Nebraska Builders Products Co. v. Industrial Erectors, Inc.

• Decision Date: 03 January 1992
• Docket Number: No. 89-368,89-368
• Citation: 478 N.W.2d 257,239 Neb. 744
• Parties: , 16 UCC Rep.Serv.2d 568 NEBRASKA BUILDERS PRODUCTS CO., a Corporation, Appellant, v. The INDUSTRIAL ERECTORS, INC., Appellee.
• Court: Nebraska Supreme Court

Page 257

478 N.W.2d 257

239 Neb. 744, 16 UCC Rep.Serv.2d 568

NEBRASKA BUILDERS PRODUCTS CO., a Corporation, Appellant, v. The INDUSTRIAL ERECTORS, INC., Appellee.

No. 89-368.

Supreme Court of Nebraska.

Jan. 3, 1992.

Syllabus by the Court

1. Judgments: Appeal and Error. In reviewing a judgment in a bench trial of a law action, the Supreme Court does not reweigh the evidence but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

2. Judgments: Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. However, when such judgment is not supported by the evidence, it is clearly wrong and must be set aside.

3. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

4. Uniform Commercial Code: Contracts: Sales: Appeal and Error. If a contract involves both the sale of goods and services, and the parties have presented the case to the trial court and the Supreme Court on the theory that the sales article of the Uniform Commercial Code applies, the Supreme Court will dispose of the case on appeal on that theory.

5. Uniform Commercial Code: Contracts: Sales: Parties: Intent. A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

6. Uniform Commercial Code: Contracts: Parties: Intent. A contract may be found in the bargain of the parties by their language or by implication from other circumstances, such as course of dealings or usage of trade.

7. Uniform Commercial Code: Contracts: Parties: Intent. A contract does not fail for indefiniteness because a term is left open, as long as the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

8. Contracts. An enforceable contract can be formed and still retain a condition to performance of that contract.

9. Contracts. A condition is excused if the occurrence of the condition is prevented by the party whose performance is subject to the condition.

10. Uniform Commercial Code: Statute of Frauds: Contracts: Sales. A writing may be sufficient to avoid the Neb.U.C.C. § 2-201 (Reissue 1980) statute of frauds if the writing evidences a contract for the sale of goods, is signed by the party against whom enforcement is sought, and specifies a quantity. The required writing need not contain all the material terms of the contract.

11. Statute of Frauds: Contracts. Several writings can be pieced together to satisfy the writing requirement of the statute of frauds, even though such writings taken alone would not have been sufficient.

12. Statute of Frauds: Contracts: Sales. Oral contracts may be enforced absent a writing if the party against whom enforcement is sought admits in his or her pleading, testimony, or otherwise in court that a contract for sale was made.

13. Statute of Frauds: Contracts. It is no longer possible to admit the execution of a contract in court and still treat the statute of frauds as a defense.

14. Uniform Commercial Code: Statute of Frauds: Contracts. Neb.U.C.C. § 2-201(3)(b) (Reissue 1980) contains three requirements: The statute of frauds is not applicable if the contract is admitted; the admission must be made by the party against whom enforcement of the oral contract is sought; and the admission must be made in court.

15. Uniform Commercial Code: Statute of Frauds: Contracts: Trial. An admission within the meaning of Neb.U.C.C § 2-201(3)(b) (Reissue 1980) can be made when the party denying the existence of the contract and relying on the statute takes the stand and, without admitting explicitly that a contract was made, testifies to facts which as a matter of law establish that a contract was formed.

16. Uniform Commercial Code: Statute of Frauds: Contracts: Trial. A compelled or involuntary admission of the existence of an oral contract, obtained during cross-examination at trial, may be relied upon to satisfy Neb.U.C.C. § 2-201(3)(b) (Reissue 1980).

17. Statute of Frauds: Contracts. The statutory requirement of admission of a contract can be satisfied by way of pleadings, bills of particulars, depositions, affidavits, admissions pursuant to notices to admit, and oral testimony, including admissions made on cross-examination.

Thomas J. Culhane and Gary L. Hoffman of Erickson & Sederstrom, P.C., Omaha, for appellant.

Edward D. Hotz of Zweiback, Hotz & Lamberty, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Appellant, Nebraska Builders Products Co. (Nebraska Builders), brought this action against the appellee, The Industrial Erectors, Inc. (Industrial), to recover the excess costs of substitute performance on an alleged purchase contract for cranes. Nebraska Builders appeals from a judgment of the trial court declaring that there was no enforceable contract between the parties but that, instead, the parties contemplated a written contract which was never executed. We reverse, and remand for further proceedings.

In reviewing a judgment in a bench trial of a law action, the Supreme Court does not reweigh the evidence but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Albee v. Maverick Media, Inc., 239 Neb. 60, 474 N.W.2d 238 (1991). In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. Id. However, when such judgment is not supported by the evidence, it is clearly wrong and must be set aside. Hammond v. Streeter, 225 Neb. 491, 406 N.W.2d 633 (1987). Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. Knox v. Cook, 233 Neb. 387, 446 N.W.2d 1 (1989).

The record reflects the following facts: In early 1985, the Omaha Public Power District (O.P.P.D.) invited bids for the construction of a service center near Elkhorn, Nebraska. William Hawkins, on behalf of Nebraska Builders, an Omaha-based company engaged in the business of selling construction products, obtained the plans and specifications which identified supplies, materials, and equipment to be used in the construction of the service center. Nebraska Builders intended to submit its bid as a subcontractor or material supplier to the companies bidding for the general contract for the construction of the service center later that year. Hawkins identified many items in the plans and specifications which Nebraska Builders could potentially supply for the project, including several types of crane systems. Previously, Nebraska Builders had purchased such cranes from Industrial. Industrial is a Chicago-based company which manufactures various types of cranes and also sells cranes manufactured by others.

Hawkins contacted Timothy Brennan, Industrial's sales manager, in February 1985, to inquire if Industrial was interested in submitting a bid on the cranes. Brennan traveled to Omaha on February 28, 1985, to review the plans and specifications for the crane systems. Brennan obtained the information necessary to prepare a bid, including Section 11520 of the specifications Material Handling and Associated Equipment. The specifications were very detailed, specifying manufacturer, model number, electrical requirements, capacity, speed, control system, and other performance characteristics. Variance in equipment had to be approved in writing by the project engineer pursuant to a procedure set forth in the specifications. Both Brennan and Hawkins were aware of this procedure.

On March 12 or 13, 1985, Brennan telephoned Hawkins and told him that Industrial would sell and install the crane systems as per specifications for a total sum of $449,920, which consisted of $399,935 for materials and $49,985 for installation. Brennan stated that there were some minor exceptions to the specifications, but those could be worked out with the O.P.P.D. engineer. Nebraska Builders submitted a bid based, in part, on Industrial's bid. On March 26, 1985, Brennan confirmed the telephone conversation with a letter to Hawkins stating Industrial's proposal.

By this letter, exhibit 14, Industrial "propose[d] to furnish all Crane Systems, Jib Cranes and Monorail Systems per Specification # 11520 dated 2/26/85 including the three Addendums." Then followed a detailed listing of the specific items which Industrial agreed to furnish at a total material cost of $399,935, plus $49,985 if Industrial was to install the listed equipment.

William Hawkins contacted Hawkins Construction Company (Hawkins Construction), the general contractor with the lowest bid, to see if Nebraska Builders was the low bidder on any of the items Hawkins Construction had bid on. This conversation led to a period of negotiations between Industrial and Nebraska Builders. During the negotiations, Nebraska Builders put together a "package bid" and gave Hawkins Construction a lump-sum price on several items, including the cranes. Nebraska Builders alleges that upon its request Industrial...