concurring specially.
I concur in the result reached by the majority opinion, but I do not concur in that part of the opinion which concludes that this contract obligated Eidsness to sell a specified number of pounds of seeds rather than the amount produced from particular acreage. Because the issue was not raised below, we should not consider it here. I write separately to note I am not as convinced as is the majority that the contracts are unambiguous.
Although the construction of a written contract to determine its legal effect is a question of law for the court to decide, if the intention of the parties cannot be ascertained from the writing alone, and reference must be made to extrinsic evidence, those questions in regard to which extrinsic evidence is adduced are questions of fact to be determined by the trier-of-fact. Tallackson Potato Co., Inc. v. MTK Potato Co., 278 N.W.2d 417 (N.D.1979). Furthermore, the contract is on a printed form prepared, presumably, by Red River Commodities and any ambiguity in the contract is to be construed most strongly against Red River Commodities, who caused the uncertainty to exist, i.e., the party who presumably looked out for its best interests in the process. Cavalier Cty. Memorial Hospt. Ass’n v. Kartes, 343 N.W.2d 781 (N.D.1984). Because the issue of ambiguity was not raised and not addressed directly below and because evidence concerning the intention of the parties as to whether or not this was an acre or a pounds contract may be significant, I do not join that part of the majority opinion which concludes this is a pounds contract.
VERNON R. PEDERSON, Surrogate Justice, concurs.