Sayer v. Bowley, S-90-1161

Citation503 N.W.2d 166,243 Neb. 801
Decision Date23 July 1993
Docket NumberNo. S-90-1161,S-90-1161
PartiesGerald SAYER and Elizabeth Sayer, Husband and Wife, Appellants, v. Lawrence V. BOWLEY and Gertrude C. Bowley, Husband and Wife, Appellees.
CourtSupreme Court of Nebraska

Page 166

503 N.W.2d 166
243 Neb. 801
Gerald SAYER and Elizabeth Sayer, Husband and Wife, Appellants,
Lawrence V. BOWLEY and Gertrude C. Bowley, Husband and Wife, Appellees.
No. S-90-1161.
Supreme Court of Nebraska.
July 23, 1993.

Page 167

Syllabus by the Court

1. Specific Performance: Equity. An action for specific performance sounds in equity.

2. Contracts: Specific Performance. In an action for specific performance of a contract, the first requirement is the existence of a valid, legally enforceable contract.

3. Contracts: Specific Performance: Offers to Buy or Sell: Proof. In an action for specific performance of a contract, the burden of establishing the contract is on the party seeking its specific performance. That party must thus show that there was a definite offer and an unconditional acceptance.

4. Contracts: Offers to Buy or Sell. For a binding contract to result from an offer and acceptance, the minds of the parties must meet at every point; nothing can [243 Neb. 802] be left open for future arrangement.

5. Contracts: Specific Performance: Real Estate. A contract for the transfer of real property is valid and enforceable if the agreement contains the essential elements of a contract with sufficient certainty and definiteness as to the parties, property, consideration, terms, and time of performance.

6. Contracts: Parties: Time. An agreement to make a future contract is not binding upon either party unless all terms and conditions are agreed upon and nothing is left to future negotiation.

7. Contracts: Parties: Intent: Equity. A court of equity will not enforce a contract unless it is complete and certain in all its essential elements. The parties themselves must agree upon the material and necessary details of the bargain, and if any of these be omitted or left obscure or indefinite so as to leave the intention of the parties uncertain respecting the substantial terms, the case is not one for specific performance. It is not a function of a court of equity to make a contract for the parties or to supply any of the material stipulations thereof.

Page 168

8. Contracts: Specific Performance: Real Estate: Proof. A party seeking specific performance of an oral contract for the sale of real estate upon the basis of part performance must prove, among other things, an oral contract, the terms of which are clear, satisfactory, and unequivocal.

9. Judgments: Receivers: Appeal and Error. Just as the determination of the amount of a receiver's compensation is a matter within the discretion of the trial court, so too is the determination of who should bear the expenses associated with the receivership. The court's decision will not be disturbed on appeal absent an abuse of discretion.

10. Appeal and Error. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

11. Prejudgment Interest. In order to receive prejudgment interest, a litigant must comply with Neb.Rev.Stat. § 45-103.02 (Reissue 1988).

John A. Gale of McCarthy & Gale, North Platte, for appellants.

P. Stephen Potter, Gothenburg, for appellees.


WHITE, Justice.

Gerald Sayer and Elizabeth Sayer appeal, among other things, the district court's rulings which denied them [243 Neb. 803] contract-based recoveries in their suit against Lawrence V. Bowley and Gertrude C. Bowley. Pursuant to a jury verdict, the Sayers were awarded $62,844 under a cause of action for a statutory lien. We affirm in part, and in part reverse, and remand with directions.

In late 1988 and early 1989, Gerald Sayer and Lawrence Bowley discussed the Sayers' purchase of the Bowleys' farm. Eventually, Bowley asked his attorney to memorialize the terms of the discussions. This "agreement" was revised several times, but no version was signed by both parties.

According to the Sayers, in reliance on the "contract," they paid the Bowleys $25,000 in earnest money, took possession of the property, made arrangements to farm the land, and incurred a variety of expenses in their preparations. The record indicates that Lawrence Bowley was aware of the Sayers' preparatory actions.

When the parties failed to agree on a contract, the Sayers brought suit requesting specific performance and seeking recovery for unjust enrichment. The Sayers argue that the statute of frauds does not bar enforcement of the oral contract due to part performance or equitable estoppel. After pretrial discussions in which the court apparently raised the idea, the Sayers requested the appointment of a receiver to ensure the harvesting of the various crops. The court later discharged the receiver, who was awarded a fee.

As the proceedings moved forward, the district court ordered the return of the Sayers' earnest money. The court also bifurcated the issues for trial. After the initial trial, at which certain contractual issues were heard, the court found generally in favor of the Bowleys. The court determined that the Sayers had not adequately proved the existence or terms of the alleged oral contract and that, thus, the Sayers could not prevail on the issues of breach of contract and specific performance. The Sayers then filed an amended petition, realleging the cause of action for specific performance and seeking damages for loss of the "benefit of the bargain." The petition also alleged several other causes of action, including statutory lien.

Upon request of the Bowleys, the court struck the Sayers' cause of action based on loss of the benefit of the bargain. [243 Neb. 804] Later, the court dismissed that cause of action at trial.

Page 169

Following a jury trial, the Sayers were awarded, inter alia, $62,844 under the cause of action for statutory lien. The court awarded the Sayers prejudgment interest on this amount at 6 percent, pursuant to Neb.Rev.Stat. § 45-102 (Reissue 1988). The Sayers were also required to pay the entire receiver's fee of $11,386. The Bowleys were awarded $35,280 on a counterclaim. This appeal followed.

Restated, the Sayers allege that the district court erred by (1) ruling that they could not prevail on the issues of specific performance or equitable estoppel; (2) striking their cause of action which sought damages for loss of the benefit of the bargain and dismissing that cause of action at trial; (3) charging them with the entire receiver's fee; and (4) awarding them prejudgment interest of 6 percent, rather than the 12 percent provided for in Neb.Rev.Stat. § 45-104 (Reissue 1988).

An action for specific performance sounds in equity. Frenzen v. Taylor, 232 Neb. 41, 439 N.W.2d 473 (1989); Satellite Dev. Co. v. Bernt, 229 Neb. 778, 429 N.W.2d 334 (1988). As such, we apply the following standard of review:

When an equity case is appealed from the district court, the appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court. When the evidence conflicts, however, the appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

McCook Nat. Bank v. Myers, 243 Neb. 853, 858, 503 N.W.2d 200, 204 (1993). Accord, Eliker v. Chief Industries, 243 Neb. 275, 498 N.W.2d 564 (1993). We turn to the Sayers' arguments.

The Sayers' first two assignments of error each relate to the propriety of the district court's rulings on the enforceability of the oral agreement and combine to allege that (1) an oral contract was entered into by the Sayers and the Bowleys and (2) in spite of the statute of frauds, that oral contract is enforceable. As to the second portion of their argument, the Sayers assert that the contract may be enforced either because of their part performance or because the Bowleys' actions [243 Neb. 805] equitably estop them from asserting the statute of frauds as a defense.

The Sayers correctly note that an oral agreement for the sale of land is void. See Neb.Rev.Stat. § 36-105 (Reissue 1988). However, before analyzing the effect of part performance and equitable estoppel on this case, we first must determine whether an adequate contract existed to be enforced in equity.

Initially, we note that the Sayers' petition is less than clear as to the agreement they seek to enforce. Although it alleges that the oral agreement arose on April 20, 1989, the petition requests enforcement of a draft contract, an instrument approximately 2 months and five versions removed from the alleged April 20 agreement. Presumably, the Sayers are asserting that the final draft is reflective of the terms of that initial understanding and should thus be enforced.

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