Schmidt v. J.C. Robinson Seed Co.

• Decision Date: 05 July 1985
• Docket Number: No. 84-358,84-358
• Citation: 370 N.W.2d 103,220 Neb. 344
• Parties: Arlan SCHMIDT, Appellee, v. J.C. ROBINSON SEED COMPANY, Appellant.
• Court: Nebraska Supreme Court

Page 103

370 N.W.2d 103

220 Neb. 344

Arlan SCHMIDT, Appellee, v. J.C. ROBINSON SEED COMPANY, Appellant.

No. 84-358.

Supreme Court of Nebraska.

July 5, 1985.

Syllabus by the Court

1. Trial: Witnesses: Appeal and Error. The credibility of witnesses and weight to be given their testimony are solely for the consideration of the jury, and unless clearly wrong, a verdict by the jury based on conflicting evidence will not be set aside.

2. Trial: Witnesses: Appeal and Error. The trial court is given discretion in determining whether or not a witness has qualifications to state his opinion, and such discretion will not ordinarily be disturbed on appeal unless there is an abuse of that discretion.

3. Contracts: Words and Phrases. A condition precedent is a condition which must be performed before the parties' agreement becomes a binding contract or a condition which must be fulfilled before a duty to perform an existing contract arises.

4. Contracts: Words and Phrases. A condition subsequent is one that may occur, and if it does, it permits a party to avoid the obligations of a contract.

5. Contracts: Releases: Proof. In the case of a condition subsequent, the happening of which is to defeat the cause of action and terminate liability under the contract, the burden of proof rests on the party claiming the condition to establish facts entitling that party to a release of his obligations under the contract.

6. Contracts: Intent. A contract will be construed against the party preparing it when there is a question as to its meaning.

Lyle E. Strom and Gerald L. Friedrichsen of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, for appellant.

William J. Riedmann and Charles A. Nye of Garvey, Nye, Crawford, Moylan & Riedmann, Omaha, for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired.

GRANT, Justice.

This is an appeal from a jury verdict for the plaintiff-appellee, Arlan Schmidt, in the amount of $62,924.60. Following the jury verdict, the defendant-appellant, J.C. Robinson Seed Company (hereinafter Robinson), filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Defendant's motion was denied and it timely appealed, alleging the trial court erred in:

1. ... instructing the jury that it could consider whether the defendant acted reasonably in releasing the acreage under the terms of the contract.

2. ... instructing the jury that defendant had the burden of proving it did not breach the contract.

3. ... admitting the opinion testimony of plaintiff's witnesses concerning the effect of shattercane on the seed crop.

4. ... concluding there was sufficient evidence to raise a question of fact for the jury's determination.

For the reasons set out below we affirm the decision of the trial court.

This action arises out of a cancellation of a contract between the defendant and plaintiff. Schmidt, a tenant farmer, agreed to raise a crop of seed corn for Robinson subject to certain managerial specifications and supervision of Robinson. Robinson agreed to pay Schmidt a set price, under the contract, on the harvesting of the crop.

The contract between the parties contained several provisions which allowed the defendant to cancel the contract, including the following:

4. Release of Acreage. The Company shall have the right to release all or any part of the seed acreage and all or any part of the crop therefrom prior to delivery if one of the following conditions are met:

....

b. In the Company's sole judgment, volunteer corn within or without the seed acreage is excessive and notice thereof is given to Grower within a reasonable time after the first cultivation or prior thereto;

c. At any time prior to delivery, the Company, in its reasonable judgment, determines that Grower has not followed all Company recommendations and directions as to proper and timely planting, cultivation, fertilization, use of herbicides and pesticides and harvesting or where there has not been proper and timely irrigation;

....

e. In the Company's sole reasonable judgment, the prospects for the seed crop are not satisfactory and the Company gives written or oral notice thereof to Grower on or before June 5th of the crop year. The Company shall have the sole right to decide that a stand is good enough to leave for seed production, in which case, such stand, unless thereafter released by the Company, shall be carried through to harvest and Grower shall perform all things required of him in this agreement to produce the best seed crop possible under the circumstances;

f. At any time prior to delivery the Company determines that the seed crop has been subjected to fire, flooding, ponding, insect damage, shattercane or hail damage to such an extent that the crop is killed or been so affected that it should not be used as seed.

In the event of a release of crop or acreage no further services will be performed by the Company on released acreage or released crop, and no payment or compensation of any kind will be made to Grower for such released acreage or crop except as provided in paragraphs 3e, 3f, 3g and 3i. The Company shall retain a lien on the seed crop for advances to producer and for amounts, if any, expended by the Company in performing any operation which is the obligation of Grower prusuant [sic] to paragraph 2j.

Schmidt prepared the ground, planted the seed corn crop, fertilized, and cultivated it according to the direction of Robinson. Robinson's production manager, Glenn Barth, made frequent checks of the field, as was his job, and made three notations about the field up until July 10, 1980, the day it was released. Barth noted, on June 5, 1980, "Some cane [shattercane] coming in 1106 fertile female, Schmidt, but should control with cultivation." On June 24, 1980, Barth noted, "1278 [referring to an adjacent field of a different hybrid] and 1106, Schmidt, stand uneven in places, some severe areas of shattercane, told grower to disk up bad area." Barth testified that the reference to the shattercane showed more concern with the 1278 field and that the area disked was in 1278. Barth also testified that no complaints were made to the plaintiff about the field or his work until cancellation of the contract.

Robinson claims that the company validly released Schmidt's acreage under paragraph 4f of the contract because it was subject to shattercane to such an extent that the crop should not be used as seed.

There was a great deal of disagreement and conflicting testimony over whether the crop was usable. Robinson argued that the shattercane, which in appearance and size is similar to corn, so infested the fertile female corn in the field that it made effective detasseling unfeasible, thus making the seed impure and unusable as seed corn. Witnesses for both Schmidt and Robinson testified that a field of seed corn contains rows of fertile female corn and rows of fertile male corn, the purpose being to produce a hybrid seed from the female and male. The female grows with a tassel on top containing pollen, which will fertilize the plant through its ears. To produce the hybrid seed described, the tassels of the female are cut or pulled so that their pollen cannot get to the awaiting ears, and the pollen of the nearby fertile male, which also has tassels, fertilizes the detasseled female through its ears. A fertile female plant which fertilizes itself (its own pollen through its own ears) produces inbred corn, and not the desirable hybrid, which, when planted, grows stronger and healthier. Robinson's production manager testified that the company's own standard for detasseling was that no more than one-half of one percent of the female tassels could be left, or the amount of inbreeding would be too high to produce seed of the necessary purity for resale.

Schmidt produced evidence to show that the cost of detasseling because of shattercane and unevenness of rows, the unavailability of certain equipment, the unwillingness to salvage part of the crop, and the poor judgment of Robinson's management were the bases of Robinson's decision to cancel.

On appeal we note that the credibility of witnesses and weight to be given their testimony are solely for the consideration of the jury, and unless clearly wrong, a verdict by the jury based on conflicting evidence will not be set aside. May v. Marijo Corp., 207 Neb. 422, 299 N.W.2d 433 (1980).

We consider the appellee's third assignment of error first. Did the trial court err in admitting the opinion testimony of Schmidt's witnesses concerning the effect of shattercane on the seed crop? The trial court is given large discretion in determining whether or not a witness' qualification to state an opinion has been established, and such discretion will not ordinarily be disturbed on appeal unless there is an abuse of that discretion. Northern Nat. Gas Co. v. Beech Aircraft Corp., 202 Neb. 300, 275 N.W.2d 77 (1979). In this case both of Schmidt's witnesses, Paul Jensen (a farm manager for Schmidt's lessor, and Schmidt's father-in-law) and Jerry McIntosh (a farmer of adjacent land), were asked if, in their...