Florist Supply of Omaha, Inc. v. Prochaska

• Decision Date: 23 December 1993
• Docket Number: No. S-90-1188,S-90-1188
• Citation: Florist Supply of Omaha, Inc. v. Prochaska, 509 N.W.2d 209, 244 Neb. 776 (Neb. 1993)
• Parties: FLORIST SUPPLY OF OMAHA, INC., Appellee, v. Addie PROCHASKA and Jane Poole, Individually and doing business as Petal Pusher Floral Shop, Appellants.
• Court: Nebraska Supreme Court

Page 209

509 N.W.2d 209

244 Neb. 776

FLORIST SUPPLY OF OMAHA, INC., Appellee, v.Addie PROCHASKA and Jane Poole, Individually and doing business as Petal Pusher Floral Shop, Appellants.

No. S-90-1188.

Supreme Court of Nebraska.

Dec. 23, 1993.

Syllabus by the Court

1.Open Accounts: Pleadings.Neb.Rev.Stat. § 25-837(Reissue 1989) is merely permissive and provides a form that may be used in pleading an action upon an account or instrument for the unconditional payment of money only.

2.Pleadings: Appeal and Error.Any error or defect in the pleadings which does not affect the substantial rights of the adverse party must be disregarded.

3.Appeal and Error.An appellate court will not consider errors which are assigned but not discussed in the proponent's brief.

4.Judgments: Appeal and Error.In reviewing a judgment in a bench trial of a law action, an appellate court does not reweigh the evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

John S. Mingus, of Mingus & Mingus, Ravenna, for appellants.

Thomas W. Tye II and Gary E. Brollier, of Tye, Hopkins & Tye, Kearney, for appellee.

Before HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

Florist Supply of Omaha, Inc.(Florist Supply), the plaintiff, brought this action to collect $6,401.68 due on an open account from appellantsAddie Prochaska and Jane Poole, individually and doing business as Petal Pusher Floral Shop.The amount claimed by Florist Supply included $1,241.34 in interest charges which Florist Supply had added to the appellants' account.Following a trial, the county court deducted those interest charges from the $6,401.68 claimed by Florist Supply and entered a $5,160.34 judgment in its favor.After the district court had affirmed that judgment, the Nebraska Court of Appeals reversed the judgment, holding that it was error to overrule the appellants' demurrer to Florist Supply's petition.SeeFlorist Supply of Omaha v. Prochaska, 2 N.C.App. 78, 162 S.E.2d 607(1993).This court then granted Florist Supply's petition for further review.

Neb.Rev.Stat. § 25-837(Reissue 1989) states in part:

In an action, counterclaim or setoff, founded upon an account, promissory note, bill of exchange, or other instrument for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and endorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest.

The Court of Appeals reasoned that under the statute, there are two methods of suing on an account.The first method is to attach a copy of the account to the petition.The second method is to set out in the petition a copy of the account or a statement of the account.The Court of Appeals then concluded that as no account had been attached to the petition and the petition itself did not set out a statement of the account with specificity, the petition failed to state a cause of action, and, thus, the appellants' demurrer should have been sustained.

However, § 25-837 is permissive and says what may be done to plead a suit on an account.The statute does not say that in an action on an account, a petition which does not include an attached copy of the account, or does not set out a copy of the account therein, fails to state a cause of action.

The petition alleges that at the appellants' behest, Florist Supply opened an account for the appellants on April 23, 1985; that from and after that time Florist Supply provided to the appellants products and services through June 10, 1988; that only one payment, in the amount of $53.13, had been made on the account since March 10, 1987; that due demand for payment had been made 90 days prior to the filing of the petition; and that there is due and owing on the account $6,401.68.

While the petition was subject to being made more...