This is thе second appearance of this case before this tribunal. The previous opinion is Rickertsen v. Carskadon,
Defendant in this second appeal does not assign or discuss any specific error as to thе submission of the issue as to whether he contracted with plaintiff or the Gothenburg Co-Operative Oil Company. The jury, under proper instructions, decided that issue in favor of the plaintiff. The case then is one of contract between the plaintiff and the defendant.
Defendant’s brief lists 13 assignments of error. We will consider those specifically relating to the court’s instructions Nos. 5, 6, and 7.
The court in instruction No. 5 correctly told the jury that even in express contracts there is an implied promise that the work will be done in a proper manner. He advised the jury that merely by taking a job, one contracts that he has the requisite skill to perform it. We
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said in Numon v. Stevens,
The contract alleged by the plaintiff covered only the purchase and application of anhydrous ammonia to defendant’s farm. It did not include any provisions as to the mеthod of application. The defendant in his answer alleged: “That should it be found upon any theory, which defendant denies, that he is bound by purchase or otherwise, to the plaintiff for said anhydrous amonia (sic) or the application thereof upon defendant’s lands, that said anhydrous amonia (sic) was improperly, negligently and carelessly applied to defendant’s lands in such manner that thе same was wholly worthless and of no value whatsoever to defendant’s said lands * * *.” It is evident that if the defendant was contending that the plaintiff was to perform the work in other than a workmanlike or prоper manner, he has not properly pleaded that issue. We have no quarrel with the authorities cited by the defendant on evidence of usage or custom. However, in the present statе of the record, they are inapplicable.
The correct rule is that when the terms of an express contract are clear and unambiguous, they cannot be varied or contradiсted by evidence of custom or usage, and this is true whether the contract is oral or written. Conversely, such evidence is admissible where there is a conflict as to the terms of the contract tо explain the meaning of the words or phrases used, or where the contract is silent as to certain points which may be inherent in the nature of the contract. See, O’Gara Coal Co. v. Chicago, M. & St. P. Ry. Co.,
If in this case the evidence indicated the contract was one with express terms, conditions, and directions, those would prevail and nothing would be left for implication. Instruction No. 5 would then bе prejudicially erroneous. This is not the situation.
Instruction No. 6, so far as material herein, is as follows: “When a party to a contract has not strictly performed his promises, his efforts at performаnce may under some circumstances be found sufficient to amount to substantial performance.
“Substantial performance is shown when the following circumstances are established by the evidence:
“(1) The party has made an honest endeavor in good faith to perform his part of the contract.
“(2) The results of such endeavor are beneficial to the other party, and
“(3) Such benefits are retained by the other party.
“If any one of said circumstances is not established, the performance is not substantial and the party has no right of recovery.”
We know of no rule of law which holds that a party has substantially performed merely because he in good faith endeavors to perform his contract. The other party should receive at least approximately what he bargains for. As to point (2) above, it wоuld appear evident also that the degree of benefit should have some materiality. Certainly defendant would be entitled to receive substantially that for which he contracts. With referenсe to point (3) above, covering the retention of benefits, is the possibility of return material?
We feel that the court in instruction No. 6 told the jury that if the plaintiff made an honest endeavor in good faith to perform his contract regardless of whether he succeeded, and if that endeavor conferred any benefit on defendant, and defendant retained that benefit, however meagеr, and regardless of the fact that anhy *50 drous ammonia once applied could not be returned, that the plaintiff had substantially performed his contract. This is not the law and the instruction was prejudiсially erroneous.
In Nebraska Plumbing Supply Co. v. Payne,
The law in Nebraska is well settled that one cannot maintain an action on contract without a prior substantial compliance on his part, but this principle must have a reasonable application. If there is a substantial performance, the action may be maintained but without prejudice to any showing of damages on the part of defendant for the failure to receive full and complete performance. McGowan v. Gate City Malt Co.,
The pleadings in this case leave much to be desired. Plaintiff in his petition adequately conformed to section 25-836, R. R. S. 1943, which provides: “In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish on the trial the facts showing such performance.” Defendant in his answer, however, did not properly put in issue the performance of conditions precedent.
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Commenting on this statute in Morearty v. City of McCook,
We held in Peters v. Wilks,
This is the well-settled lаw in Nebraska. If the issue had properly been called to the attention of the trial court, this rule would govern. This, however, was not done, and the case was tried on the theory that the issue was properly raised. Actually, the plaintiff in his case-in-chief went into detail as to his manner of performance. In this state of the record, we must hold the parties to the theory on which the case was tried.
In Johnson v. Weskamp,
On the question of damages, if the plaintiff has fully *52 performed his contract he is entitled to the contract price. If the plaintiff has substantially performed his contract he is entitled to the contract price, less any damage proved by the defendant to be occasioned by less than complete performance. This is the rule given in Nebraska Plumbing Supply Co. v. Payne, supra. Thus far, instruction No. 7 covers the issues.
The defendant, however, tried this case оn the theory that he received little or no benefit from the application of the anhydrous ammonia. The court should have included an instruction on the defendant’s theory substantially to the effеct that if the jury found that the anhydrous ammonia was so negligently applied that it was of little or no benefit to the defendant, then the plaintiff had not performed his contract and could only recover for the benefit, if any, which he could prove the defendant had received.
For the reasons given above, the judgment is reversed and the cause is remanded for a new trial. For the purpose of the third trial, we suggest that the question as to whether defendant contracted with the Gothenburg Co-Operative Oil Company or the plaintiff is no longer an issue.
Reversed and remanded.