De Los Santos v. Great Western Sugar Co.

• Decision Date: 11 May 1984
• Docket Number: No. 82-594,82-594
• Citation: 348 N.W.2d 842,217 Neb. 282
• Parties: Caesar DE LOS SANTOS, Appellant, v. The GREAT WESTERN SUGAR COMPANY, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 842

348 N.W.2d 842

217 Neb. 282

Caesar DE LOS SANTOS, Appellant, v. The GREAT WESTERN SUGAR COMPANY, a corporation, Appellee.

No. 82-594.

Supreme Court of Nebraska.

May 11, 1984.

Syllabus by the Court

1. Summary Judgment. A summary judgment is properly granted where there exists no genuine issue as to any material fact, the ultimate inferences to be drawn from those facts are clear, and the movant is entitled to judgment as a matter of law.

2. Summary Judgment. For summary judgment purposes the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party against whom it is directed, and any reasonable doubt touching the existence of a genuine issue of material fact must be resolved against the moving party.

3. Summary Judgment. When the allegations of the pleadings have been pierced by a movant for summary judgment and resistance to the motion fails to show that a genuine issue of fact exists, summary judgment should be granted.

4. Contracts. An agreement which depends upon the wish, will, or pleasure of one of the parties is unenforceable.

5. Contracts. Speaking generally, mutuality of obligation is an essential element of every enforceable agreement; mutuality of contract consists in the obligation on each party to do, or to permit something to be done, in consideration of the act or promise of the other; mutuality is absent when one only of the contracting parties is bound to perform, and the rights of the parties exist at the option of one only.

6. Contracts: Summary Judgment. When the provisions of a contract, together with the facts and circumstances that aid in ascertaining the intent of the parties thereto, are not in dispute, the proper construction of such contract is a question of law and determinable upon a motion for summary judgment.

Robert G. Pahlke of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellant.

John F. Simmons of Wright, Simmons & Selzer, Scottsbluff, for appellee.

BOSLAUGH, HASTINGS, SHANAHAN, and GRANT, JJ., and CAMBRIDGE, District Judge.

CAMBRIDGE, District Judge.

This is an appeal by the plaintiff of a summary judgment entered by the trial court in favor of the defendant in an action for breach of contract.

A summary judgment is properly granted where there exists no genuine issue as to any material fact, the ultimate inferences to be drawn from those facts are clear, and the movant is entitled to judgment as a matter of law. Swanson v. First Fidelity Life Ins. Co., 214 Neb. 654, 335 N.W.2d 538 (1983). For summary judgment purposes we are required, as was the trial court, to view the evidence and all reasonable inferences therefrom in the light most favorable to the party against whom it is directed, and any reasonable doubt touching the existence of a genuine issue of material fact must be resolved against the moving party. Piper v. Hill, 185 Neb. 568, 177 N.W.2d 509 (1970).

This appeal centers around the following provision contained in the "Hauling Contract" executed by the plaintiff and the defendant in October 1980:

The Contractor [i.e., plaintiff] shall transport in the Contractor's trucks such tonnage of beets as may be loaded by the Company [i.e., defendant] from piles at the beet receiving stations of the Company, and unload said beets at such factory or factories as may be designated by the Company. The term of this contract shall be from October 1, 1980, until February 15, 1981.

(Emphasis supplied.) The plaintiff, as an independent contractor, was obligated under the "Hauling Contract" to furnish certain insurance, suitable trucks and equipment, and all necessary labor, maintenance, fuel, and licenses required for his operations thereunder, and the compensation which he was to receive for his services was based solely upon the amount of beets which he transported, the rate per ton varying with the length of the haul.

It is undisputed that upon executing the hauling contract the plaintiff knew that the defendant had executed identical such contracts with other independent truckers who would also be hauling the defendant's beets and that the plaintiff would therefore transport on his trucks only "such tonnage of beets as may be loaded by" the defendant upon the plaintiff's trucks, not all of the beets "as may be loaded by" the defendant from piles at the defendant's beet receiving stations. The plaintiff had been transporting beets under the contract for approximately 2 months when, in early December 1980, the defendant informed the plaintiff that his services would no longer be needed. The plaintiff does not claim that he was entitled to transport all of the beets, but he does contend that he was entitled to continue to haul until all of the beets had been transported to the factory, that the defendant did not allow him to do so, and that the defendant thereby wrongfully terminated the hauling contract, causing the plaintiff loss of profits, forced sale of his trucks at a loss, and other damages to be proved on trial. In his petition the plaintiff predicated his action against the defendant upon the hauling contract. The defendant in its amended answer thereto alleged, among other defenses not relevant to the disposition of this appeal, that the defendant was not obligated under the contract to allow the plaintiff to haul any particular amount of tonnage and that its determination that it would no longer require the plaintiff's services was a determination which was within the defendant's discretion under the terms of the contract. In his reply to the defendant's amended answer, the plaintiff in effect contended that the defendant nevertheless was still liable under the principles of law set out in the Restatement (Second) of Contracts §§ 223, 90, and 205 (1981). The plaintiff was paid in full for all beets which were in fact hauled by him, and there is no issue in this case in that regard.

Considering the words contained therein together with the aforesaid undisputed facts known to both the plaintiff and the defendant when they executed the hauling contract, it is clear that neither the plaintiff nor the defendant intended to or did, either in fact or law, promise to transport a specific quantity of beets or promise to transport beets during a specific period of time. The term of the contract set forth therein, i.e., October 1, 1980, until February 15, 1981, did not constitute a promise, but merely established the period of time during which the promises which were contained in the contract would be in effect. Although the plaintiff made a number of promises in the hauling contract, all centered around the plaintiff's promise to transport beets as loaded by the defendant on the plaintiff's trucks during the period of October 1, 1980, through February 15, 1981, the defendant made no promises at all other than the promise to pay for the transportation of those beets which were in fact loaded by the defendant onto the trucks of the plaintiff during that...