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Albrecht v. Fettig

Court of Appeals of Nebraska

July 16, 2019

Andrew Albrecht, appellee and cross-appellant.
Kevin Fettig, doing business as Fettig Cattle Company, appellant and cross-appellee.

         1. Contracts: Appeal and Error. The interpretation of a contract is a question of law, in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.

         2. Judgments: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

         3. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony.

         4. Prejudgment Interest: Appeal and Error. Whether prejudgment interest should be awarded is reviewed de novo on appeal.

         5. Uniform Commercial Code: Contracts. Under the Uniform Commercial Code, a buyer is given the right to reject the whole if the goods fail in any respect to conform to the contract.

         6.__:__ . An output contract is one in which the actual quantity of goods subject to the sale or purchase is indefinite. The quantity is determined by either the output of the seller or the requirements of the buyer.

         7.__:__. Nebraska's codification of the Uniform Commercial Code (particularly Neb. U.C.C. § 2-601 (Reissue 2001)) and Nebraska Supreme Court precedent make it clear that buyers may reject an entire delivery that in any way fails to conform to the contract.

         8. Prejudgment Interest: Appeal and Error. Prejudgment interest may be awarded only as provided in Neb. Rev. Stat. § 45-103.02 (Reissue 2016).

         [27 Neb.App. 372] 9. Prejudgment Interest: Claims. A claim is liquidated for purposes of prejudgment interest when there is no reasonable controversy as to both the amount due and the plaintiff's right to recover.

          Appeal from the District Court for Thurston County: John E. Samson, Judge.

          David A. Domina, of Domina Law Group, PC, L.L.O., and Stuart B. Mills for appellant.

          Wendy J. Ridder, of Law Offices of Daniel P. Bracht, P.C., L.L.O., for appellee.

          Pirtle, Arterburn, and Welch, Judges.



         Kevin Fettig appeals from an order of the district court for Thurston County that ordered him to return a $6, 000 deposit to Andrew Albrecht from an uncompleted cattle sale and awarded Albrecht incidental damages of $449.53, both of which carried a 3.61-percent postjudgment interest rate. The court initially ordered Fettig to pay prejudgment interest at a rate of 12 percent on the $6, 000 deposit but subsequently granted Fettig's motion to alter or amend, thereby ordering that no prejudgment interest was owed on the deposit. Albrecht cross-appeals from the order granting Fettig's motion to alter or amend. For the reasons that follow, we affirm the district court's award of damages to Albrecht totaling $6, 449.53 and the district court's amended order that eliminated the award of prejudgment interest on the $6, 000 award.


         Albrecht operates a cow-calf ranch in Thurston County, Nebraska, breeding and selling primarily Red Angus cattle. Although he performs some work individually, Albrecht also does some work through a business that involves his brother and father. That business holds an annual sale in April wherein it primarily sells Red Angus bulls. Albrecht's individual [27 Neb.App. 373] operation involves feeding cattle in his own feedlot and then selling them for slaughter. He prefers to feed primarily Red Angus cattle based on what he believes to be their superior performance and for the reason that prospective customers for the annual bull sale stop at his feedlots to view the cattle. He noted that buyers are more likely to bid at the annual bull sale when they have seen Red Angus cattle on the Albrecht family feedlots. Additionally, Albrecht is a member of the Red Angus Association.

         Albrecht attributed his preference for Red Angus cattle to the cattle's superior performance. In comparison to black-hided cattle, Albrecht's father described Red Angus cattle as being more docile and more heat tolerant during the summertime. Steers that tolerate heat better are less likely to unexpectedly die. Albrecht's brother also observed Red Angus steers' better heat tolerance and docile temperament, noting that they are less likely to run in their pens and kick up dust, which can cause illness. Albrecht's brother stated that he had paid more for red cattle than black cattle based on their coloration. He also noted that Red Angus steers can garner a higher price in the region due to years of ranchers' culling red-hided cattle from their herds, which led to their scarcity as compared to black-hided cattle.

         Fettig works as a rancher and cattle buyer, whereby he purchases cattle and resells them to buyers, including Albrecht. Albrecht bought cattle through Fettig when his normal cattle buyer was unavailable in May 2015. Although Albrecht wanted mostly red-hided steers, Fettig purchased mostly black-hided steers for Albrecht. Albrecht testified that Fettig apologized for "sending [him] the wrong color of cattle" following a prior transaction. Despite the cattle not meeting Albrecht's specifications, Albrecht told Fettig that he would accept that particular shipment of cattle but would reject any future deliveries of the wrong color of cattle.

         A few months later, in July 2015, Albrecht again retained Fettig to purchase cattle for him. Albrecht testified that they [27 Neb.App. 374] discussed Albrecht's desire to buy around 150 head of primarily red-hided cattle, and Fettig told Albrecht that there might be 5 head of black-hided cattle in the order. Fettig prepared a contract for the sale, which described that the cattle would be 80 percent red hided and 20 percent black hided. Fettig testified that he did not make statements indicating that there would be less than 20 percent black-hided cattle. However, Albrecht said that the contract varied from their initial conversation and that he called Fettig to discuss the description of cattle as 80 percent red hided and 20 percent black hided. According to Albrecht, Fettig said that he included the percentages only to "cover his bas[e]s" but that he nonetheless intended for there to be only a few black-hided steers in the delivery.

         The contract for the purchase of livestock is dated July 15, 2015, and signed by both parties. A number of terms are handwritten, including the quantity of steers, their description, and the price. Albrecht and Fettig both testified that all the handwritten terms on the contract were written by Fettig. The quantity is given as "APPROX 150 - HD," which both parties understood to mean approximately 150 head of cattle. Albrecht testified that he understood he could receive some deviation from 150 head of cattle, such as receiving 151 head of cattle. The contract describes the cattle to be delivered as "80% Red Angus cross [and] 20% Bl[ac]k Angus cross steers" at a base average weight of 780 pounds. The price is given as $235 per hundredweight. Additionally, a sliding price scale was provided whereby the price could be adjusted up to $0.15 per pound if the average weight of the steers was higher or lower than the 780-pound base weight stated in the contract. The contract memorialized a "country deal" according to the parties, which is signed with an understanding that delivery will occur at a date in the future. In this case, as in many such deals, the buyer did not view the cattle prior to signing the contract. Here, the contract specified a delivery window of between October 10 and 25, 2015. As part of the negotiation, [27 Neb.App. 375] Fettig informed ...

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