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Walker v. Probandt

Court of Appeals of Nebraska

September 12, 2017

Dennis Walker et al., appellants and cross-appellees,
v.
john probandt, appellee, and john pvaynor, appellee and cross-appellant.

         1. Default Judgments: Pleadings: Appeal and Error. Whether default judgment should be entered because of a party's failure to timely respond to a petition rests within the discretion of the trial court, and an abuse of discretion must affirmatively appear to justify reversal on such a ground.

         2. Default Judgments. A trial court should defer entering a default judgment against one of multiple defendants where doing so could result in inconsistent and illogical judgments following determination on the merits as to the defendants not in default.

         3. Default Judgments: Pleadings: Damages. In the case of an original action filed in the district court, the failure of a defendant to file a responsive pleading entitles the plaintiff to a default judgment, without evidence in support of the allegations of the petition, except as to allegations of value or damages.

         4. Negotiable Instruments: Principal and Surety. If an instrument is issued for value given for the benefit of a party to the instrument (accommodated party) and another party to the instrument (accommodation party) signs the instrument for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument, the instrument is signed by the accommodation party for accommodation.

         5. Negotiable Instruments: Principal and Surety: Words and Phrases. An accommodation party is one who signs the instrument for the purpose of lending his credit to some other person or party.

         6. Promissory Notes: Guaranty. The assignment of a promissory note and its guaranties to a guarantor does not enhance the guarantor's right of [25 Neb.App. 31] recovery against a coguarantor; rather, recovery against a coguarantor remains limited to the coguarantor's proportionate share.

         7. Negotiable Instruments: Intent. In determining the identity of the party accommodated, the intention of the parties is determinative.

         8. Actions: Contribution: Time: Liability. Co-obligors to a debt are each liable for a proportionate share of the debt as a whole, and an action for contribution does not accrue until a co-obligor has paid more than his or her proportionate share of the debt as a whole.

         9. Negotiable Instruments: Security Interests: Contribution: Liability. If the obligation of a party is secured by an interest in collateral not provided by an accommodation party and a person entitled to enforce the instrument impairs the value of the interest in collateral, the obligation of any party who is jointly and severally liable with respect to the secured obligation is discharged to the extent the impairment causes the party asserting discharge to pay more than that party would have been obliged to pay, taking into account rights of contribution, if impairment had not occurred.

         10. Security Interests. Impairing value of an interest in collateral includes failure to obtain or maintain perfection or recordation of the interest in collateral.

         11. Principal and Surety: Words and Phrases. Rights of the surety to discharge are commonly referred to as "suretyship defenses."

         12. Contracts: Guaranty: Waiver. The defense that a guarantor is discharged by a creditor's impairment of collateral can be waived by an express provision in the guaranty agreement.

         13. Reformation: Words and Phrases. A mutual mistake is a belief shared by the parties, which is not in accord with the facts.

         14. __: __. A mutual mistake is a mistake common to both parties in reference to the instrument to be reformed, each party laboring under the same misconception about its instrument.

         15. Reformation: Intent. A mutual mistake exists where there has been a meeting of the minds of the parties and an agreement actually entered into, but the agreement in its written form does not express what was really intended by the parties.

         16. Reformation: Presumptions: Intent: Evidence. To overcome the presumption that an agreement correctly expresses the parties' intent and therefore should not be reformed, the party seeking reformation must offer clear, convincing, and satisfactory evidence.

         17. Evidence: Words and Phrases. Clear and convincing evidence means that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.

         18. Uniform Commercial Code: Negotiable Instruments: Words and Phrases. A holder in due course means the holder takes an instrument [25 Neb.App. 32] (1) for value, (2) in good faith, (3) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (4) without notice that the instrument contains an unauthorized signature or has been altered, (5) without notice of any claim to the instrument described in Neb. U.C.C. § 3-306 (Reissue 2001), and (6) without notice that any party has a defense or claim in recoupment described in Neb. U.C.C. § 3-305(a) (Reissue 2001).

         19. Contracts: Negotiable Instruments. Unless one has the rights of a holder in due course, he is subject to all the defenses of any party which would be available in an action on a simple contract.

         20. 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 he would have occupied if the contract had been performed, that is, to make the injured party whole.

         21. Damages. As a general rule, a party may not have double recovery for a single injury, or be made "more than whole" by compensation which exceeds the actual damages sustained.

         22. Actions: Accord and Satisfaction. Where several claims are asserted against several parties for redress of the same injury, only one satisfaction can be had.

         23. Accord and Satisfaction: Damages. Where the plaintiff has received satisfaction from a settlement with one defendant for injury and damages alleged in the action, any damages for which a remaining defendant would be potentially liable must be reduced pro tanto.

         24. Actions: Parties. Every action must be prosecuted in the name of the real party in interest.

         25. Actions: Parties: Standing. To determine whether a party is a real party in interest, the focus of the inquiry is whether that party has standing to sue due to some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.

         26. Assignments: Words and Phrases. As a general rule, an assignment is a transfer vesting in the assignee all of the assignor's rights in property which is the subject of the assignment.

         27. Assignments. The assignee of a thing in action may maintain an action thereon in the assignee's own name and behalf, without the name of the assignor.

         28. Assignments: Consideration. An assignee may recover the full value of an assigned claim regardless of the consideration paid for the assignment.

         29. Pleadings: Evidence. Admissions made in superseded pleadings are no longer judicial admissions, but, rather, simple admissions.

         [25 Neb.App. 33] 30. Contracts: Consideration. Generally, there is sufficient consideration for a promise if there is any benefit to the promisor or any detriment to the promisee. What that benefit and detriment must be or how valuable it must be varies from case to case. It is clear, however, that even "a peppercorn" may be sufficient.

         31. __: __.A benefit need not necessarily accrue to the promisor if a detriment to the promisee is present, and there is a consideration if the promisee does anything legal which he is not bound to do or refrains from doing anything which he has a right to do, whether or not there is any actual loss or detriment to him or actual benefit to the promisor.

         32. __: __. For the purpose of determining consideration for a promise, the benefit need not be to the party contracting, but may be to anyone else at the contracting party's procurement or request.

         Appeal from the District Court for Dawson County: James E. Doyle IV, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Diana J. Vogt and James D. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellants.

          Patrick M. Heng, of Waite, McWha & Heng, for appellee John Raynor.

          Moore, Chief Judge, and Inbody ...


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