Gunset v. Mossman

• Decision Date: 14 July 1976
• Docket Number: No. 40527,40527
• Citation: 196 Neb. 529,243 N.W.2d 783
• Parties: John GUNSET and Veronica Gunset, husband and wife, Appellants, v. David MOSSMAN, Appellee.
• Court: Nebraska Supreme Court

Page 783

243 N.W.2d 783

196 Neb. 529

John GUNSET and Veronica Gunset, husband and wife, Appellants, v. David MOSSMAN, Appellee.

No. 40527.

Supreme Court of Nebraska.

July 14, 1976.

Syllabus by the Court

1. A contract must receive a reasonable construction consistent with the intention of the parties existing at the time it was entered into.

2. Through construction, the court seeks to enforce the contract made by the parties, not to create a new one.

Warren C. Schrempp, Thomas G. McQuade, Richard E. Shugrue, Schrempp, Dinsmore & McQuade, Omaha, for appellants.

Mark L. Laughlin, Zweiback & Laughlin, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BROWKEY, JJ.

WHITE, Chief Justice.

This is an action for breach of contract arising from a clause in a purchase agreement for the sale of the defendant's home to the plaintiffs. The suit originated in the municipal court of the City of Omaha, Nebraska, where judgment was entered for the plaintiffs in the amount of $2,400 damages. The defendant appealed to the District Court for Douglas County, Nebraska, where the court tried the case de novo on the record. The District Court entered judgment for the defendant and subsequently overruled the plaintiffs' motion for a new trial. We affirm the judgment of the District Court.

The essential facts of this case are not in dispute. On August 25, 1972, the plaintiffs, John and Veronica Gunset, entered into a purchase agreement with the defendant to buy a home located at 301 South Fifty-seventh Street, Omaha, Nebraska. The defendant and his family had lived in the home for approximately 7 years. During that period, the boiler, the subject matter of this contract dispute, Was checked annually by a heating and plumbing contractor and flushed in accordance with maintenance directions. Although the boiler admittedly leaked throughout the 7 years the defendant resided there, it continued to provide adequate heat through the date of the home's sale to the plaintiffs.

Among the provisions embodied in the standard agreement was the following clause: 'Seller agrees to maintain, until delivery of possession, the heating, air conditioning, water heater, sewer, plumbing and electrical systems and any built-in appliances in Working condition.' (Emphasis supplied.)

Shortly after taking possession of the house, Mr. Gunset called the Metropolitan Utilities District, requesting inspection of the furnace' boiler. On September 22, 1972, an employee of the Metropolitan Utilities District inspected the boiler, affixing a 'red-tag' to the unit. Pertinent language on the tag stated that the boiler was leaking water and that 'correction of the above condition is required by our rules and regulations.'

Within a short time following this inspection, the plaintiffs and the real estate company, N. P. Dodge Company, contacted the defendant, notifying him of the leak in the boiler. Sometime in October 1972, the plaintiffs employed a licensed heating and air conditioning contractor to examine the boiler. Upon learning the estimated expenses necessary to replace the boiler, the plaintiffs filed suit. Nothing was apparently done to remedy the condition and, for the following 2 years, the plaintiffs continued to use the furnace while living in the house.

The sole issue before this court on appeal is whether the defendant breached a condition in the purchase agreement requiring the heating system to be maintained in 'working condition' until the plaintiffs obtained possession of the house. No allegations of fraud are raised.

This court has long followed the elementary, yet basic, proposition that to effectuate the purposes for which it is made, a contract must receive a reasonable construction consistent with the intention of the...