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Gary's Implement v. Bridgeport Tractor

April 1, 2011

GARY'S IMPLEMENT, INC., APPELLANT AND CROSS-APPELLEE,
v.
BRIDGEPORT TRACTOR PARTS, INC., FORMERLY KNOWN AS GARY'S TRACTOR PARTS, INC., APPELLEE AND CROSS-APPELLANT.



appeal from the District Court for Morrill County: leo dobrovolNy, Judge. affirmed.

The opinion of the court was delivered by: mccormack, J.

1. Jury Instructions: Appeal and Error.

Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

2. Expert Witnesses: Testimony:

Appeal and Error. an appellate court reviews for abuse of discretion a trial court's decision whether to admit or exclude an expert's testimony under the appropriate standards.

3. Judges:

Words and Phrases.a judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. Restitution.

restitution is not a mere right. It is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it.

5. Breach of Contract: Damages.

In a breach of contract case, the ultimate objective of a damages award is to put the injured party in the same position the injured party would have occupied if the contract had been performed, that is, to make the injured party whole.

6. ____: ____.

one injured by a breach of contract is entitled to recover all its damages, including the gains prevented as well as the losses sustained, provided the damages are reasonably certain and such as might be expected to follow the breach.

7. Damages: Proof.

While damages need not be proved with mathematical certainty, neither can they be established by evidence which is speculative and conjectural.

8. Jury Instructions:

Appeal and Error. Jury instructions do not constitute prejudicial error if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence.

9. Jury Instructions.

the instructions contained in the nebraska Jury Instructions are designed to be used when they reflect the law and the pleadings and the evidence call for such an instruction.

10. Contracts: Damages.

the measure of damages in an action for the breach of an agreement by the seller not to reenter business in competition with the buyer is usually difficult of exact computation; however, an injured party will not be precluded from recovering because of that fact.

11. Expert Witnesses.

expert testimony should not be received if it appears that the witness is not in possession of such facts as will enable the expert to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be true, the opinion lacks probative value. the opinion must have a sufficient factual basis so that the opinion is not mere conjecture or guess.

12. Expert Witnesses: Proof: Juries.

When an assumption used by an expert is not proved untrue or to be without any basis in fact, whether the stated grounds for the assumption are credible is a jury question.

13. Expert Witnesses: Appeal and Error.

an appellate court is not a superexpert and will not lay down categorically which factors and principles an expert may or may not consider. such matters go to the weight and credibility of the opinion itself and not to its admissibility.

14. Restitution.

the right of restitution may be enforced by proceedings in the lower court in the same cause, or by an ...


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