Southwest Bank of Omaha v. Herting

• Decision Date: 20 March 1981
• Docket Number: No. 43207,43207
• Citation: 208 Neb. 347,303 N.W.2d 504
• Parties: SOUTHWEST BANK OF OMAHA, a Nebraska banking corporation, Appellee, v. Barbara A. HERTING, Appellant.
• Court: Nebraska Supreme Court

Page 504

303 N.W.2d 504

208 Neb. 347

SOUTHWEST BANK OF OMAHA, a Nebraska banking corporation, Appellee, v. Barbara A. HERTING, Appellant.

No. 43207.

Supreme Court of Nebraska.

March 20, 1981.

Syllabus by the Court

1. Negligence. An action for negligence is based on a legal duty owed by the plaintiff to the defendant which has been breached by the plaintiff.

2. Contracts: Guaranty: Subrogation. A guarantor is entitled to be subrogated to the benefit of all the security and means of payment under the creditor's control, and, in the absence of assent, waiver, or estoppel, the guarantor is generally released by an act of the creditor which deprives the guarantor of such right.

George A. Thompson, of Robinson, Thompson & Hovey, Bellevue, for appellant.

Michael A. Nelsen, of Schmid, Ford, Mooney & Frederick, Omaha, for appellee.

Heard before BOSLAUGH, McCOWN, CLINTON, and BRODKEY, JJ., and COADY, District Judge.

COADY, District Judge.

The corporate plaintiff, Southwest Bank of Omaha, filed a petition alleging that the defendant, Barbara Herting, made and delivered to the bank a written loan guaranty whereby she promised to pay part of a loan made by plaintiff to another corporation, Mid-Con, Inc., in the event that Mid-Con, Inc., failed to pay. In answer thereto, the defendant denied some of the plaintiff's allegations and alleged that she had two negligence actions in defense. In substance, she pointed out that a security interest in certain property worth $22,000 had been given the plaintiff by Mid-Con; that the assets were then listed in an action in the U. S. District Court by Mid-Con, Inc., which had filed bankruptcy proceedings; and that the assets were sold, with the negligent consent of plaintiff, for $4,000 rather than for their full value and to her detriment. The defendant's second defense, in substance, was that the bankruptcy court assigned certain accounts receivable of Mid-Con to plaintiff and that plaintiff has failed and refused to collect them.

In response thereto, the plaintiff filed a demurrer under Neb.Rev.Stat. § 25-820 (Reissue 1979) to the pleading of negligent consent. The plaintiff also filed a motion to strike the pleading of the alleged failure to collect accounts receivable. After a hearing thereon, the trial court granted both the demurrer and the motion to strike. Thereafter, defendant elected to stand upon the pleadings, the plaintiff filed a motion for summary judgment, a hearing was had, and the trial court granted summary judgment against the defendant. The defendant appealed, and we reverse.

It is fundamental that for the purpose of determining the sufficiency of the facts alleged in the answer for damages or setoff for negligence to which a demurrer is interposed, the demurrer admit all facts well pleaded, but not those not well pleaded or conclusions of law. An action for negligence is based on a legal duty owed by the plaintiff herein to the defendant which has been breached by the plaintiff. Root v. School Dist. No. 25, 184 Neb. 570, 169 N.W.2d 464 (1969).

It is difficult to make liability arise from tortious acts if the liability really and originally arises from contract. The duty of plaintiff is not discussed in plaintiff's brief, but the defendant, in her brief, relies on the case of Custom Leasing, Inc. v. Carlson Stapler & Shippers Supply, Inc., 195 Neb. 292, 298, 237 N.W.2d 645, 649 (1976), wherein it is stated: "The general rule is that a surety or guarantor is entitled to be subrogated to the benefit...