Morearty v. City of McCook

• Decision Date: 31 December 1929
• Docket Number: 26998
• Citation: 228 N.W. 367,119 Neb. 202
• Parties: IRVIN R. MOREARTY, APPELLANT, v. CITY OF MCCOOK, APPELLEE
• Court: Nebraska Supreme Court

228 N.W. 367

119 Neb. 202

IRVIN R. MOREARTY, APPELLANT, v. CITY OF MCCOOK, APPELLEE

No. 26998

Supreme Court of Nebraska

December 31, 1929

APPEAL from the district court for Red Willow county: CHARLES E ELDRED, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Evidence in record examined and held to support the judgment.

Additional Syllabus by Editorial Staff.

Under Comp. St. 1922, § 8640, providing that in pleading performance of conditions precedent in contract it shall be sufficient to state due performance of all such conditions, if defendant relies on plaintiff's nonperformance of contract, he must allege that fact in his answer by setting out facts constituting the breach, and mere general denial is insufficient to raise issue.

Where plaintiff's breach of conditions precedent in contract is not such as to defeat his right of action, defendant cannot plead it in bar, but must take advantage thereof by properly pleading it in recoupment of damages.

Where, after determination by appellate court of issues properly presented in defendant's behalf, defendant stood as one having mistaken remedy, appellate court, in exercise of its sound judicial discretion, could, notwithstanding technical rights based on such procedure to which opposing party is ordinarily entitled, reverse case with directions to trial court to permit reformation of issues, even though latter may have in all respects proceeded strictly in accord with law.

Appeal from District Court, Red Willow County; Eldred, Judge.

Action by Irvin R. Morearty against the City of McCook. Judgment for plaintiff, and defendant appeals, and plaintiff cross-appeals. Affirmed.

Bernard McNeny and C. D. Ritchie, for appellant.

Perry, Van Pelt & Marti and Cordeal, Colfer & Russell, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.

OPINION

PER CURIAM.

This is the second appearance of this cause before this tribunal. The issues presented on this appeal are somewhat different from those which engaged the attention of this court at the former hearing. Morearty v. City of McCook, 117 Neb. 113, 219 N.W. 839. The opinion in that case contains a full statement of the issues then before this court for consideration and the disposition made thereof. In substance it was declared in that opinion that the proof before the court established the fact that the plaintiff's contract was valid, had been substantially performed, and that the measure of damages sustained by the city, if any, would be the cost of remedying certain omissions of the plaintiff, and the case was remanded, with permission to defendant, city of McCook, to amend its answer setting up its damages, if any, occasioned by the failure of appellant, plaintiff below, to make final estimates and assessments of the cost of paving in question, if it so desired.

It is to be noted that the plaintiff in declaring on his contract in the first case alleged that plaintiff "has duly done and performed all things required of him by said contract of employment." So far as the subjects under consideration in this case, viz., the failure of plaintiff below to make final estimates and the assessments of the cost of paving, the allegations in plaintiff's petition were traversed, if at all, at the former trial by a general denial only. It seems: "At common law it was ordinarily required of the pleader to make, not only an allegation of the performance of a condition precedent, but also a statement of the time and manner of its performance or an excuse for nonperformance, in order that the court might determine, as a matter of law, whether or not the intention of the parties had been fulfilled, and in order that a traversable issue might be presented. But according to the general rule as it now exists, and is established in some jurisdictions by statute, in pleading the performance of conditions precedent, it is not necessary for plaintiff to state the facts showing such performance, but he may aver generally that he has duly performed all the stipulations and conditions on his part; and in such case defendant cannot set up in defense the nonperformance of any condition which he has not specified in his plea." 13 C. J. 727, sec. 850. Our statute expressly provides: "In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part." Comp. St. 1922, sec. 8640. Under such statutory provision the rule appears to be: "If defendant relies on the nonperformance of the contract by the plaintiff, he must allege that fact in his answer. In pleading such nonperformance, the facts which constitute the breach must be alleged, and the breach assigned must conform to the terms of the contract. * * * Where by statute plaintiff is authorized to plead a general performance of all conditions precedent, defendant must, if he relies on the fact that any of the conditions precedent have not been performed, set out specially the condition and the breach, thus confining the issue to be tried to such particular condition or conditions precedent as he may indicate as unperformed." And: "Where a breach by plaintiff is not such as to defeat his right of action, defendant cannot plead it in bar, but must take...