Ranchland Auto, Inc. v. Cleveland

• Decision Date: 28 July 1972
• Docket Number: No. 38172,38172
• Citation: 199 N.W.2d 702,188 Neb. 804
• Parties: RANCHLAND AUTO, INC., a Corporation, Appellee, v. Donald J. CLEVELAND, Appellant.
• Court: Nebraska Supreme Court

Page 702

199 N.W.2d 702

188 Neb. 804

RANCHLAND AUTO, INC., a Corporation, Appellee, v. Donald J. CLEVELAND, Appellant.

No. 38172.

Supreme Court of Nebraska.

July 28, 1972.

Syllabus by the Court

1. The interpretation given a contract by parties themselves while engaged in performance of it is one of best indications of true intent of the contract, and ordinarily, such construction of the contract should be enforced.

2. In interpreting a written contract, the meaning of which is in doubt and dispute, evidence of prior or contemporaneous negotiations or understandings is admissible to discover the meaning which each party had reason to know would be given to the words by the other party.

3. The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed.

Kirby & Spittler, Norfolk, for appellant.

Edward E. Hannon, Cronin & Hannon, O'Neill, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

Ranchland sold Cleveland a new 1969 Dodge Polara for $4,449.15, Ranchland agreeing to take $1,250 cash and Cleveland's 1968 Dodge Polara, if repaired to its previous condition from damage resulting from an accident. It was so repaired, with no dispute as to repair price or proper restoration to its previous condition. The dispute here arises because neither Ranchland nor Cleveland, after due notice from the artisan lien holder who performed the repair work, reclaimed the car for the repair bill of $1,006.64 and it was sold at foreclosure auction. In a jury trial, Ranchland recovered a judgment for $3,199.15. On appeal, we reverse the judgment and remand the cause with directions to enter a judgment for Ranchland for the amount of the repair bill in the sum of $1,006.64.

Cleveland assigns error in the failure of the trial court to instruct the jury as to the measure of damages. The transcript reveals a failure to instruct on this issue. It is the duty of the court, on its own motion, to instruct on all material issues raised by the pleadings and evidence. The jury should have been told the manner in which the damages sustained by the plaintiff are to be measured and arrived at. See, Numon v. Stevens, 162 Neb. 339, 76 N.W.2d 232; Gallagher v. Vogel, 157 Neb. 670, 61 N.W.2d 245; 17 A C.J.S. Contracts § 641, p. 1290.

Under the law and the undisputed facts, Ranchland is entitled to judgment for the repair bill in the sum of $1,006.64 only. The written contract of sale, signed by the parties, consisted of figure notations on an invoice form, setting up the 1969 Polara price, the cash payment, and the trade-in allowance of the damaged 1968 Polara. There is no dispute as to these figures. This written memorandum contains no reference to the repair of the trade-in or any duties incident thereto. Parol evidence and the parties' conduct in performing the contract are therefore admissible to explain and show the true nature of the transaction. Ely Constr. Co. v. S & S Corp., 184 Neb. 59, 165 N.W.2d 562; Fitzsimons v. Frey, 153 Neb. 124, 43 N.W.2d 531; Lortscher v. Winchell, 178 Neb. 302, 133 N.W.2d 448; Muller Enterprises, Inc. v. Gerber, 178 Neb. 463, 133 N.W.2d 913; Cook v. Wilkie, 181 Neb. 596, 150 N.W.2d 124.

On March 12, 1969, a few days after the contract or memorandum was signed, Cleveland came to the Ranchland office. He paid the $1,250, gave the title to the 1968 Polara to Ranchland, assigned it to Ranchland, brought his trailer hitch, and put his license plates on the 1969 Polara. Buzeyn, representing Ranchland throughout, gave the title of the 1969...