Stauffer v. Benson ( 2014 )

Nebraska Advance Sheets
STAUFFER v. BENSON 683
Cite as 288 Neb. 683
affirmatively showed that Hessler had met the legal standard
of competency.40
[16] As to his claims of errors or misconduct at trial and
ineffective assistance of counsel, such claims were inappropri-
ate for coram nobis relief. The writ of error coram nobis is
not available to correct errors of law.41 We find no error in the
district court’s denial of a writ of error coram nobis.
VI. CONCLUSION
Except for Hessler’s argument citing to Martinez, the claims
raised in Hessler’s second motion for postconviction relief
either were litigated in the prior proceedings or were known
and could have been litigated. As such, they were proce-
durally barred. And Hessler’s claim of ineffective assistance
of postconviction counsel, relying upon Martinez, was with-
out constitutional support. He similarly failed to raise any
basis warranting coram nobis relief. We affirm the denial of
Hessler’s second motion for postconviction relief and writ of
error coram nobis.
Affirmed.
Heavican, C.J., not participating.
40
See Hessler, supra note 4.
41
Diaz, supra note 35.
Mark Stauffer and Cindi Stauffer, husband and wife,
appellees, v. Betty Jean Benson, appellant.
___ N.W.2d ___
Filed July 25, 2014. No. S-13-928.
1. Breach of Contract: Damages. A suit for damages arising from breach of a
contract presents an action at law.
2. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole
judge of the witnesses’ credibility and the weight to be given their testimony.
3. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
4. Appeal and Error. An appellate court independently reviews questions of law
decided by a lower court.
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5. Contracts: Waiver. A party to a contract may waive the provisions made for his
or her benefit.
6. Breach of Contract. In order to constitute a repudiation, a party’s language must
be sufficiently positive to be reasonably interpreted to mean that the party will
not or cannot perform.
7. ____. The question whether there has been repudiation or whether repudiation
was justified is a question of fact.
8. Contracts: Tender: Time: Waiver. An unqualified renunciation of an executory
contract before time for performance by one party excuses tender of performance
by the other party at the time set for performance.
9. Breach of Contract. A covenant by a purchaser to pay, and by the vendor to con-
vey a good title, both to be performed at the same time, are mutually dependent,
and neither party can claim a breach without a tender of performance and offer
to perform upon due performance by the other, or, at least, proof of readiness and
willingness to perform.
Appeal from the District Court for Phelps County: Stephen
R. Illingworth, Judge. Affirmed.
Stephen G. Lowe for appellant.
Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
In this breach of contract action, Mark Stauffer and Cindi
Stauffer, husband and wife, the appellees, entered into an
agreement (Purchase Agreement) with Betty Jean Benson
under which the appellees were to purchase Benson’s undi-
vided one-third interest in certain real estate for $150,000.
The contract was not performed, and the appellees filed an
action against Benson in the district court for Phelps County.
At the time of the bench trial, Benson no longer had title
to the property. In an order filed August 2, 2013, the court
determined that Benson had breached the Purchase Agreement
by refusing to sell her interest in the property to the appel-
lees. The district court found in favor of the appellees and
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STAUFFER v. BENSON 685
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against Benson and awarded damages to the appellees. Benson
appeals. We affirm.
STATEMENT OF FACTS
This case involves a parcel of real estate, a farm, located
in Phelps County, Nebraska. Initially, Vern Johnson and Josie
Johnson, husband and wife, owned the 160-acre parcel of real
estate. Vern passed away in 1970, and after Vern’s death, the
property passed equally to the couple’s three children, Gary
Johnson, Nancy Ashcraft, and Benson, subject to a life estate in
favor of Josie. Josie passed away in September 2010.
Cindi is the daughter of Gary. In 1987, the appellees moved
onto the property and began a farming operation. At trial, the
parties testified that there were numerous discussions regard-
ing the execution of the “family plan” to sell the farm to the
appellees in order to keep it in the family. These discussions
occurred between the appellees and Benson prior to and after
the execution of the Purchase Agreement which is at the center
of this case.
Due to issues within the family, the farm became the sub-
ject of a partition sale, and ultimately, the property was sold
at a partition sale. The appellees were named as parties in the
partition action. Before the partition sale occurred, the appel-
lees had entered into negotiations with Benson, Ashcraft, and
Gary to purchase their interests in the property. The Purchase
Agreement between the appellees and Benson was signed after
the partition action had been filed but before sale.
With respect to the negotiations between the appellees and
Benson, on January 18, 2011, an attorney, acting on behalf
of and at the direction of Cindi, sent a draft purchase agree-
ment to the appellees and to Benson. Under the Purchase
Agreement, the appellees were to pay a deposit of $200 and
to purchase Benson’s undivided one-third interest in the farm
for a total of $150,000. With respect to the $200, the Purchase
Agreement stated: “$200 deposited herewith as evidenced by
[Benson’s] receipt attached below. Balance to be paid as shown
in Paragraph(s) 1 following, which paragraph(s) numbered
1&2 inclusive as being applicable to this agreement.” The
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balance of $149,800 was specifically discussed in Paragraph 1.
Paragraph 1 of the Purchase Agreement provided:
1. Conditional Upon Loan:
Balance of $149,800 to be paid in cash or by certi-
fied check at time of delivery of deed, conditional how-
ever, upon [the appellees’] ability to obtain a loan to be
secured by deed of trust or mortgage on above described
property [the farm], in the amount of $148,000. Said loan
to be FSA (Farm Service Agency) with terms providing
for interest not exceeding 5% per annum, and annual
payments of approximately $N/A plus taxes and insur-
ance. [The appellees] agree to make application for said
loan within 30 days from the date of acceptance or this
offer shall be null and void and the earnest money shall
be forfeited.
The Purchase Agreement originally set the closing date for
May 1, 2011.
On January 24, 2011, Benson appeared at the office of the
appellees’ attorney and signed the Purchase Agreement. The
attorney did not discuss the terms and conditions of the draft
purchase agreement with Benson. On January 25, the appel-
lees’ attorney sent a letter to them informing them that Benson
had signed the Purchase Agreement. The appellees signed the
Purchase Agreement approximately 1 week later.
After signing the Purchase Agreement, the appellees sought
funding through the Farm Service Agency (FSA), which they
ultimately did not obtain. However, the appellees’ friends,
Karen Kirby and Scott Kirby, agreed to loan $150,000 to the
appellees, and they executed a promissory note on February 8,
2011. Per the promissory note, the appellees were to repay the
note in full by February 8, 2012.
During this time, the appellees were also attempting to
negotiate a price for Ashcraft’s undivided one-third interest in
the property. The appellees already had assurances from Gary,
Cindi’s father, to purchase his undivided one-third interest.
Benson was aware of the appellees’ negotiations with Ashcraft,
and on April 28, 2011, Benson agreed to extend the closing
date of the Purchase Agreement for her undivided one-third
interest from May 1, 2011, to March 1, 2012.
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The negotiations with Ashcraft were complicated due to
matters involving Josie’s estate in which questions had been
raised regarding Ashcraft’s handling of the estate. On June
14, 2011, Ashcraft’s attorney sent a letter to the appellees’
counsel and Benson’s counsel offering to sell Ashcraft’s one-
third interest to the appellees for $185,000, conditioned on
Ashcraft’s being released from any liability on issues regarding
Josie’s estate.
On July 7, 2011, the appellees’ attorney sent a letter to
Ashcraft’s attorney indicating that the appellees would pur-
chase Ashcraft’s interest for $185,000. The letter also stated
that “[e]veryone is having a difficult time getting . . . Benson
to sign the estate settlement agreement.”
On July 18, 2011, Ashcraft’s attorney sent a letter to the
appellees’ attorney recognizing that Benson was not going to
be agreeable to signing the estate settlement agreement. He
stated that he had spoken with Ashcraft and that it was their
“plan to move forward with the partition action pending in
Phelps County District Court unless all parties are willing to
settle all matters in a manner consistent with the proposed
agreements that accompanied my letter to you and [Benson’s
counsel] on June 14, 2011.”
On August 3, 2011, Ashcraft’s attorney sent a fax to the
appellees’ attorney. The fax offered to sell Ashcraft’s undivided
one-third interest in the property to the appellees with a release
of liability on the estate issues.
Around that time, Benson decided that she was no longer ­
willing to sell her undivided one-third interest in the prop-
erty to the appellees. On August 9, 2011, the appellees’
attorney sent a letter to Cindi stating that he had spoken to
Benson’s attorney and that Benson’s attorney “indicated that
[Benson] is not agreeable to the sale of $150,000.” At the
time of trial, Benson testified that her reasons for backing
out of the Purchase Agreement were as follows: the failure of
the appellees to obtain financing as outlined in the Purchase
Agreement, the failure of everyone to agree on issues related
to Josie’s estate, the fact that Ashcraft was receiving $185,000
for her interest and was not cooperating on other issues relat-
ing to Josie’s estate, and her position that she would sell her
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interest for $150,000 if Ashcraft and Gary would also take that
price for their interests.
The appellees filed their complaint on November 22, 2011.
The appellees alleged two causes of action. In the first cause
of action, the appellees sought specific performance of the
Purchase Agreement for the conveyance of Benson’s undivided
one-third interest in the property. In the second cause of action,
the appellees sought an injunction to enjoin the referee’s sale
of the property in the partition action.
The appellees were not granted a stay of the referee’s sale,
and the property was sold by referee’s sale for $1,150,000 to
unrelated individuals. The district court confirmed the sale by
an order filed December 2, 2011. After expenses of the sale,
each of the one-third interests was worth $353,937.88. On
January 20, 2012, the district court filed an order directing the
clerk of the court to hold $203,937.88 of Benson’s share in an
interest-bearing account until further ordered, and Benson was
paid $150,000. Ashcraft and Gary were each paid their one-
third interest of the proceeds.
On December 14, 2011, the appellees filed their amended
complaint, which alleged the same two causes of action as
the original complaint, along with a third cause of action for
breach of contract. In the third cause of action, the appellees
alleged that Benson breached the Purchase Agreement when
she refused to perform the contract. The appellees sought dam-
ages constituting the sum of Benson’s share of the proceeds
from the referee’s sale, minus the $150,000 purchase price set
forth in the Purchase Agreement. On December 15, the appel-
lees dismissed without prejudice the first and second causes
of action in their amended complaint. Accordingly, the only
remaining cause of action at trial and on appeal is the claim for
breach of contract and resulting damages.
Benson filed her answer on December 30, 2011. In her
answer, Benson generally denied the allegations of the amended
complaint, and she affirmatively alleged that the Purchase
Agreement had expired of its own accord; the appellees had not
complied with their obligations under the Purchase Agreement;
and her performance was excused, because the appellees had
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failed to obtain financing pursuant to the Purchase Agreement
in the timeframe set forth therein.
The parties filed cross-motions for summary judgment. The
court denied the parties’ cross-motions for summary judgment.
A bench trial was held on February 27, 2013. At the trial, the
appellees called five witnesses, including Mark, Cindi, both of
the Kirbys, and Benson. The appellees offered and the court
received 17 exhibits, which included the Purchase Agreement,
the promissory note, various communications between the
parties’ attorneys, the appellees’ attorney’s deposition, docu-
ments from the partition action, Benson’s affidavit, answers
to requests for admissions, and answers to interrogatories.
Benson called one additional witness, the president of the
Nebraska State Bank in Oshkosh, Nebraska, and she offered
and the court received one multipage exhibit, composed of
documents filed by the appellees in connection with their
loan application.
On August 2, 2013, the district court filed its order in which
it found in favor of the appellees and against Benson. This is
the order on appeal. In making its determinations, the court
rejected Benson’s argument that the appellees were in breach
of contract because they did not obtain financing pursuant to
the terms of the Purchase Agreement. The court stated that “the
financing clause was for the benefit of the [appellees] and was
waived by them when they obtained alternate financing” from
the Kirbys. The court determined that as of early August 2011,
Benson “was in breach of the contract as the [appellees] were
ready, willing and able to complete the terms of the contract.”
The court further determined that
the reason [Benson] refused to complete the contract
was because she was receiving less than what her sister
received for a one third interest and she was upset about
her sister’s handling of her mother’s finances. These rea-
sons are extrinsic to the terms of the contract and are not
valid reasons for non[-]performance under the contract.
Therefore, the court awarded the appellees the amount of
$203,937.88 which had been deposited in the court, represent-
ing the amount of Benson’s one-third of the proceeds of the
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partition sale, i.e., $353,937.88, minus the $150,000 already
distributed to Benson per the Purchase Agreement.
For completeness, we note that the Purchase Agreement rec-
ognizes that on the date the Purchase Agreement was signed,
the appellees had paid a $200 deposit to Benson, receipt for
which was acknowledged, and that the remaining balance
due was $149,800. Therefore, when the district court ordered
the $150,000 be paid to Benson after the partition sale, she
received $200 greater than she had bargained for. The appellees
have not filed a cross-appeal seeking the $200, and we make
no order with respect thereto.
Benson appeals.
ASSIGNMENTS OF ERROR
Benson claims on appeal that the district court erred when
it (1) determined that the appellees could waive the financing
clause in the Purchase Agreement, (2) determined that it was
not a contractual precondition that the appellees obtain specific
financing, (3) determined that Benson had breached the con-
tract, and (4) failed to find repudiation of the contract.
STANDARDS OF REVIEW
[1] A suit for damages arising from breach of a contract
presents an action at law. Thomas & Thomas Court Reporters
v. Switzer, 283 Neb. 19, 810 N.W.2d 677 (2012).
[2] In a bench trial of an action at law, the trial court is the
sole judge of the witnesses’ credibility and the weight to be
given their testimony. Liljestrand v. Dell Enters., 287 Neb. 242,
842 N.W.2d 575 (2014).
[3] The trial court’s factual findings in a bench trial of an
action at law have the effect of a jury verdict and will not be
set aside unless clearly erroneous. Braunger Foods v. Sears,
286 Neb. 29, 834 N.W.2d 779 (2013).
[4] An appellate court independently reviews questions of
law decided by a lower court. See Coffey v. Planet Group, 287
Neb. 834, 845 N.W.2d 255 (2014).
ANALYSIS
The essence of the district court’s decision is that although
the appellees stood ready, willing, and able to perform,
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Benson unequivocally and without justification breached the
Purchase Agreement, thus entitling the appellees to dam-
ages. On appeal, Benson asserts a variety of arguments. We
consider Benson’s arguments below and determine that none
have merit.
Marketability and Time
for Performance.
Before analyzing Benson’s contentions, we consider some
preliminary matters relevant to the Purchase Agreement in this
case. In this regard, we examine the Purchase Agreement and
determine that it is an enforceable contract and that the appel-
lees and Benson were bound by the agreement and extension
thereto. It is axiomatic that the title which is the subject of the
Purchase Agreement should be marketable. See 14 Richard
R. Powell & Michael Allan Wolf, Powell on Real Property
§ 81.03[6] (2014). We adhere to the modern view that “mar-
ketable” and “merchantable” title are practically synonymous
and that such title need not be free from every technical defect.
See Holoubek v. Romshek, 16 Neb. Ct. App. 677, 749 N.W.2d
901 (2008).
It is generally understood that the hazard of litigation con-
cerning title is a circumstance rendering a title unmarketable.
See, e.g., Chafetz v. Price, 385 So. 2d 104, 106 (Fla. App.
1980) (stating that circumstance of present litigation surround-
ing title “is the paradigm of unmarketability”). However, the
marketable title standard can be met if the purchaser specifi-
cally agrees to accept the title subject to pending litigation. See
14 Powell & Wolf, supra, § 81.03[6][d][iv] (cases collected).
In this case, paragraph 2 of the Purchase Agreement states
that the appellees as purchasers are “purchasing the property
subject to the pending Partition Action” to which, incidentally,
they were named defendants. Therefore, the pending litigation
does not preclude the transfer of the interest in the real prop-
erty involved in the Purchase Agreement.
We also note that the property at issue is an undivided one-
third interest rather than the entirety of the described real prop-
erty. The transfer of undivided interests in real property has not
met with disapproval. See, e.g., Klapka v. Shrauger, 135 Neb.
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354, 281 N.W. 612 (1938). Benson’s interest is the proper sub-
ject of a real estate contract.
We next observe that the Purchase Agreement initially set
a closing date of May 1, 2011, but was extended to March
1, 2012, by agreement of the appellees and Benson. We have
stated that a real estate contract which provides for a specific
closing date requires closing within a reasonable time after that
date unless the contract provides that time is of the essence.
See Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998).
The Purchase Agreement did not literally provide that “time
was of the essence.” The closing as extended was set “on or
before” March 1, 2012. The parties knew of the pending par-
tition action and testified they were aware that the perform­
ance of the Purchase Agreement depended on Benson having
title. As a treatise aptly states: “Seller cannot convey title that
has been lost.” 14 Powell & Wolf, supra, § 81.03[6][d][iv] at
81-140. Thus, performance would not be feasible after a cer-
tain date but before March 1, 2012, if Benson’s interest was
conveyed to an unrelated purchaser in the partition action.
Therefore, time, while not of the essence, was relevant to the
successful performance of the Purchase Agreement.
Breach of Contract.
Benson contends she did not breach the Purchase Agreement.
She initially makes numerous arguments related to the 30-day
provision by which the appellees were to apply for a FSA loan
and the 90-day provision by which such financing was to be
secured. Benson contends that because these deadlines were
not met according to these terms, the Purchase Agreement
became null and void. Benson claims the district court erred
when it concluded that these conditions were for the benefit
of the appellees as purchasers and further erred when it found
that the conditions were waived by the appellees when they
obtained alternate financing within the timeframe provided. We
find no merit to Benson’s claims of error.
[5] We have held that a party to a contract may waive the
provisions made for his or her benefit. Gesell v. Reeves, 229
Neb. 842, 429 N.W.2d 363 (1988). It has been observed that
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“[r]eal estate sales contracts often contain a mortgage or financ-
ing contingency clause, usually for the benefit and protection
of the purchaser in the event that the purchaser is unable to
secure necessary financing by the date set for closing.” 60 Am.
Jur. Proof of Facts 3d 445 Waiver of Strict Compliance § 17 at
496 (2001 & Supp. 2013). That is, such “contingencies . . . are
ordinarily for the benefit of the purchaser.” Id. at 496-97. See,
also, Wesley N. Taylor Co. v. Russell, 194 Cal. App. 2d 816, 15
Cal. Rptr. 357 (1961) (cases collected).
Whether the condition is for the benefit of the purchaser,
or the seller, or both, depends on the facts and circumstances
of each case and the language of the agreement. Fleischer v.
McCarver, 691 S.W.2d 930 (Mo. App. 1985) (cases collected).
In cases where it is determined that the inclusion of a financing
provision is for the sole benefit of the purchaser, the cases also
state that the seller’s “interest is in securing the purchase price
[and] that the paramount obligation of the respective parties is
the payment of the cash and the delivery of title to the property,
and that the method of financing is incidental and not of the
essence of the contract to convey.” See Wesley N. Taylor Co. v.
Russell, 194 Cal. App. 2d at 828-29, 15 Cal. Rptr. at 365 (cases
collected). We agree with the foregoing analysis and find it
applicable to the case at bar.
In its order, the district court determined that the financing
conditions were for the benefit of the appellees as purchas-
ers and found the facts showed that Benson, as seller, was
“not concerned about where the money came from as much
as she was concerned about other extrinsic matters.” These
matters included the higher price her sister, Ashcraft, might
receive for her one-third interest and the ongoing dispute
relating to their mother’s estate. The district court found that
Benson “conceded that prior to making the decision not to
close, she never questioned the [appellees] about the status of
their financing.” The district court determined that under the
facts and language of the Purchase Agreement, the financing
terms were for the appellees’ benefit and that the appellees
could and did waive the terms. The district court determined
that the Purchase Agreement was an enforceable contract and
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that the waiver did not render the Purchase Agreement null
and void.
Having reviewed the law and record, we conclude that the
district court’s recitation of the law to the effect that the appel-
lees as purchasers could waive a condition for their benefit was
correct and that its findings of fact were not clearly erroneous.
We also observe that by agreeing to extend the closing date
to March 1, 2012, Benson exhibited her willingness to waive
the earlier financing deadlines, and that such fact lends further
support to the district court’s determination that lack of adher-
ence to the FSA financing provisions was not fatal.
Benson next contends that the district court erred when it
failed to make an explicit finding that Benson repudiated the
Purchase Agreement and further erred when it determined that
Benson breached the Purchase Agreement. We find no merit to
these assignments of error.
[6,7] We have stated that “‘[i]n order to constitute a repu-
diation, a party’s language must be sufficiently positive to be
reasonably interpreted to mean that the party will not or can-
not perform.’” Anderson Excavating v. SID No. 177, 265 Neb.
61, 68, 654 N.W.2d 376, 382 (2002), quoting Restatement
(Second) of Contracts § 250, comment b. (1981). The question
whether there has been repudiation or whether repudiation was
justified is a question of fact. Id.
The district court reviewed the evidence and found that
prior to the partition sale when performance of the Purchase
Agreement was still viable, “Benson communicated through
her attorney on or about August 8, 2011, that she would not go
through with the sale. (Exhibit 24) She testified at trial that she
decided to go the partition route, because on August 8, 2011
‘she was pissed that day.’” Exhibit 24 is an August 9, 2011,
letter to Cindi from her attorney stating in part that the attor-
ney had spoken to Benson’s attorney on August 8, the latter
of whom “indicated that [Benson] is not agreeable to the sale
of $150,000” and indicating that the appellees should not talk
directly to Benson “as it just upsets her to discuss all this.” The
district court found that at about this point in time, “Benson
decided she was no longer willing to sell her one third interest
to the [appellees].”
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Although the district court did not use the word “repu-
diation” to characterize these facts, the substance of its order
amounts to a finding of an unequivocal statement by Benson
that she would not perform, and therefore, the district court
effectively found a repudiation by Benson. No further findings
are necessary.
Benson next contends that the appellees were not capable
of purchasing the real estate and that as a consequence,
she did not breach the Purchase Agreement. We understand
Benson’s arguments to generally include the suggestion that
the appellees failed to tender a performance and specifically
to challenge the district court’s determinations in its August 2,
2013, order that Benson “was in breach of the contract as the
[appellees] were ready, willing and able to complete the terms
of the contract.” We find no merit to Benson’s assignments
of error.
As we have noted, Benson repudiated the contract in August
2011, which was during the extended lifetime of the Purchase
Agreement and before the November 2011 partition sale. The
repudiation occurred during a period when the obligations of
the Purchase Agreement could have been performed. We have
summarized the legal consequences of such a state of affairs
as follows:
Where one party to an executory contract to sell and con-
vey real estate, prior to breach by him and before time
for performance by either party has arrived, unequivo-
cally states that he cannot and will not perform, when the
time of performance arrives, the other party may either
treat such renunciation as an abandonment or breach of
contract by affirmative election so to do, or he may treat
such renunciation as inoperative, and await the time of
performance and then hold the one party responsible for
all consequences of nonperformance, including specific
performance in a proper case, but in case he keeps the
contract alive, it lives for the benefit of both parties,
and he remains subject to all of his obligations under
it, and enables the one party to complete the contract,
notwithstanding his previous renunciation, with the same
force and effect as if such prior renunciation had never
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been made. Frost v. Knight, L. R. 7 Exch. 111; Roehm v.
Horst, 178 U.S. 1, 20 S. Ct. 780, 44 L. Ed. 953; 13 C. J.,
Contracts, § 729, p. 655.
Lang v. Todd, 148 Neb. 726, 732, 28 N.W.2d 434, 437-38
(1947).
[8] The record shows that Benson did not withdraw her
repudiation, and the appellees accepted her repudiation as evi-
denced by their filing the instant action. As to a tender by the
appellees, we have previously considered the relevance of ten-
der in a case where a party unequivocally stated it would not
perform. We stated: “An unqualified renunciation of an execu-
tory contract before time for performance by one party excuses
tender of performance by the other party at the time set for
performance.” Friehe Farms, Inc. v. Haberman, 191 Neb. 292,
299, 214 N.W.2d 916, 920 (1974). Similarly, in Esplendido
Apartments v. Olsson, 144 Ariz. 355, 361, 697 P.2d 1105, 1111
(Ariz. App. 1984), it was observed that other courts have rec-
ognized that a buyer is relieved “of the obligation to tender
performance where the seller has either refused to perform or
is clearly unable to do so.”
At trial, referring to the Kirby note, Cindi testified that she
repeatedly advised Benson “we were ready to go with it” and
that she told Benson “[w]e had our financing lined up, and
it was just a matter of when we wanted to do it.” Cindi also
testified that she said nothing that could be construed as want-
ing to back out of purchasing Benson’s one-third interest. The
district court credited this testimony as it was entitled to do.
See Liljestrand v. Dell Enters., 287 Neb. 242, 249, 842 N.W.2d
575, 580 (2014) (stating that “in a bench trial of an action at
law, the trial court is the sole judge of the witnesses’ credibility
and the weight to be given their testimony”).
The district court heard the witnesses and reviewed the
documentary evidence and determined that the note between
the Kirbys and the appellees was valid, that the Kirbys had the
$150,000 referred to in the note on hand, and that the appel-
lees “had the financing in place.” The district court determined
that the appellees “were ready, willing and able to complete
the terms of the contract.” Benson suggests that, even if ready,
willing, and able, the appellees were nevertheless required
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to tender the balance of the amount due under the Purchase
Agreement in order to put her in default and to recover dam-
ages for breach of the contract. Because the law regarding ten-
der is not so rigid, we reject Benson’s suggestion.
[9] In Klapka v. Shrauger, 135 Neb. 354, 361, 281 N.W.
612, 616 (1938), we observed:
“A covenant by a purchaser to pay, and by the ven-
dor to convey a good title, both to be performed at the
same time, are mutually dependent, and neither party
can claim a breach without a tender of performance and
offer to perform upon due performance by the other, or,
at least, proof of readiness and willingness to perform.”
Nicolopoolos v. Hill, 59 A. L. R. 185 (217 Ala. 589, 117
So. 185 [1928]).
(Emphasis supplied.)
As we indicated in Klapka, a complete tender of perform­
ance is not always indicated, and in some cases “‘proof of
readiness and willingness to perform’” is all that is required.
Klapka, 135 Neb. at 361, 281 N.W. at 616. Other courts are
in agreement. When faced with facts somewhat similar to the
instant case, the Supreme Court of Arizona in Kammert Bros.
Enter., Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 306, 428
P.2d 678, 683 (1967), stated:
We must next consider whether the buyer was required
to make a formal tender of the amounts due on the
contract in order to recover damages for breach of the
contract. Kammert Brothers [as seller] here had posi-
tively refused Tanque Verde’s offer to perform its duties
under the contract. Therefore tender of the purchase
price by the buyer was excused, since an actual tender
is unnecessary where it is clear that the other party will
not accept it, rendering the act useless. Lee v. Nichols,
81 Ariz. 106, 301 P.2d 1022 (1956); Schmitt v. Sapp, 71
Ariz. 48, 223 P.2d 403 (1950). It was sufficient that the
buyer was ready, willing, and offered to perform. Lee v.
Nichols, supra. It was clearly established that such was
the case here.
We agree with the reasoning in Kammert Bros. Enter., Inc.,
and we apply it to this case. The district court found that
Nebraska Advance Sheets
698 288 NEBRASKA REPORTS
the appellees had financing in place and had expressed their
ability and willingness to perform under the contract. In the
face of Benson’s repudiation, the appellees were not required
to tender the money due under the Purchase Agreement.
Such would have been a useless act. The district court deter-
mined that the appellees’ efforts were sufficient and that thus,
Benson was in breach at the time for performance. Based on
the applicable law and the district court’s findings, which are
supported by the record, we see no error. We find no merit
to Benson’s assignments of error regarding repudiation and
breach of contract.
CONCLUSION
The district court determined that Benson breached the
Purchase Agreement by refusing to sell her interest in the prop-
erty at issue and awarded damages to the appellees. For the
reasons explained above, we find no merit to Benson’s assign-
ments of error and, accordingly, affirm.
Affirmed.