Fritsch v. Hilton Land & Cattle Co., S-91-540
| Citation | 513 N.W.2d 534,245 Neb. 469 |
| Decision Date | 01 April 1994 |
| Docket Number | No. S-91-540,S-91-540 |
| Parties | John H. FRITSCH and Josephine M. Fritsch, Appellants, v. HILTON LAND & CATTLE COMPANY, a Corporation, and Southwest Nebraska Production Credit Association, Appellees. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Actions: Contracts: Rescission: Equity. An action to rescind a written instrument is an equity action.
2. Specific Performance: Equity. An action for specific performance sounds in equity.
3. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, when credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
4. Final Orders: Jurisdiction: Appeal and Error. An appellate court is not bound by the parties' acquiescence or consent as to whether a district court has entered a final order which would confer jurisdiction upon the appellate court.
5. Final Orders: Jurisdiction: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.
6. Final Orders: Jurisdiction: Appeal and Error. In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction.
7. Final Orders: Words and Phrases. A final order is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a 8. Judgments: Contracts: Specific Performance. A decree for specific performance must as nearly as possible order the contract's performance according to its terms.
judgment, and an order affecting a substantial right made in a [245 Neb. 470] special proceeding, or upon a summary application in an action after judgment.
9. Judgments: Contracts: Specific Performance. In decreeing specific performance, a court of equity must require the performance of some certain and specific act which ought to be performed by the delinquent party, and it cannot enter a general decree that in the future the delinquent party shall perform the acts required of him by his contract.
10. Judgments: Contracts: Specific Performance. Decrees ordering specific performance should state what the defendant must do without reference to other documents and without the necessity of interpreting other documents.
11. Contracts: Intent. A written contract expressed in unambiguous terms is not subject to interpretation or construction, and the intention of the parties to such a contract must be determined from its contents.
12. Contracts. Words used in a contract must be given their plain and ordinary meaning, as ordinary, average, or reasonable persons would understand them.
13. Contracts: Time. What constitutes a reasonable time for the performance of a contract must be determined from the general nature and circumstances of each case.
14. Contracts: Rescission. In determining whether a rescission took place, courts look not only to the language of the parties but to all the circumstances.
15. Contracts: Rescission. When a party seeks the aid of a court to rescind a contract, the bringing of the action is sufficient disaffirmance of the contract for purposes of the action.
16. Contracts: Rescission. On rescission of a contract, the rights and duties which have accrued under the rescinded contract are terminated and nullified.
17. Laches. The defense of laches is not favored in Nebraska. It will be sustained only if a litigant has been guilty of inexcusable neglect in enforcing a right to the prejudice of his adversary.
18. Laches: Time. Laches does not result from the mere passage of time, but from the fact that during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or prejudice of another.
19. Waiver: Words and Phrases. A waiver is a voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person's conduct.
20. Waiver: Estoppel. In order to establish a waiver of a legal right, there must be clear, unequivocal, and decisive action of a party showing such a purpose, or acts amounting to estoppel.
21. Equity: Fraud. Under the doctrine of unclean hands, a person who comes into a court of equity to obtain relief cannot do so if he or she has acted inequitably, unfairly, or dishonestly as to the controversy in issue.
T.J. Hallinan, of Cobb, Hallinan & Ehrlich, P.C., Lincoln, for appellants.
Waldine H. Olson and Thomas W. McPherson, of Schmid, Mooney & Frederick, P.C., Omaha, for appellee Hilton Land & Cattle Co.
After a trial, the district court for Red Willow County dismissed the amended petition of John H. Fritsch and Josephine M. Fritsch (the purchasers), in which they sought to rescind a 1981 agreement to purchase certain real estate from the defendant Hilton Land & Cattle Company (Hilton), a Nebraska corporation, and obtain a refund of $131,062.80.
The 298 acres of land involved in the 1981 agreement was included in the 1,025 acres of land the purchasers originally sold on contract to Hilton in 1976. Not all provisions of the 1976 contract had been fulfilled at the time the 1981 contract was executed or at time of trial of this lawsuit.
The trial court also found in favor of Hilton on its counterclaims seeking specific performance by the purchasers not only of the 1981 contract, but also of the 1976 contract, which was referred to in the 1981 agreement.
The purchasers appealed to this court the dismissal of their cause of action and the entry of judgment against them. Claiming that this court lacked jurisdiction because there was no final order, Hilton filed two motions to dismiss the purchasers' appeal. We reserved ruling on the motions until after argument of the case.
We find that (1) the trial court's order denying the purchasers rescission of the 1981 contract was a final and appealable order, (2) the trial court erred in denying the purchasers' rescission of the 1981 agreement, and (3) the cause should be remanded for further proceedings consistent with this opinion.
The purchasers claim that the trial court erred in finding that (1) the purchasers were not entitled to rescind the 1981 contract, (2) Hilton was entitled to specific performance of the 1981 contract, (3) explorations conducted and payments made pursuant to the 1976 contract constituted waiver of the purchasers' contractual right to rescind the 1981 contract, and (4) unpaid fertilizer and pesticide billings constituted waiver of the purchasers' contractual right to rescind the 1981 contract.
An action to rescind a written instrument is an equity action. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993). Likewise, an action for specific performance sounds in equity. Sayer v. Bowley, 243 Neb. 801, 503 N.W.2d 166 (1993).
In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, when credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. In re Estate of Stephenson, supra.
In 1973, by written contract for $250,000, William Spader and his wife purchased 1,040 acres of land in Red Willow County from Griffith and Carol Helm. The Spaders subsequently assigned an undivided one-half interest in the contract to John Fritsch. In 1976, Fritsch, Spader, and their wives contracted to sell Hilton 1,025 acres of the 1,040 acres for $307,500 (1976 contract).
In 1978, Hilton obtained a $750,000 line of credit from the Southwest Nebraska Production Credit Association (PCA). As security, a $717,358.58 mortgage was given to the PCA on the entire 1,040 acres. Hilton Land & Cattle Company is listed as the mortgagor on the mortgage. Signatories to the mortgage were Kenneth A. Hilton and his wife, Peggy L. Hilton. Kenneth Hilton is president and his wife is secretary of Hilton. Together, the Hiltons own all of the stock in the corporation. The PCA mortgage, however, fails to reflect that either of the Hiltons executed or acknowledged the mortgage in a corporate capacity on behalf of the corporation. The copies of the mortgage received in evidence also fail to reflect that the mortgage carried Hilton's corporate seal.
On November 24, 1981, the Fritsches and the Spaders, by written contract, agreed to repurchase 298 acres of the tract they had sold to Hilton (1981 contract). The repurchase price was $300,000. The purchasers' attorney at that time testified at trial that she had advised her clients not to execute the agreement until such time as she had the opportunity to review the abstract. However, that attorney testified that when the parties met to sign the contract, the attorney representing Hilton said that the title to the property was free and clear and asked Kenneth The 1981 contract provided that payments due from Hilton to the purchasers under the 1976 contract were to be credited to Hilton as installments due under the 1981 contract on March 1, 1982, through March 6, 1985, both inclusive. The purchasers were then to make a final balloon payment of $228,065.20 on March 1, 1990.
Hilton, "Isn't that true, Ken?" The purchasers' November 24, 1981, attorney testified further that "Ken affirmed that the title to the...To continue reading
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