298 N.W. 150 | Neb. | 1941
This appeal presents the sufficiency of the allegations of an answer to constitute a defense and of a counterclaim to constitute a cause of action.
So far as material here, the allegations of plaintiffs petition may be summarized as follows: On or about August 1, 1938, defendant, for a valuable consideration, executed and delivered to plaintiff his promissory note promising to pay the sum of $71 on each of the 24 succeeding months; that thereafter plaintiff indorsed and delivered said note to a credit company and agreed to pay any amounts not paid by the maker; that defendant paid upon said note a total of $192 and failed to make other payments; that plaintiff paid the holder $518 for which it prays judgment.
Defendant admits the execution and delivery of the note, the payments, and denies other allegations. For further defense and counterclaim defendant alleges the following
Defendant further alleged that the purchase of the equipment and the execution and delivery of the note in question were based upon the continued existence and enforcement of Legislative Bill 147, and that the continued existence and enforcement of the act were implied terms of said note; that it was assumed that all owners of vehicles would be
February 1, 1939, defendant elected to rescind, offered to return the equipment on the condition that plaintiff repay the payments made in the sum of $589.61. Plaintiff refused to accept. Defendant tendered the equipment into court. Defendant prayed that the petition be dismissed, that the note be adjudged void so far as any interest of the plaintiff therein is concerned, that he have judgment for $589.61 and a lien on the equipment until the sum is paid. Defendant prayed for equitable relief.
Plaintiff demurred for the reason that defendant’s answer and counterclaim did not state facts sufficient to constitute a defense, nor plead facts sufficient to constitute a cause of action against the plaintiff. The court sustained the demurrer and defendant elected not to plead further. Judgment was entered against defendant in the sum of $553.88, interest and costs.
Defendant appeals. He presents no assignments of error as required by rule 13-a~l(d) of this court. Plaintiff not raising that matter, it will be deemed waived and the case considered on the questions presented by the demurrer in the trial court.
If the answer fails to state a defense, it is obvious that the counterclaim likewise must fail. The alleged transactions leading up to the execution and delivery of the note in question do not present a defense. Defendant knew of the facts of the failure of the equipment to meet requirements on June 1, 1938. The note in question was executed August 1, 1938. During that time, the defendant had ample time and opportunity to determine his rights and liabilities and determine the course he was to follow. There are in the situation no elements of duress of person or goods which would enable plaintiff to avoid liability on the note. This court has said: “The mere apprehension of legal proceedings, unaccompanied by any act of hardship or oppression, has never been held sufficient ground for the avoiding of a contract. * * * Where the parties are on terms of equality towards each other, one threatened with civil process is required to make his defense in the first instance to the merits of the claim, and cannot postpone litigation by paying the demand and afterward maintain an
Defendant’s second defense is based on the proposition that the parties contemplated at the time the note was given and the equipment purchased that the law as it then existed would be continued in effect and enforced; that the subsequent failure to enforce the law and its repeal excuse performance. Defendant cites in support of his position what he terms the doctrine of commercial frustration. He cites 13 C. J. 642 (to which we add 17 C. J. S. 956, sec. 464) ; 12 Am. Jur. 10, sec. 383; 6 Williston, Contracts (Rev. ed.) secs. 1935, 1972; Restatement, Contracts, sec. 288, and supporting cases.
The rule urged by the defendant cannot be applied to the facts upon which his defense is based. This court reviewed the legislation in question in Beisner v. Cochran, 138 Neb. 445, 293 N. W. 289. It was there said: “Plaintiffs are presumed to have known that the continued existence of the license was dependent upon the willingness of the legislature to keep the statute creating it in force.” So here the parties must be presumed to have contracted, not on the basis that the law would be continued in effect and enforced, but that any rights or business opportunities resting upon the law were contingent upon the willingness of the legislature to keep the act in force. Plaintiff cannot be held to have contracted by implication that the law would continue in existence. It contracted to sell the defendant certain property which defendant proposed to use for certain purposes. Plaintiff performed'. Defendant charged himself with an obligation possible to be per
The contract, so far as the plaintiff is concerned, was fully performed before the alleged defense arose. The rule relied upon by the defendant applies to executory contracts alone. 17 C. J. S. 952, sec. 463e; Restatement, Contracts, sec. 289.
Defendant states that the doctrine of commercial frustration arose in England as a result of the coronation case. In the cited case, a party contracted to pay for a flat from which to view the parade. The parade was not held and the defendant was excused from paying the balance of the rent. It is noted that in the development of that litigation it was held that money paid for seats could not be recovered. 6 Williston, Contracts (Rev. ed.) sec. 1954.
The judgment of the trial court is
Affirmed.