LeRoy Weyant & Sons, Inc. v. Harvey

321 N.W.2d 429, 212 Neb. 65, 1982 Neb. LEXIS 1163

• Court: Nebraska Supreme Court
• Decided: July 2, 1982
• Docket: 44171, 44172
• Status: Published

Opinions

Per Curiam.

These cases, which were consolidated for trial in the District Court and for briefing and argument in this court, were suits on contracts involving advertising in bowling establishments. The plaintiff, LeRoy Weyant & Sons, Inc., contracts with bowling alleys to furnish equipment and supplies in return for the right to sell advertising displays at the alley.

Case No. 44171 was an action against Howard R. Harvey, doing business as the Orange Bowl. One contract provided the plaintiff would furnish a “Maxie Display Unit” to the defendant in return for the plaintiff’s right to sell advertising for a 6-year period. The contract was dated May 23, 1978, but no advertising was to be sold until August 1979.

A second contract provided the plaintiff would furnish a “Promo Bowling Promotional Display Unit” to the defendant and pay the defendant 10 percent of the advertising sold the first year. In return the defendant agreed to install the unit and display the advertising furnished by the plaintiff for a period of 3 years.

A third contract provided the plaintiff would furnish transparent plastic score projector sheets to the defendant, which the defendant agreed to use for a period of 3 years.

The plaintiff also agreed to pay the defendant’s dues to the National Bowling Proprietors Association and furnish “money envelopes and captain sheets.”

In June or July of 1979 the defendant refused to permit the plaintiff to proceed under the contracts, claiming that the plaintiff had breached the contracts. The plaintiff then commenced an action to recover its damages for the alleged breach of contract.

Case No. 44172 involves a set of similar contracts with Classic Lanes of Gering, Inc. When the defendant in that case refused to proceed with the contracts, the plaintiff commenced an action for breach of contract against Classic Lanes.

The evidence was in conflict and presented questions of credibility for the trier of fact. The trial court found generally for the plaintiff and against both defendants. The plaintiff recovered a judgment in the amount of $21,224.40 against the defendant Harvey, and a judgment in the amount of $19,666.40 against Classic Lanes. Both defendants have appealed. The plaintiff has cross-appealed.

As we view the record, the principal issue on appeal relates to the amount of damages awarded to the plaintiff. LeRoy James Weyant, Jr., the owner of the plaintiff, testified in detail as to how he computed the damages. He testified as to the revenue from advertising sold, costs and expenses paid, and expenses which would be saved since the contracts would not be performed. His testimony, however, omitted an important item of cost or expense to the plaintiff.

Weyant testified that the advertising was sold by independent contractors. Richard R. Dawes, an independent contractor and sales representative for the plaintiff, testified that he was paid a percentage of the sales. The record does not disclose the amount of the commission which was paid to the sales representative by the plaintiff. It is obvious that this would be an important item of expense which would be saved if the contracts were not performed.

Damages are recoverable for losses caused by breach of contract only to the extent that the evidence affords a sufficient basis of ascertaining their amount in money with reasonable certainty. Ridenour v. Kuker, 185 Neb. 321, 175 N.W.2d 287 (1970).

The plaintiff has the burden to prove the amount of damages with as much certainty as the case permits. Tyler v. Olson Bros. Mfg. Co., Inc., 201 Neb. 79, 266 N.W.2d 216 (1978). Here an important element in the computation of lost profits was omitted from the evidence.

In the Ridenour case we concluded that the evidence in two of the cases established the right of the plaintiffs to recover damages, but would not sustain the verdicts for the amount of damages awarded. In those cases the judgments were reversed and the causes remanded for a new trial on the issue of damages only.

We conclude that the judgments should be reversed and the causes remanded for a new trial on the issue of damages. It is unnecessary to consider the issues raised by the cross-appeal.

Reversed and remanded for a new trial.