Kracl v. Loseke

Fahrnbruch, J.,

concurring in the result.

I agree not only with the result reached in the majority opinion, but also with the holding that in an equitable action for rescission of the sale of the property, a purchaser seeking the rescission is liable for the fair rental value of the property during the purchaser’s possession. I would, however, require the vendor not only to plead, but also to assume the burden of proving, the fair rental value of the property while it was in the purchaser’s possession.

Nebraska adheres to the doctrine of code pleading. Linder that doctrine, the purpose of pleadings is to frame issues upon which a cause is to be tried, and issues in a given case are limited to those which are pleaded. Circle 76 Fertilizer v. Nelsen, 219 Neb. 661, 365 N.W.2d 460 (1985). One of the purposes of a pleading is to advise an adversary as to what issue the adversary must meet. Bashus v. Turner, 218 Neb. 17, 352 N.W.2d 161 (1984).

If the vendor in an equitable action for rescission fails to either plead or prove the fair rental value of the property during the purchaser’s possession, the issue of fair rental value should not be considered by the court.

White and Grant, J J., join in this concurrence.