Timmerman v. Hertz, 40167

• Decision Date: 15 January 1976
• Docket Number: No. 40167,40167
• Citation: 195 Neb. 237,238 N.W.2d 220
• Parties: Gerald TIMMERMAN and Ronald Timmerman, Appellees, v. Morris HERTZ, Appellant.
• Court: Nebraska Supreme Court

Page 220

238 N.W.2d 220

195 Neb. 237

Gerald TIMMERMAN and Ronald Timmerman, Appellees, v. Morris HERTZ, Appellant.

No. 40167.

Supreme Court of Nebraska.

Jan. 15, 1976.

Syllabus by the Court

1. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish on the trial the facts showing such performance. § 25--836, R.R.S.1943.

2. Where by statute plaintiff is authorized to plead a general performance of all conditions precedent, defendant must, if he relies on the fact that any of the conditions precedent have not been performed, set out specially the condition and the breach, thus confining the issue to be tried to such particular condition or conditions precedent as he may indicate as unperformed. A mere general denial, therefore is insufficient to raise the issue.

3. The purpose of section 25--836, R.R.S.1943, is to simplify pleading, and only by requiring the defendant to set forth the particular condition which is relied on as a defense may the plaintiff be advised of the exact defense he will be required to meet, and the trial court informed as to the exact issue to be determined.

4. The right to introduce evidence depends upon there being an issue of fact as to which it is relevant. The issues are made by the pleadings; and unless there is an issue of fact before the court, there is no right to introduce evidence to prove or disprove the fact. Where the answer does not state a defense, the trial court should direct a verdict for the plaintiff.

5. The rules of this court require that the trial judge must make a record of pretrial procedures formulating issues.

6. Before this court can consider evidence bearing upon an issue of fact, the evidence must have been offered in the trial court and embodied in a bill of exceptions.

7. The pleading of legal conclusions is insufficient to raise an issue of fact. A proposed amendment to pleadings offered during trial should plead ultimate facts and not legal conclusions.

8. It is ordinarily incumbent upon one who relies upon a special custom as a basis of recovery or defense to allege the custom and to plead and prove the other party had knowledge of the custom and contracted with reference thereto.

9. The principle that on appeal the case will be considered upon the theory upon which the case was tried below, even though not pleaded, has application only where both parties acquiesce in the theory and the case was submitted to the trial court on that basis.

Robert F. Craig, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Rae Schupack, John Herdzina, of Abrahams, Kaslow & Cassman, Omaha, for appellees.

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

CLINTON, Justice.

The principal underlying question on this appeal is whether the trial court abused its discretion in refusing to permit the defendant to amend his answer to state an affirmative defense at a point in the trial when the plaintiffs had presented their evidence and rested, had moved for a directed verdict, and had presented arguments in support of their motion. The trial court denied the request to amend, granted the motion of the plaintiffs for a directed verdict, and rendered judgment against the defendant for the sum of $8,956.87. We affirm.

The plaintiffs in their petition alleged, among other things, that they, on August 3, 1973, entered into a contract in writing to sell cattle to the defendant. The petition incorporated the contract. They further alleged: 'That the plaintiffs have duly, timely and fully performed all of their obligations set forth in said Livestock Contract,' and that the defendant had failed to pay the balance owing of $8,956.87. The written contract, insofar as it is necessary in this opinion to note its specific terms, provided for the sale by the plaintiffs to the defendant of: '. . . about 550 or 5 Loads Black Hfr. Calves, . . . and now located in Davis Ranch Pasture in Bryan County, Okla. near Durant, Okla. Said cattle to be good, well-bred Angus cattle with a no per cent cut back, after all unmerchantable cattle and apparent pregnant heifers have been thrown out; this cut to be made by the Buyer at Davis Ranch. The delivery is to be made free of encumbrances f.o.b. cars or trucks at Davis Ranch. Said cattle to be weighed at Davis Ranch, with 3% Of Equivalent shrink, . . . 3 Loads--Oct. 1, 73, 2 Lds--Jan. 1, 74. . . . The price agreed upon is $69.25 per cwt., per head. $5500.00 paid as part payment, receipt of which is hereby acknowledged, balance to be paid upon delivery of said cattle.'

The defendant's answer admitted the identity of the parties and then stated: 'This defendant admits that the plaintiffs and defendant entered into a livestock contract. . . . Further answering, defendant denies each and every other allegation of plaintiff's Amended Petition except for those allegations specifically admitted above.'

The plaintiffs' evidence established prima facie the contract and delivery of the cattle in accordance with the contract terms. It was then stipulated by the parties: (1) That the contract attached to the plaintiffs' petition, exhibit A, which had been received in evidence, had been entered into by the parties; (2) that five loads of cattle were delivered to the defendant by the plaintiffs; and (3) that of the total contract price, $8,956.87 had not been paid.

At that point the defendant moved for a directed verdict. The court denied this motion. The plaintiffs then moved for a directed verdict and also moved the court to deny the admission of any evidence by the defendant. The basis of these motions was that the answer of the defendant tendered no issue for the jury to decide. Oral arguments were heard and a brief was submitted by the plaintiffs. At the completion of the plaintiffs' argument in support of their motion, the defendant made his motion to amend. It was as follows: '. . . for order amending the answer to allege that the terms of the contract or implied terms of the contract required that all five loads be even as to the cattle and that the defendant--and that the plaintiffs failed to comply with that implied term of the contract, assuming that that is necessary, but assuming that it is necessary this was--whole case was tried all throughout plaintiffs' evidence on that theory. Certainly, if we were going to take plaintiff by surprise then perhaps it would be an abuse of discretion to allow us to amend the answer.'

In sustaining the plaintiffs' motion for a directed verdict the trial court apparently relied upon decisions of this court cited by the plaintiffs which apply section 25--836, R.R.S.1943. That section provides: 'In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish on the trial the facts showing such performance.'

In Morearty v. City of McCook, 119 Neb. 202, 228 N.W. 367, we said: "Where by statute plaintiff is authorized to plead a general performance of all conditions precedent, defendant must, if he relies on the fact that any of the conditions precedent have not been performed, set out specially the condition and the breath, thus confining the issue to be tried to such particular condition or conditions precedent as he may indicate as unperformed.' . . . A mere general denial, therefore, is insufficient to raise the issue.' The above principle has been reaffirmed many times by this court. Lehnherr v. National Accident Ins. Co., 126 Neb. 199, 252 N.W. 823; Davidson v. First American Ins. Co., 129 Neb. 184, 261 N.W. 144; Peters v. Wilks, 151 Neb. 861, 39 N.W.2d 793; Cartwright & Wilson Constr. Co. v. Smith, 155 Neb. 431, 52 N.W.2d 274; Rickertsen v. Carskadon, 172 Neb. 46, 108 N.W.2d 392. The rationale for requiring the defendant to plead a specific defense was set out by this court in Lehnherr v. National Accident Ins. Co., supra, as follows: 'It will be remembered that the purpose of the statute is to simplify pleading, and only by requiring the defendant to set forth the particular condition which is relied on as a defense may the plaintiff be advised of the exact defense he will be required to meet, and the trial court informed as to the exact issue to be determined.'

In Midland-Ross Corp. v. Swartz, 185 Neb. 484, 176 N.W.2d 735, we said: 'The right to introduce evidence depends upon there being an issue of fact as to which it is relevant. The issues are made by the pleadings; and unless there is an issue of fact before the court, there is no right to introduce evidence to prove or disprove the fact. . . . Where the answer does not state a defense, the trial court should direct a verdict for the plaintiff. Sloan Commission Co. v. Fry & Co., 4 Neb. (Unoff.) 647, 95 N.W. 862; Winterringer v. Warden, Bushnell & Glessner Co., 1 Neb. (Unoff.) 413, 414, 95 N.W. 619; Osborne & Co. v. Kline, 18 Neb. 344, 25 N.W. 360; Western Mfg. Co. v. Rogers, 54 Neb. 456, 74 N.W. 849; Hrabak v. Village of Dodge, 62 Neb. 591, 87 N.W. 358. Here the plaintiff proved a prima facie case by the admissions of the defendant. Since the answer failed to state a defense, it was proper for the trial court to enter judgment for the plaintiff. Osborne & Co. v. Kline, supra; Hrabak v. Village of Dodge, supra; Western Mfg. Co. v. Rogers, supra.'

In support of his position that the request to amend should have been permitted, the defendant claims the plaintiffs knew what the specific defense would be and that they were, in fact, not taken by surprise; and that therefore the amendment was required in the furtherance of justice and consequently an abuse of discretion by the trial court is shown. Defendant cites sections 25--852 and 25--853,...