*1 suffrage guaranteed by the Constitution as it relates to county excess govern- levies. In the creation of new empowered levy mental subdivisions line can taxes, essentially logically and should be drawn state, between county, municipal governmental powers and others. appellee J. and cross-appellant, Abbott, appellant cross-appellee. S. Ethel Abbott,
Filed March 1972. No. 38010. Finlayson, McKie & Fisk and Lester A. for Danielson, appellant. appellee.
Wright Simmons, & for J., Spencer, White:, Boslaugh, Smith, Heard before JJ. McCown, Clinton, Newton, and
Smith, Damages fraud in settlement of ob- sought by jections of will were Arthur J. stepmother. Abbott, his: Abbott Ethel remand 2d Abbott v. after (1970), found for Arthur. The district him interest on the
awarded amount February verdict from of final distribu- 9, 1960, date tion of the assets appeals. assigns error the denial She* *2 judgment notwithstanding her motion ver- cross-appeals.
dict and the award of interest. Arthur denying He asserts error in the court’s him compounded annually. interest OF
SUMMARY EVIDENCE Christopher marriage J. Abbott at the time of his age Glaideth, in Arthur, Ethel the father of 1933was Phyllis. January Christopher On and leaving died gave It form of one-half will. the estate to specific legacies half, Ethel and out the other to-Chris- topher’s LeRoy Arthur, brother, and Glaideth. provided for -distribution of remainder to Arthur sisters; equal subscribing and his shares. The in wit- LeRoy, nesses were lawyer Ethel, Arthur, and Miles Lee, a nonbeneficiary. and accepting sisters,
Arthur and his invitation an ex- that meeting them, cluded counsel for attended a named present beneficiaries. Other beneficiaries were pressure counsel. the confusion with them the and with departed legal They to seek sisters advice. subsequently threatened contest of the will. objection argued One defective was attestation as fol- subscribing In event of a contest lows: Ethel, a compelled testify. Upon witness, be doing so, would to- regardless outcome contest, of the of the she would re- only one-fourth, ceive her intestate share, instead of one- half. The- difference between the one-fourth and the $1,250,000. one-half In the was absence of a contest be admissible will would without her Everyone receive would a one-half she share. conceded was; objection sound. meeting March at a Omaha of all bene- except sisters, rep- ficiaries, Arthur alone- was not suddenly give counsel. There he resented offered to up enough equalize property to the childrens’ shares. Equalization acceptable provided to the sisters Ethel up During meeting the difference. presence promise Arthur Lee, suit given orally by pay Ethei. She would Arthur the property difference in value between covered in provisions property the will him distributed pay- to him from the estate. difference be able final distribution assets subsequently repeated promise, attaching con- winning ditions would assist his sisters gaining probate. admission will to performed. negotiating prepared
Counsel, terms of a settlement, consulting several drafts without Arthur, had not engaged approved The final counsel. draft was to be writing'by party. Upon counsel for each advice then given by engaged represent Lee Ethel, him and subsequently the estate. Lee advised Arthur that the. *3 express prior offer of settlement which not did Ethel’s promise grossly oral unacceptable. was unfair and Arthur agreed, subsequently but he informed Lee in- lie sign anyway, requested tended to and he Lee’s written approval. approved only Lee the settlement but after signed setting Arthur letter out a Lee’s actual advice exonerating malpractice. effect Lee from signed May day The settlement was on 1954, probate. generally to was admitted It saved a share one-half for Ethel. Arthur received $303,412.25 he have less than would received under the will without n provision the settlement. The for him under the will was provision was less for him under the statutes of descent and distribution. Arthur testified to reliance promises on the oral of Ethel. discharged attorney
Prior to June Lee April for Arthur and From the estate. time to 1962 Arthur acted the advice of without counsel. meeting July in Lincoln was held 1959,relat-
ing property. to final distribution of estate There Arthur queried any promise other than an twice was given to unrelated at had been made funeral, According by to his Arthur him Ethel. knew thought never, he then he that must take stand or promises not The room Ethel’s oral were enforceable. hung quiet for several Arthur minutes. his head. was Then, lawyers, according Arthur he himself, two promises.” According answered, “There no twice were Phyllis, quietly Arthur in voice Glaideth low writing.” least “at added, Christopher promised orally had cattle some At the undelivered at his death. funeral and that were any inkling objections prior promised promise that she deliver the cattle. That meeting in the one mentioned at the It Lincoln. had family settlement not been covered property. plans estate final distribution of De- signed an 1959, Arthur instrument cember acknowl- signature edging His cattle. was wit- Quigley, by LeRoy lawyer, and James C. nessed represented LeRoy family settlement. The had typewritten, was headed “RECEIPT.” instrument, began: of Ethel “RECEIVED S. Abbott . . 250 . . . . listing classified as- of cattle . follows . . ..” After . . head each, and the total, value classes, $37,420, con- complete payment- “in full and tinued: satisfaction promise . verbal . . Ethel ... undersigned, deduction of said cattle from belonging the cattle share of the estate distributive Christopher Abbott, deceased, same to be my belonging share of cattle part inheritable to said estate.” signed “receipt,” according the time
At *4 pressure to under locate him, he ranch land for receipt single and the The lease cattle. formed a his receipt hurriedly, read He and he did transaction. disclaimer clause. Had he notice noticed it, ac- not cording signed to his he would not have receipt. college graduate degree
Arthur, a a in with business managing administration, had been ranches of Chris- topher. He also was a director of several banks.
jury, might reasonably relationship however, find the between Arthur and Ethel to have been the sum- marized it Lee: “Well, obvious, course, seemed greatly dependent upon that Arthur . . was . someone after his father’s death. took role of Ethel... mother stepmother much as could. of course I And say very largely dominated all business! matters that your Q. affected Arthur and affected ob- did Ethel . . servation control over A. . have Arthur? my opinion very largely very largely she did, she did.” Pleadings pretrial stipulations established the fol- lowing Entry facts: in of final decree the estate and final February distribution of the assets: had occurred 9, I960'. Arthur received assets $303,- with a value of 415.25 less than the value of the assets he would have received under the will. Arthur’s
petition prayed recovery year percent $303,415.25, with interest 6at February 9, 1960. The district court found liquidated. the claim to be It allowed Arthur interest prayer, $303,415.25 accordance with the set out being verdict fixed a as matter of law. BY ETHEL MOTION FOR JUDGMENT “receipt” contends the clause con- tractually part, disclaimed on her fraud general relating it Several release. rules arguably support to fraud in contract, tort, both person explanation contention. A offers no avoid acknowledged payment which he full amount due under not to a written contest payment may will in consideration a cover. re- Knoll, Knoll See N. W. 2d (1962). Generally the absence of fraud, one who signing not choose to read a contract does before can- *5 66 Motors General
not later relieve himself of its burdens. Acceptance Corp. 2d 562, 149 N. W. Blanco, Neb. 181 v. pre (1967). prudence ordinary have' 516 Where deception, perpetrated for fraud vented an action Petroleum, Corp. deception will not Swanson lie. (1969). 2d 391 184 167 N. W. Cumberland, v. Neb. upon party Generally a mistake of is which law parties rely, are to know law. cannot all bound as (1951). 2d 46 N. W. 153 Carlson, Beltner v. 153 Neb. promis support to the lend submission Other rules sory parol The evi to the this case. fraud issues reception prevent consideration does not or dence rule prove promissory to Abbott v. evidence fraud. (1970); 2d Central 177, 174 W. 335 cf. N. (1970). N. W. 2d 139 Osbahr, 1, 180 v. 186Neb. Constr. Co. bargain is to the- relevant issue A disclaimer clause repre in fact relied on the false the claimant whether disclaimed in the clause. Without more sentation preclude trier of fact from clause ineffective is considering formation of the fraud induced bargain. Olsen, 2d 183 Camfield (1969). general attempt strike a The rules competing policies. Objectivity among balance certainty are desirable, of contracts but at law protect legitimate expecta they to' too weak times are dealing. of fair tions! dealing ap- emphasis fair more is nowhere
parent today it the article of is Uniform relating court “If the Code sales. as a Commercial any contract clause of finds of law matter at the unconscionable time it to have been contract may contract, enforce the refuse or it may remainder contract without enforce may application so limit the clause, or unconscionable any clause to avoid as unconscion- unconscionable 2-302(1), § U.C.C. result.” able security need for transac- Apart statute, yielded sense has traditional somewhat tions in flexibility. the need for Keeton, See, “Fraud-Statements (1937); of Intention,” 15 Tex. L. Rev. 185 Kessler and “Culpa Bargaining Fine, in Contrahendo, Faith, in Good Comparative Study,” and Freedom of Contract: A (1964); Seavey, Harv. L. Emptor 401 at Rev. “Caveat (I960). 1960,” 38 Tex. L. Rev. 439 A dis family claimer clause in a settlement necessarily recovery subsequent agree bar fraud. ment for strong valuable consideration is sometimes *6 against may strong evidence enough claimant. be recovery Among to bar as a matter of law. the elements presence for consideration of its effect are the or ab specific of assent to sence disclaimer, extent of any inequality bargaining of adequacy of power, relationship, consideration, and the nature of the be parties. tween Cf. (1962). Note, L.Q. 47 Cornell 655 including evidence, this case the the disclaimer clause 1959, support 29, of December was sufficient to a ver for the issue dict Arthur on of fraud. PREJUDGMENT SIMPLE. INTEREST liquidated, amount of claim' compen- Where is in the sation form of interest is allowed as right. liquidated “A a matter claim is if the evidence possible which, data if believed, furnishes makes it compute the amount with exactness, without reliance upon opinion Examples or discretion. are claims pay promises to money sum, fixed claims for had and paid money goods claims for received, out, claims for paid agreed be at an or services rate.” McCor- p. § Damages, (1935). 54, 7, c. 213 § mick, See, also, 45- Engineering 1943; R. Mid States R. S. 104, v. Rhode, (1968). 2d 149 present the value property case of all in the inheritance and estate taxation estate was deter- prior final distribution. Arthur and mined legal Ethel were
representatives estate. Those data were properly for the conclude sufficient liquidated. The pre- Kvas allowance claim 68
judgment generally deck, interest was correct. See Damages pp-. Property, §§ Persons and 300 (1961). 641 to 651
COMPOUND INTEREST argues fiduciaries, were jurisdictions analogy Most allow an trust law. beneficiary pensation to-recover com- certain circumstances under compound p-rejudgment interest the form of § See, 207 Restatement, Trusts from the trustee. 2d, (9th Damages, Sedgwick p. § Ed., (1959); 1912). general of contract in the absence rule is that The
n statute,
compound
compensation
interest
form of
computed upon
See, Chero-
a debt.
to be
is
allowed
476, 46
270 U.
S. Ct.
States,
kee Nation
United
S.
v.
Realty
(1926);
v. Marina
1949);
United States
428,
We need compound interest of fraud is ever re- on a claim compelled no evidence in this case coverable. The allowance. judgment affirmed. is
Affirmed. J., concurring. Clinton, opinion court, in the the result and
I concur in “receipt” as the issues raised deal with I would “receipt” only re “the oral The recital follows. merely against in- most an admission promise” was at ambiguous face event it is its as terest. pertains to the transaction is the basis which Alexander, 178 N. W. Dunn v. suit. jury question governs. raised jury found for Arthur. J., Boslaugh, dissenting part. opinion part of the that dissent
I plaintiff interest. case as allows doubtful this, defendant should be allowed to litigate rights without the risk of a judgment will include more $200,000 interest. J.,C. concurs this dissent.
White, doing Leonard R. Boyd, business as Southwest Plumbing Heating Company, appellant, Housing Authority Benkelman Public al., et
appellees.
Sarah Jane Cunningham, appellant. Leon Herbert E. Hines, Story, and Colfer, Thomas F. for appellees.
Heard before J., Spencer, Boslaugh, White, Smith, JJ. McCown, Newton, Clinton,
Newton, This is an action brought aby subcontractor to recover, work materials furnished on a construction prog-