Fisbeck v. Scherbarth, Inc.

• Decision Date: 12 August 1988
• Docket Number: No. 86-742,86-742
• Citation: 428 N.W.2d 141,229 Neb. 453
• Parties: Robert W. FISBECK, Appellant, v. SCHERBARTH, INC., a Nebraska Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 141

428 N.W.2d 141

229 Neb. 453

Robert W. FISBECK, Appellant, v. SCHERBARTH, INC., a Nebraska Corporation, Appellee.

No. 86-742.

Supreme Court of Nebraska.

Aug. 12, 1988.

Syllabus by the Court

1. Breach of Contract: Damages. A suit for damages arising from breach of a contract presents an action at law.

2. Appeal and Error. Where a law action is tried to the court without a jury, the finding of the court has the effect of a verdict and will not be disturbed on appeal unless clearly wrong.

3. Appeal and Error. In an action at law tried without a jury, it is not the role of the Nebraska Supreme Court to resolve conflicts in or reweigh the evidence, and it will presume that the trial court resolved any controverted facts in favor of the successful party and will consider the evidence and permissible inferences therefrom most favorably to that party.

4. Foreclosure: Equity. A suit in foreclosure is equitable in nature.

5. Equity: Appeal and Error. In an appeal of an equity action, the Nebraska Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where credible evidence is in conflict on a material issue of fact, the Supreme Court considers and may give weight to the fact that the trial court heard and observed witnesses and accepted one version of the facts rather than another.

6. Pleadings: Equity: Trial. When legal matters are presented in a petition and equitable matters presented in a counterclaim, questions of fact arising from the counterclaim are to be determined first by the court sitting as a court in equity; if these determinations do not conclude the entire litigation, then factual questions arising from other pleadings, those in law, may be submitted to a jury or to the court as finder of fact in law, as the parties see fit.

7. Pleadings: Equity: Trial: Appeal and Error. It is not error to deny a motion which cannot be allowed in toto; where the petition states an action in law, the counterclaim one in equity, and demand is made to try all factual issues to a jury, it is not error for the trial court to refuse such demand in its entirety, and to try all issues to the court.

8. Appeal and Error. Regardless of the applicable standard of review in a given case, the Nebraska Supreme Court has an obligation to reach an independent conclusion on a question of law.

9. Jury Trials: Waiver. One entitled to a trial by jury waives such right by acquiescing in a trial by the court.

10. Contracts: Intent. If a written contract is expressed in unambiguous language, it is not subject to interpretation and construction, and the intention of the parties must be determined from the contents of the contract document.

11. Contracts. The determination as to whether an ambiguity exists in a contract is to be made on an objective basis, not by the subjective contention of the parties; thus, the fact that the parties urge opposing interpretations does not necessarily indicate a document is ambiguous.

12. Contracts. A contract must be read as a whole, and, if possible, effect must be given to every part thereof.

13. Contracts. In the absence of anything indicating a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction, are, in the eyes of the law, one instrument and will be read and construed together as if they were as much one in form as they are in substance.

William J. Panec, Fairbury, for appellant.

Ronald R. Brackle, Fairbury, for appellee.

HASTINGS, C.J., and CAPORALE, GRANT, and FAHRNBRUCH, JJ., and JOHN MURPHY, District Judge.

CAPORALE, Justice.

Appellant, Robert W. Fisbeck, sued his former employer, appellee, Scherbarth, Inc., a Nebraska corporation, alleging the latter breached its written employment contract with Fisbeck, as the result of which Fisbeck was damaged in that he (a) was deprived of an interest in land he otherwise would have acquired without payment, (b) lost salary he otherwise would have earned, and (c) was not paid wages for certain hours of work. The employer denied Fisbeck's averments and counterclaimed for foreclosure of Fisbeck's interest in the subject land. The district court concluded that there was no written employment contract; that while Fisbeck was entitled to payment for salary he earned but was not paid, his other two claims of damage were without merit; and that the employer was entitled to foreclose its lien on Fisbeck's undivided one-half interest in the subject land. Fisbeck appeals from the judgment of the district court entered in accordance with its conclusions and assigns seven errors, which may be summarized as claiming that (1) the district court's findings are not supported by the record and (2) the district court erred in computing the amounts owed by the parties to each other. We affirm as modified.

Facts

Fisbeck began working for the employer while he was still in high school, in 1957 or 1958. In 1969 or 1970, he became a construction crew foreman. Late in 1975, Fisbeck and the employer entered into an arrangement whereunder Fisbeck was to acquire certain land from his employer, on which the Fisbeck home appears to have been built. In this connection the record contains a document captioned "Agreement Secured by Real Estate Mortgage," bearing no date of execution but bearing a notary's stamp dated December 29, 1975, and bearing the signatures of Fisbeck and a Leta R. Fisbeck, as buyers, and of the employer by its president, as seller, and impressed with the employer's corporate seal. The document, henceforth referred to as the "agreement," recites the legal description of a certain lot in Jefferson County and provides the following, notwithstanding the fact that Leta Fisbeck was never shown to have been a member of the employer's work force:

1. All parties hereto agree that the value of the above described real estate is mutually appraised by the parties and has a fair market value at the time of conveyance of the above described real estate in excess of THREE THOUSAND SIX HUNDRED NINETY FIVE AND NO/100 ($3,695.00) DOLLARS.

2. Buyers agree that in return for the deed to the above described real estate, Buyers will repay Scherbarth Inc., by continuing in the employment of Scherbarth Inc., in a satisfactory manner for a period of Ten (10) years.

3. In the event Buyers wishes [sic] to terminate their employment with Scherbarth Inc., for any reason prior to expiration of the ten year period, Buyers agree to repay the sum of THREE THOUSAND SIX HUNDRED NINETY FIVE AND NO/100 ($3,695.00) DOLLARS to

Scherbarth, Inc. This amount can be repaid at the option of Buyers in full immediately or in Five (5) equal annual installments, the first such installment to be paid within Thirty (30) days after termination of employment. Annual installments thereafter shall be on the same date of each year thereafter until said amount is paid in full. Interest shall accrue on the unpaid principal balance at the rate of 8.5% per annum on the unpaid principal balance. Interest shall commence to accrue on the date of termination of employment. Accrued but unpaid interest shall be paid annually on principal payment dates.

4. If Buyers employment is terminated by Scherbarth, Inc. through a lay-off occasioned by a decline in business, termination, or sale of the corporation, such aforementioned condition to be determined solely by appropriate resolution of the Board of Directors for said corporation, at any time during the above ten year period, the amount due to Scherbarth, Inc. shall be THREE THOUSAND SIX HUNDRED NINETY FIVE AND NO/100 ($3,695.00) DOLLARS less a prorated amount as credit for that portion of the ten year period that has expired.

This amount can be repaid at the option of Buyers in full immediately or in Five (5) equal annual installments, the first such installment to be paid within Thirty (30) days after termination of employment. Annual installments thereafter shall be on the same date of each year thereafter until said amount is paid in full. No interest shall accrue on the unpaid principal balance.

5. Buyers agree that if at any time within the Ten (10) year period above specified the above described real estate is sold or transferred by Buyers to any other persons, firm or corporation, the total amount of THREE THOUSAND SIX HUNDRED NINETY FIVE AND NO/100 ($3,695.00) DOLLARS would be due to Seller immediately unless an express written mutual agreement to the contrary is made between Seller and Buyers.

6. Time is of the essence of each and every term and condition of this agreement. If Buyers fail to pay any amounts due under this agreement or if Buyers fail to perform any of the other terms, covenants and conditions of this agreement or if Buyers shall abandon the real estate, the whole of the indebtedness due under this agreement shall become and be immediately due and payable at the option of Seller without further notice or demand by Seller to Buyers the said Buyers expressly waiving all notices required by law to be served upon Buyers, and Seller may proceed to foreclose this agreement, promissory note or mortgage in any manner provided by law or to utilize any other remedies allowed Seller by law.

In his testimony Fisbeck characterized the agreement as "a mortgage on the--it's a work agreement. If I'd have been employed there for ten years, I wouldn't have to pay for the land that I purchased from Ted Scherbarth." Fisbeck also testified that his understanding of the agreement at the time he signed was that "I'd stay there ten years and the land would be paid for. If I stayed employed with him for ten years, the land would be paid for." He also testified that the only benefit he received when he "bought" the property was his right to continue his employment. The employer conveyed the subject land in fee simple absolute to "Robert W. Fisbeck and Leta R....