Annotations

• 1. Construction

• 2. Reformation

• 1. Construction

• The intention of the parties to an accord and satisfaction is a question of law where the written contract is couched in clear and unambiguous terms and where the evidence creates no conflict as to intention. Meyers v. Frohm Holdings, Inc., 211 Neb. 329, 318 N.W.2d 716 (1982).

• In determining the meaning of a written contract, where it is in doubt and dispute, the court will consider all facts and circumstances leading up to and attending its execution, and consider the relation of the parties, the nature and situation of the subject matter, and the apparent purpose of making the contract. Younker Brothers, Inc. v. Westroads, Inc., 196 Neb. 168, 241 N.W.2d 679 (1976).

• The meaning of an ambiguity in a contract is a matter of fact to be determined as other questions of fact and summary judgment is precluded. Grantham v. General Tel. Co., 191 Neb. 21, 213 N.W.2d 439 (1973).

• Contract for treatment of house for termites was not subject to construction under this section. Hansen v. E. L. Bruce Co., 162 Neb. 759, 77 N.W.2d 458 (1956).

• Where one party uses language to which it attaches a certain meaning, and that meaning is made known to the other party and no objection is made thereto, the language will be construed according to the meaning of the party using it. Platte Valley Bank v. Lemke, 141 Neb. 218, 3 N.W.2d 396 (1942).

• An agreement that is vague and ambiguous in its terms may be explained by other evidence. Jensen v. Romigh, 133 Neb. 71, 274 N.W. 199 (1937).

• When terms of an agreement have been intended in a different sense by the parties to it, that sense will prevail against either party in which he had reason to suppose the other understood it. Elvidge v. Brant, 131 Neb. 1, 267 N.W. 169 (1936); Eagle Indemnity Co. v. Village of Creston, 129 Neb. 850, 263 N.W. 220 (1935).

• Evidence of oral agreement is inadmissible where written contract is certain. Smith v. Bailey, 105 Neb. 754, 181 N.W. 926 (1921).

• Technical terms should be given nontechnical meaning where one party has reason to suppose other party so understood them. Richey v. Omaha & Lincoln Ry. & Light Co., 100 Neb. 847, 161 N.W. 575 (1917).

• Construction of terms of insurance as to word "dwelling," was adopted in accordance with sense that insurer had reason to believe insured understood it. Hamilton v. North American Accident Ins. Co., 99 Neb. 579, 157 N.W. 111 (1916).

• Contract prepared by one party should be given construction that party preparing it supposed other would give it. Flory v. Supreme Tribe of Ben Hur, 98 Neb. 160, 152 N.W. 295 (1915).

• Section was applied to a land contract where parties intended a different meaning. Edmiston v. Hupp, 98 Neb. 84, 152 N.W. 296 (1915).

• When agreement between the parties is indefinite and uncertain and intended in a different sense by the parties, it should be construed in the sense plaintiff had reason to suppose defendant understood it to have. Campbell v. Hobbs, 97 Neb. 833, 151 N.W. 929 (1915).

• Applied in action for purchase price of land where contract was based on letters. Pottratz v. Piper, 95 Neb. 145, 145 N.W. 265 (1914).

• Section applied to stipulation for settlement of controversy. Southern Realty Co. v. Hannon, 89 Neb. 802, 132 N.W. 533 (1911).

• Principal is bound by statements of agent as to meaning of terms inducing contract. Fairbanks, Morse & Co. v. Burgert, 88 Neb. 376, 129 N.W. 557 (1911).

• Agreement is legal if other party did not understand there was agreement not to prosecute. Griffin v. Chriswisser, 84 Neb. 196, 120 N.W. 909 (1909).

• Assignment fell within provisions of this section. Barnes v. Sim, 80 Neb. 213, 117 N.W. 881 (1908).

• Where bank president gave customer personal note in lieu of obligation of bank on certificate of deposit, bank was bound by understanding of customer that document was liability of bank. Patterson v. First National Bank of Humboldt, 78 Neb. 228, 110 N.W. 721 (1907).

• Guaranty construed to cover any amount that person guaranteed failed to pay to the extent of specified amount. Standard Oil Co. v. Hoese, 57 Neb. 665, 78 N.W. 292 (1899).

• Oral evidence to vary or control written agreement is inadmissible, in absence of fraud, ambiguity, or mistake. State Bank of Ceresco v. Belk, 56 Neb. 710, 77 N.W. 58 (1898); Sylvester v. Carpenter Paper Co., 55 Neb. 621, 75 N.W. 1092 (1898).

• Terms of health certificate, in application for insurance, construed against insurer. American Order of Prot. v. Stanley, 5 Neb. Unof. 132, 97 N.W. 467 (1903).

• Must be construed as party or agent understood it when he signed. People's B., L. & S. Assn. v. Klauber, 1 Neb. Unof. 676, 95 N.W. 1072 (1901).

• 2. Reformation

• Section was applied in case where automobile liability insurance policy was reformed to conform to original contract that it should be issued to cover plaintiff's son as driver. Davis v. Highway Motor Underwriters, 120 Neb. 734, 235 N.W. 325 (1931).

• In action for deficiency judgment, grantee, under deed in which he "assumes" mortgage, may show by parol that understanding was he was not to be personally liable. Durland Trust Co. v. Payne, 106 Neb. 135, 182 N.W. 1016 (1921).

• Reformation may be had in equity to express agreement as understood. Blair v. Kingman Imp. Co., 82 Neb. 344, 117 N.W. 773 (1908).