First Mid America Inc. v. MCI Communications Corp.

Decision Date02 July 1982
Docket NumberNo. 43957,43957
PartiesFIRST MID AMERICA INC., a corporation, and Kirkpatrick-Pettis Smith Polian Inc., a corporation, Appellants, v. MCI COMMUNICATIONS CORPORATION, a corporation, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment. Judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

2. Contracts. The validity of a contract, the obligations thereof, and the capacity of the parties thereto are to be determined by the lex loci contractus unless there is something in the contract which is prohibited by express statute or infringes upon some positive rule of public policy.

3. Parol Evidence. The use of parol evidence is limited to the purpose of connecting the written memorandum and showing the party to be charged assented to the unsigned documents.

Alan E. Peterson of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellants.

Murray Ogborn and Robert L. Bals of Nelson & Harding, Lincoln, for appellee.

Heard before BOSLAUGH, McCOWN, and CLINTON, JJ., and HAMILTON and CASE, District Judges.

CASE, District Judge.

This action is based on an alleged oral contract entered into in New York State by two investment banking-brokerage firms, First Mid America Inc. (FMA), and Kirkpatrick-Pettis Smith Polian Inc. (KPSP), both based in Nebraska. FMA and KPSP claimed that they were due the sum of $150,000 as a finder's fee for assisting the appellee, MCI Communications Corporation (MCI), in acquiring control over a Nebraska communications service company called N-Triple-C Inc. (NCCC).

MCI was a specialized common carrier operating a network providing voice, data facsimile, and teleprinter services to, among others, New York, Newark, Philadelphia, Pittsburgh, Cleveland, Detroit, Toledo, South Bend, Chicago, and St. Louis. NCCC was a common carrier microwave network in the central United States providing communications services to, among others, Chicago, Des Moines, Davenport, Omaha, Lincoln, Kansas City, Dallas, Tulsa, and Oklahoma City.

The District Court granted MCI's motion for summary judgment, based on the New York statute of frauds.

The parties are in agreement that the validity of a contract is to be determined by the lex loci contractus unless there is something in the contract which is prohibited by express statute or infringes on some positive rule of public policy. See Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938). Finding no such prohibition, we examine this case on the basis of the New York statute of frauds.

The New York statute of frauds, 23A N.Y.Gen.Oblig.Law § 5-701 (McKinney 1978), provides in pertinent part: "a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: ... 10. Is a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of any real estate or interest therein, or of a business opportunity, business, its good will, inventory, fixtures or an interest therein, including a majority of the voting stock interest in a corporation and including the creating of a partnership interest. 'Negotiating' includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision shall apply to a contract implied in fact or in law to pay reasonable compensation but shall not apply to a contract to pay compensation to an auctioneer, an attorney at law, or a duly licensed real estate broker or real estate salesman."

The evidence, as disclosed by the depositions and affidavits offered in connection with the motion for summary judgment, is insufficient as a matter of law to satisfy the requirements of the New York statute of frauds.

Appellants argue that if several documents prepared by MCI are considered together, aided by parol evidence from appellants, the requirements of the New York statute of frauds are satisfied. We think not.

The sufficiency of a memorandum to satisfy the statute of frauds has been...

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3 cases
  • Jaramillo v. Mercury Ins. Co.
    • United States
    • Nebraska Supreme Court
    • 15 Enero 1993
    ...contract which is prohibited by express statute or infringes on some positive rule of public policy. First Mid America Inc. v. MCI Communications Corp., 212 Neb. 57, 321 N.W.2d 424 (1982); Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938). The term "contract" includes policies of insu......
  • Ford v. First Mun. Leasing Corp.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 10 Febrero 1988
    ...agree that Nebraska law governs this action, and the Court finds Nebraska law applicable. See First Mid America, Inc. v. MCI Communications Corp., 212 Neb. 57, 321 N.W.2d 424, 425 (1982); 1A Moore's Federal Practice Pt. 2 paragraph 0.311 (1987). Under Nebraska law, if a contract is to be co......
  • Truman v. Martin, 43905
    • United States
    • Nebraska Supreme Court
    • 2 Julio 1982
    ... ... the joint venture and partnership reinstated is the first issue to be resolved ...         " 'The ... v. Picnic Foods, Inc., [212 Neb. 54] 198 Neb. 193, 199-200, 252 N.W.2d 142, 147 ... ...

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