Hoeft v. Five Points Bank, S-93-954

• Decision Date: 09 November 1995
• Docket Number: No. S-93-954,S-93-954
• Citation: 248 Neb. 772,539 N.W.2d 637
• Parties: John F. HOEFT, Appellee, v. FIVE POINTS BANK, a Nebraska Banking Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 637

539 N.W.2d 637

248 Neb. 772

John F. HOEFT, Appellee, v. FIVE POINTS BANK, a Nebraska Banking Corporation, Appellant.

No. S-93-954.

Supreme Court of Nebraska.

Nov. 9, 1995.

Syllabus by the Court

1. Directed Verdict: Evidence: Appeal and Error. When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law.

2. Evidence: Trial. Where reasonable minds may differ as to the conclusions or inferences to be drawn from the evidence or where there is a conflict in the evidence, such issues must be submitted to the jury.

3. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

4. Contracts: Proof. A party seeking to enforce a contract has the burden of establishing the existence of a valid, legally enforceable contract.

5. Contracts: Proof. A party seeking to enforce a contract must show that there was a definite offer and an unconditional acceptance with nothing left open for future arrangement.

6. Contracts: Parties. There must be a meeting of the minds or a binding mutual understanding between the parties to a contract.

7. Contracts: Parties. A binding mutual understanding or meeting of the minds sufficient to establish a contract requires no precise formality or express utterance from the parties themselves as to all of the details of the proposed agreement; it may be implied from conduct and the surrounding circumstances. Likewise, the acceptance of an offer may be shown by words, conduct, or acquiescence indicating agreement.

8. Contracts: Rescission. Rescission implies extinction of the contract which leaves the parties without a right of recovery on the contract itself.

9. Contracts: Rescission. In determining whether a rescission took place, courts look not only to the language of the parties but to all the circumstances.

10. Contracts: Actions: Time. An action upon an oral contract can only be brought within 4 years of the date on which it accrued.

11. Limitations of Actions: Time: Damages. An action accrues and the statutory time within which the action must be filed begins to run when the injured party has the right to institute and maintain a lawsuit, although the party may not know the nature and extent of the damages.

12. Actions: Contracts: Time. A cause of action in contract accrues at the time of the breach or failure to do the thing agreed to.

13. Limitations of Actions: Appeal and Error. The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.

14. Contracts: Words and Phrases. Oral contracts consisting of a special promise to answer for the debt, default, or misdoings of another person are void.

15. Statute of Frauds: Debtors and Creditors: Consideration. Where the principal object of a party promising to pay the debt of another is to promote his own interests, and not to become a guarantor or surety, and the promise is made on sufficient consideration, it will be valid although not in writing.

16. Statute of Frauds: Debtors and Creditors. A consideration to support a promise, not in writing, to pay the debt of another must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt.

17. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

18. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court.

Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellant.

John A. Wolf, of Shamberg, Wolf, McDermott & Depue, Grand Island, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, WRIGHT, and GERRARD, JJ.

WHITE, Chief Justice.

This is an appeal from a jury award of damages to appellee John F. Hoeft, arising from appellant Five Points Bank's breach of an alleged oral contract. At trial, John Hoeft alleged that, under the terms of the contract, Five Points had promised to bear half of the expenses pertaining to a real estate sale in exchange for an assignment of half of the payments due under the sale. The jury found for John Hoeft. Five Points filed a motion for judgment notwithstanding the verdict and a motion for a new trial. These motions were denied by the district court. Five Points appeals the denial of these motions.

Five Points assigns six errors. Four of the errors are based on the district court's overruling of Five Points' motion for judgment notwithstanding the verdict, which was based on its earlier motion for a directed verdict. Five Points contends that the district court erred (1) in failing to direct a verdict finding that John Hoeft had not met his burden of proof to establish the existence of a valid enforceable contract; (2) in failing to direct a verdict finding that John Hoeft had rescinded the oral contract, if one in fact existed; (3) in failing to direct a verdict finding that John Hoeft's suit was barred by the statute of limitations; (4) in failing to direct a verdict finding that if a contract existed, it was barred by the statute of frauds; (5) in permitting Margaret Hoeft, John Hoeft's wife, to be used as a rebuttal witness; and (6) in permitting John Hoeft's counsel to introduce unfair, prejudicial evidence by making reference to John Hoeft's financial condition and by implying a financial conspiracy between Five Points and others. Since the district court properly refused to direct a verdict and did not abuse its discretion in admitting the evidence, we affirm.

John Hoeft and his brother, Thomas (Tom) E. Hoeft, were partners in a limited partnership known as Nebraska Motel Developers (NMD), which invested in a Ramada Inn in Grand Island. In July 1981, John and Tom Hoeft obtained the interests of the other partners and gained control and ownership of NMD. The terms of this buyout required John and Tom Hoeft to make payments to former partners in addition to continuing to make payments to the mortgagee, First Federal Savings & Loan.

In June 1982, John and Tom Hoeft agreed to sell their interest in the NMD partnership to outside investors, referred to by the parties as the "Huwaldt group." Because the Ramada was losing money at the time of the sale, the brothers agreed to allow the Huwaldt group to defer payments on the purchase until February 1984.

When John and Tom Hoeft agreed to sell their interest in NMD to the Huwaldt group, Tom Hoeft was experiencing financial problems. Tom Hoeft had been unable to pay his portion of expenses arising from the NMD investment, and the brothers determined it was in their best interest for Tom Hoeft to assign his interest over to John Hoeft. On July 2, 1982, Tom Hoeft assigned all money due and payable to him under the Huwaldt group sales agreement to John Hoeft.

During the following 2 years, Tom Hoeft's financial troubles continued, and he had difficulty keeping current on a loan issued by Five Points. In February 1984, Five Points requested additional security. Tom Hoeft assigned his interest in the proceeds from the Huwaldt group sales agreement to Five Points. The alleged oral contract at the heart of this dispute arose out of John Hoeft's and Five Points' resolution of Tom Hoeft's conflicting assignments.

It is disputed by the parties whether John Hoeft learned of the second assignment before or after it was executed. When John Hoeft learned that Tom Hoeft had executed a second assignment, he arranged a meeting with Bill Marshall, a representative of Five Points. John Hoeft testified that he told Marshall that

the second assignment, as far as I was concerned was really worthless; but that if he wanted to step into Tom's shoes and take half the payments I would do that in return for the fact that he would pick up half the expenses on any of the present expenses that were occurring and also any future ones that were occurring pertaining to that particular contract.

According to John Hoeft, Marshall agreed.

After the meeting, John Hoeft calculated the expenses that had been incurred to date as a result of the NMD contract. John Hoeft prepared a summary of those expenses and determined that Tom Hoeft's half of the expenses totaled $10,313.71. The expenses included accounting and legal fees and amounts paid to former partner Lyle Fisher.

John Hoeft presented the expense summary to Marshall on or about February 17, 1984. Five Points recalculated Tom Hoeft's indebtedness and added $10,313.71 to the amount loaned. A check for that amount, payable to Tom Hoeft and John Hoeft, was issued on February 17 and was cashed by John Hoeft.

John Hoeft testified that Marshall told him to write up a short letter explaining what the parties had agreed upon. John Hoeft did so and copied it to Larry Huwaldt of the Huwaldt group. That letter, dated February 20, 1984, states:

Gentlemen:

I have been made aware that Tom Hoeft has assigned his share of future payments to be made to him from Nebr. Motel Developers, starting with payment No. 3 due April 10, 1984, in the amount of $1,234.60 monthly to Five Points Bank, Grand Island. To the extent that he has and continues to meet his 1/2 obligation...