*1 Heard before Spencer, Boslaugh, McCown, Smith, Judge. JJ., and' District Newton, Colwell, J.
Boslaugh, appeals years’ The defendant from a of 3 im- sentence prisonment plea guilty after conviction his property. assignments malicious destruction allege error that the sentence was excessive. following arraignment, record shows that investigation. pre-sentence matter was continued pre-sentence report in the record. charges pending The record does indicate that other against the defendant dismissed result of the as a plea charge guilty defendant’s of malicious de- property. struction of imposed
The sentence in this state was within the § prescribed by 28-572, R. R. S. limits statute. support There evidence to defendant’s no A contention that the sentence was excessive. sen- prescribed statute tence within the limits will showing absence of of an abuse disturbed Sheldon, of discretion. State v. 138 N. W. 2d 428. of the district court is affirmed.
Affirmed. J. Westbrook, appellee, Manor, v. Masonic Arden corporation,
Nebraska 178 N. W.
Filed June 1970. No. 37509. *2 Norris, Barton & for Crossman, appellee. Inserra, Krause, Petersen & for Burkhard, Heard before White, J., Carter, Boslaugh, Spencer, C. and McCown, Smith, Newton, JJ. J.
Boslaugh, appeal interpretation This residency involves plaintiff contract between the and the defendant. At the close of the evidence the trial court directed a ver- plaintiff. dict for appealed. The defendant has plaintiff In 1964 residency entered into a contract apartment for apartment building one-bedroom operated by the defendant in Omaha, Nebraska. The provided upon payment of an entrance fee plaintiff assigned $5,000 was entitled live in an apartment subject monthly payment life, proportionate expenses, “a share maintenance and subject of loan,” amortization and to “the rules and regulations adopted govern which will be the Manor.” apartment assignable. live in the was provided “upon relinquish-
The contract further apartment provided ment of the for herein * * applicant ninety per demand of *, written cent payment on entrance is refundable as soon as the apart- Manor secures Masonic another being released.” ment paid plaintiff entrance fee and moved into the
apartment in 1964. On March 1, 1967, the apartment the defendant notified would be April 1, 1967, and demanded a refund of vacated percent paid. fee entrance was September controversy “resold” on 15, 1968. The monthly whether the mainte- relinquished be- nance fees after fore it was resold.
On March 19, 1967, after had notified relinquished the defendant that the would be before it board vacated, but had been defendant’s adopted providing of directors resolution owners responsible tenancy of resident contracts would prorata payment whether occupied provided The directors also not. setting a bulletin- be to each tenant forth the action sent being stating of prepared. that a new contract was the board and plaintiff’s apartment on in- The entrance fee on October 1965. The $6,000 creased to during the maintenance fees increased twice time plaintiff occupied that the paid *3 during monthly the fees time that
the maintenance occupied the but the record show paid increase in the entrance fee or that he that he to do so the defendant. was asked plaintiff to $4,500 contends that he is entitled The paid. percent The de- of the entrance fee is 90 plaintiff should receive 90 contends that fendant percent monthly $3,001.25for the mainte- $6,000 less of April charged Septem- 1, 1967, between and nance fees plaintiff recovered The 15, ber 1968. trial court. in the
$4,500
ordinarily
contract is
construction
a written
The
question
Dist. v.
Public Power
Traveler’s
of law. Omaha
Indemnity
It is that, March 19, 1967, de- residency fendant did not consider the owner payment tract maintenance occupied. interpreta- fees if the was not given a contract themselves while engaged performance of it is one of the best indi- cations Ordinarily, of the true intent of the contract. such a construction contract should be enforced. Winchell, Lortscher v. Neb.
The action
the defendant’s board on March 19,
1967, was a modification
the contract which
binding
on the
without his consent.
It was a
modification that could not be effected
a rule or
regulation solely within the control of the defendant.
See Urick Western
Travelers Accident Assn., 81 Neb.
Affirmed. J., dissenting. White, C. agree majority opinion’s disposi- with the cannot purporting case, which,
tion of this effect to substantially construction, a agreement rule alters basic predi- rule relied *4 ambiguity I in the submit cated an contract. that ambiguous judi- not is in no need of the contract interpretation. cial was the terms the entitled
Under C64
to initial live after an having paid entrance a $5,000, fee of to subject payment to” a To “entitle share of the proportionate expenses. for that something, qualify means to a to right Ed.), right. (Perm. p. 14A Words and Phrases relin- asserts his his to right surrendered quishing apartment, plaintiff re- live he should therefore, in that apartment; maintenance fees after sur- quired to the monthly pay flies reasoning This line rendering right. Sur- mutuality. face of the fundamental principle render did not terminate plaintiff’s contract; of the under the terms to that rights it be entitled a would merely meant fees, on entrance refund of any payment ninety percent re- secured as soon another was as concerned clause is not The refund leased apartment. is, when did case, issue in this controlling and correspond- to the right apartment, plaintiff’s terminate? fees, obligation pay ing the month- obligation pay had submit to the apartment, entitled as as was long ly That to live in the had as he long sold and trans- when right terminated chose himself resident. Plaintiff ferred to prospective he was entitled though Manor even to remain in the If contract. express to do so under residence to terminate his allowed as of that obligations his concomitant terminate thereby has been mutuality than principle more time, the amortization of the security undermined. rental scheme in a mutual involved loan substantial uni- case, permit in this present as that such rental payments termination or whimsical lateral termina- To this arbitrary allow tenants. one subject- of such security scheme, destroy would burden of increasing tenants remaining ing funds. Such action necessary on without continuing
665 part on the of a tenants could a few create momentum that would be destructive scheme. While whole legally of the issues, determinative these observations clearly demonstrate of the terms of the reasonableness purpose the contract under these circumstances. preserve continuity contract is to the interim of the payments, a condition consistent main- taxes, with the requirements tenance, and and other bur- amortization tenancy ownership. dens of construing
It is hornbook
in
law that
written con-
ascertaining
purpose
intention of
tract
parties,
the instrument must
be considered
parties
whole, and the
of the
must
intent
be derived
from the four
See,
comers
Mills v.
instrument.
(1959);
Aetna
Co.,
Ins.
612,
168 Neb.
721
Engineering
Mid States
Neb.
156
Rohde,
590,
182
N.
(1968);
Drilling
2dW.
Inland
Davis Oil Co.,
Co. v.
(1968).
corollary
It
modify any
contract
alter, revise,
new or
struction,
make a
different
from
regardless
bargained,
parties
superficially
be harsh. The
the result
seems to
whether
duty
of the con-
is confined
construction
court’s
made for
have
themselves. Preferred
tract the
Risk Mut. Ins. Co.
Co.,
v. Continental Ins.
172 Neb.
(1961);
179,
To be of the contract must be incapable obscure, or doubtful, of ascertainment with in the four corners of the 3 instrument. Words and (Perm. Ed.), p. (1953). Phrases Ambiguity 440 should be hindsight, created or determined the use of nor after the parties lawsuit has commenced and the have polarized positions respect taken with to their construc tion of the contract. Whether terms of the contract clearly expressed could have been more solely cannot be question determinative ambiguity; a contract meaning must be read a as whole and the therein ascer tained from the face of the instrument. It seems clear meaning capable of the contract is of ascertain ment within the four corners of the contract in this patently case. It is obvious that resort to extraneous justified in meaning factors is this case, must be from deduced the contract itself, and that the supra, applicable. rule of Lortscher v. Winchell, is not majority opinion equates prem- surrender of the monthly payments. ises with termination of the This says majority opinion, follows, because of the rule relating contemporary interpretations of Lortscher of a contract acts of the As stated earlier, inapplicable language however, that rule is where the ambiguous. assuming ambigú- the contract is not Even ity agree majority still cannot with opinion. prior The decision assumes that to March 19, pay- 1967, Manor did not consider having ment of maintenance fees after sur- plausible assump- rendered the This only. possible It is also that the action was taken attempt explicitly as an already to make clear which was questions
inherent in the contract, so that no be could if the raised. Even is cor- assumption, application justify its rect in it still does not of the rule of Lortscher Before the case. rule interpretation contemporary acts parties great controlling weight is entitled to or applies, they it should acts of both parties, knowledge purpose done with view of a they sought at least consistent that to are with applied. § 2d, Contracts, Am. Jur. p. interpre- Lortscher involved a series of mutual ,and tations subsequent agreements, between the actions their rather a unilateral act than interpretation Mutuality interpre- in this case. tation, rule, foundation Lortscher spicuously absent, rule result that the has been severely broadened. *7 .single
In case the balloons during performance unilateral act the course of into rewriting original strongly I contract. fell affirmatively no rule construction should be used destroy express provision of contract. Con- written during performance, duct the course unless it con- consideration, stitutes a modification should never single apply occasion action of action on a one only. Self-serving weight party conduct is not entitled to way or another. one weighed defendant must be conduct of the here agreement possible light terms
meanings pe- of its conduct. Is the defendant to be security prevent took to action it because of the nalized disputes reasonably further of this nature? Can it be strengthening already said that the further contract creats of an clear ambiguity? point dealing out that are not here an ex- we with
ecutory repeated performance contract with occasions of dealing Nor are here course we performance accepted acquiesced of objection by without relating party.
the other to in- rules terpretation by performance an a course of relate to en- tirely present different situation than is in this case. I express submit re- a contract should preferential ceive if not conclusive treatment in the in- terpretation ambiguity. of the contract unless there is purported expansion I submit that rule in supra, open Winchell, Lortscher v. leaves the door this court to contracts. It would further rewrite security party in that the his reliance on the clear only preserved express terms of a contract can rigid requirement performance. my opinion It district should be reversed. Pocevicius, Company,
Emilia Armour & appellant,
Filed No. 37517. June