Kline v. Metcalfe Const. Co.

• Citation: 27 N.W.2d 383,148 Neb. 357
• Decision Date: 09 May 1947
• Docket Number: 32170.
• Parties: KLINE v. METCALFE CONST. CO. et al.
• Court: Supreme Court of Nebraska

27 N.W.2d 383

148 Neb. 357

KLINE v. METCALFE CONST. CO. et al.

No. 32170.

Supreme Court of Nebraska

May 9, 1947

Syllabus by the Court.

1. Where a case has been reversed for error in instructing a verdict for the defendant and remanded generally, the holding that the plaintiff is entitled to have the case submitted to the jury becomes the law of the case upon a second trial where the evidence is substantially the same.

2. The rulings on the admission of testimony can be reviewed by this court when, either by general or specific assignment in the motion for new trial, they are called to the attention of the trial court.

3. A letter written by a public officer stating what the records of his office disclose is not competent evidence of the facts stated.

4. Where the evidence is insufficient to sustain a verdict for plaintiff, dismissal of action is proper.

5. To establish an express contract there must be shown what amounts to a definite proposal and an unconditional and absolute acceptance thereof.

6. When a party makes an offer with certain terms or conditions but accepts an acceptance or counter offer which is not completely responsive to the proposal he is bound by the contract thus made and cannot fall back on his original proposal in case of subsequent disagreement.

7. The giving of erroneous instructions is not cause for reversal, if the instructions are more favorable to the complaining party than he is entitled to under the law.

NUSS District Judge, dissenting.

Joseph T. Votava, of Omaha, for appellants.

John C. Mullen, Gerald M. Mullen, and Jean M. Johnson, all of Omaha, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, YEAGER, and CHAPPELL, JJ., and NUSS, District Judge.

WENKE Justice.

Plaintiff Frank John Kline, brought this action in the district court for Douglas County seeking to recover damages for loss of wages caused by the defendants' breach of his contract of employment with them. The jury returned its verdict in favor of the plaintiff and the court entered a judgment thereon. Their motion for new trial having been overruled, the defendants appeal.

This action was previously appealed to this court and is reported as Kline v. Metcalfe Construction Co., 146 Neb. 389, 19 N.W.2d 693. The sole question involved in the former appeal was whether or not the trial court erred in directing a verdict for the defendants and entering a judgment in their favor. We therein held that the facts, as set forth in the opinion, presented a jury question and reversed the trial court and remanded the cause for further proceedings. The case was retried on the same pleadings and substantially the same evidence as before.

In Callahan v. Prewitt, on rehearing, 143 Neb. 793, 13 N.W.2d 660, we held:

'Where on appeal findings of fact are made which become the law of the case and there is a remand for a new trial, on such retrial, such findings are binding on the parties, the trial court and this court, unless on the retrial the facts relating to the issues upon which the findings were made are materially and substantially different from those adduced on the former trial, and the burden of showing a difference shall rest upon the party making the claim.

'The determination of the question of whether or not the evidence on a retrial is different from that adduced on an earlier trial is one for the court and not for the jury.'

'Where a case has been reversed for error in instructing a verdict for defendant, and remanded generally, the holding that plaintiff is entitled to recover becomes the law of the case upon a second appeal, where the evidence upon both trials is substantially the same.' Yeggy v. Fidelity Reserve Co., 118 Neb. 792, 226 N.W. 444. See, also, Fitzgerald v. Union Stock Yards Co., 91 Neb. 493, 136 N.W. 838.

Therefore the court did not err in submitting the case to the jury unless the appellants are right in their contention that certain evidence was erroneously received over their objection and, in the absence thereof, they were entitled to a directed verdict.

The error complained of is the court's ruling on exhibit No. 9.

The appellee contends that the appellants failed to set out in their motion for new trial that the court erred in admitting in evidence exhibit No. 9 and therefore this court cannot consider the trial court's ruling thereon.

Assignment No. 10 of the appellants' motion for new trial is as follows: 'Because of errors in the admission of evidence on behalf of the plaintiff, duly excepted to and objected to by the defendants, and which evidence was prejudicial to said defendants.'

We held in Dunbier v. Mengedoht, 119 Neb. 706, 230 N.W. 669, 670: "The rulings on the admission of testimony cannot be reviewed unless the same were, either by general or specific assignments, called to the attention of the trial court by the motion for a new trial.' Flower v. Nichols, 55 Neb. 314, 75 N.W. 864.'

We find the general assignment in the motion for new trial to be sufficient.

Exhibit No. 9 is a letter from the state director for Nebraska of the War Manpower Commission. It is as follows:

'June 29, 1944 * * *

'Your requests in their entirety concerning the case of Frank John Kline, 440 South 13th Street, Lincoln, Nebraska, cannot be complied with under ordinary circumstances because of an administrative policy on disclosure of information. However, we have made an attempt to assist you insofar as it is possible.

'We find from our records that Mr. Kline was released without prejudice and obtained the necessary clearance from this office. Since there is this discrepancy concerning his release, we suggest that you get in touch with his former employer, the US Engineers, as the release was signed by Captain Richard Blore, Area Engineer.

'We trust that this information will be of some assistance to you.'

On the first trial this exhibit was received without objection and considered as part of the evidence in the case as is evidenced by the opinion. On the second trial objection was made thereto on the ground that it is hearsay and not the best evidence.

The objection was well taken on both grounds.

As stated in Boehmer v. Heinen, 143 Neb. 200, 9 N.W.2d 216, 218: 'Any statement, oral or written, the persuasiveness or probative value of which depends partly or wholly on something other than the credit to be given to the witness testifying or the instrument which contains it and renders necessary a resort to the veracity and competency of some other person, is hearsay and not properly admissible as evidence.' See, also, Dier v. Dier, 141 Neb. 685, 4 N.W.2d 731; 31 C.J.S., Evidence, § 194, p. 930; and 20 Am.Jur., Evidence, § 455, p. 403.

'A certified copy of a letter written by a public officer, stating in a general way what the records of his office disclose, is not competent evidence of the facts stated.' Moore v. Parker, 59 Neb. 29, 80 N.W. 43. And as stated in Sampson v. Northwestern National Life Ins. Co., 85 Neb. 319, 123 N.W. 302, 303: 'The certificate offered was a mere statement by the officer of what the books contained, and was not the best evidence.'

In their answer the appellants alleged: 'Said plaintiff failed to obtain a 'clear release' from his employment with the Area Engineer, and the District Engineer, U. S. Engineer Office, Omaha, Nebraska, which was made a condition precedent to his employment by the defendants.'

This issue was submitted to the jury as part of instruction No. 3 as follows:

'The burden is upon the plaintiff to establish by a preponderance of the evidence the following propositions: * * * 5. That he had a 'clear release' from the United States Engineer's Department with whom he was employed in Nebraska, as the term 'clear release' is hereinafter defined. * * *.'

Instruction No. 4 is as follows: 'By the term 'clear release' as used in these instructions is meant such release from his then employment by the U. S. Engineers as would enable him to accept work with another war agency or essential activity.'

It is appellants' contention that, in the absence of exhibit No. 9, there is no evidence in the record showing that appellee was ever released from the United States Engineers and, since that was a specific requirement of the appellants' offer, they are entitled to a directed verdict.

Where the evidence is insufficient to sustain a verdict for plaintiff, dismissal of action is proper. Bauer v. Wood, 144 Neb. 14, 12 N.W.2d 118.

As stated in 17 C.J.S., Contracts, § 42, p. 378: '* * * the offerer has a right to prescribe in his offer any conditions as to time, place, quantity, mode of acceptance, or other matters which it may please him to insert in and make a part thereof, and the acceptance, to conclude the agreement, must in every respect meet and correspond with the offer, neither falling short of nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand, and, in the absence of such an acceptance, subsequent words or acts of the parties cannot create a contract.'

In Evans v. Platte Valley Public Power & Irr. Dist., 144 Neb. 368, 13 N.W.2d 401, 402, we approved the following from Federal Reserve Bank v. Neuse Mfg. Co., 213 N.C. 489, 196 S.E. 848:

'That a contract is not made so long as in the contemplation of both parties thereto something remains to be done to establish contract relations is too well established to require the citation of authority. * * * In negotiating a contract the parties may impose any condition precedent, a performance of which condition is essential before the parties become bound by the agreement.'

'To establish an express contract there must be shown what amounts to a definite proposal and an unconditional and...