658 F.2d 650 (8th Cir. 1981), 80-2093, Ancom, Inc. v. E. R. Squibb & Sons, Inc.

Docket Nº:80-2093.
Citation:658 F.2d 650
Party Name:ANCOM, INC., a corporation, Appellant, v. E. R. SQUIBB & SONS, INC., a corporation, Appellee.
Case Date:September 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 650

658 F.2d 650 (8th Cir. 1981)

ANCOM, INC., a corporation, Appellant,

v.

E. R. SQUIBB & SONS, INC., a corporation, Appellee.

No. 80-2093.

United States Court of Appeals, Eighth Circuit

September 15, 1981

Submitted July 21, 1981.

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Don W. Taute (argued), Rosenberg & Yungblut, Ronald Rosenberg, Lincoln, Neb., for appellant.

Gary Dolan, Knudsen, Berkheimer, Beam, Richardson & Endacott, Lincoln, Neb., for appellee.

Before LAY, Chief Judge, and STEPHENSON and McMILLIAN, Circuit Judges.

LAY, Chief Judge.

This appeal is from a judgment notwithstanding the verdict entered on a jury verdict for $87,500 in a breach of contract suit brought by Ancom, Inc. against E. R. Squibb & Sons, Inc. The district court, the Honorable Warren E. Urbom, presiding, set aside the verdict and granted Squibb a judgment notwithstanding the verdict on the ground that under Nebraska law the contract was unenforceable because of the Statute of Frauds. Ancom brought this appeal. We affirm.

Ancom, Inc., is a Nebraska corporation that produces and sells audio visual programs. E. R. Squibb & Sons, Inc., is a New Jersey corporation whose animal health division sells animal medicine to veterinarians. On the 19th of September, 1978, representatives of the two corporations met in Princeton, New Jersey. At that meeting Squibb's representative agreed to purchase Ancom's audio visual client education system on an exclusive basis for the year 1979. The joint program was to promote the products of both corporations. Squibb's director of marketing wrote a letter to Ancom dated September 21, 1978, that summarized the discussion. Other meetings between the parties were held in subsequent months, including one held February 1, 1979. At that meeting both the success of the program and the method of payment were discussed. At this point the success of the program was beyond the original expectations of the parties. Squibb agreed to make four quarterly payments to Ancom. Shortly after this meeting Ancom sent four invoices to Squibb. Each invoice was in the amount of $43,750.00 and represented the first three quarters of 1979 while leaving the fourth quarter open-ended. Squibb paid $87,500.00 to Ancom for the first two quarters and $13,300.00 to reimburse Ancom for equipment. The next payment was due July 1, 1979. Prior to July 1, 1979, however, a dispute over payment arose. Ancom did not receive payment on July 1, 1979, nor at any later time. Despite the nonpayment, Squibb continued to request performance and Ancom complied through 1979. Ancom brought suit for breach of contract and the jury returned a verdict in favor of Ancom in the sum of $87,500.00.

There exists sufficient evidence to sustain the jury's finding that Ancom and Squibb entered into an oral contract on September 19, 1978. 1 In granting defendant's motion for judgment notwithstanding the verdict the trial court assumed that there was a contract, but found that the contract was unenforceable because of the Nebraska Statute of Frauds, Neb.Rev.Stat. § 36-202 (Reissue 1978). We agree with this finding.

The Nebraska Statute of Frauds.

Section 36-202 of the Nebraska Revised Statutes (Reissue 1978), provides:

In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; ...

The oral contract between Ancom and Squibb required the parties to begin performance on or before September 19, 1978, and to continue throughout the year 1979. Ordinarily, this contract is unenforceable. Restatement of Contracts § 198 (1932).

Under Nebraska law, however, the contract may still be enforced if there is a written memorandum of the agreement

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sufficient to take the contract out of the Statute of Frauds. David v. Tucker, 196 Neb. 575, 244 N.W.2d 197 (1976).

In David v. Tucker, the Nebraska Supreme Court applied the following test:

The statute of frauds provides that a contract for the sale of any land shall be...

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