Buckingham v. Wray

• Decision Date: 03 May 1985
• Docket Number: No. 83-933,83-933
• Citation: Buckingham v. Wray, 219 Neb. 807, 366 N.W.2d 753 (Neb. 1985)
• Parties: C. Norris BUCKINGHAM, Appellee, v. John C. WRAY II, Appellant.
• Court: Nebraska Supreme Court

Page 753

366 N.W.2d 753

219 Neb. 807

C. Norris BUCKINGHAM, Appellee, v. John C. WRAY II, Appellant.

No. 83-933.

Supreme Court of Nebraska.

May 3, 1985.

Syllabus by the Court

1. Courts: Records: Appeal and Error. An appellate court will not consider or review a ruling of a trial court when the questioned ruling is not a part of the trial record. The Supreme Court will not speculate about proceedings in a trial court but must rely upon the record presented for review.

2. Contracts: Consideration: Words and Phrases. Consideration is sufficient to support a contract if there is any detriment to the promisee or benefit to the promisor. Valuable consideration to support a contract need not be one translatable into dollars and cents. Compensation and consideration are neither identical nor synonymous.

3. Statutes. In the absence of evidence to the contrary, we presume that the common law or statutes of another jurisdiction are the same as the law of the State of Nebraska.

John C. Wray II, pro se.

Robert C. Wester of Schirber Law Offices, P.C., Papillion, for appellee.

BOSLAUGH, WHITE, SHANAHAN, and GRANT, JJ., and HOWARD, District Judge.

SHANAHAN, Justice.

John C. Wray II appeals a money judgment obtained by C. Norris Buckingham as a result of a bench trial of a contract action in the district court for Sarpy County. We affirm.

In November 1979 the parties entered a written contract wherein Wray agreed to stock and maintain an inventory for an auto parts store, K-B Standard Auto, Inc. (K-B Auto), owned by Buckingham, in Carson, Iowa. Wray owned three auto parts stores in the metro-Omaha area and agreed to purchase K-B Auto's inventory on hand 1 year after Wray entered the contract with Buckingham. The contract required Wray's purchase of the inventory at 90 percent of the original cost of such inventory.

The contract also stated Wray would be reimbursed for his travel to and from Buckingham's Iowa store but would not receive any compensation for his services to K-B Auto.

In connection with the Buckingham-Wray contract, Wray received discounts from wholesale suppliers on purchases of inventory for K-B Auto, as well as overall enhancement of his business reputation resulting from substantial purchases of parts for stores serviced by Wray. Wray purchased a large inventory for K-B Auto. However, by midsummer of 1980 it was obvious that K-B Auto was not doing well, and in December Buckingham closed his store.

In late October or early November of 1980, Buckingham sought performance of the contract provision for Wray's purchase of the K-B Auto inventory. Buckingham tried to contact Wray through inquiries at Wray's former parts stores, which had been sold sometime after Wray entered the contract with Buckingham. Buckingham made several calls to Omaha parts wholesalers who had dealt with Wray and asked the whereabouts of Wray. Attempting to establish contact at Wray's residence, Buckingham referred to an Omaha telephone directory, although the telephone book was 1 year out of date. Also, based on a lead from one of the warehouses which had done business with Wray, Buckingham called Kansas State University on belief that Wray had enrolled in law school at that university. Buckingham was unsuccessful in his efforts to locate Wray. Buckingham attempted to mitigate damages by returning K-B Auto's inventory to the original wholesalers. Buckingham, unable to resell a substantial part of the inventory purchased by Wray, brought suit against Wray concerning the inventory which Buckingham could not liquidate.

At trial, without objection, Buckingham testified that Wray had said he would be compensated for his services to K-B Auto by large quantities of parts ordered by Buckingham and cash payments for such parts delivered. These cash transactions with Buckingham contributed to increased discounts received by Wray from wholesale suppliers for inventories acquired by Wray's various auto parts stores. The trial court found a breach of contract by Wray and awarded damages to Buckingham for the unliquidated inventory.

Wray assigns the following errors on the part of the district court: (1) Denial of Wray's motion for dismissal of the proceedings on the basis of forum non coveniens, inasmuch as Wray claims the proper forum should have been in Iowa; (2) Admitting testimony prohibited by the parol evidence rule; (3) Finding a valid contract supported by consideration; (4) Finding that Buckingham used reasonable efforts to notify Wray and request purchase of the inventory; and (5) Awarding prejudgment interest generally, and specifically in utilizing the law of Nebraska instead of the law of Iowa concerning prejudgment interest.

With regard to Wray's first assignment of error, involving forum non conveniens, the record does not contain Wray's motion or any disposition made by the district court. Consequently, such absence eliminates any necessity that we consider Wray's first assignment of error. In the absence of extraordinary circumstances, an appellate court will not consider or review a ruling of a trial court when the questioned ruling is not a part of the trial record. We will not speculate about proceedings in a trial court but must rely upon the record presented for review. Cf. First Nat. Bank v. Schroeder, 218 Neb. 397, 355 N.W.2d 780 (1984).

Regarding Wray's question about consideration supporting the Buckingham contract, we held in Abraham v. Abraham, 203 Neb. 384, 279 N.W.2d 85 (1979), that consideration is sufficient to support a contract if there is any detriment to the promisee or benefit to the promisor. Generally, a court will not inquire into the adequacy of consideration for a contract, inasmuch as consideration based on value of property...