Bradway v. Higgins, 32765

• Decision Date: 12 May 1950
• Docket Number: No. 32765,32765
• Parties: BRADWAY et al. v. HIGGINS.
• Court: Nebraska Supreme Court

Page 627

42 N.W.2d 627

152 Neb. 724

BRADWAY et al. v. HIGGINS.

No. 32765.

Supreme Court of Nebraska.

May 12, 1950.

Syllabus by the Court.

1. Where an objection that a petition does not state a cause of action is interposed for the first time during the trial of a cause, the pleading will be liberally construed in the light of the entire record, and, if possible, sustained.

2. In such case, if the essential elements of plaintiff's case may be implied by reasonable intendment from the terms of the pleading assailed, they will be regarded as sufficiently alleged.

3. A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed.

4. Language used in a contract prepared by one of the parties thereto, which is susceptible to more than one construction, should receive such a construction as the party preparing the same at the time supposed the other party would give to it, or such a construction as the other party would be fairly justified in giving to it.

5. While parol evidence may not be offered for the purpose of varying the terms of a written instrument, such evidence is generally admissible when it is offered for the purpose of explaining and showing the true nature of the transaction between the parties.

Dryden, Jensen & Dier, Kearney, for appellants.

Blackledge & Sidner, Kearney, for appellee.

Heard before CARTER, MESSMORE, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law to recover a down payment on a written contract entered into between the plaintiffs and defendant wherein the plaintiffs agreed to purchase the garage equipment, parts, tools, and supplies including a service car, from the defendant. The parties admit the execution of the contract and the payment of $500 as down payment when the contract was entered into.

The plaintiffs' petition does not have attached to it a copy of the contract as an exhibit, but pleads certain terms of the contract which will hereinafter be discussed.

The plaintiffs' petition alleged that the defendant breached and violated the contract by selling and depleting the stock and equipment so that it was impossible to make performance thereof on his part; by refusing to inventory the merchandise in the garage at dealer's cost or to allow the plaintiffs to make such inventory; by insisting upon valuing certain items of merchandise and equipment at more than cost; by refusing to tender good and sufficient title by furnishing an affidavit under the Bulk Sales Act; and prayed for recovery of $400 and costs.

The defendant's answer denied that he sole and depleted the stock, equipment, or supplies other than ordinary and in the usual course of business, and which was contemplated by the contract. Defendant alleged that replacements and new purchases were made at all times, and there was on hand a complete stock of equipment and supplies of the general nature and equal in value and usefulness of that on hand at the time the contract was made; alleged further that the plaintiffs repudiated the contract, did not tender the amount due thereon or offer to perform according to the terms of the contract; denied generally all other allegations of the plaintiffs' petition; and prayed for dismissal of the plaintiffs' petition.

At the conclusion of all of the testimony the trial court sustained the defendant's motion for a directed verdict on the grounds that the allegations of the petition were insufficient to state a cause of action, and the evidence was insufficient to sustain a verdict in favor of the plaintiffs.

Upon the overruling of the plaintiffs' motion for a new trial, the plaintiffs appeal.

For convenience we will refer to the parties as they were originally designated in the district court.

The plaintiffs predicate error upon the trial court's judgment holding that plaintiffs' petition did not state a cause of action and that the evidence was insufficient to support a judgment in favor of the plaintiffs.

With reference to the question as to whether or not the plaintiff's petition states a cause of action, it is noted that the defendant first interposed objection to the petition on the ground it did not state a cause of action after the jury was impaneled and a witness sworn. It appears also from the record that the contract between the parties is in evidence.

In the state of the record, the following authority is applicable: 'Where an objection that a petition does not state a cause of action is interposed for the first time during the trial of a cause, * * * the pleading will be liberally construed in the light of the entire record, and, if possible, sustained. In such case, if the essential elements of plaintiff's case may be implied by reasonable intendment from the terms of the pleading assailed, they will be regarded as sufficiently alleged.' Dickinson v. Lawson, 125 Neb. 646, 251 N.W. 656. See, also, Elvidge v. Brant, 131 Neb. 1, 267 N.W. 169.

From an examination of the petition, and applying the rule as above stated, we conclude the petition is sufficient to state a cause of action.

This brings us to the assignment of error as to whether or not the evidence is sufficient to support a verdict in favor of the plaintiffs.

The court having sustained the defendant's motion for a directed verdict, we review the evidence with the following rule in mind: 'A motion for a directed verdict must for the purpose of decision thereon be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed.' Gutoski v. Herman, 147 Neb. 1001, 25 N.W.2d 902.

We deem it advisable before setting forth the facts adduced by the record to refer to the contract between the plaintiffs and defendant. The contract was entered into on March 7, 1948. It provided that the plaintiffs agreed to purchase the garage equipment, parts, tools, and supplies including a service car the property of the defendant located at Elm Creek, Nebraska, the defendant to furnish good and sufficient title. The plaintiffs agreed to pay 'A maximum of not more than $3750.00 a minimum of not less than $3500.00. Payments to be made as follows: $500.00 (Check and Cash) payment with contract Balance due and payable After April 1st., 1948 with option to make final settlement up to May 15th., 1948. Possession is to be given as soon as final payment is made and purchasers are to give Owner at least five days notice before possession can be given.' The penalty clause provided that in the event of defective title the $500 down payment was to be refunded to the plaintiffs, otherwise the defendant was entitled to the $500 down payment as liquidated damages for failure of performance on the plaintiffs' part to carry out the terms of the contract.

The record discloses that the plaintiffs A. E. Bradway and Clarence Lammers were desirous of forming a partnership and entering the garage business. We will hereafter refer to the plaintiff A. E. Bradway as Bradway, and the plaintiff Clarence Lammers as Lammers, or as plaintiffs. On March 1, 1948, the plaintiffs contacted the defendant Dan Higgins, who will hereafter be referred to as Higgins, who owned garage equipment, tools, supplies...