KOSRAE STATE COURT TRIAL DIVISION
Cite as Tulensru v. Utwe, 9 FSM Intrm. 95 ( Kosrae S. Ct. Tr. 1999)

[9 FSM Intrm. 95]

EDWARD TULENSRU,
Plaintiff,

vs.

UTWE MUNICIPAL GOV'T, KOTARO
WAGUK and IUVER JOSEPH,
Defendants.

CIVIL ACTION NO. 51-97

MEMORANDUM OF DECISION

Aliksa B. Aliksa
Acting Chief Justice

Trial:  March 22, April 5, 1999
Decided:  April 8, 1999

[9 FSM Intrm. 96]

APPEARANCES:

For the Plaintiff:            Sasaki George
                                       Micronesian Legal Services Corporation
                                       P.O. Box 38
                                       Lelu, Kosrae FM 96944

For the Defendants:     Patrick Olter
                                       P.O. Box 245
                                       Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES

Evidence ) Burden of Proof
     A plaintiff, who has testified that in 1991 the defendant gave him $500 and that this payment was a portion of a $3,000 check issued by the FSM Finance Office as payment to the plaintiff, but who does not present any other evidence of the $3,000 check or the $500 payment and does not show that documentary proof relating to the $500 payment or the $3,000 check was unavailable through discovery or by subpoena, has failed to sustain his burden of proof.  When the plaintiff has testified that in 1996 the FSM Finance Office issued another check in his name, but presents no documentary proof of this check, the plaintiff has again failed to sustain his burden of proof.  Tulensru v. Utwe, 9 FSM Intrm. 95, 97 (Kos. S. Ct. Tr. 1999).

Contracts
     The court will find that the parties' verbal agreement was not modified later by any of the parties' later actions when the plaintiff has failed to sustain his burden of proof with respect to those later actions.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

Contracts
     A contract is a promise between two parties for the future performance of mutual obligations which the law will enforce in some way.  For the promise to be enforceable, there must be an offer and an acceptance, definite terms, and consideration for the promise (that which the performance is exchanged for).  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

Contracts ) Interpretation
     The controlling factor in the interpretation of contracts is the intention of the parties at the time of the entering into the contract.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

Contracts ) Interpretation
     Contracts are not interpreted on the basis of subjective uncommunicated views, or secret hopes of one of the parties, but on an objective basis.  Contracts are interpreted according to the reasonable expectations or understanding of parties based upon circumstances known to the parties and their words and actions, at the time the agreement was entered into.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

Contracts
     When the existence of a contract is at issue, the trier of fact determines whether the contract did in fact exist.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).
 
[9 FSM Intrm. 97]

Contracts ) Interpretation
     When the parties made their verbal agreement promising that the plaintiff would provide fill materials from his quarry for various of the defendant's municipal projects and that the defendant would provide the plaintiff with two loads of fill material for each day of hauling, they formed a contract because these promises contained an offer, acceptance and consideration and the terms of the agreement were definite and enforceable.  The parties' essential commitments and agreement were identified and definite.  Therefore the agreement is binding.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

Contracts
     When both parties have fulfilled their obligations under the contract, there is no breach of the contract by either party.  Tulensru v. Utwe, 9 FSM Intrm. 95, 98 (Kos. S. Ct. Tr. 1999).

*    *    *    *

COURT'S OPINION

ALIKSA B. ALIKSA, Acting Chief Justice:

     This matter came to trial on March 22, 1999 at 9:00 a.m.  Closing arguments were heard on April 5, 1999.  Plaintiff was represented by Sasaki George, MLSC.  Defendants were represented by Patrick Olter.  All parties presented testimony of witnesses and documentary evidence at the trial.  Plaintiff filed a written Closing Argument on April 5, 1999.

     Based upon the evidence received at trial, this Court grants judgment for the Defendants, Utwe Municipal Government, Kotaro Waguk and Iuver Joseph.  This memorandum sets forth my findings of fact, conclusions of law, and reasoning.

I.  Findings of Fact.

     The Plaintiff and the former Mayor of Utwe Municipality, Mr. Kotaro Waguk, made a verbal agreement regarding the use of fill material from Plaintiff's land located at Yeni.  Plaintiff agreed to allow Utwe Municipality to take fill material from Yeni quarry for municipal projects.  In exchange, then Mayor Kotaro Waguk promised that the Municipality would deliver two truckloads of fill material to Plaintiff's land on each day that fill material was hauled from Yeni quarry for municipal projects.  The fill material from Yeni quarry was used for Utwe Municipality projects.  In accordance with their promise, the municipality delivered two truckloads of fill to Plaintiff's land on each day that fill was hauled from Yeni quarry for municipal projects.

     Plaintiff testified that in 1991, Defendant Utwe Municipal Government gave him the sum of $500 in payment for fill material from Yeni.  This payment was reportedly a portion of a check issued by the FSM Finance Office in the amount of $3,000 made as payment to Plaintiff.  However, Plaintiff did not present any other evidence of that $3,000 check or the $500 payment.  See Kos. Evid. R. 1001 through 1004.  Plaintiff did not show that the documentary proof relating to the $500 payment or the $3,000 check were unavailable through discovery or by subpoena.  Plaintiff has failed to sustain his burden of proof with respect to the alleged 1991 check issued by the FSM Finance Office and the payment from Defendant Utwe Municipal Government to the Plaintiff.  Plaintiff testified that another check was issued by the FSM Finance Office in his name in 1996, however, no documentary proof of this check was presented.  Here again, Plaintiff has failed to sustain his burden of proof with respect to the alleged check issued by FSM Finance in 1996 in the Plaintiff's name.

[9 FSM Intrm. 98]

     Plaintiff's agreement with Defendant Utwe Municipal Government was that two loads of fill material would be delivered to the Plaintiff's land for each day of hauling from Yeni for municipal projects.  Although there was testimony regarding two checks allegedly issued by the FSM Finance Office in Plaintiff's name and one payment made to the Plaintiff, the Plaintiff did not sustain his burden of proof with respect to those checks and that payment.  Therefore, I find that the verbal agreement between the Plaintiff and the former Mayor, the late Tedrick Melander, was not modified later by any actions of the parties to the agreement.

     Defendants fulfilled their promise to provide two loads of fill to Plaintiff for every day of hauling fill materials from Yeni quarry.  This was the compensation promised to the Plaintiff by the Defendants in the their agreement.

II.  Conclusions of Law and Reasoning.

     A contract is a promise between two parties for the future performance of mutual obligations which the law will enforce in some way.  For the promise to be enforceable, there must be an offer and an acceptance, definite terms, and consideration for the promise (that which the performance is exchanged for).  Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 123 (Pon. 1993).  The controlling factor in the interpretation of contracts is the intention of the parties at the time of the entering into the contract.  Ponape Transfer & Storage, Inc. v. Wade, 5 FSM Intrm. 354, 356 (Pon. 1992).  Contracts are not interpreted on the basis of subjective uncommunicated views, or secret hopes of one of the parties, but on an objective basis.  FSM v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 79, 86 (Pon. 1997).  Contracts are interpreted according to the reasonable expectations or understanding of parties based upon circumstances known to the parties and their words and actions, at the time the agreement was entered into.  Kihara v. Nanpei, 5 FSM Intrm. 342, 345 (Pon. 1992).  Where the existence of a contract is at issue, the trier of fact determines whether the contract did in fact exist. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 620 (App. 1996).

     In this case, the Plaintiff and the former Mayor of Utwe Municipality, Mr. Kotaro Waguk, formed a contract when they made their verbal agreement regarding use of fill materials from Plaintiff's quarry at Yeni.  Plaintiff promised to provide fill materials from Yeni for various Utwe Municipal projects.  Defendant Utwe Municipal Government promised to provide the Plaintiff with two loads of fill material for each day of hauling.  These promises contained an offer, acceptance and consideration.  The terms of the agreement were definite and enforceable.  The terms of this agreement were the intentions of the parties at the time of entering into the contract.  Plaintiff's subjective views or secret hopes of receiving monetary compensation from the Defendants for providing the fill material cannot be enforced.  The contract between the parties must be interpreted on an objective basis, based upon the intent of the parties at the time of contracting.  The essential commitments and agreement of the parties were identified and definite.  Therefore the agreement is binding.  See Etscheit v. Adams, 6 FSM Intrm. 365, 388 (Pon. 1994).  Both the Plaintiff and the Defendant Utwe Municipal Government have fulfilled their obligations under the contract.  There was no breach of the contract by either party.  Because the terms of the contract have been fulfilled, all other claims against the Defendants must also fail.

III.  Judgment.

     Let judgment be entered for the Defendants and against the Plaintiff.

                                                                                                                                                                                                                                                                                                           
lumeChange"\\.\Root\ SV2:_N_="~s" CJ@A< CIM_LogicalDsk~ZV* pCIM_Logical@DiskA   )- 5 $V;co̮*T6fUAq",UGzU߀KUV_UUU@?@Win32bBSupportsUpdateLogUUID{8502C4B7-5FBB-11D2-AAC1-006008C78BC7}Compressed%k@M)e tAk_t booleanMappingStr@s@q,API|File System Functions|GetVolumeInformaA|FS_VOL_IS_COMPRESSE@5@Device7 @ A*j*@-r3|%@s,OverridQd5 WMIDriveTypeAmO $Ouint327JO&g!++r/8m u{F 888ximumLonentLengthb%vqh`b)y%1CqediaF8"t @%``J Input and OutA:NoControlProvARrNameb;tzI` QAtay;idows Ne`tworkxuW'u@nebw@Quotas@aDblD$'r E Inclev% ,[ Rebuild&}qݣ#4sBaŭ ~ mՈM/:7aVVonVFILEVION2 Dirty 'b @ ͻ ݀ a0FSCT^^UME_DIRTYV/ 4pV nJ|X%RRb0'jj//j,j% SerialN umber:! :p ig/ ] W#@* m"WPq6` QSp 0Chkd8$aq:1 xImplem^A O Fmifs.dll | Method DskExRou@tine39221680`ROOT\q@V22ϐ20 ap B-*0^nj0ؐCgUz p0Oa{p__PARAMETERSab0act2$zxErrors1qWƀ—1inP!] (ƐQw` ;՜ҕqb VigorousIndexCheck   ' !QQ  K  &! SkipFolderCycl0 A ' !a  C@$ p QForcehmountqbv#ўu# !   1 rF! RecopBadSpn/,a' !Ta   ! QOkToRunAtBopotUp ' !  z 0H?Pboolean(r B__v3922168-0001ROOT\CIMV2 B&BA @!#**k` __PARAMETERSabstrac8tGBReturnValueuint3*2  ^`ouM jf#!?1)/ScheduleAutoChk' ԠdG@ StaticImplementedMappingStrs- ntfs.exe=A3!./*i= |=`b=u=a cBLogicalDisE@B- j=7AinLJN?~@?~P ???R ?2?FA??A ?ExcludeFrojmA?cD?qRޠB?1O?O?a9O?^^rC ^O?@JO?^7"O?glO?O?0 !O? O? O?ng?O?_ _ _ sbO?o~O?O?O?O?o~1Z O?b EO?O?CIM_KeyboardZ`V*s3aR @З_Key@boardQ66PjB}Up0 m4"(0P0Z0a]?/@Win32 "0Lo@|КUUv{8502C4B5-5FBB-11D2-AAC106008C78BC7}@Devicez@` `64p=գ! $zOverridd#05931FD820BQp6777Q1A24U8p2P FpidbAO'@!N__Ev Prov `rRegiP o nB%asele@ct * fb _PowerM0anag2R\\.\Root1s<:__.Name="MS_S_A#?  0z+g/d  4CIM_SetingZV*+`CIM_Setting 6D&#-` 5 ;U9cy(U9PY9kU <Akx UkkUw dрu A6 CUXA ̀Uk/alA>EPhY- PǀpPz,