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McCaulley v. Nebraska Furniture Mart, Inc.

Court of Appeals of Nebraska

August 13, 2013

Richard McCaulley and Michelle McCaulley, husband and wife, Appellants,
v.
Nebraska Furniture Mart, Inc., a Nebraska Corporation, Appellee.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Reversed and remanded for further proceedings.

Jason R. Fendrick, John G. Liakos, and Michael J. Matukewicz, of Liakos & Matukewicz, L.L.P., for appellants.

Brian T. McKernan, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

1. Uniform Commercial Code: Contracts: Sales. Neb. U.C.C. § 2-201 (Reissue 2001) provides that a contract for the sale of goods for the price of $500 or more is not enforceable unless there is a writing sufficient to indicate that a contract for sale has been made between the parties.

2. Uniform Commercial Code: Contracts. Under the Uniform Commercial Code, a writing is not insufficient because it incorrectly states a term agreed upon.

3. Uniform Commercial Code: Contracts. Neb. U.C.C. § 2-207(1) (Reissue 2001) provides that a written confirmation sent within a reasonable time after oral negotiations operates as an acceptance even though it states terms additional to those agreed upon, unless acceptance is expressly made conditional on assent to the additional terms.

4. Uniform Commercial Code: Contracts. Neb. U.C.C. § 2-207(2) (Reissue 2001) provides that when the contract being entered into is not between two merchants, the additional terms are to be construed as proposals for addition to the contract.

5. Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute.

6. Statutes: Appeal and Error. In construing statutory language, an appellate court attempts to give effect to all parts of a statute and avoid rejecting as superfluous or meaningless any word, clause, or sentence.

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7. Statutes. It is not within the province of a court to read anything plain, direct, and unambiguous out of a statute.

8. Uniform Commercial Code: Contracts: Notice. Neb. U.C.C. § 2-207(2) (Reissue 2001) specifically indicates that between merchants, proposed additional terms become part of the contract unless notification of objection to them is given within a reasonable time after notice of them is received.

9. Waiver. When a judicial admission is invoked, the language constitutes a waiver of all controversy and renders indisputable the facts admitted, constituting a limitation of the issues.

10. Pleadings: Waiver. An admission made in a pleading on which the trial is had is more than an ordinary admission and is a judicial admission, constituting a waiver of all controversy so far as the adverse party takes advantage of it, limiting the issues.

11. Contracts: Rescission. Rescission of a contract means to abrogate, annul, avoid, or cancel it and may be effected by one of the parties declaring rescission without the consent of the other if a legally sufficient ground therefor exists.

12. Contracts: Rescission. In determining whether a rescission took place, courts look not only to the language of the parties, but to all of the circumstances.

[21 Neb.App. 126] 13. Accord and Satisfaction: Words and Phrases. An accord and satisfaction is an agreement to discharge an existing indebtedness by rendering some performance different from that which was claimed due.

14. Accord and Satisfaction. To constitute an accord and satisfaction, there must be (1) a bona fide dispute between the parties, (2) substitute performance tendered in full satisfaction of the claim, and (3) acceptance of the tendered performance.

15. Accord and Satisfaction. The principle questions in determining whether a discharge by accord and satisfaction has taken place include whether the parties in fact agreed that the performance rendered should operate as a final discharge and satisfaction and whether that performance constitutes a sufficient consideration for a return promise or for a discharge.

16. Accord and Satisfaction. The question of whether a payment rendered by the obligor, and later asserted to be in satisfaction, was so tendered to the claimant that he knew or should have known that it was tendered in full satisfaction is a question of fact.

Irwin, Judge.

I. INTRODUCTION

The primary dispute in this case is whether a pricing error clause became an effective part of a contract to purchase furniture entered into between Richard McCaulley and Michelle McCaulley, husband and wife, and Nebraska Furniture Mart, Inc. (NFM). There is no dispute that the parties orally agreed on terms of the contract, and there is no dispute that the pricing error clause was never discussed by the parties. There is no dispute that the pricing error clause was included in every written confirmation sent to the McCaulleys by NFM. After considering the possible ways in which the McCaulleys

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could be held to have agreed to the pricing error clause's inclusion in the contract, we conclude that the McCaulleys never assented [21 Neb.App. 127] to the clause's inclusion in the contract and that the district court erred in finding otherwise.

II. BACKGROUND

The McCaulleys appeal an order of the district court for Douglas County, Nebraska, finding in favor of NFM in this breach of contract action. On appeal, the McCaulleys challenge the district court's finding that their contract with NFM included a pricing error clause, that the clause was not ambiguous, that the clause applied to the facts of the present case, and that judgment in favor of NFM was appropriate. We find that the district court erred in finding ...


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