Langemeier, Inc. v. Pendgraft

Decision Date05 February 1965
Docket NumberNo. 35768,35768
Citation178 Neb. 250,132 N.W.2d 880
PartiesLANGEMEIER, INC., Appellant, v. Robert PENDGRAFT, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Where the tenant has actually abandoned the premises, the landlord is entitled to reenter and take charge and possession

even where he acts too hastily, but in good faith and under circumstances justifying a belief that the premises have been abandoned, he is guilty of only a technical violation of the tenant's contractual rights under the lease. The question of whether a lease has been abandoned so as to confer a right of reentry is one of fact to be determined from the acts and intentions of the parties.

2. A mere scintilla of evidence is not enough to require the submission of an issue to the jury.

3. In every case before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

4. It is the duty of a trial court to direct a verdict at the close of the evidence where the evidence is undisputed, or where evidence, though conflicting, is so conclusive that it is insufficient to sustain a verdict and judgment.

Olds & Reed, Wayne, for appellant.

Mueting & Ellwood, Norfolk, for appellee.

Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, and BROWER, JJ., and ROBERT L. SMITH and ROBERT L. FLORY, District Judges.

ROBERT L. FLORY, District Judge.

This is an action by plaintiff, Langemeier, Inc., a corporation, against defendant Robert Pendgraft to recover unpaid rent on two gasoline stations in Norfolk, Madison County, Nebraska. Both leases provided for fixed monthly rentals and in addition thereto defendant was to pay for gasoline sold by him, which was purchased from the plaintiff, every week. One of the stations operated 24 hours a day. The defendant admitted owing plaintiff certain sums of rent and gasoline payments but denied that he was in default when the action was commenced due to plaintiff's previous course of conduct in accepting late rental payments, and cross-petitioned against the plaintiff for damages for wrongful eviction by plaintiff. A jury trial was had. After the evidence of both parties was adduced the trial court directed a verdict for plaintiff and against the defendant for the amount admittedly owing by defendant and submitted the defendant's cross-petition against the plaintiff to the jury. The jury returned a verdict for defendant against the plaintiff for damages. Plaintiff moved for judgment notwithstanding the verdict on defendant's cross-petition or in the alternative for a new trial. From the order overruling that motion this appeal was taken by plaintiff.

Evidence adduced by both plaintiff and defendant was undisputed that defendant was chronically late in monthly rental payments; that in late January or early February, 1963, Roy Langemeier, president of plaintiff, had told defendant he would like to have the rent caught up; that during the night of February 27, 1963, defendant left the city of Norfolk taking with him his automobile, a motorcycle, some clothes, a case of oil, some of his tools, and $500 from his business; and that he told no one where he was going but told his wife he would be gone for a week or 10 days. Defendant's wife testified that she expected him back the next day and when he did not return, she contacted the county...

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8 cases
  • Melia v. Ford Motor Co., 75-1316
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 20 Mayo 1976
    ...a verdict for the party producing it, upon whom the burden of proof is imposed." 217 N.W.2d at 836, quoting Langemeier, Inc. v. Pendgraft, 178 Neb. 250, 132 N.W.2d 880 (1965). An analysis of the record here reveals sufficient evidence of unsafe design creating a foreseeable and unreasonable......
  • Mason v. Schumacher
    • United States
    • Nebraska Supreme Court
    • 27 Abril 1989
    ...contractual rights under the lease." Mathiesen v. Bloomfield, 184 Neb. 873, 875, 173 N.W.2d 29, 30 (1969); Langemeier, Inc. v. Pendgraft, 178 Neb. 250, 132 N.W.2d 880 (1965). In Mathiesen and Langemeier however, the court found an actual abandonment by the tenant and therefore did not apply......
  • Merritt v. Reed
    • United States
    • Nebraska Supreme Court
    • 19 Marzo 1971
    ...and surmise. As we have said, a mere scintilla of evidence is not enough to require submission to the jury. Langemeier, Inc. v. Pendgraft, 178 Neb. 250, 132 N.W.2d 880; Lindelow v. Peter Kiewit Sons', Inc., 174 Neb. 1, 115 N.W.2d 776; Johnsen v. Taylor, 169 Neb. 280, 99 N.W.2d 254. In the p......
  • Cleasby v. Leo A. Daly Co., 84-357
    • United States
    • Nebraska Supreme Court
    • 15 Noviembre 1985
    ...September 15. A mere scintilla of evidence is not enough to require the submission of an issue to the jury. Langemeier, Inc. v. Pendgraft, 178 Neb. 250, 132 N.W.2d 880 (1965). The evidence on the issue of justification because of business necessity is undisputed and conclusive in favor of D......
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