Graff v. Burnett, 86-1037

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA; SHANAHAN; KRIVOSHA
• Citation: 414 N.W.2d 271,226 Neb. 710
• Parties: Dennis GRAFF and Velda Graff, Husband and Wife, Appellees, v. Gary D. BURNETT, Appellant.
• Docket Number: No. 86-1037,86-1037
• Decision Date: 23 October 1987

Page 271

414 N.W.2d 271 226 Neb. 710 Dennis GRAFF and Velda Graff, Husband and Wife, Appellees,
v.
Gary D. BURNETT, Appellant. No. 86-1037. Supreme Court of Nebraska. Oct. 23, 1987.

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Syllabus by the Court

1. Liens: Livestock: Foreclosure: Equity. An action for determination of the amount of a lien, pursuant to Neb.Rev.Stat. § 54-201 or § 54-202 (Reissue 1984), and foreclosure of such lien is an equity action.

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2. Liens: Livestock. When the owner of livestock contracts with another to feed and care for the owner's livestock, Neb.Rev.Stat. § 54-201 (Reissue 1984) provides the agister with a lien upon the stock for the agister's keeping, and the owner cannot lawfully obtain possession of the stock until the owner has paid or tendered to the agister the amount due for the feed and care.

3. Debtors and Creditors: Tender: Proof. One claiming an adequate and proper tender of payment has the burden to prove both the offer to pay and the present ability of immediate performance at the time of the tender.

4. Debtors and Creditors: Tender: Words and Phrases. A tender of payment is more than a mere offer to pay. A tender of payment is an offer to perform, coupled with the present ability of immediate performance, which, were it not for the refusal of cooperation by the party to whom tender is made, would immediately satisfy the condition or obligation for which the tender is made.

5. Debtors and Creditors: Tender: Words and Phrases. A tender of payment is the offer of a sum of money to satisfy a debt and is made by presenting and showing such payment to the creditor and expressing a willingness to deliver that payment to the creditor.

6. Debtors and Creditors: Tender. Although a tender of payment does not have to be in cash unless so demanded by the creditor, the tender must demonstrate an ability to carry out the terms of the contract.

James L. Germer of Germer, Murray, Johnson & Germer, Bruning, for appellant.

Daniel L. Werner of McKernan & Werner, Hebron, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Dennis and Velda Graff commenced an action against Gary D. Burnett in the district court for Thayer County, seeking to foreclose an agister's lien, Neb.Rev.Stat. § 54-201 (Reissue 1984), and a stallion service lien, Neb.Rev.Stat. §§ 54-202 et seq. (Reissue 1984), occasioned by their oral agreements with [226 Neb. 711] Burnett concerning his horses. Responding to Graffs' petition, Burnett filed an answer and then counterclaimed, alleging that Graffs wrongfully detained Burnett's horses after Burnett had tendered payment of the stud fee and feed bill for his mares. The district court awarded monetary judgments to Graffs and authorized foreclosure of the liens on the horses if Burnett defaulted in payment of the amounts awarded to Graffs. The district court found against Burnett on his counterclaim. We affirm.

Dennis and Velda Graff own a horse-breeding farm and also sell horses. In the past, Gary Burnett, as an owner and dealer of horses, has had his mares serviced by stallions at Graffs' farm. During a conversation with Dennis Graff, Burnett expressed an interest in purchasing one of Graffs' mares, She's Rocky One, which Burnett offered to purchase on condition that Graffs breed She's Rocky One to one of their stallions, Skip A Hi, and keep She's Rocky One in a stall and on grain during her stay at Graffs' farm. Graffs agreed to a sale price of $2,250 for She's Rocky One and a stud fee of $500 for Skip A Hi. Also, Dennis Graff and Burnett discussed breeding two of Burnett's mares, Miss Tuff Cutter (also known as Tuffernhel) and Roan Spanish Miss, to Skip A Hi.

On July 6, 1984, Burnett brought his two mares, with a colt at the side of each, to Graffs' farm for breeding purposes. At that time Burnett and Dennis Graff orally agreed that Burnett's mares, Miss Tuff Cutter and Roan Spanish Miss, would be bred to Skip A Hi at a stud fee of $500 for each mare.

Pursuant to their oral agreements with Burnett, Graffs bred the three mares to their stallion. In mid-September 1984, Graffs notified Burnett that a veterinarian

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had verified the pregnancy of the mares. Burnett arrived at Graffs' place on October 16 to pick up his horses and, with Graffs, discussed payment for the services rendered at Graffs' farm. During that conversation, Graffs presented Burnett with the following itemized statement of charges for the horses:

She's Rocky One For purchase $2,250
                 For care 118
                 For stud services 500
                Miss Tuff Cutter (Tuffernhel) For care 187
                 For stud services 500
                Road Spanish Miss For care 187
                 -------
                 Total $3,742.
                

[226 Neb. 712] Burnett took out his checkbook and declared that he wanted to pay part of the bill, namely, the stud fee for Miss Tuff Cutter and the charges for feed and care for the two mares (Miss Tuff Cutter and Roan Spanish Miss). However, Burnett declined to pay any of his account regarding She's Rocky One. Therefore, Burnett was prepared to write his check for $687, pick up his two mares (Miss Tuff Cutter and Roan Spanish Miss), and leave She's Rocky One at Graffs' farm until a future payment for the purchased mare. Graffs demanded payment of the entire account, and, when the parties failed to reach a settlement of the account for the horses, Burnett left and never paid any part of the bill submitted by Graffs.

On November 8, 1984, Graffs filed a "Notice of Lien" for services of a stallion and an "Affidavit for Agister's Lien" in the office of the Thayer County clerk, which documents pertained to the care, feed, and stud services provided to the mares Miss Tuff Cutter and Roan Spanish Miss, their accompanying colts, and She's Rocky One.

Section 54-201(2), pertaining to an agister's lien, provides in pertinent part:

When any person ... whose residence or principal place of business is located outside the State of Nebraska shall procure, contract with, or hire any other person ... within the State of Nebraska to feed and take care of any kind of livestock, the person so procured, contracted with, or hired shall have a first, paramount, and prior lien upon such property for the feed and care bestowed by him or her upon the same for the contract price agreed upon, and in case no price has been agreed upon, then for the reasonable value of such feed and care.... Prior to removal of such livestock from his or her premises, the person ... entitled to a lien shall file in the office of the county clerk, in the county in which such livestock may be fed and kept, an affidavit describing the livestock and [226 Neb. 713] setting forth the amount justly due for the feeding and keeping of the same.

Section 54-202 specifies a party's rights to be paid for stud service by that party's stallion: "Every owner, lessee, agent or manager of any stallion ... shall have a lien upon any mare and her colt ... served by such stallion ... for the full amount of the reasonable or agreed value or price of such service."

In their petition, Graffs asserted two causes of action--count I relating to the stud fee (Miss Tuff Cutter) and care for the two mares (Miss Tuff Cutter and Roan Spanish Miss) and count II relating to She's Rocky One (purchase price, stud fee, and care). Burnett, in his counterclaim, alleged that Graffs wrongfully retained possession of the horses Miss Tuff Cutter and Roan...