Albrecht v. Fettig , 27 Neb. Ct. App. 371 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/23/2019 12:07 AM CDT
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ALBRECHT v. FETTIG
Cite as 27 Neb. App. 371A ndrew A lbrecht, appellee and cross-appellant,
v. K evin Fettig, doing business as Fettig
Cattle Company, appellant
and cross-appellee.
___ N.W.2d ___
Filed July 16, 2019. No. A-18-445.
1. Contracts: Appeal and Error. The interpretation of a contract is a
question of law, in connection with which an appellate court has an
obligation to reach its conclusions independently of the determinations
made by the court below.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict and will not be
disturbed on appeal unless clearly wrong.
3. 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.
4. Prejudgment Interest: Appeal and Error. Whether prejudgment inter-
est should be awarded is reviewed de novo on appeal.
5. Uniform Commercial Code: Contracts. Under the Uniform
Commercial Code, a buyer is given the right to reject the whole if the
goods fail in any respect to conform to the contract.
6. ____: ____. An output contract is one in which the actual quantity
of goods subject to the sale or purchase is indefinite. The quantity is
determined by either the output of the seller or the requirements of
the buyer.
7. ____: ____. Nebraska’s codification of the Uniform Commercial
Code (particularly Neb. U.C.C. § 2-601 (Reissue 2001)) and Nebraska
Supreme Court precedent make it clear that buyers may reject an entire
delivery that in any way fails to conform to the contract.
8. Prejudgment Interest: Appeal and Error. Prejudgment interest may
be awarded only as provided in Neb. Rev. Stat. § 45-103.02 (Reissue
2016).
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ALBRECHT v. FETTIG
Cite as 27 Neb. App. 3719. Prejudgment Interest: Claims. A claim is liquidated for purposes of
prejudgment interest when there is no reasonable controversy as to both
the amount due and the plaintiff’s right to recover.
Appeal from the District Court for Thurston County: John E.
Samson, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., and
Stuart B. Mills for appellant.
Wendy J. Ridder, of Law Offices of Daniel P. Bracht, P.C.,
L.L.O., for appellee.
Pirtle, A rterburn, and Welch, Judges.
A rterburn, Judge.
INTRODUCTION
Kevin Fettig appeals from an order of the district court for
Thurston County that ordered him to return a $6,000 deposit to
Andrew Albrecht from an uncompleted cattle sale and awarded
Albrecht incidental damages of $449.53, both of which carried
a 3.61-percent postjudgment interest rate. The court initially
ordered Fettig to pay prejudgment interest at a rate of 12 per-
cent on the $6,000 deposit but subsequently granted Fettig’s
motion to alter or amend, thereby ordering that no prejudg-
ment interest was owed on the deposit. Albrecht cross-appeals
from the order granting Fettig’s motion to alter or amend. For
the reasons that follow, we affirm the district court’s award of
damages to Albrecht totaling $6,449.53 and the district court’s
amended order that eliminated the award of prejudgment inter-
est on the $6,000 award.
BACKGROUND
Albrecht operates a cow-calf ranch in Thurston County,
Nebraska, breeding and selling primarily Red Angus cattle.
Although he performs some work individually, Albrecht also
does some work through a business that involves his brother
and father. That business holds an annual sale in April wherein
it primarily sells Red Angus bulls. Albrecht’s individual
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ALBRECHT v. FETTIG
Cite as 27 Neb. App. 371operation involves feeding cattle in his own feedlot and then
selling them for slaughter. He prefers to feed primarily Red
Angus cattle based on what he believes to be their superior
performance and for the reason that prospective customers for
the annual bull sale stop at his feedlots to view the cattle. He
noted that buyers are more likely to bid at the annual bull sale
when they have seen Red Angus cattle on the Albrecht fam-
ily feedlots. Additionally, Albrecht is a member of the Red
Angus Association.
Albrecht attributed his preference for Red Angus cattle to
the cattle’s superior performance. In comparison to black-hided
cattle, Albrecht’s father described Red Angus cattle as being
more docile and more heat tolerant during the summertime.
Steers that tolerate heat better are less likely to unexpectedly
die. Albrecht’s brother also observed Red Angus steers’ better
heat tolerance and docile temperament, noting that they are
less likely to run in their pens and kick up dust, which can
cause illness. Albrecht’s brother stated that he had paid more
for red cattle than black cattle based on their coloration. He
also noted that Red Angus steers can garner a higher price in
the region due to years of ranchers’ culling red-hided cattle
from their herds, which led to their scarcity as compared to
black-hided cattle.
Fettig works as a rancher and cattle buyer, whereby he pur-
chases cattle and resells them to buyers, including Albrecht.
Albrecht bought cattle through Fettig when his normal cattle
buyer was unavailable in May 2015. Although Albrecht wanted
mostly red-hided steers, Fettig purchased mostly black-hided
steers for Albrecht. Albrecht testified that Fettig apologized
for “sending [him] the wrong color of cattle” following a prior
transaction. Despite the cattle not meeting Albrecht’s specifica-
tions, Albrecht told Fettig that he would accept that particular
shipment of cattle but would reject any future deliveries of the
wrong color of cattle.
A few months later, in July 2015, Albrecht again retained
Fettig to purchase cattle for him. Albrecht testified that they
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Cite as 27 Neb. App. 371discussed Albrecht’s desire to buy around 150 head of primar-
ily red-hided cattle, and Fettig told Albrecht that there might
be 5 head of black-hided cattle in the order. Fettig prepared
a contract for the sale, which described that the cattle would
be 80 percent red hided and 20 percent black hided. Fettig
testified that he did not make statements indicating that there
would be less than 20 percent black-hided cattle. However,
Albrecht said that the contract varied from their initial con-
versation and that he called Fettig to discuss the description
of cattle as 80 percent red hided and 20 percent black hided.
According to Albrecht, Fettig said that he included the per-
centages only to “cover his bas[e]s” but that he nonetheless
intended for there to be only a few black-hided steers in
the delivery.
The contract for the purchase of livestock is dated July
15, 2015, and signed by both parties. A number of terms are
handwritten, including the quantity of steers, their descrip-
tion, and the price. Albrecht and Fettig both testified that all
the handwritten terms on the contract were written by Fettig.
The quantity is given as “APPROX 150 - HD,” which both
parties understood to mean approximately 150 head of cattle.
Albrecht testified that he understood he could receive some
deviation from 150 head of cattle, such as receiving 151 head
of cattle. The contract describes the cattle to be delivered as
“80% Red Angus cross [and] 20% Bl[ac]k Angus cross steers”
at a base average weight of 780 pounds. The price is given as
$235 per hundredweight. Additionally, a sliding price scale
was provided whereby the price could be adjusted up to $0.15
per pound if the average weight of the steers was higher or
lower than the 780-pound base weight stated in the contract.
The contract memorialized a “country deal” according to the
parties, which is signed with an understanding that delivery
will occur at a date in the future. In this case, as in many such
deals, the buyer did not view the cattle prior to signing the
contract. Here, the contract specified a delivery window of
between October 10 and 25, 2015. As part of the negotiation,
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Cite as 27 Neb. App. 371Fettig informed Albrecht of the ranch from which he would be
buying the steers in North Dakota, which included a discussion
of the owner and the Red Angus bulls the owner utilized for
the cattle he raised and sold. Fettig and the owner, Randy Kahl,
executed a contract for the sale of the steers to Fettig, which in
turn were sold to Albrecht.
The parties spoke by telephone on a number of occasions
in early October 2015, prior to the delivery of the steers.
During one of these conversations, Fettig indicated that there
were 10 additional head of cattle that were ready for delivery
if Albrecht was interested. Albrecht confirmed that he was
interested in purchasing the 10 additional head and negotiated
a price for them of $189 per hundredweight because prices in
the cattle market had gone down since they signed the original
contract in July. Albrecht testified that the additional 10 head
of cattle fell outside the “approximately” term of their origi-
nal contract. However, Fettig testified that he asked Albrecht
about the 10 additional head of cattle and negotiated a new
price as a “courtesy,” even though he believed that he could
have included them under the “approximately” term of the
original contract.
The cattle were delivered to Albrecht late at night on October
14, 2015, after it was dark outside. The next morning, Albrecht
saw the cattle in the daylight and observed that there were a lot
of black-hided steers: “I knew there was more than 20 percent
without even counting them . . . .” Albrecht also observed a
few “butterscotch” steers, which he believed to have Charolais
genetics. In preparation for trial, Albrecht counted the steers
from a video he took and found 88 red steers, 68 black steers,
and 4 butterscotch steers.
Albrecht called Fettig on October 15, 2015, and expressed
frustration and displeasure at receiving so many black steers.
Fettig offered to take back the black steers, leaving Albrecht
with 88 head of red steers, but Albrecht rejected that offer.
Albrecht testified that Fettig’s offer was unsatisfactory to him
because it would leave him with a partial pen of cattle, which
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Cite as 27 Neb. App. 371would result in a higher cost of feeding each cow given that
the labor required to feed a partial pen of cattle is no different
than is needed to feed a full pen. According to Albrecht, Fettig
never offered to bring more red cattle.
After discussing the mix of cattle delivered with his brother,
father, and an attorney, Albrecht called Fettig on October 16,
2015, and rejected the delivery based on the inclusion of too
many black steers. Albrecht also noted that the contract did
not allow for the delivery of any butterscotch steers. Albrecht
testified that Fettig made no offers after he rejected the deliv-
ery on October 16. Despite having until October 25 to cure the
problem, Fettig admitted that he made no efforts to find more
red cattle to meet the 80-percent threshold after Albrecht’s
rejection on October 16. Fettig testified that he did not work
to find additional red steers “[b]ecause the door was slammed
on me to take them all back and he refused them.” Kahl testi-
fied that he informed Fettig that he had more red steers avail-
able, which could have been swapped for black steers. He did
note that the additional red steers would weigh less than the
­780-pound average called for in the contract but that the slide
could be applied.
Fettig sent trucks to pick up all the steers on October 17,
2015, and return them to North Dakota. Between the time the
cattle were delivered to Albrecht on October 14 and when the
cattle were picked up on October 17, Albrecht said he fed
them as he would feed his own cattle—giving them hay, silage,
corn, and “modified distillers.” Albrecht testified that he told
Fettig he was feeding the cattle and discussed whether Fettig
wanted them fed before being loaded onto trucks for the return
trip to North Dakota. However, Fettig testified that he did not
recall Albrecht discussing feeding the cattle but acknowledged
that Albrecht discussed administering an antibiotic mix to
the cattle.
Before loading the cattle for their return trip, Albrecht asked
that Fettig refund the $6,000 deposit he paid. Fettig agreed and
(at Albrecht’s insistence) drafted a written agreement reflecting
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Cite as 27 Neb. App. 371the repayment promise pursuant to Albrecht’s request. Fettig
emailed that agreement to Albrecht, which also included a
provision requiring Fettig to pay the trucking bill from North
Dakota to Nebraska. The agreement was dated October 17,
2015. Although Fettig testified that Albrecht made no threats
to coerce him to sign the repayment agreement, he also stated
that Albrecht was “forcing [his] hand” because Albrecht stated
he would not load the cattle until Fettig signed the repayment
agreement. Albrecht testified that he made no threats of any
kind to induce Fettig to sign the repayment agreement. He
simply wanted their verbal agreement in writing because he
“didn’t trust [Fettig] at that point anymore.” Fettig signed
the repayment agreement, and Albrecht loaded the cattle for
the return trip to North Dakota. Fettig admitted that he never
returned Albrecht’s $6,000 deposit. Fettig testified that he had
the steers transported back to a feedlot in North Dakota. He
maintained ownership of the cattle, paying for them to be fed.
He ultimately sold the cattle at a sale barn at a price below the
price contracted for with Albrecht.
Between October 17 and 25, 2015—the close of the perform­
ance period provided in their purchase agreement—Fettig and
Albrecht had no contact. On November 9, Albrecht text mes-
saged Fettig to inquire about the $6,000 deposit refund. Fettig
replied and told Albrecht that he had filed a lawsuit against
Albrecht and that his attorney instructed him not to discuss
the matter.
Albrecht then filed a complaint in the county court for
Thurston County on November 11, 2015, alleging that Fettig
breached their written purchase agreement that was dated July
15, 2015. Albrecht alleged that he was damaged in the amount
of the $6,000 deposit he paid to Fettig, the yardage and feed
costs incurred by housing the cattle from October 14 to 17,
transportation costs, and the labor and miscellaneous costs
associated with loading the cattle for their return trip.
On December 14, 2015, Fettig filed an answer and coun-
terclaim. Fettig’s counterclaim alleged that Albrecht breached
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Cite as 27 Neb. App. 371their written purchase agreement that was dated July 15,
2015, by refusing to accept delivery of cattle that complied
with their agreement. Fettig requested that the court award
to him damages in the amount of the value lost on the cattle
between their delivery to Albrecht and their eventual sale on
December 5, 2015, along with associated costs and expenses
he incurred.
The matter was subsequently transferred to district court
on July 28, 2016. Fettig filed an amended answer and coun-
terclaim on September 14, which more specifically set forth
damages. Trial on the matter occurred on November 28 and
December 13, 2017. Albrecht testified and offered the testi-
mony of four other witnesses. Fettig also testified but called no
other witnesses. He did offer the deposition testimony of Kahl,
which was received. Numerous exhibits were admitted.
Following trial, the court entered its order on February 7,
2018. Specifically, the court noted that “Albrecht was a very
credible witness and that his testimony regarding the conversa-
tions and dealings between he and . . . Fettig was believable
and persuasive.” The court found that Albrecht had never
accepted delivery of the cattle and verbally notified Fettig
of the issue regarding the cattle’s coloration on October 15,
2015, after Albrecht saw the cattle in the daylight for the first
time. On October 16, Albrecht officially rejected the cattle.
The court found Albrecht’s testimony credible that Fettig’s
only offer to cure was his offer to remove all the black-hided
steers, which would leave Albrecht with significantly fewer
than the approximately 150 head of cattle called for in the
purchase agreement. The court found that Fettig made no other
attempts to cure the delivery before the final performance
date of October 25, 2015, and that if the only action taken
by Fettig was to take back the black cattle, he would still
have breached the contract’s requirements as to the number of
cattle delivered.
The court held that the parties’ agreement did not limit
Albrecht’s right to reject the cattle. Instead, the provision that
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Cite as 27 Neb. App. 371unmerchantable cattle—those exhibiting disease and deformi-
ties—could be rejected was a nonexclusive ground on which
Albrecht could reject the cattle delivery. Moreover, the court
held that Albrecht was entitled under Nebraska’s Uniform
Commercial Code (U.C.C.) to reject the entire delivery, accept
the entire delivery, or accept any portion of the delivery and
reject the rest. Albrecht’s rejection of the entire cattle deliv-
ery was therefore allowed under the U.C.C. Finally, the court
found that Fettig had not met his burden of proof regarding his
counterclaim and therefore dismissed the counterclaim.
The court awarded damages to Albrecht based on Fettig’s
breach. The court ordered Fettig to refund Albrecht’s $6,000
deposit. The court ordered Fettig to pay 12 percent prejudg-
ment interest on the $6,000 deposit from October 17, 2015,
and 12 percent postjudgment interest. The court also ordered
Fettig to pay incidental damages based on the costs Albrecht
incurred in caring for the cattle on his property from October
14 through 17, totaling $449.53, and attached postjudgment
interest at the rate of 3.61 percent until paid in full. The court
found that Albrecht did not meet his burden of proof as to
establishing the amount of the trucking bill, so it awarded no
damages related to trucking expense.
Fettig filed a motion to alter or amend on February 15, 2018,
arguing that prejudgment interest was inappropriate and that a
postjudgment interest rate of 12 percent was also inappropri-
ate. A brief hearing was held on April 11, 2018. In ruling from
the bench, the court’s rationale centered on Albrecht’s failure
to plead prejudgment interest. On April 13, the court amended
its order to reflect a 3.61-percent postjudgment interest rate as
to the $6,000 judgment for the deposit and eliminated any pre-
judgment interest award.
Fettig now appeals, and Albrecht cross-appeals.
ASSIGNMENTS OF ERROR
Fettig assigns, restated, that the district court erred in find-
ing that Albrecht could reject the cattle for failing to consist of
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Cite as 27 Neb. App. 371approximately “80% red-hided and 20% black-hided steers,”
that Fettig had failed to notify Albrecht of his intention to cure
the purported breach, and that Albrecht repudiated the contract
before the performance period closed.
Albrecht assigns that the district court erred in vacating its
award of 12 percent prejudgment interest on the $6,000 deposit
owing to Albrecht from October 17, 2015.
STANDARD OF REVIEW
[1-3] The interpretation of a contract is a question of law, in
connection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below. Omaha Police Union Local 101 v. City of
Omaha, 292 Neb. 381, 872 N.W.2d 765 (2015). In a bench trial
of a law action, the trial court’s factual findings have the effect
of a jury verdict and will not be disturbed on appeal unless
clearly wrong. Bloedorn Lumber Co. v. Nielson, 300 Neb. 722,
915 N.W.2d 786 (2018). 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. Stauffer v. Benson, 288
Neb. 683, 850 N.W.2d 759 (2014).
[4] Whether prejudgment interest should be awarded is
reviewed de novo on appeal. Roskop Dairy v. GEA Farm Tech.,
292 Neb. 148, 871 N.W.2d 776 (2015).
ANALYSIS
The U.C.C. applies to transactions in goods. Neb. U.C.C.
§ 2-102 (Reissue 2001). The U.C.C. defines the term “goods”
as “all things (including specially manufactured goods) which
are movable at the time of identification to the contract for
sale other than the money in which the price is to be paid,
investment securities (article 8) and things in action.” Neb.
U.C.C. § 2-105 (Reissue 2001). This matter involves a sale
of cattle, which are movable at the time of identification in
the parties’ purchase agreement. Thus, the U.C.C. governs
this matter.
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Cite as 27 Neb. App. 371Albrecht’s Rejection of
Fettig’s Delivery.
Fettig argues on appeal that the written purchase agreement
exclusively limited Albrecht’s right of rejection to unmer­
chantable cattle—those that are diseased, crippled, or deformed.
He argues that Albrecht could not reject the cattle for failing
to be a “‘perfect-tender’” under the terms of their purchase
agreement. Brief for appellant at 18. Fettig also argues that
their purchase agreement was an “output contract” and did not
call for delivery of exactly 80 percent red-hided steers and 20
percent black-hided steers. Id. at 30. For the reasons that fol-
low, we agree with the district court that Albrecht could reject
Fettig’s delivery because the steers he delivered were not 80
percent red hided and 20 percent black hided.
An agreement between parties may provide remedies in
addition to, or in substitution for, those remedies provided in
article 2 of the U.C.C. Neb. U.C.C. § 2-719(1)(a) (Reissue
2001). Resort to a remedy as provided is optional unless the
remedy is expressly agreed to be exclusive, in which case it
is the sole remedy. § 2-719(1)(b). Section 2-719(1)(b) creates
a presumption that contract clauses prescribing remedies are
cumulative rather than exclusive. § 2-719, comment 2. If the
parties intend that the contract term describes the sole remedy
under the contract, this must be clearly expressed. Id.
[5] Where goods or the tender of delivery fail in any respect
to conform to the contract, the buyer may reject the whole,
accept the whole, or accept “any commercial . . . units and
reject the rest.” Neb. U.C.C. § 2-601 (Reissue 2001). Under
the U.C.C., a buyer is given the right to reject the whole if the
goods fail in any respect to conform to the contract. Maas v.
Scoboda, 188 Neb. 189, 195 N.W.2d 491 (1972).
[6] An output contract is one in which the actual quan-
tity of goods subject to the sale or purchase is indefinite.
Meyer v. Sandhills Beef, Inc., 211 Neb. 388, 318 N.W.2d
863 (1982). The quantity is determined by either the output
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Cite as 27 Neb. App. 371of the seller or the requirements of the buyer. Id. A lawful
output contract imposes an obligation upon the seller to use
best efforts to supply the goods and upon the buyer to use
best efforts to promote their sale. See Neb. U.C.C. § 2-306(2)
(Reissue 2001).
In the present case, the parties’ purchase agreement provides
that Albrecht, as the buyer, may reject any cattle that are not
in a merchantable condition. However, the agreement does not
describe this remedy as the sole remedy under the contract. In
the absence of such clear expression of exclusivity, a remedy
is presumed cumulative—not exclusive—under § 2-719(1)(b).
Nevertheless, Fettig contends that the Latin phrase “expressio
unius est exclusio alterius,” which means “the expression of
one thing is the exclusion of the other,” ought to be applied
here to show that Albrecht was limited under their agreement
to rejecting the delivery only if the cattle were unmerchant-
able. Brief for appellant at 15. Our codified adoption of the
U.C.C. supplants general principles of interpretation, and we
will adhere to the presumption that remedies are cumulative
unless exclusivity is clearly expressed. Therefore, like the dis-
trict court, we will not read into the contract the addition of
terms that do not appear, and thus, we find that Albrecht was
entitled to reject the cattle delivered for reasons beyond their
merchantable condition.
The contract that Fettig drafted specified that he was to
provide to Albrecht approximately 150 head of cattle that were
80 percent red hided and 20 percent black hided. They subse-
quently negotiated the sale of an additional 10 head of cattle.
Fettig delivered 88 red steers, 68 black steers, and 4 butter-
scotch steers. That amounted to 160 head of cattle that were
55 percent red hided, 42.5 percent black hided, and 2.5 percent
butterscotch hided. Thus, the cattle delivered did not conform
to the terms of the contract, entitling Albrecht to reject the
entire delivery, accept the entire delivery, or accept “any com-
mercial . . . units and reject the rest.” See § 2-601. Albrecht
elected to reject the entire delivery.
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Cite as 27 Neb. App. 371[7] Fettig argues that the so-called perfect tender rule has
eroded over time and only stands for the proposition that
buyers may reject a substantially nonconforming delivery.
Nebraska’s codification of the U.C.C. (particularly § 2-601)
and our Supreme Court precedent make it clear that buyers
may reject an entire delivery that in any way fails to conform
to the contract. See, e.g., Maas v. Scoboda, supra. Even if
we accepted Fettig’s position as correct, which we decline to
do, it is unreasonable to suggest that the delivery in this case
substantially conformed to the contract. The contract specified
that Fettig was to deliver cattle that were 80 percent red hided
and 20 percent black hided, but Fettig instead delivered cattle
that were 55 percent red hided and 42.5 percent black hided.
Fettig’s delivery was much more than a slight deviation from
the terms of the contract.
At trial, Fettig and Kahl testified that there would be no dif-
ference in the price paid for cattle, whether red hided or black
hided. They testified that the key provision in a “country deal”
was the weight and that cattle feeders are not concerned about
hide color. Based on this testimony, Fettig essentially argues
that the color of the steer delivered is of no consequence so
long as the underlying genetics and weight meet the contract’s
requirements. Albrecht testified that color was a critical factor
in his decision to enter the contract and noted his insistence
to Fettig that the cattle delivered be, at minimum, 80 percent
red hided. Moreover, he testified to his dissatisfaction with a
past shipment of cattle that did not conform to the description
provided by Fettig. While Fettig and Kahl may have disagreed
that color of the cattle was important, the evidence demon-
strated that Fettig agreed to deliver what Albrecht demanded
but failed to deliver on his promise.
Fettig also urges us to decide that the contract term
“approximately” ought to be applied to both the quantity and
the proportion of red-hided to black-hided steers. The plain
language of the contract demonstrates that “approximately”
only attached to the quantity. Nevertheless, even if we again
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Cite as 27 Neb. App. 371accept Fettig’s proposition that he was required to deliver
approximately 80 percent red-hided steers and approximately
20 percent black-hided steers, his delivery does not conform
to that fictional iteration of the contract. We cannot find that
a delivery of 55 percent red-hided steers satisfies the require-
ment of delivering approximately 80 percent red-hided steers,
nor that a delivery of 42.5 percent black-hided steers satis-
fies the requirement of delivering approximately 20 percent
black-hided steers. Fettig’s delivery did not comply with the
contract, and Albrecht was therefore entitled to reject the
entire delivery.
Lastly, Fettig argues that the contract here was an output
contract, which necessitated that both parties deal in good faith.
Notwithstanding Fettig’s admission that he did not attempt to
load steers for delivery that were 80 percent red hided and 20
percent black hided, we find no indication that either party
dealt in bad faith. However, we also find that the contract here
was not an output contract. Albrecht agreed to buy a set num-
ber of steers that also met weight and hide-color requirements.
The inclusion of the term “approximately” does not negate the
defined nature of the parties’ contract. The parties did not sign
an output contract because Albrecht did not agree to buy, for
example, all the red-hided steers that Fettig could secure or all
the steers that weighed 780 pounds. The contract’s quantity
was a definite, albeit approximate, term and unlike those found
in output contracts.
Based on the foregoing, we agree with the district court that
Albrecht was entitled to reject the cattle delivery because it did
not include 80 percent red-hided and 20 percent black-hided
steers. Albrecht’s right to reject on this ground existed notwith-
standing the contract’s additional ground for rejection if the
cattle were unmerchantable.
Fettig’s Purported Cure.
Fettig argues on appeal that he notified Albrecht of his
intention to cure the nonconforming delivery by offering to
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Cite as 27 Neb. App. 371pick up the black-hided steers. We agree with the district
court that Fettig’s purported offer to cure would have actu-
ally resulted in another material breach of the contract. Thus,
we affirm the district court’s finding that Fettig failed to
timely notify Albrecht of his intention to appropriately cure
the breach.
Where any tender or delivery by the seller is rejected
because nonconforming and the time for performance has not
yet expired, the seller may seasonably notify the buyer of his
intention to cure and may then within the contract time make a
conforming delivery. Neb. U.C.C. § 2-508(1) (Reissue 2001).
Albrecht and Fettig agree that the contract required perform­
ance before October 25, 2015. The parties also agree that
Albrecht rejected Fettig’s delivery of the cattle on October
16, meaning that Fettig had from October 16 until October
25 to notify Albrecht of his intention to cure and then make
a conforming delivery. Fettig argues that he did attempt to
cure because he “offered to pick up the black cattle . . .
Albrecht did not want.” Brief for appellant at 31. Fettig also
argues that Albrecht did not request the delivery of additional
red steers.
The very nature of curing a nonconforming delivery is to
make a conforming delivery. As the district court noted in its
order, if Fettig had taken back all the black cattle, then the
resulting delivery would not conform to the required quantity
of cattle to be delivered. Even if Fettig took back some but
not all of the black cattle, then the 80-20 proportion may be
achieved, but the quantity requirement would remain unmet.
Aside from Fettig’s offer to take back the black cattle, he
made no other potential offers to cure. We note that, between
the cattle returning to North Dakota on October 17 and the
perform­ance period’s conclusion on October 25, the parties had
no contact. We also note that Fettig admitted to not attempting
to secure additional red-hided steers despite Kahl’s offer to
provide him with additional red steers.
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Cite as 27 Neb. App. 371We agree with the district court that Fettig never timely
notified Albrecht that he intended to appropriately cure the
breach as Fettig’s purported offer to cure would have actually
resulted in other breaches. Therefore, we affirm the district
court’s finding that Fettig failed to notify Albrecht of his inten-
tion to cure the nonconforming tender.
Albrecht’s Purported Repudiation.
Fettig’s final argument on appeal is that the district court
erred by failing to find that Albrecht repudiated the contract
prior to the time allowed for Fettig to perform his contractual
obligations. Specifically, Fettig argues that Albrecht repudi-
ated the contract because he “told . . . Fettig to take back
all the cattle — and not just bring some reds and take back
some blacks.” Brief for appellant at 35. The district court in
essence found that Albrecht did not repudiate the contract by
rejecting the entirety of the nonconforming delivery as was
his right under § 2-601 by finding that Fettig retained the
ability to cure the breach. The evidence supports the district
court’s finding. Although the parties did have some discus-
sion regarding a cure, the only action offered by Fettig was to
pick up some or all of the black steers. After Albrecht rejected
this offer and rejected the delivery, Fettig was still free to
attempt to fulfill the provisions of the contract. Instead, he
arranged for removal of all of the cattle and prepared a second
contract that provided for how the parties would accomplish
the return. His own testimony demonstrates no postrejection
efforts to meet the terms of the original contract. Thus, we
cannot say the district court erred by failing to conclude that
Albrecht repudiated the parties’ contract before the perform­
ance period concluded.
Albrecht’s Claim for
Prejudgment Interest.
We now turn to Albrecht’s cross-appeal. Albrecht alleges
that the district court erred in vacating its February 7, 2018,
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Cite as 27 Neb. App. 371order, which awarded prejudgment interest at a rate of 12
percent on the $6,000 damage award. During the hearing on
Fettig’s motion to alter or amend, the district court found that
there was no specific request in Albrecht’s complaint for pre-
judgment interest. The court found that the request found in
Albrecht’s complaint for “such other and further relief as the
Court deems just and equitable” did not sufficiently plead a
request for prejudgment interest in order for a recovery to be
made. The court noted its opinion that prejudgment interest is
not equitable in nature. Although our rationale varies some-
what from that utilized by the district court, we agree with the
court’s conclusion.
[8,9] Prejudgment interest may be awarded only as provided
in Neb. Rev. Stat. § 45-103.02 (Reissue 2010). Roskop Dairy
v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015).
Subsection (2) of § 45-103.02 provides that interest shall
accrue on the unpaid balance of liquidated claims from the
date the cause of action arose until the entry of judgment. A
claim is liquidated for purposes of prejudgment interest when
there is no reasonable controversy as to both the amount due
and the plaintiff’s right to recover. Roskop Dairy v. GEA Farm
Tech., supra. Interest shall be allowed at the rate of 12 per-
cent per annum on money due on any instrument in writing.
Neb. Rev. Stat. § 45-104 (Reissue 2010). For purposes of our
analysis, we assume without deciding that Albrecht’s claim
is liquidated.
Albrecht argues that his claim was liquidated and that his
request for “further relief as the Court deems just and equi-
table” was sufficient to put Fettig on notice that prejudgment
interest could be awarded. He urges us to adopt a rule that
prejudgment interest be ordinarily granted unless exceptional
or unusual circumstances make the award inequitable. See J.C.
Brager Co., Inc. v. Chesen, 999 F. Supp. 675 (D. Neb. 1998).
However, our review of the pertinent case law and rules of
pleading lead us to a different conclusion.
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Cite as 27 Neb. App. 371The most recent case in Nebraska to address this issue is
Life Investors Ins. Co. v. Citizens Nat. Bank, 223 Neb. 663,
392 N.W.2d 771 (1986). In that case, the Nebraska Supreme
Court held that if a party does not pray for prejudgment inter-
est, none can be provided. The basis for the Supreme Court’s
opinion was Neb. Rev. Stat. § 25-804 (Reissue 1985), which
was repealed in 2002. That statute provided in part that spe-
cial damages be stated in a petition “and if interest thereon
be claimed, the time from which interest is to be computed
shall also be stated.” We note that not only has § 25-804 been
repealed, but the decision made in Life Investors Ins. Co. pre-
dates the adoption of § 45-103.02(2). Therefore, we must ana-
lyze the interplay between § 45-103.02(2) with the court rule
which has replaced § 25-804.
In 2002, the Legislature repealed Neb. Rev. Stat. § 25-801through § 25-823 (Reissue 1995), which statutes related to
pleadings, and adopted Neb. Rev. Stat. § 25-801.01 (Reissue
2016), which empowered the Supreme Court to adopt rules
of pleading in civil actions “which are not in conflict with
the statutes governing such matters.” Pursuant to § 25-801.01,
the Supreme Court promulgated the Nebraska Court Rules of
Pleading in Civil Cases. Pertinent to this case is Neb. Ct. R.
Pldg. § 6-1108(a), which provides, in part, “If the recovery of
money be demanded, the amount of special damages shall be
stated . . . ; and if interest thereon be claimed, the time from
which interest is to be computed shall also be stated.” We note
that the language of the rule as it relates to interest is identical
to the language that previously existed in § 25-804. Therefore,
absent a distinguishing factor, it would appear that we would
be required to follow the holding of Life Investors Ins. Co.,
supra, and find that since Albrecht did not state a time from
which interest should be computed in his prayer for relief, his
request for prejudgment interest must fail.
This leads us back to our analysis of § 45-103.02(2),
which provides that prejudgment interest “shall accrue on the
unpaid balance of liquidated claims from the date the cause
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Cite as 27 Neb. App. 371of action arose until the entry of judgment.” (Emphasis sup-
plied.) This provision was adopted after Life Investors Ins.
Co. was decided but before the adoption of Neb. Ct. R. Pldg.
§ 6-1108(a). We recognize that a tension appears to exist
between the statute and the court rule, but we do not believe
that this tension is irreconcilable. Section 45-103.02(2) clearly
sets out the availability of prejudgment interest. However, the
court rule (adopted as part of the introduction of notice plead-
ing to Nebraska) is concerned with litigants having adequate
notice of the relief a plaintiff is seeking to obtain. Therefore,
although the rule does place a procedural condition on a plain-
tiff’s ability to recover prejudgment interest, it does not negate
a plaintiff’s ability to recover. Moreover, the rule secures a
defendant’s ability to have notice of the entire scope of the
relief requested and prepare defenses thereto. Therefore, for
the foregoing reasons, we affirm the decision of the district
court to deny prejudgment interest to Albrecht.
CONCLUSION
We therefore affirm the district court’s order awarding to
Albrecht a refund of his $6,000 deposit, incidental damages
amounting to the cost of caring for the cattle between delivery
and return, and court costs. We also affirm the district court’s
order denying prejudgment interest on the $6,000 judgment
for return of the deposit.
A ffirmed.