Andrew Albrecht, appellee and cross-appellant.
Kevin Fettig, doing business as Fettig Cattle Company, appellant and cross-appellee.
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.
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.
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
Prejudgment Interest: Appeal and Error.
Whether prejudgment interest should be awarded is reviewed de
novo on appeal.
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.
. 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.
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.
Prejudgment Interest: Appeal and Error.
Prejudgment interest may be awarded only as provided in Neb.
Rev. Stat. § 45-103.02 (Reissue 2016).
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
from the District Court for Thurston County: John E. Samson,
A. Domina, of Domina Law Group, PC, L.L.O., and Stuart B.
Mills for appellant.
J. Ridder, of Law Offices of Daniel P. Bracht, P.C., L.L.O.,
Pirtle, Arterburn, and Welch, Judges.
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.
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.
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
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.
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
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