864 N.W.2d 716
Neb. Ct. App.2015Background
- On Dec. 19, 2013, Robinson (The Vacuum Company) sold a vacuum to Burdette and Phyllis Flodman for $510; the Flodmans gave Robinson two old vacuums and paid $500 in satisfaction of the price.
- Robinson provided a triplicate purchase agreement with an attached cancellation notice; the notice used FTC-form language but handwrote the cancellation deadline as 12/22/13 (a Sunday).
- On Dec. 21, 2013, Phyllis telephoned Robinson and stated she did not want the vacuum; Robinson told her to mail a cancellation notice and later revisited the Flodmans after Christmas.
- The Flodmans sought return of their $500, return of the new vacuum, and return of the two traded vacuums; county court ruled for the Flodmans, finding Robinson’s written cancellation deadline incorrect and that oral cancellation sufficed; county court also ordered return of the two old vacuums.
- District court affirmed the county court; Robinson appealed to the Nebraska Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Robinson’s cancellation notice complied with Neb. law (home solicitation sales) | Flodmans: incorrect date made notice noncompliant; buyer may cancel by any means | Robinson: notice language was legally sufficient; statute does not require a filled-in date | Held: Notice used incorrect date (12/22/13, a Sunday). Because seller included a specific but wrong deadline, notice did not comply; oral cancellation on Dec. 21 sufficed. |
| Whether the copy of the purchase agreement admitted at trial was improper when original existed | Flodmans: copy accurately reflected date and was admissible in small claims | Robinson: admission of copy violated best-evidence rule; original would show correct deadline | Held: No error. Best-evidence rule/formal rules of evidence do not apply in small claims; Robinson failed to timely object or preserve the claim. |
| Whether the two old vacuums were trade-ins entitling Flodmans to their return | Flodmans: vacuums were traded; thus they are entitled to return when sale rescinded | Robinson: vacuums were given for free disposal/recycling, not trade-ins | Held: Reversed as to this issue. Trial record lacked competent evidence that the vacuums were trade-ins; Robinson’s testimony they were for disposal was uncontradicted. |
| Remedy and disposition | Flodmans: full rescission including return of trade-ins and refund | Robinson: limited rescission only if statutory requirements met; contests trade-in characterization | Held: Affirmed rescission as to refund ($500) and return of the purchased vacuum; reversed the order requiring return of the two old vacuums and remanded to vacate that portion. |
Key Cases Cited
- Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218 (Conn. 1998) (discusses when omitted or incorrect dates on cancellation notices are fatal under home-solicitation statutes)
- Equitable Life v. Starr, 241 Neb. 609 (Neb. 1996) (explains purpose of best-evidence rule and burden when duplicates are offered)
- State v. Kula, 260 Neb. 183 (Neb. 2000) (best-evidence rule overview)
- First Nat. Bank of Unadilla v. Betts, 275 Neb. 665 (Neb. 2008) (standards for appellate review where errors appear on the record)
- Henriksen v. Gleason, 263 Neb. 840 (Neb. 2002) (explains small claims evidentiary setting and relaxed rules)