Lis v. Moser Well Drilling & Service, Inc.

• Decision Date: 06 December 1985
• Docket Number: No. 84-691,84-691
• Citation: 221 Neb. 349,377 N.W.2d 98
• Parties: Bill and Stella LIS, Husband and Wife, Appellants, v. MOSER WELL DRILLING & SERVICE, INC., a Nebraska Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 98

377 N.W.2d 98

221 Neb. 349

Bill and Stella LIS, Husband and Wife, Appellants, v. MOSER WELL DRILLING & SERVICE, INC., a Nebraska Corporation, Appellee.

No. 84-691.

Supreme Court of Nebraska.

Dec. 6, 1985.

Syllabus by the Court

1. Actions: Contracts. A suit on a contract presents an action at law.

2. Judgments: Appeal and Error. The findings and conclusions of the trial court in an action at law tried without a jury have the effect of a jury verdict and will not be set aside by the Nebraska Supreme Court unless they are clearly wrong.

3. Contracts: Damages: Proof. One seeking recovery in a contract action has the burden of proving damages with as much certainty as the case permits.

4. Contracts: Damages. If a construction contract is substantially performed, the damages which the owner suffers because of defective workmanship or the use of unsuitable materials are measured by the reasonable cost of remedying the defects, if remediable; if the defects are not remediable without reconstruction of or material injury to a substantial portion of the improvement, the damages are measured by the difference between the value of the improvement as constructed compared to what its value would have been if constructed according to the contract.

5. Damages: Proof. Proof of damages to a mathematical certainty is not required; the proof is sufficient if the evidence is such as to allow the trier of fact to estimate the actual damages with a reasonable degree of certainty and exactness.

Richard D. Sievers, Lincoln, for appellants.

Rex R. Schultze of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, for appellee.

KRIVOSHA, C.J., and CAPORALE and SHANAHAN, JJ., and GARDEN, D.J., and COLWELL, D.J., Retired.

CAPORALE, Justice.

Plaintiffs, Bill and Stella Lis, husband and wife, appeal from the dismissal of their suit for damages arising out of the breach of a contract by the defendant, Moser Well Drilling & Service, Inc., a Nebraska corporation. The Lises' dispositive assignment in this court is that the county and district courts erred in ruling that they failed to prove their damages. We affirm as to Stella Lis and reverse and remand with the direction that judgment be entered in favor of Bill Lis.

The Lises own real estate on which a water well was drilled when their house was built. Approximately 13 years later, on May 31, 1982, Bill Lis contracted to purchase a water supply and heat exchange system from Moser. The system was designed to provide water for household uses and to take water from the supply well, extract the thermal value therefrom, circulate air thus chilled or warmed through the house, and discharge the water used by the heat exchange portion of the system into a second, or return, well.

Moser elected to design the system so as to use the well already on the property as the return well. It became apparent as soon as the installation was completed, however, that this well would not accept all of the discharge water; it overflowed, thereby causing the discharge water to flood the Lises' property. Because of this malfunction, Bill Lis refused to pay the full contract price. As a consequence, Moser agreed to acidize the well, that is, wash it out with an acid solution. As part of that undertaking, Moser wrote that it did "not expressly [sic] or imply any form of a warranty on the return well for any defects it might have in the future after we get it to accept water without running water over the top of the well." Moser thereafter acidized the well twice; later blew air into it; and finally deepened it. Following each of these procedures, the return well accepted all of the discharge water for short periods, but then began to overflow again. Bill Lis paid the remainder of the purchase price after the first short successful operation of the system.

A fair summary of the Lises' evidence is that a new return well would likely solve the overflow problem. Moser's evidence is that there is a 50-percent chance that a new return well would solve the problem and that additional acidization or other procedures might have as good a chance to solve the problem.

The uncontroverted evidence is that a new return well would cost $2,000.

The county court found that "a breach of contract" had been proved but that the Lises fell "short on their proof of damages."

This being a suit on a contract, it is an action at law. Occidental S. & L. v. Bell Fed. Credit Union, 218 Neb. 519, 357 N.W.2d 198 (1984). That being so, the findings and conclusions of the county court have the effect of a jury verdict and will not be set aside by this court unless they are clearly wrong. Schmode's, Inc. v. Wilkinson, 219 Neb. 209, 361 N.W.2d 557 (1985); H & L Equip. v. Schardt, 217 Neb. 653, 349 N.W.2d 924 (1984).

Moser contends that its undertaking was only to acidize the well, which it did. The county court in effect found that Moser's undertaking was to solve the overflow problem, as contended by the Lises. The record supports that finding. Moser's statement that it made no warranty once it got the return well "to accept water without running water over the top of the well" is certainly susceptible to the interpretation that Moser agreed not to get the return well to accept the...