Treptow Co. v. Duncan Aviation, Inc., s. 43559

• Decision Date: 04 December 1981
• Docket Number: Nos. 43559,43672,s. 43559
• Citation: 210 Neb. 72,313 N.W.2d 224
• Court: Nebraska Supreme Court
• Parties: , 32 UCC Rep.Serv. 1703 TREPTOW CO., a Nebraska corporation, Appellant and Cross-Appellee, v. DUNCAN AVIATION, INC., et al., Appellees and Cross-Appellants, NBC Leasing Co., Appellee.

Page 224

313 N.W.2d 224

210 Neb. 72, 32 UCC Rep.Serv. 1703

TREPTOW CO., a Nebraska corporation, Appellant and Cross-Appellee, v. DUNCAN AVIATION, INC., et al., Appellees and Cross-Appellants, NBC Leasing Co., Appellee.

Nos. 43559, 43672.

Supreme Court of Nebraska.

Dec. 4, 1981.

Syllabus by the Court

1. Conspiracy. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

2. Conspiracy. An action of conspiracy sounds essentially in tort. The principal element of conspiracy is an agreement or understanding between two or more persons to inflict a wrong against or injury upon another. It involves some mutual mental action coupled with an intent to commit the act which results in injury. Without the scienter, persons cannot conspire.

3. Uniform Commercial Code: Repossessed Collateral. A transfer of repossessed collateral to a seller by a finance company pursuant to a guaranty is not a sale or disposition of the collateral.

4. Conspiracy. The gist of an action for civil conspiracy is not the conspiracy charged but the damages the plaintiff claims to have suffered because of the wrongful acts of the defendants. If damages are shown to have resulted from the wrongful act of one or more of the defendants, then the plaintiff may recover against such defendants even though there is no proof of a conspiracy.

5. Prejudgment Interest. Where the damages are not liquidated and the evidence does not furnish data which, if believed, would make it possible to compute the damages with exactness, a plaintiff is not entitled to prejudgment interest.

Patrick H. McDonnell, Omaha, for appellant and cross-appellee.

Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellees and cross-appellants Duncan Aviation et al.

Knudsen, Berkheimer, Beam, Richardson & Endacott, Lincoln, for appellee NBC Leasing Co.

Heard before BOSLAUGH, CLINTON, BRODKEY, and WHITE, JJ., and HOWARD, District Judge.

BOSLAUGH, Justice.

These appeals, which have been consolidated, arise out of a controversy concerning the sale of a Beechcraft Baron airplane. On April 26, 1974, the plaintiff, Treptow Co., entered into an equipment acquisition agreement with the defendant NBC Leasing Co., which was in substance a lease-purchase agreement. The agreement provided for monthly payments of $2,040 over a 6-year period with an option to the lessee-purchaser to purchase the airplane by payment of the "principal balance" due as shown on an amortization schedule.

The airplane was sold by the defendant Duncan Aviation, Inc., but since the sale was financed through the lease-purchase method, the title to the airplane was conveyed to the leasing company. The plaintiff purchaser's credit was not adequate to satisfy the leasing company, so it obtained a recourse agreement from the seller. The recourse agreement was a guarantee by the seller of the payments due from the plaintiff under the equipment acquisition agreement and gave the seller the "right to exercise Lessee's purchase option."

On November 25, 1975, after numerous defaults by the purchaser, the leasing company notified the purchaser by mail that it had repossessed the airplane and would dispose of it at its "offices" after December 2, 1975. The leasing company then made demand on the seller on the recourse agreement. The seller paid the amount due, $90,637.44, to the leasing company on December 5, 1975, and took a bill of sale to the airplane.

The defendants Harry O. Barr and J. Robert Duncan are officers and employees of the seller. Harold Treptow, the president of the plaintiff, had a conversation with Barr on December 8, 1975, concerning the airplane. Although the evidence is in conflict, Treptow testified that the plaintiff was given until May 5, 1976, to reimburse the seller for the amount plus interest it had paid to the leasing company. During this time the seller would use the airplane in its charter operations for which the plaintiff would be reimbursed. The seller would pay for the insurance on the airplane and the plaintiff would pay for its maintenance.

In March 1976 the seller sold the airplane in Canada for $110,000 without any further notice to the plaintiff. Between December 8, 1975, and March 1976, the airplane had been flown in charter use approximately 70 hours and the plaintiff had been charged $1,900 for maintenance. The plaintiff produced evidence that the airplane had a value of $140,000 to $144,000 at the time it was sold.

This action was commenced on February 17, 1977. The second amended petition, which the plaintiff denominated as one for "civil conspiracy," alleged that the sale of the airplane in March 1976 without notice to the plaintiff violated Neb.U.C.C. § 9-504 (Reissue 1971); that the value of the airplane was $140,000 and the sale was not commercially reasonable; that the defendants had attempted to deprive the plaintiff of its right of redemption under the Uniform Commercial Code; and that the plaintiff had been damaged by loss of the use of the property in charter operations. The plaintiff sought to recover damages in the amount of $150,000.

At the close of the plaintiff's evidence the trial court found as a matter of law there was no evidence of a civil conspiracy and dismissed the petition as against the leasing company. The trial court overruled the motions to dismiss made by the other defendants and the trial proceeded as to them.

The jury returned a verdict in favor of the plaintiff and against the defendants in the amount of $29,410.88. All of the parties filed motions for a new trial, which were overruled. They then filed notices of appeal.

The plaintiff contends the trial court erred in dismissing the petition as against the leasing company and in finding there was no evidence of a civil conspiracy.

There was no evidence in this case of concerted action to accomplish an unlawful or oppressive object, or a lawful object by unlawful or oppressive means. See Dixon v. Reconciliation, Inc., 206 Neb. 45, 291 N.W.2d 230 (1980).

Although the leasing company and the seller both took action which might result in the plaintiff's loss of its right of redemption, the plaintiff was in default under the acquisition agreement and the defendants were entitled to protect their rights and avoid a loss caused by the plaintiff's default.

The recourse agreement was not illegal and did not prejudice the plaintiff's rights in the airplane. The plaintiff was not a party to the recourse agreement, and after the seller reimbursed the leasing company and took a bill of sale to the airplane, the plaintiff's rights were the same as if no transfer had occurred.

In Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107, 247 N.W.2d 434 (1976), we noted that a transfer of repossessed collateral to a seller by a finance company pursuant to a guaranty is not a sale or disposition of the collateral. In the Reeves case we said at 115, 247 N.W.2d at 439: "Section 9-504(5), U.C.C., qualifies the characterization of certain transfers of repossessed collateral, providing: 'A person who is liable to a secured party under a guaranty, indorsement, repurchase agreement or the like and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter...