Havelock Bank of Lincoln v. Woods
| Decision Date | 11 January 1985 |
| Docket Number | No. 83-693,83-693 |
| Citation | 361 N.W.2d 197,219 Neb. 57 |
| Parties | HAVELOCK BANK OF LINCOLN, a corporation, Appellant, v. F. Pace WOODS II and F. Pace Woods II, doing business as Woods Bros. Realty, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Fraud. The essential elements required to sustain an action for fraudulent misrepresentation are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.
2. Fraud. Fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence.
3. Fraud. The fraud involved in the misrepresentation must relate to a present or preexisting fact, and generally may not be predicated on an inference concerning any event in the future or acts to be done in the future unless such representations as to future acts are falsely and fraudulently made with an intent to deceive.
4. Trial: Judgments. Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law. Neb.Rev.Stat. § 25-1127 (Reissue 1979).
5. Judgments. A general finding that the judgment should be for a certain party warrants the conclusion that the trial court found in his favor on all issuable facts.
6. Judgments: Appeal and Error. The findings of the court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed on appeal unless clearly wrong.
7. Judgments: Appeal and Error. In a law action tried without a jury, it is not within our province to resolve evidentiary conflicts or to weigh evidence; rather, it is our obligation to review the judgment entered in light of the evidence and to consider the evidence in that light most favorable to the successful party, resolving all conflicts in his favor and granting him the benefit of every inference which is reasonably deducible therefrom.
Edward F. Carter, Jr., and Dana Baker of Barney, Carter & Johnson, P.C., Lincoln, for appellant.
Terry R. Wittler of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellees.
This is a law action by Havelock Bank of Lincoln, plaintiff-appellant (hereafter Bank), against F. Pace Woods II and F. Pace Woods II, doing business as Woods Bros. Realty (hereafter Woods), for false representations concerning ownership of land inducing the Bank to loan $10,000 to Tartan Construction Company (hereafter Tartan) and its president, Duane R. Stewart (hereafter Stewart), secured by Tartan's assignment of proceeds from the sale of the real estate as thereafter received by Woods, the closing agent. Tartan is a bankrupt. Jury trial was waived. Judgment was entered for "defendant." The Bank appeals, assigning two errors that we consider together: (1) The trial court's failure to apply the correct measure of damages, and (2) The trial court's finding that the plaintiff failed to prove its damages with reasonable certainty.
The essential elements required to sustain an action for fraudulent misrepresentation are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage. Fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence. Erftmier v. Eickhoff, 210 Neb. 726, 316 N.W.2d 754 (1982).
Although not directly addressed by either party, we first examine the status and effect of the judgment entered, as taken from the judge's trial docket and later recorded in the court's journal as follows:
The "assignment" in this case was of money consisting of the "proceeds" of the purchase price of this sale of certain property. The plaintiff having failed to prove what that amount was and therefore with research [sic] certainty its damages, judgment should be and hereby is entered in favor of the defendant and against the plaintiff. Costs taxed to plaintiff.
No formal journal entry or judgment was prepared and filed. Neither party requested the court to make specific findings of fact and conclusions of law as provided in Neb.Rev.Stat. § 25-1127 (Reissue 1979):
Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.
From the assigned errors and supporting argument, it appears that appellant Bank assumes that the trial court made a finding for the Bank on all elements and issues of liability, overlooking the possibility that the judgment, as entered, was a general finding in favor of Woods on all issues, as is discussed in Burgess v. Curly Olney's, Inc., 198 Neb. 153, 156, 251 N.W.2d 888, 890 (1977):
court in favor of the successful party and the findings will not be disturbed unless clearly wrong.
"The rules stated in the three immediately preceding syllabi are not made inapplicable merely because in addition to the general finding the trial court also mentioned certain matters specifically."
"The sufficiency of a writing claimed to be a judgment is to be tested by its substance rather than its form." 46 Am.Jur.2d Judgments § 64 at 359 (1969).
As a judicial practice, a specific finding for the prevailing party is desirable; however, such is not required and, in the absence of a request for such findings, we examine this judgment as recorded. We conclude that the recitation therein, "judgment should be and hereby is entered in favor of the defendant and against the plaintiff," was a final order and a general finding for judgment in favor of Woods on all issuable facts, and the other findings concerning damages do not affect or change that general finding for Woods.
The findings of the court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed on appeal unless clearly wrong. South Sioux City Star v. Edwards, 218 Neb. 487, 357 N.W.2d 178 (1984). See, also, Steinauer v. Sarpy County, 217 Neb. 830, 353 N.W.2d 715 (1984).
In a law action tried without a jury, it is not within our province to resolve evidentiary conflicts or to weigh evidence; rather, it is our obligation to review the judgment entered in light of the evidence and to...
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