Berg v. MIDWEST LAUNDRY EQUIPMENT CORPORATION , 175 Neb. 874 ( 1963 )

124 N.W.2d 699 (1963) 175 Neb. 874

Maurice BERG and June Berg, husband and wife, Appellants and Cross-Appellees,
v.
MIDWEST LAUNDRY EQUIPMENT CORPORATION, a corporation, Appellee and Cross-Appellee, and
Industrial Credit Company, a corporation, Appellee and Cross-Appellant.

No. 35409.

Supreme Court of Nebraska.

November 22, 1963.

Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellants.

Young, Denenberg & Mullery, Omaha, Perry & Perry, James V. Risser, Lincoln, for appellees.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

BOSLAUGH, Justice.

The appellee, Midwest Laundry Equipment Corp., has filed a motion for rehearing in which it contends that the appellants are not entitled to recover the amounts paid to it upon the contract for the purchase of the laundry equipment even though the contract is void. This question was not raised in the briefs or argument in this court until the motion for rehearing was filed.

Upon further consideration of the matter, we are now of the opinion that the cause should be remanded to the district court with directions to determine the amount of the payments made by the appellants to the Midwest Laundry Equipment Corp. and whether the appellants should recover this amount from the Midwest Laundry Equipment Corp. in view of our determination concerning the validity of that contract.

Our opinion in this case filed on June 14, 1963, 175 Neb. 423, 122 N.W.2d 250, is modified accordingly. The motion for rehearing is overruled.

Original opinion modified.

Motion for rehearing overruled.