Chalupnik v. Brant

Decision Date08 April 1938
Docket Number30296
Citation279 N.W. 159,134 Neb. 465
PartiesJAMES J. CHALUPNIK, APPELLANT, v. IRVIN S. BRANT, APPELLEE
CourtNebraska Supreme Court

APPEAL from the district court for Madison county: CHARLES H STEWART, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. When the consideration of a contract is promissory or contractual in its nature, it cannot be varied by parol agreement.

2. Reciprocal promises as a basis of a valid agreement must be equally obligatory upon the parties; otherwise such agreement is nudum pactum.

3. Contracts entered into or promises made on the basis of relations of friendship and good will, unsupported by pecuniary benefit, create at most moral obligations, and a breach thereof presents no cause for redress by the courts.

Appeal from District Court, Madison County; Stewart, Judge.

Action by James J. Chalupnik against Irving S. Brant on a contract which provided that, in return for plaintiff's good will and advice, defendant was to issue stock to plaintiff. From a judgment dismissing the plaintiff's petition, the plaintiff appeals.

Affirmed.

James P. Marron and Frederick M. Deutsch, for appellant.

Webb Rice, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.

OPINION

PAINE, J.

The trial court sustained a demurrer to the original petition for damages for breach of a contract, and then sustained a motion to strike out a large part of an amended petition, and, after sustaining another demurrer, dismissed the amended petition. Plaintiff appeals.

This lawsuit is based upon a written contract between the plaintiff and defendant, dated December 15, 1933, which provided, among other things, that as Chalupnik, the plaintiff herein, and second party in said contract, was operating a creamery at Verdigre, and was well acquainted with the creamery business in north Nebraska, "his good-will and advice is of value to the new organization to be made by first party, and first party desires to compensate second party for such advice and good-will."

This contract further provided that, when the new corporation to be formed at Norfolk was organized, "10% of which stock is to be assigned and transferred to second party for the considerations hereinbefore stated." It was provided that such 10 per cent. of the stock should be issued to second party "without any consideration other than that hereinbefore stated."

The plaintiff brought suit, based on this contract, exhibit A, attached to the petition, and set up that the defendant has wholly failed and refused to issue the stock as provided in the contract, and plaintiff prayed for damages in the sum of $ 10,000. Demurrer being filed was argued and sustained, but plaintiff was given permission to file an amended petition, which was duly filed.

The defendant filed a motion to strike out 14 paragraphs of plaintiff's amended petition, which set up an alleged oral contract, which it was alleged attempted to vary and contradict the written contract, exhibit A, attached thereto. The district court sustained this motion and a demurrer to such amended petition. Plaintiff electing to stand upon said demurrer, and not to plead further, the said petition was dismissed. The sustaining of the motion to strike and the sustaining of the demurrer are set out as errors of the court.

The appellant presents as his first proposition of law that "the recitals of a written instrument as to consideration are not conclusive, and it is always competent to inquire into the consideration and show by parol or other evidence what the real consideration was." We are cited to Hartman v. Lipovsky, 122 Neb. 823, 241 N.W. 563, as his authority, in which case it was held that, when the contract contained the words "$ 4,000 in cash, the receipt whereof is hereby acknowledged," it is a recitation of fact, and not a contractual part of the contract, and that such an acknowledgment of the receipt of consideration may be explained or contradicted by parol evidence. 4 Neb. Law Bulletin, 132, sec. 10, discusses this point, and sets out that, when the consideration is promissory or contractual in its nature, it cannot be varied by parol, citing many Nebraska cases.

It may be admitted that, if the contract in the case at bar was ambiguous,...

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