Lange Bldg. and Farm Supply, Inc. v. Open Circle 'R', Inc.

Decision Date23 December 1983
Docket NumberNo. 82-412,82-412
Citation216 Neb. 1,342 N.W.2d 360
PartiesLANGE BUILDING AND FARM SUPPLY, INC., a corporation, Appellee, v. OPEN CIRCLE "R", INC., a corporation, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

Directed Verdict. A motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the verdict is sought, and the party must be given the benefit of every inference which can reasonably be drawn therefrom.

Directed Verdict. Where reasonable minds may differ as to the conclusions or inferences to be drawn from the evidence, such issue must be submitted to the jury.

Contracts: Substantial Performance. Substantial performance must be shown before an action on the contract can be brought.

Contracts: Substantial Performance. There is substantial performance of a building contract where all of the essential elements necessary to the full accomplishment of the purposes for which the thing contracted for has been constructed and performed with such an approximation to complete strict performance that the owner obtains substantially what is called for by the contract.

Jury Instructions. Jury instructions must be considered together, and if when considered as a whole they state the law correctly, they are not erroneous. In the framing of jury instructions it is not necessary that the trial court follow the exact language used by this court in stating a rule of law.

Trial: Witnesses: Motions for Mistrial. Where plaintiff's counsel on cross-examination of defendant's witness propounds a question which calls for proper evidence, the fact that an irresponsive or inadvertent answer includes reference to insurance will not be grounds for declaring a mistrial.

Trial: Witnesses: Motions for Mistrial. A party to an action cannot be heard to complain if reference to insurance is interjected by his own witness and the other party's counsel is in no way responsible for it.

Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.

Sidwell & Shofstall, Kearney, for appellee.

BOSLAUGH, WHITE, and HASTINGS, JJ., and BROWER and McGINN, District Judges.

BROWER, District Judge.

This action was brought by Lange Building and Farm Supply, Inc. (builder), to recover the breach of a written contract for the repair of a grain storage bin and, for its second cause of action, to recover money for improvements made to a second grain bin under an oral contract.

Open Circle "R", Inc. (owner), denied generally the claims of builder's first cause of action, admitted there had been a written agreement for such work, but alleged that builder had failed to substantially perform the contract. By way of cross-petition, counterclaim, and setoff, owner claimed damages, alleging that builder had damaged steel panels while attempting to repair the bin; had impliedly warranted its work; in breach of said warranty had caused damage, which was the fair and reasonable value of the labor and material required to repair the bin; and had, in addition, damaged a grain auger, which had to be replaced.

In answer to the second cause owner admitted the performance by builder of the oral contract to provide improvements for the second grain bin, but disputed the consideration due builder for the performance.

This case had previously been before the court for review, Lange Building & Farm Supply, Inc. v. Open Circle "R", Inc., 210 Neb. 201, 313 N.W.2d 645 (1981), where this court had reversed the dismissal of the builder's suit by the trial court and remanded the case for further proceedings. The case was retried to a jury, at the conclusion of which a verdict was rendered for builder in the amount of $5,714.05. Upon the overruling of owner's motions for a new trial and judgment notwithstanding the verdict, appeal was made to this court.

The owner-appellant assigns certain errors in the proceeding below, and they are as follows: (1) The court failed to sustain owner's motion for a directed verdict at the close of builder's case; (2) The court erred in failing to give certain instructions to the jury proposed by owner; and (3) The court erred in failing to declare a mistrial.

The law is clear that a motion for a directed verdict must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the verdict is sought, and the party must be given the benefit of every inference which can reasonably be drawn therefrom. El Fredo Pizza, Inc. v. Roto-Flex Oven Company, 199 Neb. 697, 261 N.W.2d 358 (1978); Settell's, Inc. v. Pitney Bowes, Inc., 209 Neb. 26, 305 N.W.2d 896 (1981).

"[W]here reasonable minds may differ as to conclusions or inferences to be drawn from the evidence ... such issues must be submitted to the jury." Hansen v. Hasenkamp, 192 Neb. 530, 534, 223 N.W.2d 44, 47 (1974); Gerhardt v. McChesney, 210 Neb. 351, 314 N.W.2d 258 (1982).

We must therefore review all of builder's evidence and the pleadings in this posture. The evidence discloses that the parties had entered into a contract to repair a storm-damaged grain bin following an inspection of the building by builder. Builder's president, who had discussed the repairs with Robert Cruise, president of owner, testified that they had discussed various ways that repairs might be made. This discussion took place in December of 1977. Following that discussion, builder conveyed a proposal to owner, which was delivered by mail in February of 1978.

After builder's proposal had been delivered to owner, the parties discussed three plans contained in the proposal. The first plan set out in the proposal provided for the removal of damaged steel sheets from the structure, and for the replacement thereof. The testimony shows that this plan would involve a high degree of risk, and no attempt was to be made to repair the bin in this fashion.

The second plan, which was designated as "Option I" in the contract or proposal, provided that the roof section, including the top two rings, was to be lifted off the damaged structure and the damaged plates replaced, followed by the lowering of the top rings and roof to the structure. "Option I" provided for consideration in the amount of $5,539.05.

The contract also contained a third plan, designated "Option II." This plan involved the jacking down of the entire bin and replacing the damaged steel sheets as the bin was reconstructed. The contract sets forth that the consideration for this "Option II" was $6,739.05.

Builder's testimony disclosed that if the attempted repairs under "Option I" did not succeed, it would then proceed to make repairs under the plan provided in "Option II." Builder's testimony indicates that owner had agreed to such plan, provided owner was notified before builder proceeded with "Option II."

The contract or proposal that was signed by both parties does not specify which method of repair was to be undertaken by builder.

Builder did proceed to do the repair work on the first grain bin by resorting to the plan set forth in "Option I." The roof and top two rings were lifted off by a large crane, and the damaged panels were replaced. Upon attempting to lower the top two rings and roof sections to the bottom portion of the bin, an auger was damaged, which is admitted by builder. The testimony reflects that builder agreed to adjust for this damage, but the parties could not agree as to the value of the auger.

When builder attempted to refasten the repaired top section of the bin and roof to the lower section, it was determined that the removed section would not fit the lower portion. Chains, clamps, and various tools were used in an attempt to draw the bin sections together, but all such efforts failed, and owner, after viewing the building, instructed builder to stop work. By use of a transit it was discovered at this time by builder that the foundation on one side of the bin had settled, thus causing the top of one side of the lower section of the bin to be lower than the other. For this reason the removed section could not be reattached to the lower portion.

Builder then instructed owner that there was no point in proceeding any further with "Option I" and that it would have to proceed with "Option II" if the bin were to be repaired. At this juncture owner informed builder that owner wanted to consult with others first.

No further directions came from owner, and owner employed another contractor to make the repairs under "Option II" set forth in the contract. After builder submitted its bill for work performed under "Option I" and owner failed to pay, this action was commenced.

Performance of the work as to the second grain bin was admitted, and there appears only a dispute as to what builder was to receive for the work performed.

All of the evidence thus adduced, together with the pleadings, in builder's case, viewed in the light most favorable to that party, could reasonably show that builder had substantially performed its part of the agreement as far as it could go when owner refused to permit builder to proceed under "Option II" when the method of repair outlined under "Option I" failed to accomplish the desired result. The trial court was correct when it overruled owner's motion for a directed verdict.

We next proceed to the question raised by the failure of the court to submit to the jury owner's tendered instruction No. 6. The trial court in its instruction defined substantial performance as follows: "Each party to a contract has a duty to perform his obligations under the contract. Performance may be substantial even though every detail is not in strict compliance with the terms of the contract; something less than perfection is required. Some measure of nonperformance will be tolerated if the defendant has received, with relatively minor and unimportant deviations, what he bargained for. But if the defect or uncompleted performance...

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    • 21 April 1995 not established, the performance is not substantial and the party has no right to recover. Lange Bldg. & Farm Supply v. Open Circle "R", 216 Neb. 1, 342 N.W.2d 360 (1983). Substantial performance is a relative term and whether it exists is a question to be determined in each case with re......
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