Harmon Cable Communications of Nebraska Ltd. Partnership v. Scope Cable Television, Inc.

• Decision Date: 19 April 1991
• Docket Number: 88-822,Nos. 88-821,s. 88-821
• Citation: 237 Neb. 871,468 N.W.2d 350
• Parties: , 15 UCC Rep.Serv.2d 982 HARMON CABLE COMMUNICATIONS OF NEBRASKA LIMITED PARTNERSHIP, a Limited Partnership, Appellee and Cross-Appellant, v. SCOPE CABLE TELEVISION, INC., a Corporation, Appellant and Cross-Appellee. HARMON CABLE COMMUNICATIONS OF NEBRASKA LIMITED PARTNERSHIP, a Limited Partnership, Appellee and Cross-Appellant, v. SCOPE CABLE TELEVISION OF NEBRASKA CO., a General Partnership, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 350

468 N.W.2d 350

237 Neb. 871, 15 UCC Rep.Serv.2d 982

HARMON CABLE COMMUNICATIONS OF NEBRASKA LIMITED PARTNERSHIP, a Limited Partnership, Appellee and Cross-Appellant, v. SCOPE CABLE TELEVISION, INC., a Corporation, Appellant and Cross-Appellee.

HARMON CABLE COMMUNICATIONS OF NEBRASKA LIMITED PARTNERSHIP, a Limited Partnership, Appellee and Cross-Appellant, v. SCOPE CABLE TELEVISION OF NEBRASKA CO., a General Partnership, Appellant and Cross-Appellee.

Nos. 88-821, 88-822.

Supreme Court of Nebraska.

April 19, 1991.

Syllabus by the Court

1. Contracts: Words and Phrases. A condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due.

2. Contracts: Words and Phrases. A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in

understanding that a commitment has been made.

3. Contracts: Liability. As a general rule, a condition must be exactly fulfilled before liability can arise on a contract.

4. Contracts: Intent. Whether contractual language is deemed conditional or promissory generally depends upon the intention of the parties.

5. Contracts: Intent. Where the intent of the parties is not clear, the disputed language is generally deemed to be promissory rather than conditional.

6. Contracts: Intent: Words and Phrases. Terms such as "if," "provided that," "when," "after," "as soon as," "subject to," "on condition that," or some similar phrase are evidence that performance of a contractual provision is a condition.

7. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the Nebraska Supreme Court views the evidence most favorably to the party against whom the motion is granted and gives that party the benefit of all the inferences deducible from the evidence.

8. Parol Evidence: Contracts. The parol evidence rule renders ineffective proof of a prior or contemporaneous oral agreement which alters, varies, or contradicts the terms of a written agreement.

9. Summary Judgment. Summary judgment is appropriate when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that no genuine issue exists as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment.

10. Trial: Witnesses: Appeal and Error. The trial court is given discretion in determining whether a sufficient basis for a lay witness' opinion has been established, and such determination will not ordinarily be disturbed on appeal absent an abuse of that discretion.

11. Breach of Contract: Damages. In a breach of contract case, only reasonably foreseeable damages are recoverable.

12. Damages. There exists a general duty to mitigate damages, and a party failing to mitigate damages is generally precluded from recovering those damages which could have been avoided had that party fulfilled its duty to mitigate.

13. Damages. The doctrine of mitigation of damages does not apply when compensating a wronged purchaser for the loss of the bargain.

14. Damages: Presumptions. The law related to the duty of an injured party to mitigate the damages presumes that further damage has occurred following the tort or breach of contract.

15. Records: Appeal and Error. An appellant is responsible for including within the bill of exceptions matters material to issues presented for review.

16. Motions for Mistrial: Time. A motion for mistrial based on an opposing party's improper argument is to be made before the jury retires to deliberate.

17. Trial. The latitude allowed one during the trial of a cause rests in the discretion of the trial court.

18. Trial: Appeal and Error. In the absence of prejudice, misconduct in arguing a cause is not a ground for reversal.

19. Trial: Juries: Verdicts. A party may not induce a larger verdict by argument calculated to distract the jury's attention from the issues or by prejudicial statements which have no support in the evidence.

20. Rules of Evidence: Jurors: Affidavits: Verdicts. Neb.Rev.Stat. § 27-606(2) (Reissue 1989) does not bar the use of a juror affidavit to establish that a jury made a transpositional error in completing verdict forms in the consolidated trial of cases against multiple defendants.

21. Words and Phrases. A setoff is a means of satisfying a debt.

22. Claims: Interest. Where a liquidated claim held by one party and an unliquidated claim held by a competing party are set off against one another, and the claims arose from the same transaction, interest on the liquidated claim may be allowed only on any balance due after the setoff.

Neil B. Danberg and James L. Schneider, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellants and cross-appellees.

M.J. Bruckner and Paul J. Peter, of Bruckner, O'Gara, Keating, Sievers & Hendry, P.C., Lincoln, for appellee and cross-appellant.

HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

I. INTRODUCTION

Under separate contracts, plaintiff-appellee, Harmon Cable Communications of Nebraska Limited Partnership, a limited partnership, purchased through its predecessor in interest, Harmon & Company, Inc., a cable television system from each of the defendants-appellants, Scope Cable Television, Inc., a corporation, and Scope Cable Television of Nebraska Co., a general partnership. Claiming that each of the sellers failed to deliver the promised number of subscribers and that each had improperly charged for certain accounts receivable, the purchaser brought the action designated in this court as case No. 88-821 against the corporate seller and the action denominated herein as case No. 88-822 against the partnership seller. Each seller in turn counterclaimed to recover on a promissory note the purchaser had executed in favor of the sellers.

In each suit the trial court granted the purchaser a partial summary judgment, ruling that the seller had indeed failed to deliver the promised number of subscribers. Pursuant to the agreement of the parties, the cases were thereafter consolidated for trial. A jury trial followed on the question of the damages resulting from the sellers' failure to deliver the promised number of subscribers. The jury returned verdicts finding that the purchaser had been damaged in each transaction.

By further agreement of the parties, the trial court, as the finder of fact and law, adjudicated the issues presented by the purchaser's accounts receivable claims and the sellers' counterclaims. The trial court awarded the purchaser an adjustment on the accounts receivable in each case and granted each seller a setoff under the note it had obtained from the purchaser.

After appeal to this court the cases were consolidated for briefing and argument. The sellers claim the trial court erred in (1) sustaining the purchaser's motions for partial summary judgment on the issue of liability, (2) admitting certain of the purchaser's damages evidence and refusing the sellers' damages instructions, (3) refusing to instruct the jury that the purchaser had a duty to mitigate its damages, (4) permitting the purchaser to withdraw a claim of attorney-client privilege with respect to a certain exhibit, in admitting said exhibit into evidence, and in not permitting its author to fully explain it, (5) overruling the sellers' motion for mistrial made at the conclusion of closing arguments, and (6) failing to grant the sellers' posttrial motions and in initiating proceedings subsequent to acceptance of the jury's verdicts and discharge of the jury.

By cross-appeal, the purchaser claims the trial court erred in granting the sellers interest on the promissory notes made by the purchaser.

Although the record sustains none of the sellers' assignments of error, the trial court incorrectly assessed the interest due on the promissory notes. Accordingly, we vacate the judgments of the trial court and remand with the direction that judgments be entered in accordance with this opinion.

II. FACTS

On June 21, 1985, the purchaser's predecessor in interest and the sellers entered into the contracts described in part I. By their terms, the contracts were not to be closed until sometime between October 31 and December 31, 1985. Although there were two separate sellers, cable systems, and contracts, the purchaser insists that it approached the transactions as one purchase, for one price, agreeing to the separate contracts and price allocations made therein as an accommodation to the sellers.

As part of its contract, the corporate seller warranted that it would, as of the date of closing, deliver at least 1,200 "basic subscribers," that is, consumers of the basic cable services the seller offered, and 1,160 "pay subscribers," that is, consumers of services in addition to basic services. The partnership seller warranted that it would deliver at least 2,125 basic subscribers and 2,060 pay subscribers.

In August or September 1985, the sellers informed the purchaser's predecessor of potential subscriber shortfalls. On October 18, 1985, the purchaser's predecessor assigned its rights under the agreements to the purchaser.

On November 5, 1985, the parties entered into a written addendum to their agreements. This document acknowledged that the sellers would be unable to deliver the warranted number of subscribers, and recited that the parties disagreed as to the purchaser's remedies for that failure. The compact noted that the sellers were of the view that the purchaser's sole remedy was to terminate the agreements and receive a refund of all moneys paid, whereas the purchaser maintained that such failure was a breach of the agreements, entitling it to exercise any remedy agreed upon in the contracts, including the instigation of a lawsuit. Having thus covenanted to disagree, the parties...