Hecker v. Ravenna Bank

• Decision Date: 12 April 1991
• Docket Number: Nos. 88-866,88-867,s. 88-866
• Citation: 237 Neb. 810,468 N.W.2d 88
• Parties: , 14 UCC Rep.Serv.2d 815 Paul A. HECKER, Appellant, v. The RAVENNA BANK, a Banking Corporation, et al., Appellees. Arnold C. HECKER, Appellant, v. The RAVENNA BANK, a Banking Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 88

468 N.W.2d 88

237 Neb. 810, 14 UCC Rep.Serv.2d 815

Paul A. HECKER, Appellant, v. The RAVENNA BANK, a Banking Corporation, et al., Appellees.

Arnold C. HECKER, Appellant, v. The RAVENNA BANK, a Banking Corporation, et al., Appellees.

Nos. 88-866, 88-867.

Supreme Court of Nebraska.

April 12, 1991.

Syllabus by the Court

1. Demurrer: Pleadings. When ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

2. Contracts: Consideration. Sufficient and valid consideration is essential to an enforceable express contract.

3. Actions: Breach of Contract: Consideration. For a cause of action based on a breach of express contract, there must be an unconditional and absolute acceptance of a definite offer constituting an agreement supported by sufficient and valid consideration.

4. Corporations: Liability: Debtors and Creditors. Generally, a corporation's directors or officers are not liable to the corporation's creditors or third persons for corporate acts or debts, simply by reason of an official relation with the corporation.

5. Corporations: Contracts: Liability. As a general rule, concerning liability on a corporate contract, a corporation's directors or officers are in the same position as agents of private individuals and are not personally liable on a corporation's contract unless the corporate directors or officers purport to bind themselves, or have otherwise bound themselves, to performance of the contract.

6. Banks and Banking: Negotiable Instruments: Words and Phrases. A cashier's check is a bill of exchange drawn by a bank on itself; hence, issuance of a cashier's check constitutes acceptance by the issuing bank.

7. Negotiable Instruments: Conversion. A negotiable instrument can be the subject of conversion.

8. Property: Conversion: Words and Phrases. Conversion is the unauthorized and wrongful dominion over personal property owned by another, which is exerted 9. Uniform Commercial Code: Negotiable Instruments: Conversion. Neb.U.C.C. § 3-419 (Reissue 1980) supplies examples of ways in which a negotiable instrument may be converted, and does not list the elements which constitute tortious conversion of a negotiable instrument.

as a denial of or inconsistent with the owner's rights in the property or is asserted in derogation, exclusion, or defiance of another's ownership or title in personal property.

10. Uniform Commercial Code: Negotiable Instruments: Conversion. Neb.U.C.C. § 3-419 (Reissue 1980) does not displace the common-law action for conversion of a negotiable instrument, but coexists with Nebraska's common law.

11. Corporations: Liability: Conversion. A corporation's officer or agent is personally liable if the officer or agent causes a conversion of another's property, and it is no defense that such officer or agent converted the property while acting for the corporation.

12. Uniform Commercial Code: Banks and Banking: Negotiable Instruments: Liability. Neb.U.C.C. § 4-402 (Reissue 1980) provides that a payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item.

13. Uniform Commercial Code: Negotiable Instruments: Words and Phrases. Generally, payees of a cashier's check are not "customers" under Neb.U.C.C. § 4-104(1)(e) (Reissue 1980).

14. Banks and Banking: Negotiable Instruments: Words and Phrases. Wrongful refusal to honor a cashier's check occurs when a payee of a cashier's check delivers or negotiates the check for payment, and the issuing bank refuses to honor the check.

15. Actions: Parties: Joinder. Causes of action involving different defendants cannot be joined unless each cause affects them all and they have a joint or common liability or interest.

16. Actions: Parties: Joinder: Contracts. Joint obligees must sue jointly in actions ex contractu.

17. Motions to Strike: Pleadings. A motion to strike a petition, pursuant to Neb.Rev.Stat. § 25-913 (Reissue 1989), is not a substitute for a demurrer under Neb.Rev.Stat. § 25-806 (Reissue 1989) or for a motion to strike or make more definite and certain as authorized by Neb.Rev.Stat. § 25-833 (Reissue 1989).

18. Motions to Strike: Pleadings. A motion to strike a petition, pursuant to Neb.Rev.Stat. § 25-913 (Reissue 1989), may be directed only to a petition filed in violation of a court's order or a rule of practice or procedure prescribed either by statute or by the court in which the petition is filed.

John S. Mingus, of Mingus & Mingus, Ravenna, for appellants.

Wesley C. Mues of Knapp, Mues, Beavers & Luther, Kearney, for appellees.

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

SHANAHAN, Justice.

In March 1986, Paul A. Hecker and Arnold C. Hecker commenced actions against The Ravenna Bank; Dale E. Pohlmann, the bank's president; and James H. Oliver, chairman of the bank's board of directors. The actions related, first, to an oral agreement between Heckers and Ravenna Bank for credit and financing and, second, to a cashier's check payable to "Paul Hecker and Arnold Hecker and John Mingus." After a series of amended petitions, Heckers, in March 1988, each filed a "Fifth Amended Petition." When the district court for Buffalo County sustained demurrers to the amended petitions, Heckers elected to stand on their pleadings. The court dismissed Heckers' actions; hence, these appeals. We affirm in part, and in part reverse.

STANDARD OF REVIEW

" 'In reviewing an order sustaining a demurrer, the Supreme Court accepts the When ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader.' " Security Inv. Co. v. State, 231 Neb. 536, 538, 437 N.W.2d 439, 442 (1989).

Schuyler State Bank v. Cech, 228 Neb. 588, 593, 423 N.W.2d 464, 468 (1988). Accord Parrett v. Platte Valley State Bank, 236 Neb. 139, 459 N.W.2d 371 (1990).

THE HECKERS' LAST AMENDED PETITIONS

Factual Background.

According to Heckers, all activities and conduct in question occurred in response to Ravenna Bank's "policies concerning loans and business dealings" with Heckers. At all times in any transaction related to Heckers' lawsuits, Pohlmann and Oliver were acting in their official bank capacities and at the "Ravenna Bank's behest." Such "behesting" was alleged in each of the four "causes of action" contained in Heckers' fifth, and last, amended petitions, "causes of action" which will be designated and discussed after our review of facts which, under the particular standard of review, "are true as alleged [with] the benefit of any reasonable inference from the facts alleged...." Schuyler State Bank v. Cech, supra, 228 Neb. at 593, 423 N.W.2d at 468.

Heckers own a farm and livestock operation. In 1975, Ravenna Bank orally agreed to loan money or extend credit to Heckers for their operating expenses and advise them regarding financial matters pertinent to their business. Heckers agreed that Ravenna Bank would be their "sole lending institution" and that they would abide by the bank's determinations and business directives based on semiannual reviews of the Hecker operations.

During a semiannual review meeting in January 1982 and as a condition for further bank credit, Ravenna Bank required that Heckers' mother guarantee part of Heckers' debt to the bank. After Heckers supplied the guaranty, Ravenna Bank promised to "pay for" agricultural expenses subsequently incurred by Heckers, including their fertilizer, chemical, and fuel bills, but then reneged on that promise. On March 18, 1983, Ravenna Bank

wrongfully convert[ed] a cashier's check # 25783 in the sum of $93,442.66, the maker thereof being the Ravenna Bank, Remitter, Mike Dobish, payees being Paul Hecker, Arnold Hecker and John Mingus, by stopping payment of said cashier's check and applying it to the outstanding loan of Arnold C. Hecker and Paul A. Hecker in lieu of honoring the payment of the same to the aforesaid designated payees thereon....

Without Heckers' consent, proceeds from the cashier's check were applied on Heckers' debt to Ravenna Bank.

Causes of Action.

Heckers alleged four "causes of action." The first cause of action was based on a breach of the oral contract for an extension of credit or a bank loan to Heckers, the second was "wrongful conversion" of the cashier's check, the third was "wrongful dishonor" of the cashier's check under Neb.U.C.C. § 4-402 (Reissue 1980), and the fourth was "wrongful refusal" to honor the cashier's check. Heckers claimed several items of damage, but did not seek judgments for recovery of the proceeds from the cashier's check.

Appellees' Pleadings.

In response to demurrers directed to each "Fourth Amended Petition" of the Heckers, the court, on February 26, 1988, granted Heckers 20 days to file additional amended petitions. Within the 20 days, each of the Heckers filed a "Fifth Amended Petition." Pursuant to Neb.Rev.Stat. § 25-913 (Reissue 1989) (pleadings stricken), the appellees requested that the Heckers' Judgments.

fifth amended petitions, in their entirety, be stricken because those petitions were "filed in direct violation of this Court's order of February 26, 1988...." Also, the appellees demurred to Heckers' amended petitions and claimed, among other things, that...