*1 finаl such issue has become The litigation cited. conclusive as between parties. its mandate trial court entered judgment This terms.- it was re- its compliance in strict to do. There no error in action of the being quired must affirmed. court, trial be judgment
Affirmed. co-partners doing et Ben L. business under al., style firm name of Esse Service Sales Engineering Company, Radio appellees, Esse v. Contracting Company, corporation,
appellant.
Fraser, Crojoot & Connolly, Wenstrand, C. Russell Ben Mattson, Powell, H. Jr., and W. Morgan Hunter, for appellant.' Davies n & Davis, L. Clark,
C. Healey, Wilson, and Rob- Barlow, Jr., ert for A. appellees. J.,
Heard before Simmons, C. Carter, Messmore, and Boslaugh, Wenke, JJ. Yeager, Chappell, J. Carter, an for for damages
This action breach of contract. and judgment $70,000 A for verdict were obtained by taken An was appeal plaintiffs. court where reversed and the cause judgment remanded with defendant’s motion directions for a sustain judgment Selig notwithstanding Con- v. Wunderlich the verdict. tracting Plaintiffs 2d 233. Co., 46, 65 N. W. 159 Neb. motion, rehearing. allowed This court filed for reargument motion. Selig Stanley Ben L.
The record shows that co-partners doing namеs under the firm were business Engineering Company, and Esse Sales Service Company, principal place busi- their Esse Radio Indianapolis, shall hereafter refer Indiana. ness We partnership Esse. The defendant Wunderlich corporation Contracting Company which, ais Nebraska convenience, to as Wunderlich. for we refer shall surplus purchased large The defendant number government Kingman, Arizona, aircraft at from purchaser. required dismantled which were to be an 15,' 1947, On Esse submitted offer Wun- stripped from these derlich were to be planes. accepted. The offer The contract was en- Kingman, whereby pro- at Arizona, tered into *3 deposit pay a $2,000 that Esse make of and vided was to prior shipment purchased. cash to the the items of agreement, gave Pursuant to the terms of Esse its bearing $2,000 check to of Jan- Wunderlich for date uary actually given January 15, 1946, which was on 15, 1947. Bank,
The check was on American National drawn Indianapolis, Valley deposited Indiana. It was Kingman, Bank, Arizona, National which bank for- it of warded for collection in usual course businеss. Indianapolis January 21, 1947, bank it received on payment. and The check to the refused was returned Indianapolis clearing protested it house in where was protest January 1947, 22, mailed. On and notices Esse Indianapolis deposit a made in bank. The $5,000 paid by Indianapolis check and was returned bank January Wunderlich 23, on 1947. received notice on Kingman January 1947, 27, from the bank that protested on that and it check had been date issued shipments of instructions make the contract no on January Wunderlich, 1947. On through broker, its that had been advised Esse the check protested. of Jan- Esse date advised Wunderlich under uary 28, 1947,that the been returned because check had straightened being bookkeeping troubles which were day out. the same to send On Esse wired Wunderlich again “okay.” through the check it On and was February 12, 1947, Wunderlich Esse that advised requested bank had been unable to collect the and check, Selig, partners a certified Ben L. one of the check. Kingman February Esse, 12, 1947, in arrived delivering any told Wunderlich was purchased the items because it had not received deposit. $2,000 cash Wunderlich demanded another Selig promised check Ben L. to have certified Kingman Selig check sent. left at time Ben L. February returned on 1947. A check certified February 13, 1947, $2,000 dated mailed Esse to Ben L. care Wunderlich. Wunderlich Selig agreed offered evidence that Ben L. to deliver February cash check on or before 1947. certified by Selig. This denied
Wunderlich that on testifies 19, 1947, party higher purchase an offer received third at price for one of the items wrote Esse, contracted adjusted deposit Esse that as it had not matter agreed, reserving right 18, 1947, it was dispose any or,all to agreement contained January 15, Esse received this letter February 21, 1, 1947, 1947. On March agreement purchase executed the order with the third party. *4 Selig 20, 1947,
On Ben L. arrived back in Kingman and the $2,000 tendered certified check to The Wunderlich. check was refused Wunderlich and Selig Ben L. was advised that the contract had been can- Selig celled. told that was two of the items, APN-4
219 Scopes will Indicators, Radar and I-152-AM which we scopes indicators, refer to radar and had been sold buyer. re- another to deliver offered agreed maining items. it After much discussion was change deleted, the two should be and mutually agreement. $2,000 was initialed on the The accepted after the de- certified check tendered 4, March letion of the had made. On two items been 1947, Wunderlich advised Esse that the first paid Indianapolis $2,000 check was in fact bank January By the Esse 21, same letter demanded original January reinstatement of agreement 15, 1947. reinstate the Wunderlich refused to had, because it 1, 1947, on March to sell all contracted Kingman scopes radar an- indicators at Field to buyer. other 1947,
It seems clear to us that oh neither 20, agent Fontaine, Ben L. nor B. E. authorized knowledge Wunderlich, had $2,000 actual that the bearing January 15, 1946, check the date of had been paid by the drawee think bank. We do not that this was upon rely. a fact either Esse or Wunderlich could Kingman bank, The each intermediate bank to whom agent collection, forwarded the check for depositor being Wunderlich. the case, Such Wun- imputed knowledge paid derlich had that the check was Smelting Refining 23, 1947. Western & Co. Omahа, v. First Nat. Bank 477, 150 Neb. 35 N. W. 2d 116; Placek Edstrom, 79, 489, v. R. 856. 148 Neb. 26 W. 2d 174 N. A. L. Indianapolis agent bank likewise the of Esse knowledge imputed of that bank is to Esse.
Exchange Bank of Wilcox Nebraska v. Underwriters Ins. 84 Co., Neb. 120 N. W. 133 Am. S. R. Berry, 614; Modern Woodmen of America v. 100 Neb. Ann. 302; N. W. Cas. 1918D Scottsbluff Feeds, Nat. Bank J Inc., v. Blue Neb. N. W. relationship A 2d 392. dual exists between a bank and *5 relationship depositor. exists with A its respect debtor-creditor principal-agent deposit rela- to funds on by respect payment tionship the the bank to exists with by depositor. S., Banks and 9 C. J. of checks drawn knowledge Consequently, Banking, p. § the paid Jan- the that it had check of the drawee bank imputable uary therefore 23, 1947, Esse. It clear to had knowledge imputed that Esse Wunderlich paid 23, 1947. No- default the check was alleged nonpayment existed thereafter because urged estopped deposit. that Esse It is $2,000 the paid asserting be- $2,000 that the check itself from continuously dealing in with Wun- cause had assumed paid. very But the derlich that check had not been estoppel upon facts is claimed known which were estoppel An is no to be untrue Wunderlich. more than the cir- available to Wunderlich it is Esse under cumstances shown. attempted by letter record shows Wunderlich February agree- 19, 1947, to cancel the
under date of January 15,1947. It is ment of shown that this letter was Indianapolis in not received Esse until agent postal department being 1947. The Wun- operate- the letter would not as a notice of re- derlich, agreement until latter scission cancellation Selig L. 20, 1947, date. On Ben arrived in Kingman negotiations certain and carried on with Wun- negotiations It is the effect these which must derlich. presented. determine issues here Selig King- February 20, 1947, Ben L. On returned to through immediately man. He contacted Wunderlich Selig $2,000, Fontaine. tendered the certified check for ground that the Fontaine refused on contract Selig Fontaine told cancelled. had been willing forget cancel whole everything. Selig something testifies that he knew wrong being deceived, and that Esse was and he told argument After an Fontaine so. which Fontaine under the contract he not reinstate stated would taking off, the two without circumstances They protest. agreed the deletion noted do under sо his margin indicated each of the contract and on the change. initialling assent thereto agreement on There is no evidence of breach delay proceeding part under Esse. The agreement appears by a caused have been terms of the *6 imputed misunderstanding to each which were of facts negoti- by did The that Wunderlich law. record shows scopes and indicators with the ate the sale of radar for February prior The record 20, to 1947. Air Industries these a firm offer for made that Air Industries shows conditionally 1947, 19, items on accepted quite by that these It evident Wunderlich. contemplation negotiations aof breach were carried on in agreement January Esse 1947. 15, the of made with on. negotiations, Industries had Air These in which were with by anticipation im- Esse, a are of breach of contract agreement portant determining or not the whether good Wunderlich did not enter was cancelled in faith. Industries until March into contract of sale Air liability depend- Esse is 1, 1947. Such sale without right agree- upon ent the to rescind the of Wunderlich liability damages. February 20,1947, for mеnt on without already have that conclude from what we said We agreement January 15, the of there was no breach of insisting upon Esse. Esse was fulfillment agreement February 20, 1947, of when Wunder- agreement lich first Esse that can- notified celled. There is evidence in the record Wunderlich scopes the radar to others before it at- sold had negotiated tempted rescind, it had with another party the remainder two items in- the sale of for if these acts constituted breach here. Even volved rely agreement, iton Esse does not and Wunderlich advantage wrong injury itsof own to the take cannot properly Esse. Esse could the breach and insist waive upon compliance agreement. with the question immediately presents itself as whether agreement or not before was modified or after breach. On date the modification original agreement made, Esse was not in default. day Ben L. it advised comply had cancelled the contract and that would question therewith unless the two items in were de- agreement, unequivo- leted. This was breach of an comply agreemеnt cal refusal to with the terms of the party 1947. “Where an ex- bound obligation ecutory repudiates his before time performance, promisee according great has, weight authority, option an to treat the contract as performance far ended so as further is concerned, and damages maintain \o an at once action for the occasioned anticipatory § such S., breach.” C. Contracts, J. p. It is therefore, clear, that after the breach of the agreement by parties Wunderlich, the modified first agreement by deleting two items. We find that no con sideration existed for the modification. The rule *7 state is Madsen, stated in v. Swanson 815, 18 145 Neb. N. 217, W. as 2d follows: “Defendant contends that a con required writing by tract to be in the statute of frauds agreement parol can be altered or modified and original agreement the consideration for is sufficient to sustain the new. We think this is true where there executory has been no breach of an contract, where, as here, the contract had been breached at the time of the modification, a new consideration must be See, shown.” also, Markel, Moore v. 112 743, Neb. 201N. 147;W. Prime Squier, v. 507, 113 Neb. 203 W.N. 582. In the case be fore there us a original agree modification being after ment breach. There no consideration for the modification, it is not effective to defeat the claim of
223 629, Co., 112 Neb. Prairie Ins. v. Life Esse. Sallander N. W. 344. compromise opinion there former holds that was a Our parties a for suffi- of the claims of and settlement point a cient consideration. On reconsideration of holding. in error in so we now conclude we were discussing question as or not Without to whether compromise proper- and settlement was defense of ly any think the fails con- raised, we record to show consisted sideration the settlement. modification part a a item of the deletion of two items and third protested Esse from the contract. deletions but agreed thereto as an inducement to Wunderlich to de- items, liver the it did. The modification other change original except pro- makes no in the a vide for lesser number than was contained original' obligation. required, Wunderlich was scopes 20, to deliver the 1947, radar indicators in accordance Esse its It contract. forced agree to deletion of two items consid- without delivery eration in that Esse order could obtain the already obligated items which Wunderlich was to deliver. pres- This does not constitute consideration under holdings Esterly ent Harvesting of this court. Machine Pringle, Co. v. Neb. 59 N. 804;W. Sallander v. supra. necessarily Co., Prairie Life Ins. We conclude that the deletions made the contract of of that constituted modification instrument. The having modifications been made after a breach of the original legal contract, a consideration was essential justifiable validity its nonper- excuse for agreement original according formance to its being terms. There no consideration for the deletion compromise the must items, two claim of and settlement Compromise Jur., fail. Am. likewise and Set- § p. Compromise tlement, tlement, 264; 15 J. S., C. and Set- p. summary
§ A of the evidence in- attempted dicates that Wunderlich’s rescission was not *8 L. good point that Ben out made in faith. We a $2,000 tendered into the office of Wunderlich came the con- a notice rescission check before certified re- Esse. The check was received tract had been fused. The record indicates had been
that Wunderlich negotiating of the radar for the sale Industries with Air Selig on scopes advised indicators. Wunderlich sold. The items that these had been had discovered that Wunderlich reveals record radar scopes much more value indicators were of noteworthy they is in consider- It than had estimated. good ing at- faith of Wunderlich the matter willing tempting that it a rescission of the contract deleted, if the two items were to abide the contract being it had discovered such those which two money price considerably more than for could be sold quite at- that the the Esse contract. It is clear fixed in tempted the contract Wunderlich rescission alleged failure make the not in fact based on $2,000 opportunity deposit, but because of the to make a Industries. Wunderlich relied much better sale to Air right legal payment upon a to rescind without of dam- having ages аccomplish purpose. Not such legal right, available to Esse. There is no remedies are equitable application principles. It is for the basis that Esse has established cause of clear therefore damages against action for Wunderlich.
Defendant asserts that the trial court erred giving part 4. its instruction No. instruc- regards objected “As tion first to states: the existence upon plaintiffs of the contract burden estab- by preponderance of the evidence lish B. Fon- E. signing agreed defendant taine in Exhibit plaintiffs the items described therein from the sell four Kingman to-wit, other than Arkansas, field, fields Ridge, Walnut Chino, California, Altus, Oklahoma and question you Oklahoma, Clinton, are to determine; you are a matter of law instructed that there *9 agreed question the no but that the defendant has sell Kingman question plaintiffs.” items on to the the field government The record shows that the federal adver- surplus aircraft tised for bids on located the five on The fields named' instruction. aircraft were any offered for sale on the basis that one bid should cover any all the aircraft at one fiеld no bidder could purchase the aircraft at more than one field. Wunder- lich submitted bid in accordance the above with con- high King- ditions was the for the aircraft and bidder at man, Arizona. The aircraft at the other four fields were Railway Equipment Company, Sharpe Texas sold to & Contracting Co., Fellows Sherman Machine & Iron Esperado Mining Company. Works, and These five com- panies joint agreement whereby entered into venture they, under name of Aircraft Co., Conversion were salvage, scrap, to disassemble the aircraft smelter, and prepare scrap and market the aluminum from aircraft each field the time within and under the conditions of contract each held with the federal government. nothing agreement There is in this deprives purchased each of his title to the aircraft it or any gives purchased by interest in the aircraft Simply agreement stated, others. it was providing an joint processing scrap method for market as a matter economy. joint agree- of convenience and The venture expressly ment “No states: Joint Venturer shall make any expenditure, contraсt, commitment, binding upon or affecting joint or venture or Joint Ven- approval turers, without the concurrence or of the Joint ** * Nothing anywise Venturers; herein shall in be operate prevent or construed and the Joint Venturers ing each Joint Venturer
collectively strictly keep- from provisions performing all respective of their agreements Government; and it specifically provided that each Joint Venturer shall have and re- power authority dispose tain full to sell and salvage scrap aluminum and other planes from the pur- per- person, respectively, to such it, him or chased may price prices he at such concerns, sons or desire, * * Co. did Aircraft Conversion agreements sign any purport here involved. agreement that all five aid Esse’s claim no This agreement. by Wunderlich’s were bound fields scrap, purchaser reducing aircraft to each Before including stripped items, of all them saleable January 15, 1947,between Wun- the contract of listed in Harry A. a broker One Hammill was Esse. derlich and operating finding buyers negoti- all five fields in stripped ating frоm these He the sale of items aircraft. *10 sign to the sellers. The not authorized contracts for was inspected Selig that Ben the aircraft evidence shows L. Kingman, including fields, the com- three of on inspection King- pany At the close of the of Hammill. Selig purchase man desire to field, evidenced certain asking equipment at all at electronic five fields the purchase price. brokerage up the Hammill order on own his wrote buyer It offers to. form. recited purchase: “All Indicator 1-152-AM .50.” All fields, designated in a the offer were similar within being complete manner. contract not construed is The fields to “all fields” not in itself. described in referred are purchase. necessary It is to offer to de- purchase termine, than the from sources other offer of meaning given accepted Wunderlich, to be scope liability term “all by and the fields” assumed says accepted the offer. it Hammill Wunderlich when purchase copies the offer to made out that 30 were sent to each field. Hammill and that four were signed copies Selig before all were to submitted аccepted the Fontaine offer for Fontaine. Kingman copies Other
at field. sent were to other signature purchaser for aircraft at fields respective Hammill fields. further testifies that the questioned by “all fields” was the words use of Fontaine. (Fontaine) justified the man “And Hammill stated: was get guess I I that. to out and so did But, in Ben, wanted up ‘Selig I I ‘Don’t mess this deal’. said, and got straightened you is, this all out. The fact know have Selig you got any- is; is; it knows it haven’t what thing what so- worry going to I’m these Dahl- about. send to nobody of. strom. It will be taken care There’s here to I I admit made on it. will mistake it. Go rewrite sign going just ahead and it. We understand arewe ” get you got Selig in them what out warehouses.’ Ben L. present at was this discussion. It is true of course that attempting Hammill as broker for “all fields” was negotiate specified a sale fields, items for all selling this does mean that Fontaine was the items on all It fields. clear each seller various accepted fields pur- himself he bound when the offer to by Lindsey Youngblood, chase. This is confirmed Wun- manager, pres- derlich’s sales who that he testified signing along ent at the Hammill, with Selig. Youngblood Fоntaine, and testified: “Mr. Ham- only approval mill assured us it intended for our get approval field, our as he intended of the other proposal.” Selig present his fields for when Selig purported was said. That only knew the contract purchased to bind Wunderlich and the aircraft Kingman plain. subsequent at made a con- Railway Equipment Company tract the Texas *11 Ridge covering the Walnut field all of the same items except respect, one. In this the contract with the Texas Railway Equipment Company was rewritten on the offer-to-purchase provided by form Hammill. The words changed “All fields” were to “All on the field” and an through line ink was drawn “APN-4 Otherwise $1.00.” agreement the identical as was to content with the offer accepted by purchase agreement to Wunderlich. The Railway Equipment Company signed the Texas with by Selig. purchased If he Ben L. the items contained Railway the the contract with Texas Equipment signed Company the contract with Wunderlich, as Railway Equip- says, with the Texas he the contract now unnecessary. wholly Company wholly in- It is ment the under his with Wunderlich with contract consistеnt plain It us that knew relates. to he now evidence agreement cov- with Wunderlich time that the at that Kingman appears only It at field. also the items ered against subsequently suit Wunder- Esse threatened that lich and Texas Railway Equipment Company. Suit was against purchasers the of aircraft on threatened never con- fields to deliver items other three for failure agreement It 1947. would tained placing appear at that time the con- Esse was not agreement scope that it on the now does. struction January 15, contract therefore We conclude covering meant that the fields” covered “all offer that the of the aircraft at owners all five fields only respective ac- bound each fields became by attaching cepted purchase its authorized the offer agreement signature Wunderlich, The with thereto. Kingman at therefore, field, covered the items and no It trial should have so instructed. other. The court speculate permit jury prejudicial to' error as to Kingman other than at field or not items were whether litigation. involved jury informed instruction was also No. that: any, any damages, may if be suf-
“As to future preponderance date, this such evidence fered after certainty.” same reasonable establish the We must support giving in the record to find no evidence part case of the instruction. The was submitted May jury 1953. The breach of the damages 1947. The to which occurred resulting from are those is entitled breach. Esse good will, if be shown which a loss of resulted Even only Wunderlich, be the acts could established from during scopes period that orders for radar were being April These orders were received in filled. authorizing May jury basis exists 1947. No
229 damages that return a verdict which would include might occur the trial. after date of good
The trial court also instructed that loss of will preponderance was, evidence, if established proper damage. good a special damage element of Loss of will every action
which is not recoverable in goods. J. S., for breach a contract C. of to deliver good Any p. § Sales, solely 242. Esse arises 550, loss of will inability from make of radar its deliveries scopes rеsulting through from received orders advertise- ments. The evidence shows that some time after Janu- ary being exact Hot 15, 1947, shown, time Esse placed great many orders for the of a advertisement (The CQ electronic News, in Ama- items Radio Radio Journal), Craft, teur’s and Radio three radio electronics monthly magazines national The circulation. ad- May appeared vertisements in 1947 issues and April reached the on or about newsstands Each ruagazine three-page carried a advertisement of items. Among equipment electronic there listed scope APN-4 in radar involved this suit. It was listed for sale at The were $17.95. 1-152-AM.indicators not advertised for sale these advertisements. The record is not clear as to the exact date on Esse attempted scope to eliminate the radar from these adver- general manager Magazine CQ tisements. states attempted change mag- that Esse first to make a in that April closing azine after but the for date May issue March 1947. The advertisement of scope the radar Radio Craft contained the words “Sold heavy type consequently, brought Out” in and, in no good orders for that item nor contributed to loss attempted change will. As to Craft Radio came after closing May its date 1947. This evidence indicates advertising Esse to cancel failed of the APN-4 scope radar within a reasonable time after the breach the contract. point
We out 15, 1947, 1947. On
was cancelled
scopes would
APN-4 radar
that the
that date Esse knew
*13
only
be
this to
not
knew
not
Ben L.
delivered.
be
agreed
the items
deletion of
he had
to the
fact,
affixing
agreement by
original purchase
his ini
on the
understanding.
It
clear therefore
an
is
to such
tials
arising
mitigate
damages
required
that Esse was
An authori
that date.
from the breach from and after
party
follows: “Where a
text
the rule as
tative
states
him
a contract and can save
is entitled to
benefit of
trifling
arising
self
a breach' thereof at
from loss
from
expense
duty,
exertions, it is
or
reasonable
his
so,
he can
declare,
so
to do
statutes sometimes
only
charge
damages
party
in default with such
(cid:127) expense he could not
with reasonable endeavors
prevent.
applicable
especially
where one
This rule
contracting parties
acquired
notice of the
has
effort to
breach of
mitigate
and makes no reasonable
contract
Damages,
damages
25
claimed.”
C. J. S.,
p.
§
502. In
v. Midland Title Guarantee &
34,
Marcell
731,
Abstract
199 N.
this court
112 Neb.
W.
Co.,
“It
stated the rule as follows:
is a
rule
well-established
in
where there has been
breach of
that,
state
resulting
party
other,
one
loss to the
it
party
duty
is the
of such other
to take all reasonable
steps
damages.”
to reduce the- amount of his
It
duty may
perform
rule, also, that
who fails to
such
one
damages
which
recover
would have been avoided
duty
performed. Uhlig v.
4
Barnum,
had such
been
foregoing
Neb.
The record before does not show Esse made effort under the circumstances to cancel the reasonable advertising scopes. of the APN-4 radar It knew February scopes that radar 20, 1947, these would not be part The indefiniteness with which this delivered. attempted proved the clаim be is such it good does not establish will Esse loss reasonably could not have avoided. If Esse had acted within time after a reasonable we advertising think the could have under eliminated, been appears the evidence as it in the record us. Esse before obligation mitigate damages assumes that not arise did until March 18, 1947, thereafter. The support assumption. record does not of the such an areWe opinion improperly the trial court sub- good damage mitted the loss of will as an element of under the evidence then before it.
It seems to us that Esse has no valid claim loss good will unless is able to show on a retrial it' made reasonable effort after 20, 1947, to scope advertising eliminate the APN-4 radar from its and was unable to so. do But this does not mean that advertising scopes of the radar at each and $17.95 *14 properly the orders not received were admitted as evi- They dence. tend to establish a demand for the radar scope price. They at the advertised tend also fix to scope. the market pur- value of the radar For these poses properly the evidence was received in event.
In the case us before Wunderlich knew that Esse purchased scopes the radar and indicators for resale. general The record shows a demand for these items at price. the advertised In addition thereto, Wunderlich certainly understood that the resale of the items would profit result in a to Esse. such In case the seller is bound to damaged know that Esse would be in the profits amount of the lost if the items were not de- agreement. livered in accordance with the The measure damages appears dispute, such a case to be in particularly as to the correctness of instruction No. 9. That instruction states: “You are instructed that the plaintiffs Selig required prove are not the extent of damages precision; their with mathematical if that, you damages find that it is certain that have been caused you may the breach of the contract, then consider all
232 having any
the facts and circumstances of case tendency probable amount show the and reasonable damagеs.” damages goods
The measure of
for failure to deliver
purchased
(2),
fixed
69-467
R. R.
section
S.
damages
as follows:
“The measure of
is the loss di
rectly
naturally resulting,
ordinary
course
events,
from the seller’s
of contract.” Under
breach
profits
proper
loss of
is a
element of
section,
dam
age.
The rule is stated
court
this
gains prevented
as follows: “We
repeatedly
have
held that
as well as
may
damages upon
losses sustained
be recovered
appear
profits
breach of contract. But it must
that the
reasonably
by per
were
certain to have been realized
they
speculative
contingent;
formance; that
are not
damages
that such
must have been within the con
templation
parties,
appear
and the loss must
proximately
naturally
have resulted
from the
breach.” O’Shea v. North American Hotel
Co.,
Poultry
City
Neb. 317,
I fail see how it be said that my did not the contract. tiffs breach To mind this fact conclusively by the established evidence. This be- *16 escape ing the de- I cannot the conclusion true right fendant had the to rescind.
Again conclusively, I did it, as defendant see. right par- exercise of rescission. After rescission the its they ties were the same status as were before except rights into as to their was entered from liabilities which flowed the breach. right rights plaintiffs had
After the rescission the no or against the under the contract and could not defendant any' thereafter until defendant have unless and waived the breach its rescission. breach and After the defendant rescission and absence waiver position as it was in freedom do chose with subject merchandise which of the contract. was any It free to deal in relation thereto all or was as to part plaintiffs any persons itof with the other or parties question the same as if the contract in hеre had never been entered into. may
I think that on record it be said matter as a of law there no waiver the defendant. There plaintiffs is of course evidence to the effect that tried obtain a waiver. However there is no evidence that responded the defendant to this effort or that it re- stored the breached and rescinded contract.
If I true, this is am convinced is, that it the de- judgment fendant was entitled to a and the its favor opinion of this court should so indicate. opinions
The two referred to deal at considerable length question agree- with the of consideration for the question, ment of 1947. This I submit, an issue case. I not in this do not wish be under- saying surrounding stood the evidence as the in- significance. significant, cident no This has evidence is only light, ques- if it however, does, throws on the tion of whether or not there was rescission and, so, if if there a waiver of rescission. We are concerned rights only here liabilities under the con- any action tract which is basis and not other assumption either that the An contract of a later date. supported con- contract of determine sideration or that it was not could issue basic herein. , J.,C. Simmons, dissenting. *17 opinion
I adhere to the former and decision of opinion court in this case. is That now withdrawn the court. present opinion,
In the the court finds no fault with applied stated, either facts or issues rules of law opinion. opinion the former The former is now aside set finding a there was no consideration for shown February 20, the contract of I 1947. shall examine that question later herein. disagree present opinion
I the principal with in six matters: findings
1. In the of opinion fact made in the which appear upon to become conclusive the trial court on.re- mand for new trial. relieving Seligs
2. In the from the results of their giving breach of the contract of the insufficient fund check. holding parties
3. In the imputed that both had knowledge payment of the check. holding 4. In guilty that Wunderlich was of bad February
faith 20, 1947, when the new contract executed. holding
5. In the that there was no consideration for the contract of 20, 1947. permitting Seligs accept performance In full
under the ate that contract repudi- and then damages recover for the breach January 15, 1947, contract. of
I shall these matters discuss in that order. Fact Findings Conclusive Made on Disputed Issues dealing are here We with a law action many with disputes fact. issues and court now remands for “in accordance opinion.” trial with this a new In plaintiffs opinion, have “established the court finds that of action.” It favor other facts in a cause resolves (and opinion plaintiffs. I As I read the am not advised now findings contrary), those of fact become leaving only issue tried that of to be case, law of contrary damages. to the estab- That the amount practice action remand of law of this court in lished generally for retrial of a remand calls all issues. Bank, 138 Neb. In Kuhns v. Live Stock Nat. “* * * express- all matters decided held:
N. W.
ly’or by
we
implication by
opin-
necessary
its
this court in
reversing
judgment became the law of
the first
ion in
applies
merely
questions
to all
ac-
case. This
not
formally
tually
presented,
existing in
but to all
necessarily
record and
decision.”
involved
Chesnut,
Laboratories,
In
v.
Who Breached the Contract? up in this Who set the chain of events that culminated Seligs litigation? The is conclusive that the did. answer prior “cash 15,1947, contract of called for shipment deposit.” Seligs gave an insufficient $2,000 “deposit.” part That act fund check for that on their a material breach. What its effect? Corpus the rule as follows: Juris Secundum states provisions “Parties are their con- entitled under the of they bargained not, tract to that for which and should compelled accept thereof, breach be less than Accordingly, only their contract called. party guilty entire of first breach of an containing independent indivisible covenants promises * recovering precluded contract, from on the ** appropriate he must manner answer in some injury resulting for the loss or from such breach to * * opposite party, party *. The who commits the first right deprived complain a' breach is also subsequent opposite party.” S., 17 C. J. breach § p. Contracts, App.
In Demateis v. 49 Cal. P. Vezu, 453, payment upon was made a no-fund check $500 grapes. execution of a contract for the The court sale buyer refuses, held: “Where fails or suffi- without payment cause, cient to make of the first installment of purchase price pur- the article contracted to be justified repudiating chased, seller contract.” O’Bryan Mengel Ky. Co., v. 6 S. W. 2d involving a case a sales contract. The court held buyer liberty at that the “was not to break the contract upon performance time himself and at the same insist principle in thereof No the law of seller. contracts *19 than that the breach of an is better settled indivisible ther entire and particular contract in material excuses fur- performance by party precludes the other an part damages the unexecuted action for contract.” apparently on aside, are brushed
These authorities theory instant case was the check in the paid upon that because presentation, occurred. no breach
its second Seligs “for free.” to be entitled to one breach seem Knowledge Applicable
Imputed Here Not opinion im- there was no we held In former parties puted on our hold- here. We relied notice to the Krug, Hargadine Dry ing McKettrick Goods Co. v. in (Unoff.) is as follows: 52, 96 N. W. which Neb. agent imputed knowledge by to his an is to or “Notice duty only principal is those in it his in cases which employer, upon it to his it, act or to communicate agent, discharge pos- proper trust such his as only in which it has that character those cases sesses agent act to the or business which direct relation employed to do.” is rehearing plaintiffs here do motion for
The their holding. challenge that rule or that not They the correctness of opinion ignores present The do not mention it. imputed notice on the rule holds that there was agents parties. ground that the banks were Seligs present opinion, concedes that neither nor knowledge had actual fact that imputed paid. It holds that both had check had been paid, knowledge warding had been because for- check knowledge. paying had that banks not?) (or say. is I a maverick not should Our rule Agency, § p. S., J. is in 3 C. rule. It stated agent to an “The rule notice notice follows: application principal universal is not onе of to the * * * hag agent application no where ruie knowledge duty the notice or under communicate principal.” to his Agency, § Jur., 2 Am. is stated in
Also the rule knowledge p. to, “The notice 291, as of, follows: an principal agent is to must be of bind some
239 it matter material so to the transaction to make duty agent principal, to communicate it to the )) , ‡ imputed duty
The is rule of notice on of based agent principal an to communicate material facts to his duty. presumption performed that that he has Agency, Agency, § § p. S., 194; Jur., C. J. Am. p. recognized 369, 288. Our rule those reasons and states imputed knowledge only” that there is “in those cases agent’s duty in which it is edge to communicate his knowl- principal. to his not a a This case is bank where payment By holding a is asked about the check. duty payment it becomes the bank’s advise as to to the a check its own motion. duty forwarding pay-
Where is there of a or bank ing notify principal bank, on its own motion, to its that paid? statutory duty protest- a check been has The to “foreign § for dishonor limited is to bills.” R. 62-1,152, R. S. 1943. knowledge
It is common that in America handle banks daily literally are thousands of forwarded checks payment paid. and which are It is held to be now duty handling pay- their to communicate fact principal they ment of check to for whom act. Bankers will interested be to know that —and is the only imputed knowledge basis on which rest. can necessary only duty conclusion now is not that the notify payment exists, that but courts likewise will presume performed duty. duty banks Both the presumption and the have no foundation in fact law. opinion In cited, of our last course held: we “It imputes principal a is harsh and severe rule which knowledge agent” possessed by' his “as it is not infrequently injustice, operation the cause of rank its rigidly should be those confined to cases which it is strictly applicable.” imputed We limited notice to “only” imputed those I cases. that the submit rule
notice, applicable” “strictly at all here —it not not applicable. going
However, if are the rule which we not follow authority, general accord we have twice stated in then ignore rule, I submit we should not notify patrons it, rather and their overrulе banks alone that matter. that hereafter this state we walk there in an area heretofore We should confuse where dispute. has no been Did Not Act in Bad Faith *21 finding
Preliminary to
the
that
and as
basis for
is
that
there
no consideration shown
one Wunderlich’s
attempted
good
made in
This
rescission was not
faith.
finding
prior
had,
on the
that Wunderlich
to
is based
February
negotiated
20,
sale of some of the
1947,
for the
January
by
agreement
15,
1947.
items covered
agree:
upon
agree
There is a rule
texts
“An
which the
changed
par
by
ment,
the mutual
when
consent of
agreement,
place
ties, becomes a new
takes the
of
and much of
old,
and consists
new terms
as
agreement
parties
agreed
the old
as the
have
re
shall
unchanged;
may
in
words,
main
other
a contract
be
abrogated
part
in
J.
and stand
to
residue.” 17 C.
p.
§
Contracts,
379,
Jur.,
S.,
See, also,
869.
12 Am.
Con
p.
p.
§
§
tracts,
433,
1013; Restatement,
408,
Contracts,
(Rev. ed.),
p.
§
770; 6 Williston on Contracts
applicable
We
held: “The
5172.
cumstances is
have
rule in such cir
complete
that a
be
itself will
conclusively presumed
supersede
another one made
prior
subject-matter.”
thereto in relation to the same
Valley
Price Platte
& Irr. Dist., 139
v.
Public Power
Neb.
787,
Now what bad faith? parties that there mitted both was conversation on February Selig regard- Fontaine and between ing the check. contract and dishonored It like- dispute appears that without Wunderlich re- wise was. up quired contract to break and its remove ah air- (for planes period time. Fontaine within limited Wunderlich) given Selig Feb- testified that until was ruary good check, and that 18 to make the dishonored Selig promised the check to not to have Wunderlich February agreement Selig later than that 18. denies says February Selig present opinion states told scopes I-152-AM in- items, “two” of the APN-4 radar buyer; another it states that the dicators, had been sold to negotiate the sale record did shows that Wunderlich scopes Air Industries of the radar prior indicators with negotiations February 20, 1947, that those contemplation on in of a breach were carried Selig; agreement Wun- good attempted made faith; derlich’s rescission was alleged failure make and that it not based on the deposit opportunity to make $2,000 but because a much Air Industries. But that sale oc- better sale to day curred one after the 18 deadline testified check business had Fontaine and after dishonored parties. Can arisen and had been discussed between guilty be found of bad faith because only requirement, denies when Wun- moving understanding in accord with its derlich was agreement? Assuming that Wunderlich desired *22 protect the modification of the contract as to sale to' so Selig question Air comes: Was deceived Industries, purpose? not advised as to that necessary evidence, It to refer to not now becomes dispute present opinion, and to in and relied on in pointed not connection therewith heretofore one fact in (one day February February 19 after the 18 out. On Fontaine), by Wunderlich received from date testified equipment. three firm offer for items Air Industries a those in this of the items were involved lawsuit. Two marker beacons” as described. item was “200 The third February 19, confirmed the order Also on subject items, for the three Air Industries from receipt deposit. purchase a order $750 the three the fact sale to Air Industries of
Was of the Selig It not. from 20? was items concealed Selig the interest of Fontaine testified that he told purchasers Selig deletion other consented to the (not two) three Deleted from contract. involved were 200 marker exact number beacons—the February 19. Is it reason- in the Air order of Industries Selig why suppose exact able to an did know being deleted, and of marker did number not beacons was against protecting then that Wunderlich was know three Industries and that the sale of those items to Air purpose insisting that the items be de- their in specific contract was made? leted before new from the items covered deletion of “200 marker beacons” against they protecting shows that were sale and Selig that separately. it. He initialed the deleted items knew Selig “They have Ben testified that did not an offer higher figure he of much on those.” did know How had? if he Selig not told of offers which Wunderlich they “these other testified that wanted items we money obviously Quite could make on.” “marker bea- They complaint them. make cоns” was not one of about that deletion. no Seligs’ knowledge Any question lack as to of knowl- edge petition herein, their is set at rest sworn to Selig, alleged Stanley it is that on by Fontaine that Wunderlich Ben was informed purchase had order of cancelled * * * completed “could not have event because part merchandise to others.” had been sold
This does not sustain conviction of Wun- record certainly- faith and does not sustain the derlich of bad Seligs good position accolade of faith of court’s parties they take. Both made the new con- now which tract with knowledge what had been done Wun- necessary. why the derlich and deletions were *23 Is faith bad to be a now bottomed on full admitted charged disclosure of material facts? Is bad faith to be party a because thing refuses make contract to sell some- buyer which he cannot deliver and knows he cannot deliver? present opinion attempted
The holds that the rescis- sion of the contract on the in fact Wunderlich was not based alleged deposit, $2,000 failure to make the opportunity because of the amake much better sale to Air Industries.
That same issue of bad faith was raised in the no- $500 supra. opinion fund check case Vezu, of v. Demateis The “Appellant.claims attempted recites: that the rescission prompted by was an act of bad faith the fact that between the date of the contract the date of rescission there great grapes. price increase in the market of blacky price grapes It is true that the market of advanced within specified period time; but this fact is not alone compel finding sufficient that such advance market price the cause of defendant’s rescission of the con- good tract. The court found that the defendant acted in finding faith, and that evidence, well warranted prove which tends to that defendant rescinded con- very tract for the definite and sufficient reason that the positive check, which he had received on the assurance good that it was and in consideration whereof he had contract, delivered the so had been dishonored and hаd period nearly remained one month.” That describes the situation here.
There A Was Consideration For The
1947, Contract I have discussed the “marker beacons” deletion for an- agreement January pur- other reason. a Seligs whereby agreed purchase chase order as well agreed as Wunderlich to sell.
Seligs agreement contend that the 15 was buy category. Seligs to by all of the items in each listed agreement 20 were relieved
obligation buy testi- Ben 200 marker beacons. to “they us; bea- them on marker throw fied that would much They resale for them at never cons. had glad Obviously, Seligs higher figure.” be re- to were 200 the of the contract to lieved marker that burden They accepted retained that bene- beacons. deleting February flowing 20 contract fit from item. Seligs to clear benefit
There
and established
February 20,
on
in this
of the contract
modification
“
may
‘A
held:
valuable consideration
We have
right,
profit,
benefit
interest,
consist
accruing
or
either
some
party,
detriment,
forbearance,
some
to one
or
given,
responsibility
suffered,
undertaken
loss, or
”
Longenecker,
Neb.
the other.’ Asmus v.
There the fact is another consideration shown impact proposed opinion. of which recited in the Its ignored. on case is premise
I start on conclusion now with the based present opinion parties im- of the that each had puted knowledge of first $2,000 fact that the check February goods paid. de- had been On no had been Seligs. Seligs to did not livered Wunderlich then obligation pay owe and were no contractual to under any money. right Wunderlich 'Wunderlich had then no Seligs paid money. to ac- demand and Wunderlich cepted $2,000 as for the new contract. consideration accepted only It was the' that condition. There is no Wunderlich condition original Seligs paid under be modified.
dispute in the record on that matter. always money impression
I have been payment adequate anwas consideration. Seligs Having Accepted Full Performance of
February Repudiate 20, 1947, Contract Cannot Now That Contract
Following payment $2,000 their began the new contract. under to deliver Seligs began accept When contract. under the new protested payment check was the fact of the brought Seligs given credit was Wunderlich, home to goods con- the new delivered under $2,000 for that accepted knowledge, Seligs, the credit tract. with full accept deliveries under continued gold quick Having panned out of 20 contract. Seligs money on,” make could that “we received repudiate avoid, and desire now undertake to dredge gold. They received retain the benefits more performance contract and the new at from the damages repudiate failure of time seek same per- original performance contract. Wunderlich *25 contract. in reliance on the new formed application the rule that where This calls for an party executed one contract has been modified upon a fraud an extent that it would work to such party repudiated, be if the modified will other Supp. 418; 111 F. Slater, United v. sustained. States Mfg. Agel 792; 13, Vt. 58 A. Patch 77 Co., & Levin v. Ludwig, Hays Am. D. 1, 6 Ohio St. Thurston & v. p. § Contracts, fol also, Restatement, 110, 328. See, Fluckey v. 132 Neb. Anderson, us in lowed p. § 605; 17 C. J. Jur., Contracts, 12 Am. 41; N. W. p. § Contracts, S., W. Jacobson S. al., Mark et v. Reed, appellee, Curtis Co., R. L. Impleaded Kaliff Ranch
appellants, appellee . 2d 69 N. W. April 1955. No. 33668.
Filed