Wheeler Const., Inc. v. Town & Country Realty of Grand Island, Inc., 83-310

• Decision Date: 25 May 1984
• Docket Number: No. 83-310,83-310
• Citation: 348 N.W.2d 890,217 Neb. 424
• Parties: WHEELER CONSTRUCTION, INC., a corporation, et al., Appellees, v. TOWN & COUNTRY REALTY OF GRAND ISLAND, INC., a corporation, Appellant.
• Court: Nebraska Supreme Court

Page 890

348 N.W.2d 890

217 Neb. 424

WHEELER CONSTRUCTION, INC., a corporation, et al., Appellees, v. TOWN & COUNTRY REALTY OF GRAND ISLAND, INC., a corporation, Appellant.

No. 83-310.

Supreme Court of Nebraska.

May 25, 1984.

Syllabus by the Court

1. Judgments: Appeal and Error. Findings of a court in a law action in which a jury has been waived have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong. In such a circumstance it is not within our province to resolve conflicts in or to weigh the evidence; if there is a conflict in the evidence, this court will review the judgment rendered and will presume that controverted facts were decided in favor of the successful party.

2. Equity: Accounting. Generally, in order to be entitled to the equitable remedy of accounting, it is necessary to show a fiduciary or a trust relationship between the parties, or a complicated series of accounts, making the remedy at law inadequate.

3. Contracts: Real Estate. Every contract for the sale of any lands shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the sale is to be made.

Earl D. Ahlschwede of Ahlschwede & Truell, Grand Island, for appellant.

Cunningham, Blackburn, VonSeggern, Livingston, Francis & Riley, Grand Island, for appellees.

KRIVOSHA, C.J., and CAPORALE, J., and McCOWN and BRODKEY, JJ., Retired, and RONIN, D.J., Retired.

PER CURIAM.

This is an appeal from a judgment of the district court for Hall County, Nebraska, in a law action in which a trial by jury was waived. The appellee, plaintiff below, Wheeler Construction, Inc. (Wheeler Construction), a corporation, sued the appellant, defendant below, Town & Country Realty of Grand Island, Inc. (Town & Country), a corporation, on a promissory note. The trial court found for Wheeler Construction and entered judgment in the amount of $11,000, plus interest. Town & Country filed a cross-petition on two separate grounds. First, Town & Country sued Wheeler Construction for breach of contract, alleging that Wheeler Construction failed to perform the obligations of the contract in a workmanlike manner. The trial court held for Town & Country and entered judgment in the amount of $8,299.04. In its second cause of action Town & Country interpleaded Robert and Nancy Wheeler (Wheelers) and sought damages against them for an alleged breach of contract concerning a trade of real estate between the parties. The district court found for the Wheelers.

Town & Country appeals and assigns several errors which can be summarized as follows: The trial court erred in not allowing an accounting prior to entering judgment on the promissory note. The trial court erred in failing to find that the plaintiffs breached a contract for the exchange of real properties owned by the parties, and in failing to award damages to the appellant therefor. A related assignment is the action of the trial court in striking from the cross-petition allegations of damages relating to increased costs of financing certain improvements incurred by reason of the Wheelers' failure to carry out the exchange of real estate.

Town & Country, a real estate firm, owner of three unconnected buildings in Setag Subdivision in Grand Island, Nebraska, contracted with the appellee Wheeler Construction to construct certain improvements. As a result of the construction, the buildings would be connected and subsequently used as a shopping center. The total contract price was $350,000. The contract provided for a downpayment of 5 percent of the total amount, but it was not paid when the contract was signed. At a later time Town & Country paid $13,000 to Wheeler Construction. Wheeler Construction commenced work; however, no further payments were made to Wheeler Construction prior to the stoppage of construction in December 1979.

Although Town & Country had obtained a loan commitment from First Federal Lincoln, a savings and loan association, and a commitment for interim or construction financing, Town & Country was unable to secure the interim financing because it failed to obtain guaranteed leases of the property. Wheeler Construction, aware of the financing difficulty, nevertheless continued construction of the improvements. Both Wheeler Construction and Town & Country were aware of and concerned about the...