Growers Cattle Credit Corp. of Omaha v. Swanson

• Decision Date: 25 July 1969
• Docket Number: No. 37172,37172
• Citation: 184 Neb. 612,169 N.W.2d 692
• Parties: GROWERS CATTLE CREDIT CORPORATION OF OMAHA, a Corporation, Appellant, v. Melvin SWANSON, Appellee.
• Court: Nebraska Supreme Court

Page 692

169 N.W.2d 692

184 Neb. 612

GROWERS CATTLE CREDIT CORPORATION OF OMAHA, a Corporation, Appellant, v. Melvin SWANSON, Appellee.

No. 37172.

Supreme Court of Nebraska.

July 25, 1969.

Syllabus by the Court

1. Where a certain sum of money is tendered by a debtor to a creditor on condition that he accept it in full satisfaction of his demand, the sum due being in dispute, the creditor must either refuse the tender or accept it as made subject to the condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.

2. The purpose of a summary judgment proceeding is to pierce the allegations of the pleadings and to show conclusively that the controlling facts are otherwise than as alleged and that the moving party is entitled to judgment as a matter of law.

Allen F. Black, Broken Bow, Maupin, Dent, Kay, Satterfield & Gatz, North Platte, for appellant.

Johnson, Kelly, Evans & Spencer, Broken Bow, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

WHITE, Chief Justice.

This is an action to recover the principal balance on three promissory notes, admittedly signed and executed by the defendant. The trial court sustained a motion for a summary judgment in favor of the defendant and the plaintiff appeals. We affirm the judgment of the district court.

The defendant signed three promissory notes of varying dates in 1962 and 1963 in the sums of $170,000, $250,000, and $385,241.96.

In his original petition herein the plaintiff sought to recover from the defendant three 'service charges' on the three notes in the sums of $850, $1,225, and $2,867 for a total of $4,942. In an amended petition the plaintiff sought recovery for the same amount, alleging that the amounts recited above were unpaid principal balances. The defendant in his answer to the amended petition, in substance, alleged that said notes had all been paid in full and had been discharged; that he had received the notes from the plaintiff; and that there were no balances due or owing on said notes.

The evidence in this case shows that on or about December 28, 1964, the defendant received a statement from the plaintiff setting forth the amount of $272,483.54 as the current balance owing on these notes. Included in this amount were the sums of 'service charges' for which the plaintiff now is specifically seeking recovery. A misunderstanding or dispute arose between the parties as to the payment of 'service charges' in the amounts hereinbefore recited. On December 30, 1964, the counsel for the defendant, Mr. Kelly, and the plaintiff's Minnesota counsel, Mr. Joseph, engaged in a long distance telephone conversation wherein these obligations, disputes, and misunderstandings were discussed. Following this telephone conversation, the defendant, through his counsel, Mr. Kelly, wrote to the plaintiff (enclosing a check for $267,299.78) as follows. This letter is set out in full.

'December 30, 1964

Maslon, Kaplan, Edelman, Joseph & Borman

Attorneys at Law

1200 Builders Exchange Building

Minneapolis 2, Minnesota

Attention: Mr. Roger E. Joseph

RE: MELVIN SWANSON, ARCADIA, NEBRASKA. ACCOUNT WITH THE GROWERS COMPANY OF MINNEAPOLIS.

'Pursuant to our telephone conversation this morning I am enclosing herewith a check payable to the Growers Companies in the amount of $267,299.78. This is broken down as follows: 'Statement of the Growers Company of amount due to December 28th of $272,483.54 plus two day's interest at the rate of $47.87 per day or $95.74, for a total of $272,579.28. The fees of the Growers Company which is in contest here to date as of the statements of the Growers Company amount to $5,279.50. Deducting the fees of $5,279.50 leaves the balance due as of this date of $267,299.78, the amount of the check here enclosed.

'This check is sent to you for delivery to the Growers Companies, Conditioned that the Growers Company release all mortgages of Melvin Swanson occassioned (sic) by this debt and return to Melvin Swanson through this office All notes signed by Melvin Swanson as evidence of this indebtedness.

'When we have received these instruments you are then directed and authorized to present the enclosed check to the Growers Company. With reference to the fees and commissions charged of $5,279.50, you are hereby notified that We refuse to pay those amounts alleging they are unlawful and arbitrarily charged without the consent, permission or authorization of the said Melvin E. Swanson.

James R. Kelly

dnh

Enclosure 1

Certified Mail,/Return Receipt Requested.'

(Emphasis supplied.)

Plaintiff concedes that the check for $267.299.78 was immediately cashed by the plaintiff; the promissory notes and the chattel and real estate mortgages were satisfied; and the promissory notes sued upon were returned to the defendant. There is no contention of fraud or misrepresentation on the part of either the plaintiff or defendant. After cashing the check and in a letter of January 4, 1965, to defendant's counsel, the plaintiff attempted to reserve the dispute in connection with the service charges by reasserting his claim to these charges and stating that it was...