Mahoney v. May

• Decision Date: 03 October 1980
• Docket Number: No. 42783,42783
• Citation: 297 N.W.2d 157,207 Neb. 187
• Parties: J. Phillip MAHONEY, Appellant, v. Alvan MAY, Appellee.
• Court: Nebraska Supreme Court

Page 157

297 N.W.2d 157

207 Neb. 187

J. Phillip MAHONEY, Appellant, v. Alvan MAY, Appellee.

No. 42783.

Supreme Court of Nebraska.

Oct. 3, 1980.

Syllabus by the Court

1. Trials: Pleadings. The court, in furtherance of justice, may amend any pleading, when the amendment does not change substantially the claim or defense, by conforming the pleadings to the facts proved. The decision to allow or deny the proposed amendment rests in the sound discretion of the trial court.

2. Jury Instructions: Appeal and Error. Ordinarily, the failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal.

3. Jury Instructions. An inadvertent grammatical error in an instruction is harmless error if it is clear from the instruction itself and the other instructions given that the jury was not confused or misled by the error.

4. Motions for New Trial: Appeal and Error. Alleged errors of the trial court in an action at law which are not referred to in a motion for new trial will not be considered on appeal in this court.

5. Contracts: Parol Evidence Rule. A written instrument is open to explanation by parol evidence where its terms are susceptible of two constructions or where the language employed is vague or ambiguous.

Douglas L. Curry of Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellant.

John B. McCauley of Law Offices of Kenneth Cobb, P. C., Lincoln, for appellee.

Heard before McCOWN and WHITE, JJ., and COLWELL, KORTUM and GRANT, District Judges.

KORTUM, District Judge.

This is an action for money judgment by the plaintiff, J. Phillip Mahoney, against the defendant, Alvan May, for loss of profit on an agreement for sale of real estate.

The jury returned a verdict for the defendant and the plaintiff appeals. We affirm the judgment of the District Court.

Prior to the spring of 1977, May owned an 80-acre parcel of land called Tract II. In March of 1976, May had discussions with a real estate agent, Larry Majewski, about the possibility of a trade of Tract II. Nothing resulted from this discussion.

Approximately a year later, May contacted Majewski. May wanted Majewski to find someone who would buy Tract I, a 157-acre tract owned by the Hornby estate, and exchange it with May for Tract II.

On April 6, 1977, May and Mahoney entered into the following agreement:

"AGREEMENT

"This agreement made between Alvan May and J. Phillip Mahoney on this 6th day of April 1977, for the purpose of exchanging parcels of land.

"Whereas, Alvan May has a parcel of 157 acres purchased known as the SE 1/4 of Section 16, Township 10 North, Range 8 East of the 6th P.M., Lancaster County, Nebraska, Tract I and Whereas Alvan May owns the 80 acres known as the W 1/2 of the SW 1/4 of Section 8, Township 8 Range 8, Lancaster County, Nebraska Tract II. And where Alvan May wishes to exchange the properties with J. Phillip Mahoney. J. Phillip Mahoney will purchase Tract I and exchange for Tract II.

"Tract I purchase price is $188,000.00 with $54,520.00 down payment and the balance over 5 years at 71/2% interest. J. Phillip Mahoney agrees to pay the balance of $17,480.00 plus interest at 71/2% on the 1st payment due on Tract I.

"This transaction is contingent upon adequate quality and quantity water availability. A test well to be drilled by April 12, 1977 on Tract II, or this agreement is null and void."

On April 13, 1977, the Hornby estate refused to sell Tract I to Mahoney. On April 14, 1977, a buyer accepted an offer by Mahoney to sell Tract II. May refused to sell Tract II to Mahoney since Mahoney had failed to obtain Tract I to complete the trade of land. Mahoney then brought suit for his loss of profit in his proposed sale of Tract II. Plaintiff first assigns as error the action of the trial court allowing the defendant to file a second amended answer and allowing further amendment of his answer by interlineation during the course of the trial.

Neb.Rev.Stat. § 25-852 (Reissue 1979) provides, in substance, that the court may, in furtherance of justice, amend any pleading, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.

The decision to allow or deny a proposed amendment to the pleadings rests in the sound discretion of the trial court. Greenberg v. Bishop Clarkson Memorial Hospital, 201 Neb. 215, 266 N.W.2d 902 (1978); Swartz v. Peterson, 199 Neb. 171, 256 N.W.2d 681 (1977).

The amendments allowed by the trial court both related to the defense that the contract was subject to a condition precedent, this condition being the purchase by Mahoney of Tract I to enable the tax-free trade of Tracts I and II between the parties. This specific defense was first raised by the defendant in his original answer. We do not believe that the plaintiff was put at a disadvantage or prejudiced or that the trial court abused its discretion in allowing such amendments.

Plaintiff further assigns as error certain instructions given by the trial court, specifically Nos. 4(a) and 14.

Instruction No. 4(a) dealt with the defense raised by the defendant of the condition precedent claimed to exist in the contract. No objection was made at the time of submission of this instruction by the trial court, although the record clearly indicates the plaintiff was afforded the opportunity to do so.

Instruction No. 14 also deals with conditions precedent. It is as follows:

"You are instructed that 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. A promise, or the making of a contract, may be conditioned upon the act or will of a third person.

"On the other hand, one make a contract which cannot be performed without the consent or cooperation of a third party, and such factor does not relieve the party of liability because of his inability of receiving the required cooperation of a third person. ...