. Searches and Seizures. Constitutional prohibition is not against search and seizure without warrant, but against unreasonablesearch and seizure, and once it is determined that police officer's conduct is reasonable, it does not becomeunreasonable, in constitutional sense, simply because it may have involved a civil trespass. NRS179.010; U.S.C.A.Const. Amend. 4.


3. Searches and Seizures. That parts of three days were required by police to search apartment in which defendant had resided andin which body of defendant's wife had been discovered was unimportant with respect to question ofwhether search was unreasonable. NRS 179.010, 259.050; U.S.C.A.Const. Amend. 4.

4. Criminal Law; Searches and Seizures. Neither unreasonable search nor unreasonable seizure occurred in constitutional sense when policeofficers, upon landlord's request and without search warrant, entered apartment, observed plain evidence ofkilling including body of defendant's wife, who had been tenant, took control of premises and looked intoclosets and drawers for implements and evidence of crime, and evidence found was admissible inprosecution of defendant who had resided in that apartment. NRS 179.010, 259.050; U.S.C.A.Const.Amend. 4.

5. Criminal Law. Burden is upon party relying upon expert testimony to prove identity of object upon which testimony isbased but practicalities of proof do not require such party to negative all possibility of substitution ortampering and he need only establish that it is reasonably certain that substitution, alteration or tamperingdid not occur.

6. Criminal Law. In absence of indication that medical technician, who extracted blood from defendant's arm and who had

sole possession of vial for approximately two minutes alone in adjoining room, substituted, altered,changed or tampered with blood or may have been interested in doing so, evidence as to test made of bloodwas admissible and doubt, if any, regarding its identity, went to its weight.

7. Criminal Law. Proper foundation was established for admission into evidence of portion of pillow case, where morticianin presence of police officer removed something that was around victim's neck and gave it to police officerwho marked it with his initial and later sent it to laboratory for analysis, which allegedly revealed thatstains of human blood on it were of same type as that of deceased, and opinion was given, based uponmicroscopic comparison, that another portion of pillow case taken from drawer of apartment and itemfound around decedent's neck were originally portions of same pillow case.

8. Criminal Law. Reasonable diligence must be exercised to locate witness for use of his reported testimony in subsequenttrial of same cause. NRS 178.230.

9. Criminal Law. Where police officers spent 16 to 24 man-hours attempting to locate witness, who had testified duringfirst trial of defendant, letter addressed to supposed permanent address of witness in Mexico was returnedand investigator from district attorney's office spent four days attempting to locate witness, reasonablediligence was exercised to locate witness and it was not error to permit reading of absent witness' reportedtestimony in second trial. NRS 178.230.


10. Criminal Law. Error occurred when bailiff acting on his own volition permitted jury to have exhibit in jury room buterror was not prejudicial where exhibit was properly admitted into evidence. NRS 169.110, 175.390.

11. Homicide. Although information charged death by striking victim on and about face, body and head, with hands, fistand rolling pin and expert witness stated that victim died from two causes and that victim was helpless dueto multiple injuries and actual cause of death was due to strangulation, there was not a fatal varianceregarding cause of death between charge in information and proof adduced.

12. Homicide. Whether cause of death of defendant's wife was the striking of wife on or about face, body and head, withhands, fist and rolling pin as charged in information was jury question.

OPINION

By the Court, Thompson, J.:

During the afternoon of May 7, 1959, Mrs. Faber, the owner of the Alcazar Apartments,and her friend, Mr. Moody, discovered a corpse in the closet of Apartment D. That evening,Eisentrager, the appellant, turned himself in to the police. Subsequently a jury trial occurred,and Eisentrager was found guilty of second degree murder. Judgment was pronounced andsentence imposed. The assigned errors are separately discussed.

[Headnote 1]

1. The search and seizure of evidence. During the trial 28 exhibits were received in evidence, over the defendant's objection thatthey were gathered during the course of an unreasonable search, and in violation of hisconstitutional rights. In 1961 the Supreme Court of the United States declared that allevidence obtained by searches and seizures, in violation of the federal constitution, is by thatsame authority inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6L.Ed.2d 1081. However, it did not tell us what it is that makes a search or seizureunreasonable. Accordingly, each case requires a careful examination of the circumstances inthe light of the nature and scope of


the right of privacy which the fourth amendment protects. In Wyatt v. State, 77 Nev. 490,501, 367 P.2d 104, 110, we said: Even under the exclusionary rule where the search inquestion is conducted without a warrant and without requesting permission to enter, thecriterion of whether the search is lawful is its reasonableness. As always, the problem ofwhat is reasonable or unreasonable official conduct is one of degree, and the circumstancesunder which the question is posed are of endless variety. The record before us reveals that Eisentrager and Ardis Mayo, the decedent, had occupiedApartment D of the Alcazar Apartments since February 12, 1959. They were not married, butheld themselves out as man and wife. A bimonthly rent payment was due May 5, 1959, andon that day the landlady called at the apartment and told Eisentrager that she would like tospeak to Ardis. She was informed that Ardis had gone to visit a girl friend and would beavailable later. On the following day the landlady and Mr. Moody again called at theapartment. As no answer was received, they entered to ascertain if the tenants had vacated.No one was there, but personal effects were observed. Finally, on May 7, 1959, still anxiousto speak to Ardis Mayo, the landlady and Mr. Moody once more went to the apartment, letthemselves in, and upon a more thorough inspection, discovered a corpse (subsequentlyidentified as Ardis Mayo) in a closet covered by a blanket. The landlady asked Mr. Moody tocall the police, which he did. The police arrived soon thereafter. They saw the dead body,observed a cloth material tied around the decedent's neck, as well as other physical factsindicating that a killing had occurred. Investigation commenced immediately. On that daydrawings of the floor plan were made (Exhibits A, B), photographs taken (Exhibits C, D, E,G-2, G-3, G-4, G-5), and sundry articles of personal property seized. Some of those articleswere in plain sight (Exhibit H, a rug; Exhibit M, portion of a pillow case). Others wereobtained by search (Exhibit I, rolling pin; Exhibit J, sport shirt; Exhibit K, towel; Exhibit L,other half /


of pillow case). The apartment was sealed to preclude entry by others. On the next day, May8, the police reentered, continued their investigation, and seized additional items of evidence(Exhibit O, towel; Exhibit P, bed leg; Exhibit Q, carpeting), all of which were in plain sightexcept Exhibit N (trousers). The apartment was again sealed. On May 9 the police completedtheir work at the apartment, seizing items of clothing of the deceased (Exhibits R, S, T, U, V)which were in plain sight, and Exhibit W, a bath towel, the location of which is not disclosedby the record. 1 It is reasonably clear that Mrs. Faber looked to Ardis Mayo for payment of rent.Eisentrager was unemployed, and without funds. Indeed, on May 5 he had visited Ardis'employer and obtained a $10 advance on her wages. He and Ardis had quarreled over hisinability to obtain work. Eisentrager was not present at the apartment with the police at any time during theirinvestigation of the killing. The search and seizure was not incident to his arrest. 2 The policedid not obtain a search warrant. We are asked to declare the search and seizure unreasonablein the constitutional sense. We decline to do so.

[Headnote 2] The contention is initially made that the landlady had no authority to allow the officers toenter the apartment. Our attention is directed to the cases of Klee v. United States, 9 Cir., 53F.2d 58, and State v. Warfield, 184 Wis. 56, 198 N.W. 854. Such contention assumes theexistence of the relationship of landlord and tenant. Here, the rent was overdue. The rentpayer was dead. The so-called tenancy was, for all practical purposes, nonexistent. Surely,when a landlady finds the corpse of her tenant in the apartment she may request the police toinvestigate, and the police may respond to that request without first obtaining a searchwarrant. Indeed, even in those cases not involving a 3%:

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1 The remaining exhibits, blood and hair samples from the deceased, were not obtained at the apartment.

2 The arrest occurred when Eisentrager turned himself in to the police. NRS 171.230.


homicide and where the landlord-tenant relationship exists without question, entry, searchand seizure with the landlord's permission has been held reasonable under certaincircumstances. People v. Roberts, 47 Cal.2d 374

nevada reports 1963 (79 nev.).pdf

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