932 N.W.2d 331
Neb. Ct. App.2019Background
- Buyer Albrecht contracted in July 2015 with seller/broker Fettig to buy approximately 150 steers described as "80% Red Angus cross and 20% Black Angus cross" at a specified price and weight; parties signed a written country-deal contract.
- In October 2015 Fettig delivered 160 steers: 88 red, 68 black, and 4 butterscotch (≈55% red, 42.5% black, 2.5% other). Albrecht viewed them in daylight, rejected the delivery on October 16, and demanded return of his $6,000 deposit.
- Fettig offered to take back the black steers (leaving Albrecht with a short quantity) but did not procure additional red steers before the contract performance window closed; he ultimately retrieved all cattle and kept ownership, later selling them at a loss.
- Albrecht sued for refund of the deposit and incidental costs; Fettig counterclaimed for damages from repudiation. After bench trial the district court found for Albrecht: refund $6,000, incidental damages $449.53, pre-judgment interest initially awarded then vacated on procedural grounds; postjudgment interest applied.
- On appeal, Fettig argued Albrecht could not reject based on color/proportion, that the contract was an output contract, that Fettig attempted to cure, and that Albrecht repudiated; Albrecht cross-appealed the court’s removal of prejudgment interest.
Issues
| Issue | Plaintiff's Argument (Albrecht) | Defendant's Argument (Fettig) | Held |
|---|---|---|---|
| Whether buyer could reject entire delivery for nonconforming color/proportion | Contract required ~150 head that were 80% red/20% black; delivered cattle materially deviated so Albrecht could reject under U.C.C. | Contract limited rejection to unmerchantable cattle; perfect-tender rule should not apply strictly; term "approximately" and output-contract characterization excuse variance | Held for Albrecht: delivery (≈55% red) did not conform; buyer entitled under Neb. U.C.C. §2-601 to reject whole delivery |
| Whether contract was an output contract (affecting quantity obligations) | Not an output contract; quantity was definite (approx. 150) with color/weight specs | It was an output contract; proportions not strictly enforceable; parties owed good-faith adjustments | Held not an output contract; "approximately" applied to quantity only and did not make the contract indefinite |
| Whether seller timely and adequately notified of intention to cure | Albrecht rejected Oct 16; seller had until Oct 25 to cure but made no effective conforming offer or procurement of additional red steers | Fettig offered to pick up black steers (cure) and was entitled to attempt cure; Albrecht didn’t request replacement reds | Held for Albrecht: Fettig’s offer (removing blacks) would itself create a material breach of quantity/terms and he made no timely conforming cure |
| Whether prejudgment interest on the $6,000 deposit was recoverable despite pleading | Albrecht argued claim was liquidated and general prayer for "such other and further relief" put Fettig on notice; prejudgment interest should apply | Fettig argued plaintiff failed to plead prejudgment interest/time so it was procedurally improper | Held for Fettig on this point: prejudgment interest denied because plaintiff failed to satisfy the pleading rule requiring notice of an interest claim (court applied Neb. Ct. R. Pldg. §6-1108(a) in light of §45-103.02) |
Key Cases Cited
- Omaha Police Union Local 101 v. City of Omaha, 292 Neb. 381, 872 N.W.2d 765 (Neb. 2015) (interpretation of contract is question of law, appellate review independent)
- Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (Neb. 2018) (bench-trial factual findings have the effect of a jury verdict and are not lightly disturbed)
- Stauffer v. Benson, 288 Neb. 683, 850 N.W.2d 759 (Neb. 2014) (trial court is sole judge of witness credibility in bench trial)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (Neb. 2015) (prejudgment interest governed by §45-103.02; standard for liquidated claim)
- Maas v. Scoboda, 188 Neb. 189, 195 N.W.2d 491 (Neb. 1972) (buyer may reject whole delivery that fails in any respect to conform to contract)
- Meyer v. Sandhills Beef, Inc., 211 Neb. 388, 318 N.W.2d 863 (Neb. 1982) (definition and obligations in output contracts)
- Life Investors Ins. Co. v. Citizens Nat. Bank, 223 Neb. 663, 392 N.W.2d 771 (Neb. 1986) (prior rule that prejudgment interest cannot be awarded if not prayed for; discussed in light of subsequent statutory and pleading-rule changes)